OFFICE OF THE UMPIRE

C-385

August 10, 1945

 

Penalties For Failure To Meet Time Limitations

 

GRIEVANCE:

Pontiac Motor—Cases C-276, C-277, C-279, C-251, C-256 and C-257

"As these filters XH-30, XH-31, XH-35, are production machines, they should be cleaned by machine cleaners."

"Protest unjust penalty. Request back pay."

"I request that my rate be adjusted to $1.50 immediately, merit having been established and agreed to by both Foreman and General Foreman in the November 1944 discussion."

"Protest unjust and indiscriminate penalty. I was not and do not gamble. Ask pay for time penalized and my record kept clear."

 

Umpire’s Decision:

1. With regard to cases C-251, C-256 and C-257, it is held that the untimeliness of Management’s Third Step Answers did not result in the grievances being automatically settled upon the basis of the Union’s demands.

2. With regard to Cases C-276, C-277 and C-279, it is held that the untimeliness of the Union’s presentation of its Statements of Unadjusted Grievance did not result in the settlement of these cases upon the basis of Management’s Second Step Answers. These three cases are accordingly returned to the parties for the exchange of Statements of Unadjusted Grievance and for such other proceedings as they may desire to take in the Grievance Procedure. (Entire Decision should be read)

 

In the Matter of:

United Automobile Workers of America—C.I.O.—Local 653

and

General Motors Corporation—Pontiac Motors—Cases C-276, C-277, C-279, C-251, C-256 and C-257

 

The original grievances in Cases C-276, C-277 and C-279 were filed on February 19th, February 17th, and February 26th, 1945, respectively. After the usual First Step proceedings, the cases were duly appealed to the Second Step and received consideration at a Management-Shop Committee meeting. Management’s Answers at the Second Step were given to the Union on March 8th, 1945. The Union’s Notices of Unadjusted Grievance were filed on March 15th, 1945. The Union did not submit its Statements of Unadjusted Grievance for exchange with Management, however, until March 23rd, 1945. Management thereupon contended that as the Union had failed to meet the time limit of five working days established by Paragraph 37 for the exchange of Statements of Unadjusted Grievance, the cases must be considered as settled on the basis of Management’s Second Step Answer and as not being subject to further appeal. For that reason the merits of these cases were not discussed at the Third Step or presented to the Umpire. The sole issue now to be decided concerns the validity of Management’s procedural contention; whether, in other words, the cases should be considered as closed on the basis of local Management’s Answer at the Second Step or referred back for an exchange of Statements of Unadjusted Grievance and for such further proceedings as the parties may desire to take.

At the same time that these cases were heard by the Umpire, three other cases from the same plant, C-251, C-256 and C-257 were presented. (The merits of these cases are considered in Umpire Decisions C-383, C-384, and C-382, respectively.) In the earlier proceedings on these cases, Management had failed to mail to the Union its Third Step Answers within five working days after the Appeal Committee meeting as required by Paragraph 42. The Union therefore took the position that if it was to be penalized for its delinquency in Cases C-276, C-277 and C-279 by the settlement of those cases on the basis of Management’s Answer, Management should with equal justice be penalized for its delinquency in Cases C-251 C-256 and C-257 by the settlement of these grievances upon the basis of the Union’s demands. In appealing the merits of the cases to the Umpire, the Union expressly stated that it was not waiving this contention.

The National Agreement defines the consequences of a failure to meet the various time limits of the Grievance Procedure only in the following instances:

1. With regard to procedures at the Second Step, Paragraph 34 states that:

"Any grievance not appealed from a decision at one step of this procedure in the plant to the next step within five working days of such decision shall be considered settled on the basis of the last decision and not subject to further appeal."

2. With regard to procedures at the Third Step, Paragraph 38 provides that:

"Any case not appealed within thirty days of the date of the written decision by the local Plant Management to the Shop Committee shall be finally and automatically closed on the basis of that decision and shall not be subject to further appeal."

3. With regard to procedures at the Fourth Step, Paragraph 43 provides that: "Cases not appealed to the Umpire within twenty-one days from the date of a final decision given after review in an Appeal Committee meeting shall be considered settled on the basis of the decision so settled."

