|
|
|
OFFICE OF THE UMPIRE No. A-28 MARCH 5, 1941
Claim for Plant-Wide Seniority Claim of Discrimination
GRIEVANCE: (Chevrolet Toledo—Cases Nos. 1 and 2) "Due to the fact that there has been changes in products, methods and policies in Toledo-Chevrolet plant, I am about to be permanently laid off, therefore I claim I should be given plant-wide seniority according to the Agreement between the Corporation and the Union." At the second step of the Grievance Procedure the claim of each employee was extended to include a charge of discrimination. SUMMARY Two employees’ seniority was restored under Clause 9-e (SENIORITY). They were not recalled to work and on October 11, 1938, they again lost their seniority due to the fact that they had not been employed for a period of twenty-four months. The Union claimed that they were entitled to plant-wide seniority due to the fact that additional work, which was a change in product, had been taken into the plant and that the failure to recall them represented discrimination in respect to tenure of employment prohibited under Paragraph (3-a) (RECOGNITION).
The UMPIRE ruled that:
The verbatim decision of the UMPIRE is as follows: In the Matter of: United Automobile Workers of America—C.I.O. and General Motors Corporation, Chevrolet-Toledo Division, Case Nos. 1 and 2. The grievances considered by this decision have been joined because of a marked similarity in the facts and in the principles involved. As initially filed on Sept. 13, 1940, the grievance in Case No. 1 reads:
The grievance filed on Sept. 13, 1940 for Case No. 2 reads virtually the same. At the second step of the grievance procedure the claim of each employee was extended to include a charge of discrimination. This is recorded in the Statement of Unadjusted Grievance as of Oct. 24, 1940. A hearing of this case was conducted at Toledo on Feb. 12, 1941.
Facts of the Case Each of the employees had a seniority date of Nov. 4, 1931. One was listed in the Production Group, the other in the Material Handling Group. Early in 1938, there was a lay-off due to lack of work. Although the two men involved in the present case had less seniority than others who were laid off, they were kept at work because of their preferential status as Shop Committeemen. In October 1938, the two men were not reelected as Shop Committeemen. Their names were accordingly removed from the preferential list and their seniority dates of Nov. 4, 1931 determined their right to work. They were properly laid off on Oct. 11, 1938 with seniority rights in their respective groups which was in accordance with the local seniority agreement. These men were not employed at this plant during the next twelve months and their seniority was broken on Oct. 11, 1939 in compliance with the terms of the Agreement then in effect. The present Agreement, signed on June 24, 1940, provides in Clause 9-e of the Seniority Section that seniority shall be broken if a man "is laid off for twenty-four (24) consecutive months. This provision shall be effective for all employees laid off since July 1, 1938." This clause applied to the two men in question. Their seniority was restored but would again be broken if they were continuously unemployed until Oct. 11, 1940. On Sept. 13, 1940, the present grievances were filed in anticipation of another possible break in seniority. The men claimed they were entitled to plant-wide seniority under Clause 4 of the Seniority Section which provides: "... When changes in methods, products or policies would otherwise require the permanent laying off of employees, the seniority of the displaced employees shall become plant-wide and they shall be transferred out of the group in line with their seniority, to work they are capable of doing, as comparable to the work they have been doing as may be available, at the rate for the job to which they have been transferred." The Union contended that these men were, on Sept. 13, soon to be permanently laid off because of a change in product and that they should, therefore, be given plant-wide seniority. The "change in product", it was argued, occurred when management started to produce a transfer case, never previously manufactured at this plant. The Union stated that the two men would have been returned to work, before their continuous lay-off totaled 24 consecutive months, were it not for the fact that management could not get the production problems solved on the transfer case job. They were, the Union claimed, about to lose their jobs because of a change in product. Management contended that the two men had not been reemployed simply because there was no work for them and denied their claim to plant-wide seniority. It was pointed out that the "change of product" referred to by the Union was really the addition of new work, the transfer case and army truck parts, which provided more and not less employment opportunities. The management further maintained that the addition of this new work is definitely not a change of product such as is contemplated by Clause 4 of the Seniority Section. Before this claim of the two men for plant-wide seniority had been considered at the various steps of the Grievance Procedure, they were permanently laid off by management and their seniority broken as of Oct. 11, 1940. Cognizance of this new circumstance was taken at the second step of the Grievance Procedure and the Union added to the Notice of Unadjusted Grievance a claim that these men were discriminated against because of their Union activity. In support of this contention, the Union claimed that (1) Management had clearly indicated to the Committee that these men would not be brought back to work under any circumstances, (2) that no men were being