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OFFICE OF THE UMPIRE No. E-44 January 6, 1946
Paragraph 63(b)
GRIEVANCE: Guide Lamp Division—Case E-28 "Violation of Par. No. 63, sec. B. I submitted my verbal application to E.S. for a job on the merry-go-round (doors) approximately May 7th. In meantime operators with less seniority was placed on job."
Umpire’s Decision: 1. Paragraph 63 (b) applies only to applications for a "transfer". The word "transfer" does not include changes in job assignment that do not involve a change in an employee’s wage classification, department, shift, or seniority group. 2. Paragraph 63 (b) gives employees no contractual right to refuse a transfer. 3. Under Paragraph 63 (b) an employee who applies for a vacancy in another classification in his department and who can do the job requested must be given preference over a new hire, whether or not his transfer would involve an increase in rate. 4. As the instant grievance did not involve a request for a transfer, Paragraph 63 (b) does not apply to it. The grievance is dismissed. (Entire Decision should be read)
In the Matter of: United Automobile Workers of America—C.I.O.—Local 663 and General Motors Corporation—Guide Lamp Division—Case E-28
Six cases have been presented to the Umpire which involve claims based on Paragraph 63 (b) of the present National Agreement. In submitting them, the parties recognized that the issues they involved were interrelated and that the decision in any one of them would affect and be affected by the decisions in most of the others. In addition to the normal individual presentation of each case, therefore, the parties have each submitted a supplemental brief treating in a more general way the basic points at issue. In the interest of clarity the Umpire has decided to concentrate his discussion on all of these more general points in his opinion in the instant case, Guide Lamp E-28. In doing so he will necessarily be treating issues which this case does not itself directly raise. It should be understood, however, that this opinion is not an attempt to decide in advance all questions which might possibly arise concerning the interpretation and application of Paragraph 63 (b). The opinion deals with the general interpretation of that Paragraph only insofar as such general interpretation is necessary to an intelligent decision on one or another of the six cases at hand. Paragraph 63 is the latest agreement between the Corporation and the International Union on the disputed question of Management’s rights in the "transferring" of employees. There have been five principal stages in its development. The first agreements entered into in 1937 and 1938 placed no restrictions whatsoever on Management’s right of transfer, but merely contained a provision protecting the seniority of transferred employees similar in its essentials to the present Paragraph 62. The Agreement of June 24, 1940, however, recognized the principle that "in transferring employees, seniority will be secondary to other qualifications but will be given reasonable consideration." (Paragraph 8 of the Seniority Section.) It also recognized that claims of discrimination for Union activity in connection with transfers could be taken up as grievances. The third stage of development was reached in the National Agreement of June 3, 1941. In Paragraph 63 of that Agreement, the parties expressly stated that "the transferring of employees is the sole responsibility of Management". They qualified this general principle, however, by providing that in advancing employees to higher paid jobs "when ability, merit and capacity are equal, employees with the longest seniority will be given preference". The provision of the 1940 Agreement with regard to the filing of griveancees in connection with alleged discriminatory transfers was continued with the sole addition of the requirement that written evidence in support of the claim must be filed along with the grievance. Paragraph 63 as thus written was carried into the Agreement of October 19, 1942, without change. During the entire period between June 3, 1941, and April 15, 1945, therefore, Management’s rights in the transferring of employees were limited only in the case of promotions. In all other types of transfer, its discretion was absolute. The Union’s dissatisfaction with this situation led to the reconsideration of the Paragraph in the negotiations leading up to the Agreement of April 16, 1945. Various demands were made for the recognition of seniority not only in the making of promotions but in transfers across occupational group lines which involved no change in pay and in the filling of vacancies and new positions. The National War Labor Board attempted to dispose of the issue by directing the parties to alter the first sentence of Paragraph 63 to a statement that "the temporary transferring of employees is the sole responsibility of Management" and to provide that "rules for permanent transfers between occupational groups, filling vacancies and new positions shall be negotiated locally and included in the local seniority agreement". The remainder of Paragraph 63, with regard to promotions and claims of discrimination was left unchanged. The fourth stage of development, which was ushered in by the execution of the Agreement of April 16, 1945, was thus an "interim" period of argument, dispute and ultimately of negotiation over the additional limitations, if any, which should be placed on Management’s right of transfer where promotions were not involved. The question was one of the serious points at issue during last year’s General Motors’ strike. It was resolved only in the closing hours of negotiation for the strike settlement, when both parties finally agreed that during the life of the present Agreement Paragraph 63 should read as follows: "(63) The transferring of employes is the sole responsibility of Management subject to the following:
