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OFFICE OF THE UMPIRE No. A-89 June 9, 1941
Promotion Alleged Discrimination
GRIEVANCE: Chevrolet Muncie—Case No. 56. "Grievance No. 79556, discrimination, coercion, refusing me a hammer, stating I am not dependable and offering me an upsetter at 10c under rate, and if dependable on header—on hammer."
SUMMARY A was hired at this plant as a Screw Machine Operator on April 9, 1936, but was soon transferred to a Heater job in the Forge Plant. On March 7, 1937, he was assigned to an Upset Operation as a beginner. When A was rehired on September 26, 1938, after a shut-down, he was again assigned to a Heater job. On August 13, 1940, A filed a grievance when another employee was promoted to a Header (Upset Operator), maintaining that his seniority entitled him to this job. This grievance was settled when A agreed to go to a Heating job on a hammer instead of continuing as Heater on the Upset Operation. Toward the end of 1940, a vacancy occurred on a Hammer job. Management promoted a temporary employee to this job and states this was because he had previous experience on such work. On December 16, A filed a grievance protesting the placing of the "new man on Hammer without seniority." In answering the grievance, Management replied on December 31, 1940, that A "was not given a chance to run the Hammer job because he is not dependable. He lays off quite frequently and is often late when he does come to work." On January 11, 1941, the foreman asked A if he wanted a promotion to a 3-inch Upset job which was open. The Union states the foreman initially told A the job would pay $1.15 per hour, but came back about two hours later and informed A that the Superintendent had ruled that the job would start at $1.05, or 10c under the rate, but that the full rate would be paid within 30 days if A qualified as an Upset Operator. A declined to take the job on these terms, stating he would rather remain on Heat at $.95 than go to Upset at $1.05. A states he was reluctant to take this job because it was unfair to offer him a beginner’s rate on a 3-inch head when he had formerly run 4-inch and 5-inch heads as a regular Upset Operator. The Union claims Management discriminated against A, a Union man with experience and seniority, when he was refused a Hammer job which was given to a temporary employe who is not a Union man and lacks experience.
The UMPIRE ruled that: There are cases where both parties have erred. This seems to be one of those cases. The Umpire is not at all impressed with the validity of A’s claims when they are made to stand on their own. Was he entitled to a Hammer job? He had no experience on a Hammer and his record was not superior. It was not at all unreasonable, under the Agreement clause respecting promotions, for Management to decide not to promote him to the Hammer but to recognize his "line of promotion" as leading from Heater on a Hammer to an Upset Operation. A sought to short-circuit a reasonable line of promotion, as is indicated by his refusal of the Upset job, on unsubstantial grounds. In short, the evidence of the case does not indicate that A was deprived of something to which he was legitimately entitled when he was not given the Hammer job by Management even though the foreman recommended him for the job. A’s claim secures status only because Management improperly advanced a temporary employe to the Hammer job that is in question. A careful review of the evidence fails to disclose any valid reason why it should have been made. The promotion of the temporary employee to the Hammer job was at least contrary to Section 3-e of the Local Seniority Agreement and has elements of Union discrimination. Management is to be afforded an opportunity to "show cause" why this employee should not be required to resume his former status in order to permit a promotion to the Hammer job that cannot be construed as discriminatory. A has no preferred claim for promotion to the Hammer job. In the event of vacancies Management has the right to promote according to its own policy as long as no Union discrimination is involved in its choice. Any possible Union discrimination in this case was in the choice of the temporary worker and not in the failure to promote A.
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-Muncie Division—Case No. 56. The grievance that is before the Umpire in this case was filed by A. on January 23, 1941. It reads: "Grievance No. 79556, Discrimination, coercion, refusing me a hammer, stating I am not dependable and offering me an upsetter at 10c under rate, and if dependable on header—on hammer." A hearing on the grievance was held in Muncie on May 13, 1941.
