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OFFICE OF THE UMPIRE B-17 OCTOBER 10, 1941
Job Transfers of Incapacitated Employees
GRIEVANCES: Linden -- Case No. 12 "I charge T. Walker with discrimination. He is about to send me home because I cannot keep up with my operation because I am injured. Yet he keeps other injured men on jobs they can do." "I hurt my hand two weeks ago. Two days ago the splints were taken off. Now Ted Walker says if I cannot do my operation I must go home. I think this is hardly fair."
In the Matter of: United Automobile Workers of America -- C.I.O. -- Local 595 and General Motors Corporation -- Linden Division -- Case No. 12
On June 6, 1941, Employee M. filed the following grievance: "I charge T. Walker with discrimination. He is about to send me home because I cannot keep up with my operation because I am injured. Yet he keeps other injured men on jobs they can do." On July 19, 1941, a grievance presented by employee P. read: "I hurt my hand two weeks ago. Two days ago the splints were taken off. Now Ted Walker says if I cannot do my operation I must go home. I think this is hardly fair." Both of the above cases were heard at the third step of the Grievance Procedure on July 25th and the discussion of both cases centered about the interpretation of Paragraph 72 of the Agreement of June 3, 1941. It was locally agreed that both issues would be combined into one case and appealed to the Impartial Umpire as one issue, namely, "an interpretation of Paragraph 72 of the Agreement as applied to cases such as the above." The two employee grievances noted above show, states the Union, that management's interpretation "does not follow either the spirit or the letter of the agreement." Management contends, on the other hand, that it has properly interpreted the Paragraph in question in holding that it is not applicable in such cases. An Umpire hearing on this matter was held in Philadelphia on October 1, 1941.
Nature of Case Despite the local agreement of the parties to combine the two individual grievances mentioned above as an interpretation question, certain differences in facts necessitate a separate statement of each case.
The M. Case Employee M. injured his right hand on April 1, 1941. He was given medical treatment and assigned to work other than his regular operation until June 4, 1941. In accordance with the advice of the plant doctor, M. was instructed by his foreman to return to his regular operation on June 6, 1941. The employee worked at his regular job but soon said that he was unable to do this operation which involved considerable use of the right hand. The employee's personal physician had recommended on June 5, 1941 that M. "be kept on light work until the hand feels better." There is a difference of opinion as to whether M.'s regular operation was such "light work." In this connection, the Union emphasizes that it primarily required the use of the right hand; management emphasizes that it is light work. At any event, the foreman told M. "that if he did not desire to do this operation he could go home until such time as he felt he would be able to do so." The matter was then taken up with the Personnel Director and the Union pointed out that there were several operators capable of performing M.'s operation and all that was necessary to keep M. at work was to switch the two men. The Personnel Director agreed to investigate the case but stated that another job could not be immediately found and "unless the employee wanted to do his regular operation for the balance of the day, he could go home until such time as another job could be found for him." Employe M. went home and lost about five hours' work. As a result of the investigation by the Personnel Director, certain operations were reassigned and, when M. returned on the next work day, he was given another operation, other than his regular job, which he was capable of doing. The Union states that this was the job which the committee had earlier suggested should be assigned to M. The later assignment of M. to this job indicates to the Union that he should not have been assigned to his regular operation on June 6 since he was considered by management on June 9 to be still incapable of doing his regular work. The insistence of management that M. do his regular job when M. felt unable to do so is considered by the Union as a violation of Paragraph 72.
The P. Case On June 2, 1941, Employee P. injured his hand which was placed in a splint. Shortly thereafter he was assigned to work, other than his regular operation, which he was capable of doing. The splints were removed on June 17 and, two days later, P. was told by the foreman to resume his regular operation after this had been recommended by the plant doctor. P. maintained he could not yet do his regular work and asked to remain on the temporary job for about another day and a half "to finish the week out." The employee states his doctor had told him, upon removal of the splints, not to exert a great pressure on his hand for several days after the splints were removed so the numbness in the hand could be worked out. He claims his regular job involved pressure on the hand. Supervision states it "would be willing to assign him to other work in his group if he could find an operation that he felt capable of doing." A job transfer was suggested by the Committee but it would have required some instruction of P. The extent of training of P. involved in the suggested transfer has been appraised differently by management and by the Committee. Management nevertheless considered P. to be not capable of doing the job in question because some instructions to him were required. P. was then sent home "until such time as he felt he was able to perform his regular operation." He returned to his regular job on July 23rd.