Any claim of personal prejudice or any claim of discrimination for Union activity in connection with transfers may be taken up as a grievance. Such claims must be supported by written evidence submitted within 48 hours from the time the grievance is filed. In plants where departments are so small that they do not represent satisfactory working groups for the practical application of this paragraph the matter may be the subject of local negotiations." It will be noted that the introductory statement of Management’s exclusive responsibility over the transferring of employees, subsection (a) with regard to the effect of seniority on promotions, and the paragraph with regard to claims of discrimination which follows subsection (b) are carried over without essential change from the version of Paragraph 63 that existed in the 1941 and 1942 Agreements. The important new language is all contained in subsection (b) and in the final provision for local negotiation where departments are too small for the practical application of the Paragraph. In the instant case and in the five others which will be considered along with it the Umpire is asked for the first time to interpret and apply this new language. That new limitations on Management’s right of transfer result from it is clear on its face. Prior to the effective date of this Agreement, Management had a completely free hand in transferring employees from one job classification to another at the same rate of pay (providing that the move was not of the sort covered by provisions of its local seniority agreement). It has now agreed that in making such moves "employees who make application to their foreman or the Personnel Department stating their desires, qualifications and experience, will be given preference for openings in their department provided they are capable of doing the job". Likewise, in former years, Management’s right to fill vacancies by new hires was restricted only by such very special limitations as are placed, for example, by Paragraph 143 of the Agreement on the hiring of applicants representing themselves as "journeymen". Under Paragraph 63 (b), however, employees who make due application and who are capable of doing the job "shall be given preference for openings in their department over new hires". During the months that have elapsed since the new Paragraph took effect, however, the exact scope and effect of these new limitations has been the subject of considerable dispute. The principal questions at issue are well illustrated by the grievances that are now before the Umpire. The instant case, for example, is brought by an employee of the Guide Lamp Division who works in the Head Lamp Assembly Department in the classification "Assembler on Head Lamps, Small Lamps and Service Parts—Male" at the rate of $1.245. The great majority of the male employees in this department are all in this same classification, regardless of the specific operation which they may be performing at any one time. On May 7, 1946, the complainant informed the foreman of the head lamp door line that when additional soldering work on head lamp doors became available he would like to be assigned to it. With the installation of two new dial soldering tables, additional soldering work did become available. The grievance alleges, however, that instead of assigning the complainant to this new work, the foreman gave it to other employees with less seniority. The Union sees in this action of the foreman a violation of Paragraph 63 (b). Referring to the language of that subsection it points out that there was an "opening" in the complainant’s department. The complainant had applied for this opening. His ability to do the job is not disputed. Under Paragraph 63(b), the Union claims, he should clearly have been given preference for the opening over employees who had not applied for it or who had less seniority. Management, on the other hand, contends that Paragraph 63 is concerned only with its right of transfer, i.e., its right to move an employee from one wage classification, department or seniority group, and place him in another. The soldering work for which the complainant applied was in the same wage classification which covered the work he was already doing. Management contends, therefore, that he was not asking for a transfer but merely for a change in job assignment within his existing classification. It vehemently contends that nothing in Paragraph 63 or in any other provision of the National Agreement limits its discretion in the making or altering of job assignments which involve no classification change. Buick Case E-48 presents a somewhat similar issue. In that case, factory reconstruction had caused the shutdown of an electric air compressor. The employee who operated this compressor on the day shift had been assigned temporarily to the operation of a compressor in another building, with the assurance of his supervision that when the reconstruction work was finished he would be moved back to his regular position. Just prior to the resumption of operations on the original compressor, however, the complainant, an electric air compressor operator on the relief shift, applied for the job. Despite the complainant’s greater seniority, his application was refused and the original operator was restored to his former position. Here again, the basic issue is whether or not a transfer was involved—since the granting of the complainant’s request would have involved no change in his wage classification, department or seniority group. A very different question is raised in Pontiac Case E-1. That grievance is brought by an employee who had been employed prior to the war in the Material Department as a truck driver, line feeder and material handler. During the