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OFFICE OF THE UMPIRE No. B-129 March 31, 1942 Appeal of a Discharge
GRIEVANCE: Detroit Transmission -- Case B-8 "I was unjustly discharged without notice. I demand reinstatement, back pay and full seniority in department 77 which would have gone into effect on November 15, from department 4. Discharge slip said I hadn't enough experience. Have followed this work for 20 years. I claim discrimination."
Umpire's Decision:
In the Matter of: United Automobile Workers of America -- C.I.O. -- Local 735 and General Motors Corporation -- Detroit Transmission Division – Case B-8
On November 6, 1941, Employee D. presented a grievance which read: "I was unjustly discharged without notice. I demand reinstatement, back pay and full seniority in Department 77 which would have gone into effect on November 15 from Department 4. Discharge slip said I hadn't enough experience. Have followed this work for 20 years. I claim discrimination." A hearing was held on this matter in Detroit on March 11, 1942. Nature of Case Employee D.'s seniority hiring date is February 27, 1940. From the date of his hire until September 12, 1941, D. was employed in production work, but for several extended periods he was absent because of major medical treatment, including at least two operations. Sometime during the latter part of the period noted above, D. was told that his attendance record was not good. D. admitted his poor attendance record but claimed that, in addition to his major medical operations and treatment, his sinus had been aggravated by the oil spray connected with the production job he was then operating. Management notes that D. requested a transfer from this work to machine repair work, in which he claimed to have had a long period of experience prior to his employment at the Detroit Transmission Division. On September 12, 1941, D. was transferred to the machine repair department (No. 77) where he worked for approximately six weeks. During this period his attendance record was not good, but the major fault he evidenced in this period, Management notes, was his inability to perform the machine repair work required at this plant. After six weeks' trial at this work, D. was discharged "for lack of experience." The Union protests the discharge on the ground that it was not warranted under the circumstances involved in this case. Corporation Position For a period of six months prior to his transfer to machine repair work, Management notes that D. was absent thirty-two working days, and in addition was granted a leave of absence for approximately six weeks. When this poor attendance record was called to D.'s attention, Management indicates that it accepted his request for a transfer, and, on September 12, 1941, placed him in Department No. 77 (Machine Repair) "in order that he might have another chance to make good at Detroit Transmission Division." The period that D. spent on machine repair work was sufficient, in Management's opinion, to indicate that he lacked the experience to do the type of machine repair work required at this particular plant. "Accordingly," Management notes, "D. was released." For the period of six weeks prior to his discharge, Management presented data that showed that D. was absent eleven days. Because of the fact that D.'s attendance record showed no improvement in the six weeks he was on machine repair work, Management notes, "no consideration was given to transferring the man back to production." In discharging D. "for lack of experience," Management contends it exercised its responsibilities as set forth in that part of Paragraph 8, of the Agreement dated June 3, 1941, that reads: "The right to hire; promote; discharge or discipline for cause; and to maintain discipline and efficiency of employees, is the sole responsibility of the Corporation except that Union members shall not be discriminated against as such." Union Position The Union's major contention in this case is that, if Management found D. unable satisfactorily to fulfill its requirements as respects machine repair work, he should have been transferred back to his previous occupation. The transfer to the machine repair job, though at the behest of D. himself, is interpreted by the Union as an indication that Management considered D. as a capable worker. Had he not been considered as an efficient worker, with past experience that would fit him for the machine repair work, the Union contends Management would not have granted him the promotion. If by accepting that promotion, D. subjected himself to discharge through failure to make good on the job, the Union contends all other employees at this plant would rightly fear to accept advancements in the future. An employee has rights to his job, the Union maintains, and he should not place those rights in jeopardy by accepting advancement to a job with which he is not completely familiar. While the Union notes it does not wish to defend habitual absenteeism, it claims that D.'s case is peculiar in that a substantial medical history has resulted in absences in excess of the usual experience. Questioning at the hearing on this matter divulged the fact that D. had an extremely unusual medical history in the past three or four years which, in the Union's opinion, explains D.'s relatively poor attendance record. In the six-week period D. worked on machine repairs, four of the eleven days of absence noted by Management, were claimed by the Union and D. to have been caused by the death of D.'s brother-in-law in Toronto, Canada. Questioning at the hearing, and a study of the time cards of D., lend credence to this latter contention. In addition to the four days thus accounted for, the Union notes that D. reported off sick for two other days out of the eleven, and maintains that all of the remaining days of absences in this period were likewise caused by illness. Because of its contention that