Nature of Case A. was hired at this plant as a Screw Machine Operator on April 9, 1936 but was soon transferred to a Heater job in the Forge Plant. On March 7, 1937, he was assigned to an Upset operation as a beginner. When A. was rehired on September 26, 1938, after a shut-down, he was again assigned to a Heater job. On August 13, 1940, A. filed a grievance when another employee was promoted to a Header (Upset Operator), maintaining that his seniority entitled him to this job. This grievance was settled when A. agreed to go to a Heating job on a hammer instead of continuing as Heater on the Upset Operation. It is now contended by the Union that this shift was made specifically to enable A. to learn the hammer job. He was assigned for this purpose, it is claimed, to a 1500 1b. Steam Hammer on Forks which the Union says is the only Hammer or Header job in the entire shop with which A. is not familiar. A. complains that, instead of giving him a chance to work on this job and to learn its operation, he was then shifted around from one job to another. Management contends that A. was definitely told at the time of this transfer that he would not be permitted to run the hammer and further states it was necessary to move A. from one heating job to another because he "was not able to get along or cooperate with the operators for whom he had to heat." Toward the end of 1940, a vacancy occurred on a Hammer job. Management promoted a temporary employee to this job and now states this was because he had previous experience on such work. On December 16, A. filed a grievance protesting the placing of the "new man on Hammer without seniority." It was then pointed out that the man who was promoted was a temporary employee of only about two months’ standing, and the Union insists that it has been unable to discover any evidence of previous experience on such a job. In claiming that A. should have had the promotion, the Union contends that this was required by the previous understanding respecting A.’s grievance of August 13 as well as by Clause 3-e of the Local Seniority Agreement which reads: "Whenever possible, new employees shall be started in the lower occupation and men already in that occupation shall be moved upward progressively." It is emphasized by the Union that the ability of A. to perform this hammer job should not have been open to question since, in his disposition of this grievance, the foreman stated that A. "should have hammer and would like to see him on Hammer, and that he did try to get him on." In answering the grievance filed by A. on December 16, management replied on December 31, 1940 that A. "was not given a chance to run the Hammer job because he is not dependable. He lays off quite frequently and is often late when he does come to work." The Union states it then had no way of appraising the accuracy of this contention and accepted it as correct. This grievance was not appealed. The charge of undependability was supported by management at the hearing by the citation of several "outstanding" instances as well as by a record of the man’s lateness and absences computed from clock cards from January 7, 1939 to January 18, 1941. During this period he lost 6 days through illness and 8 days for personal reasons or without advancing a reason. He was late on eleven occasions and there are nine failures to ring his clock card. On January 11, 1941, the foreman asked A. if he wanted a promotion to a 3-inch Upset job which was open. The Union states the foreman initially told A. the job would pay $1.15 per hour, but came back about two hours later and informed A. that the Superintendent had ruled that the job would start at $1.05, or 10c under the rate, but that the full rate would be paid within 30 days if A. qualified as an Upset Operator. A. declined to take the job on these terms stating he would rather remain on Heat at $.95 than go to Upset at $1.05. A. states he was reluctant to take this job because it was unfair to offer him a beginner’s rate on a 3-inch head when he had formerly run 4-inch and 5-inch heads as a regular Upset Operator. Upon consideration of this incident, two questions were raised by the Union: (1) Since A.’s "bid" for the Hammer job was turned down on the ground of undependability, didn’t the offer of the Upset job indicate the incorrectness of management’s sole reason for denying him the Hammer job? Management sought to answer this question by saying that A. had since become more dependable. This argument seems like a rather weak rationalization in view of the short period of time that elapsed between management’s decision on the hammer grievance on December 31 and the offer of the Upset job to A. on January 11. (2) The Union claimed that Management was quite "out of order" in offering the Upset job to A. contingent upon his acceptance of a $1.05 rate. The Shop Committee held that the minimum rate for this job under the local wage agreement was $1.15 per hour and that Management had no right to pay less. In this connection, the Union also referred to a local understanding that an "employe will receive rate of job, first Monday he is on said job." Management states, however, that this understanding does not apply in the Forge Shop where "A man must be able to set up his own machine and maintain normal production before he is entitled to the rate of the job." Claim of Union A. felt he had justifiable grievance as respects the two questions just considered and on January 23 he filed the grievance in question making claims on the two matters. The Union claims Management discriminated against A., a Union man with experience and seniority, when he was refused a Hammer job which was given to a temporary employee who is not a Union man and lacks experience. The decision made by management on this grievance was that "with the expectation of 25 or 30 hammermen being required on the new Aluminum