war, however, he had been transferred to a job as crib attendant in the Central Stores Department and had resumed that work following the strike. On March 29, 1946, he learned that he was to be transferred back to the Material Department as a power truck driver and filed the instant grievance in protest. Despite the protest, the transfer was carried through. In support of the grievance the Union claims that employees with less seniority were retained as crib attendants, that in effect, by filing this grievance, the complainant had "applied" for retention in the crib attendant classification, that under Paragraph 63 (b) effect must be given to such applications if the rights it confers are not to be transitory and meaningless, and that the complainant’s transfer was thus a contractual violation. In reply, Management argues that Paragraph 63(b) applies only to transfers within a department and cannot possibly govern a transfer across departmental lines such as is here involved. It contends, furthermore, that it applies only to applications for an existing vacancy and gives an employee no right to "apply for his own job" or for the vacancy which would be created if he were transferred out of it. In Pontiac Cases E-57 and E-58, the claim that Paragraph 63 (b) gives an employee a right, by application, to remain in his existing job classification is carried further into a claim that it gives him a right to remain on his existing job assignment. E-57 involves an employee who was working in the Nickle Plate Department in the Buffer and Polisher classification. For some time he had been working at the polishing of bumper guards, a relatively easy job on which it was customary to "break in" new employees. Over his protest, he was assigned to other buffing and polishing work and his place on the polishing of bumper guards was taken by a new hire. E-58 concerns an employee who had been operating a chucking machine used in the manufacture of camshaft gear sprockets for six cylinder engines. In July, 1946, a newly hired female employee was assigned to a spot face and ream operation, on the same sprockets. When it was found that she was not tall enough for this job, supervision placed her on the chucking machine and assigned the complainant, over his protest, to the spot face and ream operation. His classification was not changed and shortly afterward he was assigned to a chucking machine on eight cylinder engine sprockets. The Union claims that the shifts in job assignment involved in both E-57 and E-58 were contrary to the requirements of Paragraph 63 (b). In each case, it argues, the claimant’s applications for their existing assignments gave them rights to those assignments superior to the claims of any new hires. Management replies in each case that (1) no transfer was involved; (2) Paragraph 63 (b) does not give an employee a right to refuse a transfer, even if one had been involved; and (3) even if such a right of refusal did exist, it could apply only to proposed transfers between wage classifications and not to proposed changes in job assignments. The Paragraph, Management insists, gives employees no right to "freeze" themselves to any specific machine or operation. Pontiac Case E-11, finally, presents the question of whether or not Paragraph 63 (b) gives seniority employees preference over new hires not only with regard to the filling of vacancies by transfers without change in wage rate but also with regard to promotions to higher rated classifications. The complainant, a power truck driver, had applied for a vacancy in the higher rated crane operator classification in his department. Shortly after the foreman had started to break him in on the job, the vacancy was filled by a newly hired—though experienced—crane operator. In claiming that this was a contractual violation, the Union concedes that as between candidates for promotion all of whom are seniority employees, the operation of Paragraph 63 (a) is unchanged. It contends, however, that as between seniority employees and new hires, the rights conferred by Paragraph 63 (b) apply to promotions as well as to transfers at the same wage rate and that seniority employees must be given preference. Management denies that Paragraph 63 (b) has any application to such cases. Promotions, it asserts, are governed solely by the language of Paragraph 63 (a). That this language places no limits on Management’s right to fill vacancies by hiring new employees has been recognized in a number of Umpire Decisions (e.g., C-75, C-139). In Management’s opinion it was never contemplated that the addition of subsection (b) would alter the rule thus established. To decide these six cases, then, the Umpire must rule on the following basic issues:
It is recognized, of course, that several of the cases involve subsidiary issues which grow out of their own peculiar facts. These will be considered in the separate opinions to be issued in each case. I. Does Paragraph 63 (b) apply to changes in job assignments within the same wage classification as well as to the movement of employees from one wage classification to another? Paragraph 63 as a whole clearly relates only to "transfers". It is included in the National Agreement under the general heading "Transfers". Its first sentence states that "the transfer of employees is the sole responsibility of Management, subject to the following..." Subsection (a) relates to promotions, which have always been recognized as involving a "transfer". Subsection (b) begins with the statement that "it is the policy of Management to cooperate in every practical way with employees who desire transfers to new positions or vacancies in their department", and the remainder of its language is clearly a statement of how this policy with respect to transfers is to be implemented and given effect. The decision of this