Union Claim The Union contends that, in each of these cases, supervision insisted that an injured man must work on his regular operation or go home even though the man felt unable to do his regular job. It is argued that local management thereby failed "to comply with Paragraph 72 of the National Agreement, which provides that an employee injured at his regular job may be employed in other work in the plant which he can do, without regard to any seniority provisions of the Agreement." The Union says it recognizes that the right to maintain efficiency is the sole responsibility of the Corporation but claims that "if it is possible to keep injured employees at work on a regular operation, without affecting the efficiency of the department, we believe a sincere effort should be made to do so." The claim is made by the Union that M. and P. should now be paid for the time they lost "for if supervision had shown the slightest desire to cooperate with the Union, there would have been no need for these two men to lose any time." In ruling on this question, the Umpire is requested to appraise the Union claim that Paragraph 72 requires employment of injured employees under the circumstances of the present case. It is the Union's contention that under Paragraph 72, management has an obligation to see that injured employees are immediately placed on jobs they are capable of doing.
Corporation Position Management submits that Paragraph 72 as written clearly specifies that the placement of injured employees on work other than their regular operation is optional on the part of management. It is noted that any employee injured in the plant is covered by Workmen's Compensation and that Paragraph 72 states that such an employee may be given other work. The Corporation insists it is not required by Paragraph 72 to change an operator from job to job whenever, in the operator's opinion, he is temporarily unable to perform his regular operation. In particular, management maintains that it has the sole responsibility for making work assignments and if an employee cannot perform the job assigned to him, the employe may be sent home. Management believes, moreover, that Paragraph 72 is designed solely to provide work for employees who have suffered an injury which results in some permanent disablement requiring their permanent transfer to some other work. Management does not believe the paragraph requires it to change operators from job to job whenever some injury makes it temporarily impossible for an employee to work on his regular operation. As respects the two employees involved in this case, management notes that during their period of temporary partial disability they were placed on other work within their department that they were capable of doing. It is contended that this is not required by Paragraph 72 but was done to assist the employees. When the plant doctor determined that their temporary disability had ceased, they were assigned to their regular operations. Both employees refused the assignment, saying they were not physically capable of doing it. They were then given the option of performing their regular work or of going home until they felt able to do such work. The Corporation insists that the above-noted procedure was not in violation of any provision of the Agreement of June 3, 1941 and claims that the employees involved should be denied any back pay for time lost as a result of going home on the days in question.
