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OFFICE OF THE UMPIRE No. B-83 January 27, 1942
Disciplinary Layoff
GRIEVANCE: Fisher Tarrytown -- Case B-12 "Man suspended unjustifiably. Requests to be returned to work. Claim discrimination also intimidation, back pay for every day he is kept out. Foreman A. at fault."
Umpire's Decision: The layoff of F. was not in any way intimidating nor discriminatory. It is determined to have been a disciplinary layoff, but the length of such layoff is held to be in error because it was based on the alleged violation of three shop rules, only one of which was violated by this employee. The layoff of F. is, therefore, reduced to two days and he is to receive back wages for the remainder of the layoff which is held to have been unjustified disciplinary action by Management. (Entire Decision should be read)
In the Matter of: United Automobile Workers of America -- C.I.O. Local 664 and General Motors Corporation -- Fisher Body -- Tarrytown Division -- Case B-12
On September 23, 1941, Employee F. presented a grievance which reads: "Man suspended unjustifiably. Requests to be returned to work. Claim discrimination also intimidation, back pay for every day he is kept out. Foreman A. at fault." A hearing was held on this matter at New York on January 7, 1942. Nature of Case Employee F. on the Trim Line at the Fisher Body -- Tarrytown Division, on September 23, 1941 was asked by his foreman if he knew that a certain job had gone down the line without being completed. The employee answered in the affirmative and stated that on the previous model run it had been the custom to let jobs go down the line if no stock had been placed in them. A discussion followed during which the foreman instructed this employee not to permit any more jobs to go down the line incomplete, but to call the Foreman if it was impossible to complete a job because of the lack of stock. After a brief interval the Foreman noticed this employee was talking to his partner; the Foreman maintains that while this talking was taking place, F. was not working. The Union claims that the employee was working and that he was merely telling his partner the result of his previous discussion with the Foreman. The Foreman then told F. he should stop talking and try to get his job back in position. A rather heated argument followed in which F. used certain language that was felt by the Foreman to be abusive, and to show a lack of respect for supervision. F. was told to leave his job and was laid off for an indeterminate period; this layoff occurred on September 23, 1941. A few days later, in answer to the grievance filed by this employee, Management stated F. would be returned to work on October 1, 1941. This case arose out of the Union's objection to the disciplinary layoff that was invoked by Management. Corporation Position In its original reply to the instant grievance, Management merely stated that it did not feel that the layoff involved either discrimination or intimidation. At the second step in the grievance procedure, Management listed three shop rules which it claims were broken by F. The breaking of these rules, Management maintains, was sufficient cause for the disciplinary layoff invoked in this case. The shop rules cited by Management as allegedly broken by this employee, are as follows: Rule No. 13 -- "Refused to obey orders of foreman or other supervisors. (From one day layoff to discharge.) Rule No. 27 -- "Deliberately restricting output. (From one week layoff to discharge.) Rule No. 29 -- "Use of abusive or profane language to fellow employees or supervision. (From reprimand to discharge.)" Management holds that F. violated Rule No. 13 because, when he was told to stop talking and start to work, he failed to do so and instead started an argument. Rule No. 27 was violated by this employee, Management maintains, because "the job on which F. was working was considerably out of position when his Foreman requested that he stop talking and get back to work." Management states that Rule No. 29 was clearly violated by the employee's admitted use of strong language directed at the Foreman. The Union charges of discrimination and intimidation in connection with this layoff are denied by Management. The latter holds that there was no attempt by the Foreman and Superintendent "to scare the operators into dropping their just complaints," in connection with some trouble on the line, "by taking a man to the office and suspending him." No discrimination because of Union membership or activity has been shown in this case, contends Management, and therefore the charge of discrimination "was not a proper charge to be made." The discipline invoked in this instance is felt by Management to have been in full accord with Paragraph 8 of the June 3, 1941 Agreement which gives to Management the sole responsibility to "discharge or discipline for cause; and to maintain discipline... except that Union members shall not be discriminated against as such." Union Position The Union claims that the layoff of F. was originally invoked only on the basis of an incident arising out of a question put to him by his partner as respects his first conversation with the Foreman. The Union notes that while this first conversation was being conducted, F. was not able to do his work and his next job was going down the line; in the Union's opinion, this did not represent restriction of output but was merely orderly conducting of collective bargaining. The second discussion which followed the Foreman's order to stop talking and get back to work did lead to an argument, the Union admits, but it claims that the Foreman also used strong language. The use of such language by both the employee and the Foreman is claimed by the Union to be ordinary "shop talk" in which both sides often indulge. Finally, the