issue, therefore, must obviously depend upon the meaning of the word "transfer" as it is used in the National Agreement. In approaching this question, it may be well to glance briefly at the typical organizational structure of a General Motors Plant. The employees in such a plant are grouped or classified in a number of different ways. In the first place, employees are classified according to the supervision under which they work—i.e., are divided into plants, departments, subdepartments, production lines and working groups under separate plant managers, general foremen, foremen and sometimes leaders. In the second place, there is the hierarchy of wage classifications, established by the local wage agreement, which determine the rate which shall be paid for the different types of work which the employees perform. In the third place, there is the structure of occupational seniority groups, defined by the local seniority agreement and governing, among other things, the order of transfer, layoff and rehire in connection with reductions in force. An employee’s place in the first method of grouping is revealed by his badge or clock number, in the second by his classification title, and in the third by the presence of his name on one or another seniority list. (There are, of course, other bases upon which employees are grouped, such as the division into one or another collective bargaining unit, or the division into different districts for the purposes of representation in regard to grievances, but these are not directly material to the present issue.) It is of the utmost importance to realize that though each of these bases of classification reflects in a general way the work which an employee is doing, none of them necessarily determines the specific task which he may be required to perform at any one time. This is a matter of job assignment. Such assignments may be relatively stable and permanent, as in the case of many types of machine operations on standard parts for which the production schedule is constant and material in good supply. Other assignments may fluctuate and change from day to day or even from hour to hour, particularly in departments which turn out many types of parts or products, each requiring somewhat different operations and a somewhat different utilization of the working force. But whether an assignment is permanent or temporary, the only way one can find out what it is by referring to the directions of supervision. One can tell nothing with certainty about an employee’s job assignment by looking at his clock number, his classification title or his position on a seniority list. * The only exception to this rule would be in the case of a wage classification which referred to the operation of a specific machine. See the discussion of this type of classification in Umpire Decisions C-296 and C-409. All this may seem obvious and elementary, but an understanding of it is essential to the present issue. It is the position of Management that the word "transfer" as used in Paragraph 63 refers only to those changes which involve the movement of an employee from one department, wage classification or seniority group to another and which are evidenced by a change in his clock number, his job title or (after 60 days) his seniority listing. It is the position of the Union, on the other hand, that in addition the word covers any basic change in an employee’s job assignment—that under Paragraph 63 (b) employees may not only apply for vacancies in other wage classifications in their department, but also for vacancies on specific machines or operations in their own classifications. What, then, is a "transfer" as the word is used in Paragraph 63? In answering this question one guide may be found in the way in which the parties have themselves applied the term under the past Agreements. The Umpire has examined into the positions taken by the parties in every Umpire case since the start of the "A" series in 1940, which concerned the movement of employes from one operation to another. He has found that with surprising consistency, the parties have distinguished between changes in work assignments within the same classification and changes which involved the crossing of classification lines, and with only minor exceptions have confined their use of the term "transfer" to the latter. It is true that in very few of these cases was the interpretation of the word "transfer" directly at issue. From June 5, 1941, until the execution of the present Agreement, it made little difference to the parties whether an alteration in work that did not involve a change in wage classification was called a "transfer" or a change in "job assignment", since—if no promotion was involved—Management’s rights over the one were as broad as over the other. To the Umpire, however, this only makes the general consistency with which they used the terms more significant. Examples of loose and inconsistent usage, there are, but in the overwhelming majority of cases where references to "transfers" were made, there had been a change in job classification, department, shift or seniority group. Similarly, out of all the cases which involved protests over new work assignments in the same classification, the change was referred to as a "transfer" only twice—once by the Umpire, and not by the parties (B-17), and once by Management, corrected by the Umpire (C-42). (In one case, B-56, it cannot be determined from either the briefs or the Umpire’s opinion whether the action referred to as a "transfer" did or did not involve a change in wage classification.) This distinction was followed by the Umpire in Decision C-321, the only case in which the meaning of the word "transfer" in the National Agreement was directly at issue before him. In that case, he was presented with a claim of unjust layoff by employees who had