Orders, Insubordination, Grievances and Protection

Today’s burning question: Are there any cases that address a supervisor giving an “order” that contradicts benefits/privileges secured in a collective bargaining agreement? I mean, can a supervisor give a subordinate an order that violates the collective bargaining agreement? I have been searching everywhere for such a case but cannot find one.

Answer: I’m not sure where you have been searching, but I think the problem is you assume such cases are rare when in reality they are not: orders that potentially violate a CBA occur virtually every day in virtually every fire department with a CBA.

When a shift commander orders FF A to work overtime, and according to the CBA, FF B should be ordered to work the overtime, FF A is being ordered to violate the CBA. When a fire chief promotes FF C to Lieutenant and according to the CBA the promotion should have gone to FF D, the chief is ordering FF C to violate the CBA.

The employee’s obligation is to follow the lawful orders of the ranking officer/supervisor. Any breach of the CBA can be grieved afterwards and the resolution (if and when it is determined that there was in fact a breach) can be addressed through the process prescribed in the CBA. Pointing out the conflict to the supervisor is certainly permissible provided it can be done in a respectful, professional, non-confrontational manner.

Self-help in terms of the employee being insubordinate/refusing to comply with the supervisor’s orders is risky and unwise for two important reasons. First, the point in question may be disputed and/or ambiguous. It may require lawyers, arbitrators and even judges to interpret the contract language, and even then – it is not uncommon for such “experts” to disagree even after a final decision is rendered. As such, neither a firefighter nor a supervisor are in a good position to evaluate whether an order violates the CBA.

Second, an employee who has a vested interest in not following the order, is not in the best position to objectively determine what the CBA requires. The best advice: follow the order and grieve it later.

The harder question is what happens when the supervisor gives an order that is illegal (not just a violation of the CBA… but truly illegal in the sense that it would violate a law).  An employee does not have to follow an illegal order… but the employee must be correct in order to avoid insubordination charges. If FF E is given an order she believes to be illegal and refuses to comply, she can be disciplined for insubordination if she is mistaken about the order being illegal. Good faith and sincerity may mitigate the penalty, but does not excuse the insubordination.

An exception can arise under some whistleblower protection laws. Whistleblower protection laws, to the extent they apply to a given situation, can offer protection against mistaken but good faith acts taken to report illegal conduct and may extend to refusal to follow an illegal order. OSHA’s whistleblower protection extends to employees who voice concerns about workplace safety from any retaliation.

Here is more on the OSHA protections.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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