Union maintains that F. did not refuse to carry out an order of the Foreman but merely answered him when the Foreman objected to the talking between F. and his partner. For these reasons, the Union claims that F. did not violate any of the shop rules cited by the Management, and holds that the disciplinary layoff was really discriminatory in nature. The Union offers as support for its charge of discrimination the fact that this employee's partner, and many other operators on the line, were out of position but received no layoff. Intimidation is charged by the Union on the grounds that Management enforced this disciplinary action when faced with a series of other complaints on the same line, which in the Union's opinion, represented an attempt "to scare other operators into maintaining position on line." Because of its contention that the layoff was not for cause, but was discriminatory in nature, the Union requests that F. be paid for the time lost from September 23, 1941 to September 30, 1941 inclusive. Comments and Decision of the Umpire The claim against the discipline invoked by Management in this instance must be appraised on the basis of Paragraph 8 of the Agreement dated June 3, 1941. This paragraph reads in part as follows: "The right to... discipline for cause; and to maintain discipline... of employees, is the sole responsibility of the Corporation except that Union members shall not be discriminated against as such." The Union's claim that the layoff of F. represented intimidation has not been supported with any real facts, and must therefore be disregarded by the Umpire. In like manner the claim of discrimination for Union activity is not proven on the grounds that one Union member is laid off for a series of acts for which he is allegedly responsible, while other Union members receive no discipline for single acts of which they are not accused by Management. Management has claimed that it had cause for the enforcement of the disciplinary layoff of F. because of its claim that he violated three shop rules. It must be assumed, therefore, that the length of the layoff was set by Management on its own weighing of the importance of the breach of all three of the shop rules, i.e., that the number of days of the layoff represented the sum total invoked for the alleged violation of all three of the shop rules. To be sustained in whole, therefore, the layoff must be found to have resulted from the violation of all three of the rules cited by Management; to be sustained in any part it must be found to have resulted from the violation of at least one of the shop rules. It is quite clear that F. violated Shop Rule No. 29 in using strong language in a manner that was undoubtedly abusive to his foreman. If the sort of remark made by F. in this instance would result in no disciplinary action, it is doubtful if any discipline could be maintained in his department. It follows that the part of the layoff that resulted from this action by F. is entirely his responsibility and he must bear the consequences. Violation of the Shop Rule No. 27, as cited by Management, is not proven by the facts. While it is true that F. was out of position when the two discussions with his Foreman took place, and that the discussions caused him to go further out of position, it cannot be said that he was "deliberately restricting output." Other employees were out of line and many problems arose on the line in question on the particular day involved, all of which contributed to F. being out of position. The first discussion he had with his Foreman was a reasonable attempt to obtain an explanation over a shop problem. Management was entirely incorrect in labeling any action by F. as deliberate restriction of output. The contention that F. refused to obey an order is likewise not supported by the facts. The first discussions with his Foreman led F. to accept the order and to pass on the information to his partner not to let any more jobs go down the line incomplete because of the lack of stock. The second discussion, which became an argument, led to the use of abusive language, but it did not represent failure to abide by an order from the Foreman. While the argument took place it is quite likely that F. stopped work and then, as a result of the argument, he wasn't permitted to continue work. The employee was wrong for arguing and using abusive language, but any stoppage of work during the argument was incidental and did not represent a refusal to carry out an order of the Foreman. The claim in the instant case is that F. was not guilty of the violations charged to him by Management and that his layoff should be revoked entirely with back pay for all time lost. The Umpire finds that F. did violate the Shop rule concerning abusive language, but did not violate the two other shop rules as claimed by Management. The penalty imposed by Management for the alleged violation of all three shop rules is therefore held to be too severe for the actual violation of a single shop rule. Under the circumstances involved in this case, then, the Umpire holds that the layoff imposed on F. shall be reduced to two days, and he shall receive make-up pay for the remainder of the time lost between September 23, 1941 and September 30, 1941, because of such layoff.
Decision The layoff of F. was not in any way intimidating nor discriminatory. It is determined to have been a disciplinary layoff, but the length of such layoff is held to be in error because it was based on the alleged violation of three shop rules, only one of which was violated by this employee. The layoff of F. is, therefore, reduced to two days and he is to receive back wages for the remainder of the layoff which is held to have been unjustified disciplinary action by Management. Signed G. ALLAN DASH, JR., UMPIRE. January 27, 1942. |