been directed to work for a few days in their same classification and seniority group but at a plant in a separate bargaining unit. They had refused to obey these instructions and because of their refusal had been laid off. The Union attempted to justify their refusal upon the ground that under Paragraph 125 of the National Agreement of October 19, 1942, employees could only be "transferred" from one plant of the Corporation to another with their own voluntary consent. Though the Umpire upheld the employees on other grounds he specifically overruled this contention of the Union, noting that the employees were not being required to accept a change in classification, rate, department or seniority group and that all that was involved was a temporary change in their job assignment. Of even greater significance than the usage in briefs and Umpire Decisions, however, is the parties’ apparent understanding of the term as evidenced by the types of claims which they brought or failed to bring to the Umpire. As has been noted, Paragraph 8 of the Seniority Section of the 1940 Agreement required Management to give "reasonable consideration" to seniority "in transferring employees". That this was a definite limitation upon Management’s unrestricted right of transfer was demonstrated in a number of Umpire decisions (e.g., A-90, A-118, and A-156). If the parties had understood the word "transfer" to refer to the movement of employees from operation to operation within the same wage classification, there was in the clause as thus worded a clear opportunity for the Union to insist that seniority should be given "reasonable consideration" in the making of such movements. There is no record in the Umpire’s Office, however, of a single claim by the Union that the Paragraph applied to changes in job assignments within classifications as well as to the movement of employees across occupational lines. Past usage, then, gives clear support to Management’s present interpretation of the word "transfer". What now of the context of the term in Paragraph 63 (b)? The Union notes that the clause as a whole relates to the filling of "new positions or vacancies" or "openings" in an employee’s department. Regardless of the way it has been used in the past, the Union urges, it must refer in this section to any shift of an employee into such a vacancy or job opening. The Umpire agrees. But what are the "vacancies", "new positions" or "job openings" referred to in this Paragraph? Are they specific operations, posts at specific machines, specific job assignments, in other words, which wait only the identification of the employee to be assigned? Or are they vacancies in a wage classification which are filled by changing an employee’s classification title and rendering him available for any assignments which supervision may desire to make? In the Umpire’s opinion they are clearly the latter. This opinion is confirmed by the manner in which the parties have consistently applied the promotional provisions of Paragraph 63 under previous Agreements. Those provisions apply "in the advancement of employees to higher paid jobs". It would be logical to assume that for such advancement to take place there must be a "vacancy" or "job opening". Yet in no case of which the Umpire has record has it ever been seriously suggested that this language was a limitation upon the rights of Management with regard to the assignment of the promoted employees to specific operations within the classification to which they are advanced. Management and Union alike appear to have recognized that when employees are promoted to "higher paid jobs" they are promoted to higher rated wage classifications rather than to any specific operations or specific machines. This is readily apparent where the work to which an employee is promoted habitually involves frequent changes of assignment from one operation to another. It is less apparent where job assignments are usually of long duration and where in advance of the promotion all parties are aware of the specific work to which the promoted employee will be assigned. From the standpoint of the parties’ contractual rights, however, there is no difference between the two situations. In both cases the job to which an employee is promoted includes all the operations covered by the new wage classification. The specific operation which he performs is always dependent upon supervision’s judgment in job assignment. In the Umpire’s opinion, exactly the same situation obtains under Paragraph 63 (b). The "openings" and "new positions" referred to in that Paragraph are vacancies in a wage classification. An employee can hardly fill an opening in the job classification which he is already in. Moving him about from assignment to assignment within the classification would not fill the opening. It would merely change the nature of the work to which the employee who did fill the opening would be assigned. With this understanding of the meaning of the term "job opening", an apparent contradiction found by the Union in Management’s position with regard to the meaning of the word "transfer" disappears. The Union notes at the hearing that the last sentence of Paragraph 63 (b) provides that "secondary job openings resulting from filling jobs pursuant to this provision may be filled through promotions; or through transfer without regard to seniority standing, or by new hire". In writing this language, the Union says, the parties contemplated that in return for the new limitations which Management accepted on its rights in filling primary openings, it should have an almost entirely free hand in filling secondary openings. But if Management is correct in contending that a "transfer" must involve a change in wage classification, the Union argues, then by agreeing to this language, it has rendered itself unable to fill