D. should have been returned to his former job, rather than to have been discharged for lack of ability on the machine repair work, the Union asks that the discharge be invalidated, that D. be reinstated with no loss of seniority, and that he be paid back pay for all wages lost. Observations and Decision of the Umpire A study of the rather impressive medical record of D. divulges many sources of potential illness that can well account for a considerable part of his poor attendance record. However, while his medical record explains many of his absences, it does not explain the consistency with which he was absent for some of the period prior to the date of his transfer to machine repair work. D.'s attendance record is not good even when the absences explained by his medical history have been taken into account. The shift of D. from production to machine repairs cannot be considered as a promotion, even though he received a higher rate on the latter work. It is obvious that D. requested this work as a means of getting away from work in which an oil spray was involved, and that Management made the change partly with this thought in mind. The Umpire, therefore, considers the change in D.'s work in the form of a transfer rather than as a promotion. When D. was transferred to machine repair work, it is evident that he was cognizant of his poor attendance record. However, when the transfer to machine repair work was proffered to him there is simply no evidence that any intimation was given to him that failure to make good on the work, or a continuation of his previous attendance record, would lead to his discharge. Management has clearly indicated that D. was discharged because of his lack of experience in machine repair work, and because of his inability to perform many of the kinds of machine repairs required at this plant. While D. did show an intimate knowledge of many kinds of machine repair work, Management has supported with real evidence its contention that he could not satisfactorily perform much of the machine repairs required in its plant. Since the discharge was enforced because of D.'s inability to do the machine repair work, the question arises whether the discharge was "for cause," as required by Paragraph 8, of the June 3, 1941 Agreement. Management has not cited D.'s attendance record as a cause for his discharge, but has stated that his attendance record prevented consideration being given to transferring him back to production. In effect, what local Management has done in this instance is to say D.'s attendance record was not good cause for his discharge while he remained on production, but when he failed to make good on another job, his attendance record blocked his return to his former job and made his discharge necessary. If D.'s attendance record was not sufficient cause for his discharge while he remained on production work, it was not sufficient cause to block his return to that work and indirectly to cause his discharge. If Management's action in this instance were to be upheld entirely, it would follow that D. pyramided the risk involved in his attendance record by accepting the transfer, without being aware that he was exposing himself to an additional risk. Management has the sole responsibility of transferring employees under Paragraph 63 of the June 3, 1941 Agreement. Paragraph 8, of the same Agreement, grants to Management the right to discharge "for cause." Since the immediate cause for the discharge of D. was his inability to perform work to which he had been transferred, the Umpire is of the considered opinion that the discharge was not "for cause." The inability of D. to perform the machine repair work gave Management the clear right to remove him from such work, but as an employee who still held seniority in the production group, he should have been returned to his previous job on some other one comparable in nature. Any other interpretation of the Agreement would obviously cause other employees to hesitate to accept promotions for fear that they would lose all accumulated rights if they should fail to meet the requirements of the new job. While it has been ruled here that D. was not discharged for cause, the Umpire is of the firm conviction that Management had real reason for disciplinary action against D., because of his very poor attendance record. With a view to indicating to D. the seriousness of his poor attendance record, and to emphasize the need for a distinct improvement in that record in the future, the Umpire directs that the disciplinary action be changed from discharge to a disciplinary layoff of approximately one month beginning with the date he was informed of his discharge. Employee D. is to be reinstated to the payroll at this plant as of December 8, 1941, and his seniority shall not be affected. Any loss in wages that D. may have suffered between December 8, 1941, and December 30, 1941 (when he obtained employment at a rate of pay higher than he had received at this plant) shall be made up in the form of back pay in accordance with Paragraph 50 of the June 3, 1941 Agreement. Payment shall be made for this period, however, only for the days that D. would have received work in keeping with his seniority date. If D.'s hiring seniority date now entitles him to a production job he shall, within two weeks of the date of this decision, be offered a job comparable in rate to that which he previously held in production work. If his seniority date does not entitle him to recall at the present time, he shall be offered a job as soon as his seniority would so entitle him, under the terms of the seniority agreement in effect at this plant. Because of the circumstances involved in this case, the Umpire directs, further, that if D. does not accept recall as noted above, Management shall terminate his employment as a "quit," as of December 30, 1941. Decision
Signed G. ALLAN DASH, JR., UMPIRE. March 31, 1942. |