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OFFICE OF THE UMPIRE D-2 JULY 20, 1945
Claim Of Unjust Discharge By A Temporary Employee
GRIEVANCE: Detroit Diesel Division—Case D-8 "I was unjustly discharged. Demand pay for all time lost."
Umpire’s Decision: As L.’s claim of unjust discharge was not "stated in detail in writing" at the time of the filing of the grievance, as required by Paragraph 56 of the National Agreement, it must be dismissed as having been improperly filed and hence without status in the grievance procedure. (Entire Decision should be read)
In the Matter of: United Automobile Workers of America—C.I.O.—Local 163 and General Motors Corporation—Detroit Diesel Engine Division—Case D-8
Employee L., one of five blind men employed by the Detroit Diesel Engine Division at the hand lapping of injector bushings, was discharged on May 18th, 1945. On the following day he filed the instant grievance which reads: "I was unjustly discharged. Demand pay for all time lost." The Foreman accepted the grievance and placed a disposition upon it stating: "Discharge justified. Back pay denied." At the Second Step, however, Management refused to consider the grievance on the ground that it had not been presented in accordance with the requirements of Paragraph 56 of the National Agreement. It maintained this position at the Third Step and at the Umpire hearing. The only question before the Umpire, therefore, is the correctness of Management’s technical position. The merits of L.’s discharge are not here at issue and are not passed upon in this decision. Paragraph 56 of the National Agreement of April 16th, 1945, reads as follows:
Employee L. had been hired on March 26th, 1945. At the time of his discharge he was still a temporary employee but had been employed for more than 30 days. In principle, therefore, he was clearly entitled to have his claim that his discharge was not for cause taken up as a grievance. In objecting to the consideration of the merits of his case by the Umpire, Management makes two points: In the first place, it points out, L.’s grievance was not accompanied by any detailed written statement of the basis for his claim. The last sentence in Paragraph 56 requires the submission of such a statement at the time of the filing of the grievance. As L. did not meet this requirement, Management argues, his grievance is without status. Management was not required to consider it and the Umpire is without jurisdiction to decide it. In the second place, Management contends that even if his grievance had been properly filed and was supported by the weight of the evidence, his reinstatement could not properly be required. Management here relies upon the statement in Paragraph 56 that: "There shall be no responsibility for the reemployment of temporary employees if they are laid off or discharged during this period." It seems to argue that the succeeding sentence, which permits temporary employees who have been employed for 30 days to have a claim of unjust discharge taken up as a grievance, merely allows such employees to appeal through the grievance machinery for the favorable exercise of Management’s discretion, but places Management under no obligation to reinstate them regardless of the merits of their case. It would presumably follow that the most the Umpire could do if this case were before him on the merits would be to make a finding as to the existence or non-existence of good cause for L.’s discharge. Regardless of the nature of this finding, however, he could not direct L.’s reinstatement. With this latter contention of Management, the Umpire must flatly disagree. Any such interpretation would render the last two sentences of Paragraph 56 meaningless and superfluous. Temporary employees have always been able to ask Management, in its discretion, to reinstate them following a layoff or discharge. They have always had the right to file grievances protesting that a layoff or discharge was without cause and to ask that Management, in a spirit of equity and fairness, should voluntarily correct the injustice which they claimed to have suffered. Their rights in this respect, under the former National Agreement, differed from those of seniority employees only in that they could not demand reinstatement as a matter of right unless they claimed that their layoff or discharge had been the result of personal prejudice or of discrimination for Union activity. The Corporation is thus in effect contending that the new language in Paragraph 56 did nothing to improve their situation—that the rights of employees who have more than 30 days of employment are not substantially different from those who have less. Indeed, if its argument is accepted and followed out logically, temporary employees are now worse off than they were before Paragraph 56 was amended, for even their right to reinstatement in cases of personal prejudice or anti-Union discrimination has been lost. The Corporation argues, nevertheless, that its interpretation is necessary if the statement that "There shall be no responsibility for the reemployment of temporary employees if they are laid off or discharged during this period" is to retain any meaning and effect. No such necessity is apparent to the Umpire. The same language was contained in the earlier versions of Paragraph 56 and was never thought to be negated by the exception permitting claims of personal prejudice or of discrimination for Union activity to be taken up as a grievance. The expansion of the exception to include claims that a layoff or discharge is not for cause narrows the application of the general