hired, despite the working of overtime, with the deliberate intention of allowing the seniority of these two men to lapse, (3) the men who were not called back immediately after the summer lay-off "knew" they would not get work until after the seniority of these two men were broken. The two men, it is said, suggested at a Union meeting that they would waive their seniority rights in order to help get the others back to work, (4) shortly after the seniority dates of these men were broken, all others with seniority status were recalled to work as well as many former employees who lacked seniority. At the second and third steps of the Grievance Procedure, plant management and Corporation representatives found no evidence of discrimination and held that the lay-off of the men was strictly in accord with the local seniority agreement and the national agreement. It was held that a granting of the request for plant-wide seniority would have represented a violation of these agreements. Union Contention The Union contends in the first place that the two men were entitled to plant-wide seniority as of the date of the original grievance, Sept. 13, 1940 since they were about to lose their jobs permanently because of a change of product. In the second place, it is claimed that these men’s seniority was not broken in a normal way but as a result of management’s design which was so flagrant as to constitute Union discrimination. The Union seeks redress for the alleged discrimination. Corporation Position The Corporation maintains that the men were not entitled to plant-wide seniority under the original grievance because their continued lay-off was not caused by any change of product within the meaning of Clause 4 of the Seniority Section. It is pointed out, moreover, that the plant has long operated on a group seniority arrangement and the giving of plant-wide seniority to the two men in question would violate this understanding. Management contends that it has complied with the only pertinent provisions of the Agreement when it restored the seniority of these men on June 24, 1940 and removed their names from the seniority list on Oct. 11, 1940 in compliance with Clause 9-e of the Seniority Section. The Corporation disclaims the discrimination charge advanced by the Union, stating that the men’s seniority was broken simply because there was no work for them and that it is under no obligation to employ men whose services are not needed just to prevent a break in their seniority. Respecting the Union claim that there was an unwarranted lapse in new hirings until the seniority of the two men was broken, management pointed out that men in each group with greater seniority had not been called to work by Oct. 11, 1940. There cannot be, it is claimed, any valid charge of discrimination against the two men under such circumstances. There simply was no work to which they could be called, it is contended.
Analysis by Umpire and Decision Two claims have been made by the Union, and they are so different in nature that they must be considered separately. Claim for Plant-Wide Seniority As of Sept. 13, 1940, the Union claimed that the new work brought into the plant represented a change of product, and that delays in getting the changed product into regular operation was responsible for the permanent lay-off of two men. It is claimed by the Union, that, under Clause 4 of the Seniority Section, the men were entitled to plant-wide seniority. This claim has no merit whatsoever. The local seniority arrangement is on a group basis. The Clause 4 in question ordinarily becomes effective when a job being performed by an employed man becomes obsolete, and it certainly has no bearing in this situation. The Union claim for plant-wide seniority for these men cannot be recognized as valid. Discrimination The Union also claims that the break of seniority was caused by discrimination of the management against these men rather than by lack of work for them. This claim is made under Clause 3-a of the Recognition Section which provides that "The Corporation will not interfere with, restrain or coerce employees because of membership or lawful activity in the Union, nor will it by discrimination in respect to hire, tenure of employment or any term or condition of employment, attempt to discourage membership in the Union." By the specified terms of Clause 19 of the Grievance Procedure Section this claim of the Union is subject to the jurisdiction of the Umpire. In supporting its claim of discrimination, the Union submitted, in a general way, the testimony that has been summarized previously. As announced at the hearing of this case, the Umpire determined that such testimony could only be evaluated by reference to the plant records. The results of the investigation that was made by the Umpire’s office has been used in arriving at the conclusions in this case. It is apparent from company records that the recall after the 1940 lay-off was virtually completed during the week ending August 16 when only twenty-seven employees having seniority remained unassigned to jobs. Twenty of these men were in the Production Group and two were in the Material Handling Group. For five weeks beginning with September 30, 1940, eight hours of Saturday overtime was worked by a substantial number of employees in the two departments. There were no further recalls from either of these two groups, however, until October 8 when eight employees from the Production Group were returned to work, leaving twelve men with seniority in the group still not assigned. After the seniority of one man involved in this case was broken the remainder of the employees having seniority in the production group were recalled in the following