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OFFICE OF THE UMPIRE No. C-130 October 18, 1943
Selection for Promotion Under Paragraph 63
GRIEVANCE: Hyatt Bearings—Case C-34 "We, the undersigned feel that there has been a violation of clause (63) of the contract. The clause states that whenever there is an advancement into higher paid job, where ability, merit, and capacity are equal the employees with the longest seniority shall be given preference. We also feel that the man appointed for the job at the present time has not the disposition to make the men want to work for him without feeling that there has been an injustice done. The men feel that they have nothing to work for in the future under these conditions. We request that this situation be adjusted."
Umpire’s Decision:
In the Matter of: United Automobile Workers of America—C.I.O.—Local 511 and General Motors Corporation—Hyatt Bearings Division—Case C-34
On May 6, 1943, some ten employees, headed by Employee E. M., presented a grievance which read: "We, the undersigned feel that there has been a violation of clause (63) of the contract. The clause states that whenever there is an advancement into higher paid job, where ability, merit, and capacity are equal the employees with the longest seniority shall be given preference. We also feel that the man appointed for the job at the present time has not the disposition to make the men want to work for him without feeling that there has been an injustice done. The men feel that they have nothing to work for in the future under these conditions. We request that this situation be adjusted." A hearing on this grievance was held in New York on October 1, 1943.
Nature of Case Shortly before the date of the instant grievance, Employee H. B. was promoted from the job of Electrician to Electrician—Leader. Some dissension occurred among the other electricians of longer service over this promotion and caused a group of them to file the instant grievance protesting the promotion of H. B. Although the Union has presented a claim with respect to at least ten employees, it stresses the contention of four employees who hold that they possessed at least equal ability, merit and capacity to Employee H. B. (Seniority date 3-6-36), and should have been promoted in his place. Specifically the Union cited the cases of the employees whose initials and seniority dates are shown below.
It is observed that Employee J. L., who leads the list noted above, was promoted to the classification of Electrician—Leader on June 28, 1943. In the final steps of the consideration of the instant grievance, the Union has narrowed its claim and contends that Employee E. M. should be given the job of Electrician—Leader in place of Employee H. B. Union Claim The Union urges that a considerable number of electricians in the group from which Employee H. B. was selected were at least equal to him in ability, merit and capacity. It contends that the three specific jobs which had been performed by Employee H. B., and on which his selection had largely been based, were of a nature which any of the allegedly aggrieved employees could have performed had they been given the opportunity and the necessary equipment to perform the work. Because they were not given an opportunity to show their merit, the Union notes that the ability of the individual employees to perform the work could not be demonstrated. The single exception that it makes in this particular is in the case of Employee J.L., whom it notes performed several Leader jobs of undoubted merit. The Union has cited a number of individual jobs (not Leader work) which were performed by several of the aggrieved employees. It maintains that the workmanship on all of these jobs was sufficiently outstanding to merit the consideration for promotion of the men who performed them. The Union has also stressed some of the background of the various claimants to indicate that their experience covered a longer period of time than Employee H. B. and should have qualified them for consideration for the job as Leader. The Union takes the position that Employee H. B. was not "head and shoulders" above all of the candidates for the Leader’s job. It feels that while he may have been equal to other employees in these attributes, conformance with past decisions of the Umpire and proper recognition of Paragraph 63 of the National Agreement should have caused Management to group H. B. with other employees of like ability, merit and capacity before making a promotion to the Leader classification. If such a step had been taken, the Union holds that Employees J. L. or E. M. would undoubtedly have been promoted. Inasmuch as Employee J. L. has been promoted since the date of the instant grievance, the Union reasons that Employee E. M. should be given the job held by Employee H. B. because of his equal ability, merit and capacity and his longer seniority. Corporation Position Management maintains that Employee H. B. "was outstanding in ability, merit and capacity among other electricians in his group and had manifested qualifications embracing these qualities needed for the fulfillment of the duties of Electrician—Leader". It holds that H. B. surpassed all other electricians with respect to ability, merit and capacity and that he stood "head and shoulders" above all others in his group. The Corporation claims that local Management gave every consideration to the qualifications of all of the available electricians and states that it was fully satisfied that "B. excelled in these qualifications which are so essentially necessary for the fulfillment of the duties of Electrician—Leader." Particular emphasis in the choice of Employee H. B. for promotion, Management notes, was based on the fact that Mr. S. and Mr. G. (two members of supervision) "recalled the various occasions when Mr. B. had been given assignments which gave him an opportunity to demonstrate leadership qualities". On these occasions Management feels that H. B. demonstrated his possession of leadership qualities to the extent that he was considered to be "head and shoulders" above the other electricians in the department in this respect. Management does not deny that many of the other electricians were excellent mechanics, but it holds that none of them demonstrated leadership qualifications equal to H. B. Upon the basis of its contention that Employee H. B. was "head and shoulders" above all other electricians available for the Leader job, Management maintains that his promotion was in proper compliance with Paragraph 63 of the National Agreement.