rule but does not render it meaningless. There is an elementary distinction between layoffs and discharges which are occasioned by an employee’s conduct in the plant and those which are the normal result of changes in operating schedules and manpower requirements. As to the latter, the rights of temporary employees have not been altered. As to the former, temporary employees with more than 30 days of employment now have the same right to have their claims taken up as a grievance that they previously had with respect to claims of personal prejudice or anti-Union discrimination. It has always been understood, moreover, that the right to have these latter claims "taken up as a grievance" included the right of the Umpire to direct their reinstatement if the claim was supported by the evidence. Management’s first point, however, is well taken. The requirement of Paragraph 56, that claims of unjust layoff or discharge made by temporary employees "must be stated in detail in writing at the time of the filing of the grievance", is absolute. The provision seems to have been included as a safeguard to prevent Management from being deluged with grievances every time a reduction in force required the layoff or discharge of temporary employees. It is mandatory and permits of no exceptions. Unless it is complied with, the grievance is not properly filed, and Management is under no more obligation to consider it than if it had been filed after the expiration of the time limits of Paragraph 77. The Union contends, it is true, that unless an employee has knowledge of the reason for his layoff or discharge, a detailed explanation of his claim that it is without cause is impossible to prepare. Suppose, it says, an employee was fired for no reason at all, through the mere whim or caprice of a Supervisor. What could he "state in detail" concerning his discharge beyond the bare allegation that so far as he knew it was without cause? In the instant case, it says, L. knew that he had been spoken to about his production and told that he must improve it. But he also believed that he was producing as much and working as efficiently as any of the other employees in his group. Without knowing in detail the basis of Management’s belief that he was an unsatisfactory employee, without knowing whether they thought that he was deliberately "pegging production" or considered that he had shown himself to be incompetent, how could he write a statement proving that they were wrong? Is not Management construing the last sentence of Paragraph 56, in other words, as embodying the unreasonable requirement, unheard of in Anglo-Saxon law, that a man shall state his defense before he is made fully aware of the charges against him? In the view of the Umpire, this contention has more weight in theory than in fact. Obviously, Paragraph 56 does not require a temporary employee to state his full defense if his ignorance of the facts or of the reason for his discharge renders this impossible. Obviously, it does not bar the Union from amending its contentions in respect to his grievance at the Second Step if facts come to light which were not known before. But, quite as obviously, it does require the employee to state what he does know of the facts—to make a bona fide effort to comply with the requirements within the limits of his knowledge even if he can only explain the reasons for his bewilderment at his penalty. The sufficiency of such statements in the circumstances of each case must be for the Umpire to determine. He must necessarily be governed by the rule of reason in his determinations. But he cannot hold that L.’s mere statement that his discharge was unjust, supported by no facts whatsoever, complies with the requirements of Paragraph 56. L. can hardly claim, moreover, that he was unaware of the reasons for his discharge. He had had a number of conversations with his Supervisors concerning his production. He had been specifically warned that his failure to improve would bring about his release. If doubt remained, he had the opportunity at the time of his discharge to inquire further as to the reason for it. Before leaving the plant he talked with his Committeeman, who should certainly have been familiar with the language of Paragraph 56 and have advised L. as to how to comply with it. And though L. might not have been able to give accurate figures on his production, he was clearly in a position to state in his grievance what he believed it to have been, how he believed it to compare with that of his fellows, what efforts he had made to improve, and what justifiable excuse there may have been for his failure. It is always unfortunate when a case must be dismissed for technical reasons. The Umpire would prefer to consider every case upon its merits and to ensure—to his own satisfaction at least—that justice is done. His primary duty, however, is to apply the National Agreement as it is written, and that duty extends to the procedural requirements of the Agreement as clearly as to its substantive provisions. In no way could he honor the present grievance without nullifying the stated requirements of Paragraph 56. The grievance must be held to have been improperly filed and therefore beyond the jurisdiction of the Umpire to consider on its merits.
Decision: As L.’s claim of unjust discharge was not "stated in detail in writing" at the time of the filing of the grievance, as required by Paragraph 56 of the National Agreement, it must be dismissed as having been improperly filed and hence without status in the grievance procedure. Signed, Ralph T. Seward UMPIRE July 20, 1945. |