week. During the next ensuing three weeks, 109 employees were hired in the production group from a list of former employees who had no seniority status. During the week beginning September 30, three material handlers each worked 8 hours overtime on Saturday. The seniority of the material handler involved in this case was broken on Friday, October 11, leaving one man in the group still unemployed. On Saturday, October 12, seven other material handlers each worked 8 hours overtime. The remaining man in the group was recalled on Tuesday, October 15, in a week when eleven material handlers each worked 8 hours overtime. Three men were hired in the group during the week beginning November 4 from a list of previous employees. From the facts just outlined, it seems quite clear that the breaks in seniority do not appear to be the result of a lack of work encountered in the normal course of business operations. They appear, on the contrary, to have been the result of a management choice not to add more employees even though production needs could be met only by the use of extensive overtime work. This is more apparent from a closer analysis. On October 5, 1940, one hundred and thirty men in the production group worked 8 hours overtime for a total of 1040 man hours. Only eight men were shortly thereafter recalled to the group. As matters turned out, all the remaining twelve men holding seniority could well have been recalled on October 8 because just four days later, or on Saturday, October 12, the management had to work 191 men for 8 hours overtime. It was on Friday October 11, moreover, that management chose to break the seniority of one of the men in question and chose not to avail itself of the services of the twelve men still holding seniority rights. Shortly after the one man’s seniority was broken, however, every other man with status in the department was recalled and large numbers of men without seniority were hired. A somewhat similar situation existed in the material handling group. Three men worked 8 hours overtime on October 5, 1940. At least one of the men who still held seniority in the group might well have been called to work because, on the following Saturday, October 12, seven material handlers were required to work overtime. Despite the impending overtime that was in prospect, one man’s seniority in the group was broken on October 11 and the only other man with seniority in the group was not called in until October 15. Eleven material handlers had to work overtime on October 19 and it soon became necessary to employ additional men in the group. The facts disclosed by the investigation must be considered in the light of certain surrounding circumstances. Management undoubtedly gave the Committee some reason to believe that the two men would not get their jobs back, not simply because of their low seniority in relation to available jobs but because they were not wanted. They were then not hired when jobs were available and this fact cannot be obscured by reference to the delay in hiring a relatively few other men. There were available jobs for all of them. While it not directly pertinent, there is an indirect significance to that clause in the local seniority agreement which reads: "When jobs are available for employees laid off, each employee is to be placed on his regular job." After careful analysis of the evidence in this case, the Umpire is of the firm conviction that the seniority of the two men in question was broken under very unusual circumstances. There is no validity to the management’s contention that a number of men with seniority were not recalled simply because there was no work for them. On the contrary, they were not recalled to jobs, despite the necessity of considerable overtime work, until the seniority of two men were broken. Then a plentiful supply of jobs became available. The only reasonable interpretation of these facts is that men were not called to available jobs in order to insure that there would be the breaks in seniority that are under discussion. Because the men involved had long been such active advocates of the Union, the break in their seniority could scarcely fail to affect the status of the Union. What of the Corporation contention that the actions of management were in strict accord with the agreement? Management’s actions technically conformed with Clause 9 of the Seniority section, but they were distinctly not in conformance with Clause 3-a of the Recognition Section which prohibits discriminatory use of Clause 9-e, as well as others, "in respect to hire, tenure of employment or any term or condition of employment." Having certain seniority rights the two men in question were entitled by Clause 3-a of the Recognition Section to consideration for jobs without any discrimination. In the judgment of the Umpire this was not afforded them. They are unquestionably entitled to redress. The Union has requested plant-wide seniority for them. This would not be proper under the local seniority agreement which is based upon group seniority. The local seniority agreement does provide, as previously noted, that "When jobs are available for employees laid off, each employee is to be placed on his regular job." It is quite proper under this clause to provide them with employment in their respective groups and to restore their seniority. They are to be provided with work in their regular groups not later than March 24, 1941.
Decision The break in seniority of two men was not in conformance with the requirements of Clause 3-a of the Recognition Section. Not later than March 24, 1941, these men are to be provided with work in their regular groups and their seniority is restored. George W. Taylor, UMPIRE. March 5, 1941. |