job, A. will be considered for a hammerman job when these jobs open up." This disposition is not acceptable to the Union which feels "that since A. is an experienced Forge Room man, and management has hired new hammer men and placed them ahead of A. that he, A., should not have to wait until new aluminum job opens up." Corporation Position In support of its position that A. has no valid claim, the Corporation refers to Clause 3-c. of the Recognition Section which states in part: "The right... to promote... is the sole responsibility of the Corporation except that Union members shall not be discriminated against as such." It is said that the operation of a Hammer or an Upset machine requires considerable skill and among the principal requirements is a need for steadiness and an ability to secure the full cooperation of the heater in doing the work. In addition, the regular operation of the hammer is so essential that a Hammerman must be regular in his attendance and work a full shift on the job. A.’s record of tardiness and absences without explanation is said to have made it necessary for management to pass him over in consideration for the hammer job in December. It is said that he then started to show some responsibility and was more punctual so that he was offered a promotion on January 11, 1941. He refused this job. Since management has reserved the sole responsibility to make promotions, the Corporation denies that A. has any proper claim simply because he was not selected for the hammer job. Analysis of the Issues The only part of the Agreement that is involved in the present case is that portion of Clause 3-c. of the Recognition Section which provides: "The right... to promote... is the sole responsibility of the Corporation except that Union members shall not be discriminated against as such." In considering the meaning of that clause, one must recognize that reference is not to alleged discrimination of one man as compared with another but solely to discrimination against an employee because he is a Union member. The clause gives management a reserved right to make promotions as long as Union members are not discriminated against as such. Preference in Promotion to a Temporary Employee In the first place, the present issue arises because a temporary employee was assigned to a hammer job in December, 1940 in preference to promoting employees with seniority in the Department. There is no evidence that the temporary employee had any previous experience on the job. A. did have experience in the department and he also had the recommendation of his foreman for promotion to the job. In addition, Clause 3-e. of the Local Seniority Agreement is designed, according to management’s own contention in the case considered by Umpire’s Decision A-88, to insure that "whenever possible" newly hired employees will be assigned to the lowest paid classifications and the men already in that classification will be promoted. It is also obvious that the man’s tardiness and absences were no deterrent to a proposed promotion to an Upset job which was offered within a relatively few days of management’s refusal to give the man a Hammer job. It must be noted, however, that the Upset job was considerably less desirable than the Hammer job. Considering all the evidence, and even recognizing that A.’s employment record is not unblemished, not a single convincing reason has been advanced by management to explain its preference of the temporary employee over A. for the hammer job. The Union suggests that the reason is that the temporary employee was and is not a member of the Union while A. is a member of the Union. The Umpire believes, however, that attention must also be directed to another aspect of this case. The evidence indicates that, for understandable reasons, management may well have been reluctant to promote A. to the hammer job for personal reasons entirely apart from his Union affiliation. It would appear that A.’s attitude is far from cooperative. His unrelenting insistence that he is a highly superior mechanic not only fails to convince but raises a very real doubt about his abilities. The Umpire has no doubt that such personal considerations accounted in a large measure for his failure to get the hammer job. There is also a doubt as to whether, under a regular promotion procedure, A. was entitled to move from Heater on Hammer to Hammer operator. There would seem to be good reason to promote A. to Upset Operation and then later to Hammer Operation if his record made this possible. Even though such a "progressive" move-up could not be made a hard and fast rule, it would seem that management attention to this question might well be in order since there is considerable confusion concerning management’s thinking in the matter. The above line of reasoning may serve to explain why management chose not to promote A. to the hammer job; and might also indicate that, at this time, A. was actually not entitled to the hammer job especially since management has broad discretion in the making of promotions. The resulting conclusion would have finally resolved the issue were it not for the selection of the temporary employee for the job. How can he possibly be considered as eligible for the job by any kind of reasonable standard? On the evidence at hand his promotion appears to have been a violation of Clause 3-e. of the Local Seniority Agreement which is admittedly designed to prevent the assignment of newly hired employees to the better jobs. If A. was not entitled to the hammer job, and there are reasons to support this point of view, how then can management reason that it should properly go to the temporary employee? The Rate Payable on the Upset Job The Union attributes significance to the initial offer of $1.15 to A. for the Upset job that was later changed to $1.05 for a period of thirty days or less. The lack of a clearly