Observations and Decisions of the Umpire Many past decisions of the Umpire have indicated that one method of promoting an employee in compliance with Paragraph 63 of the National Agreement is to group those employees who stand relatively equal as to ability, merit and capacity and then to promote the employee in that group with the greatest seniority. It has also been indicated that if an employee is found to stand "head and shoulders" above other available men insofar as their relative abilities, merits and capacities are concerned, there is no question but that the promotion of such an employee would be in compliance with Paragraph 63 of the National Agreement. It has also been indicated that the rather nebulous character of the three attributes of ability, merit and capacity make difficult any objective measure. The very difficulty of the measure should make it evident that an employee should certainly be outstanding in relation to other employees to be considered "head and shoulders" above them with respect to relative ability, merit and capacity. A fine shade of difference between two employees does not make one stand "head and shoulders" above the other. In the present case, it cannot be said that supervision attempted to use any objective measures in the determination to promote Employee H. B. to the job of Electrician—Leader. It is noted, for instance, that when two members of supervision discussed the possible future necessity for additional Leaders, one of the supervisors stated that "in his opinion Mr. B. was the outstanding electrician in the department for consideration as a Leader", and another member of supervision "concurred with his opinion". When the actual need for an additional Leader arose, it is said that two members of supervision, "mutually agreed" that H. B. should be advanced to the classification of Leader. In arriving at this decision, it is stated that these two members of supervision "recalled the various occasions when Mr. B. had been given assignments which gave him an opportunity to demonstrate leadership qualities". Because of three instances in which it was recalled that Employee H. B. had demonstrated certain leadership qualities, it is now said that he stood "head and shoulders" above all other electricians in his group. With such fragmentary evidence the determination that H. B. stood "head and shoulders" above all of the other electricians can hardly be supported especially with respect to Employee J. L. who had 19 more years seniority at this plant and had demonstrated leadership potentialities in other jobs. Certainly the few jobs which Employee H. B. had performed satisfactorily to "demonstrate his leadership qualities" were not sufficient to offset the 19 years of additional experience on the part of J. L. who had also demonstrated the same qualities in other jobs which he performed satisfactorily. The available evidence in this case convinces the Umpire that Management did not make its original choice of Employee H. B. for promotion to the job of Electrician—Leader in conformance with Paragraph 63 of the National Agreement. It seems quite evident that though Employee H. B. stood above most of the other employees with respect to ability, merit and capacity, he did not exceed Employee J. L. in these attributes. To comply with Paragraph 63 of the Agreement, then, Employee H. B. should have been considered approximately equal in ability, merit and capacity to Employee J. L. before the promotion was made. Had this been done, it is evident that Employee J. L. would have received the promotion because he held 19 years more seniority than Employee H. B. Management’s failure to make its choice in the manner noted above must be held to have represented a violation of Paragraph 63 of the October 19, 1942 National Agreement. However, inasmuch as Employee J. L. was advanced to the position of Electrician—Leader on June 28, 1943, it is not necessary for the Umpire to declare H. B.’s job vacant to be filled by Employee J. L. These two men were obviously in a class by themselves with respect to relative ability, merit and capacity to become Leaders. Since both of them have been advanced to the Leader classification, there is no necessity to declare vacant the job held by Employee H. B. The final request presented by the Union, namely that Employee E. M. be given the promotion that was made available to H. B., cannot be granted. Obviously the Umpire has no right to order the promotion of any individual but can simply declare a job vacant to be filled by Management in compliance with Paragraph 63 of the National Agreement. Since the Umpire has already found that Employee H. B. should have been grouped only with Employee J. L. before the original promotion, he has already disposed of the contention of E. M. that he should have been grouped with these two employees for consideration for the Leader job. The Union’s specific request in the case of E. M., therefore, must be denied.
Decision
Signed G. ALLAN DASH, JR. UMPIRE October 18, 1943. |