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OFFICE OF THE UMPIRE No. D-68 MAY 14, 1947
Transfers Across Bargaining Unit Lines: Effect On Seniority
GRIEVANCE: Chevrolet-Bloomfield—Case D-9 "I claim Management cannot bring Patrol Service men back into Export Unit with their original seniority. As they have their own seniority set-up and a different bargaining Committee. And were never implicated in any of Export layoffs and can only come back as new employers."
Umpire’s Decision: The Umpire finds that in view of the silence of the Agreement as to the effect of a transfer across bargaining unit lines on the seniority of the transferred employe, this case must be referred back to the parties without decision. (Entire Decision should be read)
In the Matter of: United Automobile Workers of America—CIO—Local 713 and General Motors Corporation Chevrolet—Bloomfield—Case D-9
At issue in this grievance is the question of whether or not the transfer of an employee who holds seniority within a bargaining unit covered by the National Agreement to a job outside of the bargaining unit serves to break his seniority. On April 26th, 1934, Employee D. was hired into the Export Division of the Chevrolet Bloomfield Division. The Export Division was thereafter certified and recognized as a bargaining unit under the successive National Agreements between the General Motors Corporation and the UAW-CIO. In 1942, D. accepted a transfer to the Plant Protection Department which is excluded from the Export Division bargaining unit and from the coverage of the National Agreement. In May, 1945, at D.’s request, Management transferred him back to the Export Division, assigning to him his original seniority date of April 26th, 1934. The Union claims that his original seniority in the Export Department was broken in 1942 when he was transferred to Plant Protection and that he should now be treated as though he were a new employee with seniority dating back only to his re-entry into his original bargaining unit. Much of the argument in this case has been confused by the introduction of an irrelevant issue—the question of whether or not seniority may properly be transferred across bargaining unit lines. In the light of past Umpire Decisions, it should by now be clear that in the absence of agreement between the parties, such transfers of seniority are prohibited. The fact, then, that when D. was first transferred to Plant Protection in 1942, he was given as his seniority date in Plant Protection his original hiring date in the Export Division, does not and cannot mean that his seniority had been transferred out of the Export Division bargaining unit. It means only that Management was exercising its then unrestricted discretion to establish such seniority dates and rules for its salaried Plant Protection employees as it chose, whether or not any such employees continued to hold seniority in the Export Division under the National Agreement. Similarly, when D. was transferred back into the Export Department he obviously could not bring his Plant Protection seniority with him. The only question, then, is whether during the period of his service in Plant Protection he was still retaining and accumulating seniority in the Export Division bargaining unit or whether his transfer out of that unit served to break his seniority there. Paragraph 64 of the National Agreement sets forth six ways in which an employee’s seniority may be broken. No language in that Paragraph refers specifically to transfers across bargaining unit lines. Sections (b), (c), and (d) of Paragraph 64, which refer to discharges, absences from work, and failures to report for work, are obviously inapplicable to the present case. The only other methods listed for the breaking of seniority are a "quit" under Paragraph 64 (a), or a "layoff" of the length specified in Paragraphs 64 (e) and (f). The Union analogizes D.’s action in accepting a transfer to Plant Protection as a "quit"—a voluntary renunciation of his employment in the Export Division bargaining unit and of his rights as an "employee" under the National Agreement. Local Management at the lower steps of the Grievance Procedure analogized it to a "layoff" from the Export Division bargaining unit followed by a rehire into the Plant Protection Department, pointing out that since this "layoff" lasted less than five years it did not serve to break D.’s Export Division seniority. In the view of the Umpire, rational argument could be used to support both of these analogies. Realistically appraised, however, they are only analogies. Employee D. did not "quit" in 1942 in the sense of severing his connection with his employer. Neither was he "laid off" from employment. He was transferred -- was moved across classification and department lines from one job to another without a break in the continuity of his employment. A transfer is no less a transfer because it involves a movement across the boundaries of a bargaining unit. With regard to the effect of such a transfer on an employee’s seniority in the bargaining unit he leaves, the Agreement is silent. Silence in the Agreement often indicates consent. At the Umpire hearing, indeed, Management rested its case essentially on the proposition that since the Agreement does not specifically provide that a transfer out of the bargaining unit shall break seniority, the contrary must be true. The Umpire would accede to that proposition if the resulting situation were not so clearly inconsistent with the basic seniority pattern established by the Agreement. Consider that pattern. Seniority is gained by the act of entering a bargaining unit as an employee and working there a definitely prescribed length of time. The methods specified for the losing of seniority all have to do with leaving the bargaining unit. If an employee quits, is absent for more than three days without notifying Management or having a satisfactory reason for his failure, or is discharged, his seniority is terminated immediately. If he is laid off his seniority remains, but only for a definite period set forth in the Agreement. It is true, of course, that under the "Leaves of Absence" Section of the Agreement, it is possible for employees to be absent from their jobs in the bargaining unit because of sickness, union activity, military service, or "personal reasons" without breaking their seniority. But the fact that the parties found it necessary to make special contractual provision for such cases only serves to emphasize their general assumption that the indefinite and prolonged absence of an employee from his job in the bargaining unit is inconsistent with his retention of seniority in that unit. It is noteworthy, in this connection, that when it became evident that the National Defense might require the transfer of employees from one General Motors plant to another, the parties felt it necessary to include in the 1942 and 1945 Agreements a special provision (Paragraph 125) protecting the seniority of such transferred employees in their original plant. The Umpire cannot adopt a position in this case which would mean that this provision was mere surplusage. In the opinion of the Umpire, then, when the Agreement is read as a whole, it cannot be concluded that the silence of Paragraph 64 with regard to transfers across bargaining unit lines necessarily means that such transfers have no effect on the seniority of the transferred employee. It is likewise true, on the other hand, that in view of that silence, the Umpire cannot hold that such transfers necessarily serve to break seniority. Rather it appears to him that the issue in this case is one on which the parties have not specifically agreed and on which the Umpire could not rule without, in effect, adding to or modifying the terms of the National Agreement. In view of this finding, he has no alternative but to refer the issue back to the parties without decision.
Decision The Umpire finds that in view of the silence of the Agreement as to the effect of a transfer across bargaining unit lines on the seniority of the transferred employee, this case must be referred back to the parties without decision.
Signed, Ralph T. Seward UMPIRE May 14, 1947. |