4. With regard to complaints of unjust or discriminatory layoffs or discharges, Paragraph 77 provides that: "If a decision of the local Plant Management in such a case is not appealed by the Shop Committee within five working days, the matter must be considered closed."

As to the specific situations covered by the above quoted language, there can be no argument. The time limitations to which they refer, however, are only a few of those established in the Grievance Procedure Section of the contract. Not covered, for example, are:

1. The obligation of highest local Management to give its final decision at the Second Step within fifteen working days from the date of the first written filing of the grievance (unless a different time limit is established by written local agreement) (Paragraph 34);

2. The requirement that Management and Union shall exchange Statements of Unadjusted Grievance within five working days after the Shop Committee has given Management its Notice of Unadjusted Grievance (unless the time limit is extended by written local agreement) (Paragraph 37);

3. The obligation placed upon both parties to hold an Appeal Committee meeting within seven days after a Notice of Appeal has been received, if no meeting has been held within the two-week period prior to such receipt (Paragraph 41);

4. Management’s obligation to furnish to the Union its Third Step decision and a summary of the minutes of the Appeal Committee meeting within five working days after such meeting (unless a longer period is agreed to in writing) (Paragraph 42);

5. The obligation of both parties to file their briefs with the Umpire within twenty-one days of the receipt of a Notice of Appeal (Paragraph

43); and

6. The obligation of local Management to render a decision in discipline and discharge cases within five working days after the grievance is filed.

The issue in Cases C-276, C-277 and C-279, relates only to the time limitation on the filing of Statements of Unadjusted Grievance. The Corporation’s reasoning, however, is equally applicable to any of the other time limitations just listed. In essence, Management is contending that the same penalty expressly established by the Agreement for the Union’s failure to meet the time limit for an appeal should be applied to other procedural delinquencies of the Union, even though there is no express language in the Agreement providing for such penalties. At the same time it opposes the Union’s claim in Cases C-251, C-256 and C-257 on the ground that no penalties for its own delinquencies are established by express language in the Agreement. It is asking the Umpire, in other words, to construe the Agreement strictly insofar as its own liabilities are concerned, but liberally insofar as concerns those of the Union.

The Umpire can accept no such dual standard of interpretation. The penalties for untimely appeals expressly set forth in the Paragraphs noted above, must necessarily be recognized and applied. He cannot extend their scope, however, without adding to the terms of the Agreement. The impropriety of such action by the Umpire has been emphasized by Management on numerous occasions and was urged most energetically in Management’s reply to the Union’s claims in Cases C-251, C-256, and C-257. In all fairness, however, the restrictions on an Umpire’s power must apply with equal force regardless of which party is asking for their relaxation. Management is correct in holding that the Umpire is without jurisdiction to penalize it for its delinquency in Cases C-251, C-256 and C-257. By the same token, however, it must recognize that he is also without jurisdiction to penalize the Union for its derelictions in Cases C-276, C-277 and C-279.

The Umpire recognizes that this decision construes the penalty provisions of the Agreement more narrowly than the parties themselves have done at many of the local plants. He recognizes the importance of expedition in the handling of grievances and the need of ensuring such expedition by penalizing failures to meet the time limits specified for each stage of the Procedure. Only the parties themselves, however, can properly broaden the scope of the penalty provisions of the Agreement. Only the parties can properly consider the equities in the Union’s claim that there should be a mutuality of penalties and that the Union should not be held to strict observance of the time limits while Management is allowed to violate them with complete impunity. This decision reflects and applies the language which the parties have themselves written into their Agreement. If the parties consider that further penalties are required, they must themselves provide for them.

 

Decision:

1. With regard to Cases C-251, C-256 and C-257, it is held that the untimeliness of Management’s Third Step Answers did not result in the grievances being automatically settled upon the basis of the Union’s demands.

2. With regard to Cases C-276, C-277 and C-279, it is held that the untimeliness of the Union’s presentation of its Statements of Unadjusted Grievance did not result in the settlement of these cases upon the basis of Management’s Second Step Answers. These three cases are accordingly returned to the parties for the exchange of Statements of Unadjusted Grievance and for such other proceedings as they may desire to take in the Grievance Procedure.

Signed, Ralph T. Seward

UMPIRE

August 10, 1945.


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