|
|
|
OFFICE OF THE UMPIRE No. C-144 November 30, 1943
Promotion Under Paragraph 63
GRIEVANCE: Pontiac Motor—Case C-46 "Violation of Paragraph 63 of National Agreement. Ask back pay."
Umpire’s Decision:
In the Matter of: United Automobile Workers of America, C.I.O.—Local 653 and General Motors Corporation—Pontiac Motor Division—Case C-46
The employee grievance in this case, presented by L. in his own behalf on June 11, 1943, reads as follows: "Violation of Paragraph 63 of the National Agreement. Ask back pay." This grievance involves a contention by Employee L. that he should have been promoted to a higher paying job setter opening in place of another employee who was promoted from another classification. A hearing on this matter was held in Detroit on October 29, 1943.
Nature of Case On May 3, 1943, Employee C. (seniority date 2-19-37) was advanced from the classification of "Grinder—Rough and Finish" at $1.20 per hour, to the classification of "Job Setter" at $1.30 per hour. On June 11, 1943, almost six weeks later, Employee L. filed the instant grievance protesting the advancement as a violation of Paragraph 63 of the National Agreement. At the time of the promotion of Employee C., the complainant (L.) was working as a job setter in another department at the rate of $1.27 per hour. The Union asks that L. be promoted to the higher paying job now held by C., and requests that he receive back pay for the period during which C. held that job. Union Position The Union contends that Employee L.’s experience as a job setter caused him to be far in advance of Employee C. with respect to ability, merit and capacity to fill the opening into which Employee C. was promoted. Though Employee L. may not have had as much experience as Employee C. in setting up some of the jobs in the department, the Union still maintains that L. had sufficient experience to have enabled him to fill the job without any additional training. Because of L.’s past experience as a job setter at $1.27 per hour, then, the Union reasons that he was fully capable of filling the job that carried a rate of $1.30 per hour, and possessed far greater ability, merit and capacity than C. for such a job. The Union notes that Management has raised a question as to the timeliness of the present grievance. The Union denies this untimeliness with the following statement, "This grievance was raised by L. and a promise was given that he would be given a $1.30 job. This promise was enough to delay the filing of this written grievance which was raised again verbally before being submitted in writing." When Employee L. was not given a job at $1.30 per hour, the Union reasons that he was correct in filing the instant grievance requesting that he be given the job into which C. was promoted and receive back pay for the period he was denied the promotion. Corporation Position The Corporation presented particular details with respect to the various machines that had to be set up in the department into which C. was promoted as a job setter. It contends that the experience he had gained in setting up these machines during the periods in which he substituted for, or assisted, the regular job setter, enabled him to perform the work when the opening occurred. If Management had promoted Employee L. to the job, it is reasoned that delays would have resulted while L. was being taught the setup of some of the machines on which he had no experience. In Management’s opinion, Employee C. possessed much greater ability than the complainant to set up the various machines that were involved in the department in which the opening occurred. Management claims, therefore, that the ability, merit and capacity of Employee C. was greater than Employee L., "especially since the employee who was advanced to the higher rated job possessed considerable knowledge about it, while the employee protesting the advancement had a rather limited knowledge of only a phase of the work to be done". The Corporation raises strenuous objection to what it contends is a lack of timeliness in the presentation of the instant grievance. It maintains that the claim raised by the employee to the effect that he was promised a set-up job at $1.30 per hour "resolves itself to a statement by supervision that if separate setup men were placed on the 1054 line (Mr. L.’s job) to handle the mills and grinders, then the complainant would be given the set-up job for the grinders." The Corporation requests, therefore, that the Umpire find that Paragraph 63 of the National Agreement has not been violated in the advancement of Employee C., and further asks that the Umpire deny the request for back pay. Conclusions and Decision of the Umpire The present grievance lacks much that is necessary to obtain redress from the Umpire. Its lack of timeliness is of extreme importance in this connection, but it also fails to give cognizance to the principle enunciated in prior decisions to the effect that a decision in one case should not result in the creation of grievances for other employees. These two aspects of the present case are the only ones which the Umpire feels necessary to comment upon at any length in this decision. Apparently the real reason for the presentation of the instant grievance stemmed out of Employee L.’s failure to receive a promotion from his position as a job setter at $1.27 per hour to one at $1.30 per hour. While Employee L. was awaiting Management’s fulfillment of its rather limited promise to make a specific job available if such a job should develop, he raised no formal objection to the promotion that had been granted to Employee C. However, when he did not receive the promised promotion in what he felt was a proper time, he presented a grievance and attempted to make it retroactive to a specific promotion that had occurred approximately six weeks before that date. By that time the employee who had received the promotion was firmly established in the job and Management had not received the slightest inkling that any disagreement had existed with respect to that promotion. Certainly under such circumstances, the Umpire can come to no other conclusion than that Employee L.’s grievance was untimely. The other aspect of this case which requires comment is in reference to the propriety of Employee L.’s claim to the exact job held by Employee C. This comment would be necessary even if Employee L.’s grievance had been timely. It should be noted that Employee L. filed a specific grievance asking that he be promoted to the job held by Employee C., and that he be paid back pay for all of the time during which he did not receive the higher rate of pay. If the Umpire should grant such a request, several improper results would occur. First, and foremost, the Umpire would have to substitute his own evaluation for that of Management in deciding who should be promoted to a specific job opening. Obviously, the Umpire cannot assume a power of right that rests with Management under the terms of Paragraph 63 of the National Agreement. All that the Umpire could have done under these circumstances would have been to declare the job held by C. vacant, and have directed Management to fill the opening with someone they had properly selected on the basis of Paragraph 63 of the National Agreement. The Umpire would have acted far beyond the provisions of the National Agreement, and entirely without conformance to past decisions, if he had ordered the promotion of Employee L. or had directed back pay for any period of time. The second basis on which Employee L.’s claim is questionable is that if it had been granted, it is highly probable that grievances on the part of other persons would have automatically resulted. The mere fact that Employee L. presented a claim to the job held by C. did not permit his qualifications to be the only ones that could be considered to fill the opening that would have occurred had C.’s new job been declared vacant. The ability, merit and capacity of other employees may well have been such as to entitle them to consideration in filling the job to which C. had been promoted. The Umpire could not disregard such rights by ordering the promotion of Employee L. That very promotion may well have given rise to the filing of grievances by other employees whose ability, merit and capacity to fill the higher rated job setter opening may have been equal to, or have surpassed, those of Employee L. (It should be noted in passing that the presentation of the grievance by Employee L. did not cause him to be the spokesman of all employees whose rights may possibly have been violated by the promotion of C., unless they joined him in some concise manner in presenting the grievance.) It should be clear, then, that L.’s promotion to the specific job held by C. could not be ordered if for no other reason than such a procedure may have resulted in the motivation of other unexpressed claims by persons with greater ability, merit and capacity than those possessed by Employee L. It should be noted that the Umpire has given no consideration to the specific abilities, merit and capacities of Employee L. as compared to Employee C. Such treatment of this case is not an oversight, but arises entirely out of the lack of timeliness and the improper presentation of the grievance by Employee L. Any right which L. may have had to have his qualifications compared with those of Employee C. were lost by the lack of timeliness of the presentation of his grievance. However, it should be noted that even if the grievance had been presented in a timely manner, the actual redress sought by Employee L. could not have been granted because it would have resulted in the Umpire substituting himself for Management and determining that a specific employee should be promoted regardless of the requirements of Paragraph 63 of the National Agreement.
Decision
Signed G. ALLAN DASH, JR. UMPIRE November 30, 1943. |