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OFFICE OF THE UMPIRE No. B-100 February 6, 1942
Employee Transfer Under Paragraph 63
GRIEVANCE: Buick Motor -- Case B-11 "Man with less service than I have has been called back to work on job which I am capable of doing. Request back pay for all time lost." Umpire's Decision:
In the Matter of: United Automobile Workers of America -- C.I.O. -- Local 599 and General Motors Corporation -- Buick Motor Division -- Case B-11.
Employee C. on August 18, 1941, presented a grievance which reads: "Man with less service than I have has been called back to work on job which I am capable of doing. Request back pay for all time lost." A hearing was held on this matter at Flint on January 15, 1942.
Nature of Case Early in July 1941, Management felt it necessary to have temporary help on welding in the Die Room of the Sheet Metal Plant. The foreman of the Die Room had no available welders and requested the foreman of the fender repair welding to furnish any available welder that would be suitable in this work. When the latter foreman suggested that Employee T., who was on fender repair welding, should be able to do the operation, he was given the temporary work over a period of approximately one month. Employee C., who filed this grievance, had also been working on the fender repair welding work and had eleven months' seniority over T. Employee C. complained to his foreman about not receiving the temporary work in the Die Room and, as a result, his foreman checked the records of both T. and C., as Management states, "to determine exactly what previous work they had done." This examination apparently convinced the foreman that T. was the better man for the job and he was therefore retained on the temporary welding work in the Die Room. On July 30, 1941, production was closed down for the model changeover and both T. and C. were laid off from their respective welding jobs. Shortly thereafter the die work increased and another permanent welder was needed in the Die Room. The two foremen again conferred and agreed that T. was the proper man to fill the job. When the transfer of T. was completed on August 16, 1941, C. filed the present grievance claiming that he should have been given the promotion. Union Contention The Union contends that C. was entitled to the welding job in the Die Room because it represented a promotion, and C. had greater seniority, more experience as a die welder, and was more capable than the man who received the promotion. The Union notes that C. had worked for some time in Plant No. O3 as a die welder on the third shift, and had done very satisfactory work. On the other hand, the Union notes that T.'s experience in die welding was limited to the short period he spent on it on a temporary basis. The Union claims further that C. was a more efficient fender repair welder than T., and that he was exceptionally fast at his work. Finally, the Union claims that friendship was a distinct determinant in the promotion of T., and that Management violated Paragraph 63 of the June 3, 1941 Agreement by failing to give consideration to the relative ability, merit and capacity, of the two men available for the promotion. Corporation Position The Corporation maintains that in selecting T. for the permanent job as welder in the Die Room of the Sheet Metal Plant, "Management selected the employee with the most ability, merit and capacity for the available job." Management notes that, "The opinion of Management as to the ability, merit and capacity of Employee T. is confirmed by the opinion of Mr. S. for whom Employ T. had worked in Factory 12, and by the opinion of Mr. H. for whom Employee T. had done temporary welding in the Die Room." Management contends that the seniority of C. was considered, but that C. did not have the same ability, merit and capacity as Employee T. It is further contended by Management that T. did better fender repair welding than did C., and that the attitude of C. at his work and the number of times he was found off the job, "made C. less attractive to Management." Management claims also that C.'s experience in die welding had been limited to a rough type of welding, while T.'s work gave him needed experience for the exact type of work required in the new operation. It is concluded by Management, therefore, that the promotion of T. was not in violation of Paragraph 63 of the National Agreement dated June 3, 1941.
Observations and Decision of the Umpire The question concerned in this case must be considered according to Paragraph 63 of the Agreement dated June 3, 1941. This paragraph reads in part as follows:
The classification held by both T. and C., before the promotion in question, was noted in the local wage agreement as: "Welding, Acetylene -- Rough and Heavy--Range $1.05 to $1.20." The operation to which T. was transferred is classified as "Welder -- Die -- Range $1.20 to $1.35." The highest bracket in the range of T.'s old job was equaled by the lowest bracket in the range of the new job. It is obvious, therefore, that the transfer of T. represented a promotion. As such, since it has been questioned, the promotion of T. must show clear evidence of a consideration by Management of the factors of ability, merit and capacity, if it is to be sustained. The foremen of the two departments concerned apparently conferred together on the temporary transfer of an employee and agreed upon T. There is little evidence at this stage that any careful consideration was given to an actual weighing of the factors of ability, merit, and capacity of all of the available employees. A cursory consideration of T. and C. was evidently made, but there is no evidence of a careful weighing of the necessary factors for all of the employees who were available for the job. The fact of the matter is that most of the consideration given the question of the choice, was after C. complained about the use of T. on temporary work. Compelling support for this conclusion is shown by Management's statement that after C. complained about the temporary transfer, "Mr. H. checked the records of both employees C. and T. to determine exactly what previous work they had done." When the promotion to the permanent job was made, another brief conference between the two foremen seems to have been all that was needed to decide upon T. as the final choice. Evidence of this fact is shown by the statement of Management which reads: "Mr. H. thereupon asked Mr. S. about securing employee T. for a permanent job as a welder. Both Mr. S. and Mr. H. agreed that T. would be the proper man for the job." Here, again, there is an evident lack of any conclusive consideration of the factors of ability, merit and capacity in choosing T. for the promotion. Management notes that because of the agreement of the two foremen that T. was the proper man for the job, "because he had satisfactorily done the work on a temporary basis," and because "Management felt he had more ability, merit and capacity for the job," he was given the promotion. It should be noted here that a factor which apparently weighed heavily in the selection of T. for the promotion, was his temporary experience at the job. It is not within the spirit of Paragraph 63 of the Agreement to make a temporary promotion, and then give great weight to the resulting experience as a determinant of relative ability, merit and capacity for a permanent promotion. Further more, Management's statement that it "felt he had more ability, merit and capacity," finds no compelling support; it must be considered to be in the form of an opinion that was based mainly on the conclusion that had been reached by the two foremen. From all of the available evidence, the Umpire is of the opinion that proper consideration was not given to the factors of ability, merit and capacity, in the choice of T. for the die welding job. It is evident that T. did not stand "head and shoulders" above the employees available for the job. At best it can only be said that T. had "ability, merit and capacity" equivalent to at least one employe, and perhaps several others. The Umpire has no authority to determine that C. was entitled to the promotion rather than T., because the element of choice rests with Management. In the present instance Paragraph 63 can well be effectuated, as has been suggested in several recent decisions, by the selection by Management of several men who it feels are capable of fulfilling the job, and whose "ability, merit and capacity" are considered by Management to be approximately equal. From this group Management can then select the individual with the greatest seniority to fulfill exactly the provisions of Paragraph 63 of the Agreement. In conclusion, it is held that the promotion of T. to the die welding job, was not in compliance with the terms of Paragraph 63 of the June 3, 1941 Agreement. Since this job is momentarily expected to shut down, it is held that it should be considered a vacancy on February 16, 1942 and when the work is resumed, it shall be filled in a manner to conform with Paragraph 63 of the Agreement dated June 3, 1941. Decision
Signed G. ALLAN DASH, JR., UMPIRE. February 6, 1942. |