Opinion and Decision of the Umpire Meaning of Paragraph 72 The Paragraph 72 which is under discussion reads: "Any employee who has been incapacitated at his regular work by injury or compensable occupational disease while employed by the Corporation, may be employed in other work in the plant which he can do without regard to any seniority provisions of this Agreement." Two kinds of cases may arise under this Paragraph. An employee may receive an injury which makes it permanently impossible for him to return to his regular work. In such instances, Paragraph 72 clearly permits a transfer to another job, which the employee can do, without regard to seniority provisions. The specifying of a procedure in such cases is of primary importance in order to permit the job rehabilitation of an injured employee who can no longer work at his regular operation. The Corporation takes the position that Paragraph 72 applies only in the instance outlined above and has no bearing on the second type of case in which an employee is injured and is consequently unable temporarily to perform his regular operation. A reading of the clause as written fails to disclose any restriction of its application as contended by management. The Umpire concludes that Paragraph 72 is applicable when an employee, because of certain injuries, is either permanently or temporarily unable to perform his regular work. The Union errs, however, in interpreting Paragraph 72 as making it mandatory that an injured employee, incapable of doing his regular operation, must be immediately provided with a job which he can do and without any loss of time whatsoever. The Paragraph simply doesn't say that. It is a permissive paragraph and common sense requires that it remain so. It would be absurd to require an injured employee to work on some job irrespective of the extent of his injuries or to require management to place every injured employee at some work. The injured employee may not desire to work for a period of time or the plant doctor may properly conclude that some absence from work is essential to the injured man's recovery. It cannot even be said that an employee temporarily incapacitated for his regular work should have the choice of deciding whether or not he will take another job since the employee cannot be expected to appraise all the limitations imposed by an injury. There is no doubt that Paragraph 72 provides that an injured employee, permanently or temporarily unable to perform his regular work, "may be employed in other work in the plant which he can do without regard to any seniority provisions of the Agreement." It is not a mandatory but a permissive paragraph which emphasizes that when an injured employee is placed on a job, other than that he regularly performs, the assignment may be made despite any seniority provisions of the agreement. The question in the present case thus centers about when an injured employee may be employed at other work. It would seem that such assignments by management are proper when the plant doctor reports that an employee is unable to perform his regular job but is capable of performing another job, which may be assigned to him if it does not interfere with the efficiency of plant operations. By the very terms of Paragraph 72, management is charged with the major responsibility for a common-sense application of the clause.
The Cases of M. and P. The individual cases at issue actually do not involve the question of whether or not injured employees, who are temporarily unable to perform their regular jobs, should be assigned to other work. Both of the claimants, when injured, were given temporary assignments at other than their regular work. The cases in question involve the question of how such employees are reassigned to their regular work. M. was given a temporary job for about two months. The plant doctor then felt he was able to return to his regular work. M. tried to do his regular job and, despite the doctor's report, felt that he could not keep up. He lost five hours of work while management found another temporary job. Management's procedure was unquestionably not in violation of Paragraph 72. Management acted quite properly in reassigning M. to his regular job when the plant doctor approved since neither management nor the employee can professionally answer the question of when an employee was able to resume his regular duties. In the present case, for instance, one cannot be certain whether M. could not do his regular job or did not care to do so. Apparently management gave M. the benefit of the doubt and assigned him to another temporary job. In the judgment of the Umpire, management did not violate Paragraph 72 in this instance but fully met the spirit of that clause in going beyond any contractual obligations in assigning M. to further temporary work. P. was also assigned to his regular job when the plant doctor said he was ready for it. The employee, however, disagreed with the plant doctor and insisted that he would not be able to do his regular work until several days later. Under such conditions, management can only rely upon the doctor's report. It went beyond any contractual obligations in seeking to find another job that P. was capable of doing for the additional day and a half that he requested. In order to provide such a short temporary job, management cannot also be expected to instruct P. how to do the work even though the instructions would require but an hour or two. An employee cannot be considered capable of doing a certain job for a day and a half if he can do so only upon receiving instructions for an hour or two. That is not applying common sense to the situation.
Conclusions The cases of M. and P. relate to the termination of temporary jobs given to injured employes. Such assignment to temporary work cannot provide an injured employe with a "lease" on the temporary job that continues until he is willing to return to his regular work. Management must depend upon the advice of the plant doctor in determining when such employes should return to their regular jobs and cannot give such employes the right to veto the plant doctor's recommendation. In the cases of M. and P. management reassigned them to their regular jobs upon recommendation of the plant doctor. They were unable or unwilling to do their regular work. Management then evidenced a willingness to find other temporary work but properly insisted that it would have to be work they were capable of doing without a learning period. M. was given another job after a loss of five hours' work, but no job was found for P. It is entirely unreasonable to charge that such procedure represents a violation by management of Paragraph 72. On the contrary, the Umpire feels that management cooperated in trying to find other jobs for these men after the plant doctor had certified that they were ready to resume their regular jobs.
Decision
Signed GEORGE W. TAYLOR UMPIRE October 10, 1941. |