stated wage policy applicable at this plant to such cases makes it utterly impossible to determine whether or not the management program was proper. The evidence submitted to explain the policy at this plant, respecting wage rates that are payable on transfers, is highly confusing. The lack of clarity about what is the appropriate rate undoubtedly contributed to the unnecessary complexity of this case. There appears to be a local understanding that when employees are transferred, the regular rate of the new job is payable to the employee beginning on the following Monday. Both parties seem to agree, however, that this rule is for transfers from productive jobs to productive jobs. The management argues that, even as respects such transfers, rates may be below standard by a widely varying amount for 30 days in some cases and 60 days in others. Such a modification is not accepted by the Union as proper. Reference is also made by both parties to a "different" procedure when a man is transferred from nonproductive work to productive work and management holds also that a different rule has to be applied to certain Forge Shop jobs. On considering the above testimony, one cannot but feel a sense of inescapable confusion. It is impossible to decide whether the rate offer to A. on the Upset job was in accordance with past practice or in conformance with a local understanding. There seems to be some logical doubt about the propriety of management’s offer of the $1.05 rate for 30 days, however, since (1) the foreman originally offered $1.15 and he should have known whether or not A. could do this job and (2) A. had previously been an Upset operator. On the other hand, why did A. refuse this job? It was in a regular line of promotion for him and if he thought the beginning rate was improper, the grievance procedure was open to him to secure the proper rate. His conduct would indicate that he refused a proper promotion in order to secure one for which he would have a claim solely because management had promoted a temporary employee to the Hammer job. Conclusion and Decision of the Umpire There are cases where both parties have erred. This seems to be one of those cases. The Umpire is not at all impressed with the validity of A.’s claims when they are made to stand on their own. Was he entitled to a hammer job? He had no experience on a hammer and his record was not superior. It was not at all unreasonable, under the Agreement clause respecting promotions, for management to decide not to promote him to the hammer but to recognize his "line of promotion" as leading from Heater on a Hammer to an Upset operation. A. sought to short-circuit a reasonable line of promotion, as is indicated by his refusal of the Upset job on unsubstantial grounds. In short, the evidence of the case does not indicate that A. was deprived of something to which he was legitimately entitled when he was not given the Hammer job by management even though the foreman recommended him for the job. A.’s claim secures status only because management improperly advanced a temporary employee to the hammer job that is in question. On the evidence submitted, the promotion of the temporary employee seems to have been based upon caprice, personal favoritism, or an effort to show favoritism to non-Union employees. A careful review of the evidence fails to disclose any valid reason why it should have been made. The most generous appraisal of the assignment of the temporary employee is that it was in violation of Clause 3-e. of the Local Seniority Agreement which, as admitted by management, is designed to prevent the assignment of newly hired employees to better paying operations as long as employees with seniority may be promoted to them. In so applying the clause, management automatically recognized that such an interpretation does not circumscribe its free right to make promotions. The choice of who will be promoted still rests with management. The evidence shows that the assignment of the temporary employee to the hammer job was not proper under the Local Seniority Agreement and was of such a nature as to indicate a possible conclusion that Union discrimination was involved. There are reasons, then, why the assignment of the temporary employee to the hammer job should be rescinded because it represented an improper exercise of management’s right to promote. Before issuing any effectuating decision in this matter, the Umpire feels that an opportunity should be afforded management to "show cause" why the temporary employee should not resume his former job. Although a vacancy might occur on the hammer job as a result of action that may be taken on assignment of the temporary employee, A. has no preferred claim to it. Selection of employees for promotion is still the free right of management as long as Union discrimination is not involved. If the assignment of the temporary employee is revoked, it is to permit management to exercise its right to promote in a way that cannot be construed as discriminatory. In such an event, the qualifications of A. would be weighed along with others.
Decision 1. The promotion of the temporary employee to the hammer job was at least contrary to Section 3-e. of the Local Seniority Agreement and has elements of Union discrimination. Management is to be afforded an opportunity to "show cause" why this employee should not be required to resume his former status in order to permit a promotion to the hammer job, that cannot be construed as discriminatory. 2. A. has no preferred claim for promotion to the hammer job. In the event of vacancies management has the right to promote according to its own policy as long as no Union discrimination is involved in its choice. Any possible Union discrimination in this case was in the choice of the temporary worker and not in the failure to promote A. Signed GEORGE W. TAYLOR, Umpire. June 9, 1941. |