such a secondary opening by a change in job assignments. It can only fill them by promoting or transferring employees from other classifications or by a new hire. At first sight this seems a telling argument. It is based, however, upon the false assumption that the phrase "secondary job opening" refers to the specific assignment which a transferred employee left rather than to his wage classification. Every transfer, however, does not result in a secondary job opening. If the employee’s place can be taken simply by rearranging the job assignments of the remaining employees in the classification, then there is no secondary job opening in that classification to be filled. Such a secondary opening is created only when the removal of an employee from a classification means that some other employee must be brought into it. Whether the Agreement required it or not, therefore, secondary job openings, if they exist at all, would have to be filled either by transfer or new hire. The Union points out finally that in the Corporation’s various plants there are many departments in which all or the majority of the employees are in the same wage classification. This is true of the Head Lamp Assembly Department at Guide Lamp which is involved in the instant case. As Paragraph 63 (b) applies only to "transfers" within a department, if a "transfer" takes place only when there is a change in wage classification, the employees in such departments will gain little benefit from the new language. This result is possible, but by no means inevitable. In the view of the Umpire it was in order to take care of precisely this sort of situation that the parties included the last sentence of Paragraph 63 providing that "in plants where departments are so small they do not represent satisfactory working groups for the practical application of this Paragraph, the matter may be the subject of local negotiations". The parties have thereby provided a means for the local redefinition of the term "department" where this is necessary to prevent injustice. In any case, however, the Umpire could not base his decision upon the contentions of either party that their Agreement is unsatisfactory and will work hardship if it is applied according to its terms. He must apply the contract as he believes that it was written. In so doing he finds that Paragraph 63 (b) applies only to "transfers" and that the word "transfer" in the National Agreement has no application to changes in job assignment which do not involve a change in an employee’s wage classification, department, shift, or seniority group. II. Does Paragraph 63 (b) give employees not only the right to obtain a transfer but also the right to refuse one? In the view of the Umpire the answer to this question is clearly in the negative. Paragraph 63 (b) relates to the preference to be given to employees who "desire transfers to new positions or vacancies in their department", who can do the work which might be required of them in such new positions and who apply for transfer to their foremen or Personnel Department. As regards such employees, Management’s "sole responsibility" over transfers is definitely qualified. It must give them preference over employees who have made no such application. The Paragraph says nothing, however, which could possibly be construed as giving an employee a right to refuse a transfer or to "apply for his own job". And in the absence of such language the Umpire cannot read this right into the Agreement. The Union claims that "any rights accruing to an employee under Paragraph 63 (b) are so transitory they are nullified unless it be determined that an employee has the right to remain on the job he holds and to resist a permanent transfer from it". The Umpire would point out, however, that the situation of an employee who has been transferred to an equally rated classification under Paragraph 63 (b) is contractually identical with that of an employee who has been advanced to a higher paid classification under Paragraph 63 (a). The Union has never suggested to the Umpire that once an employee has been promoted he is immune to further transfers; nor has it ever complained that the fact that he was subject to further transfer rendered the rights conferred by Paragraph 63 (a) transitory and valueless. The rights conferred by Paragraph 63 (b), must, of course, be administered in good faith. If it should ever be shown that Management was endeavoring to avoid its obligations under that Paragraph by transferring employees into the job classifications for which they applied only with the intent of shortly transferring them out again, the Umpire would feel obliged to take corrective action. As early as Umpire Decision A-118, the Umpire recognized and expressed the undesirability of transferring employees against their will. Sound labor relations and considerations of employee morale should prevent the making of such transfers unless it is absolutely necessary to plant efficiency. It must be recognized, moreover, that employees transferred over their protest will carry with them the right under Paragraph 63 (b) to apply for retransfer to their former classifications should future openings in those classifications arise. The Union asks, however, why if an employee can apply for future openings in his former job classification he cannot apply prior to his transfer for the opening which he himself would leave? Apart from the dubious logic of this suggestion, a clear answer is to be found on the face of Paragraph 63 (b) itself. That section, as has already been emphasized in this opinion, relates to the rights of employees who desire "transfers". Obviously where an employee is asking to be kept in his existing classification he is not requesting a transfer and the Paragraph is without application. The Umpire holds, therefore, that transfers cannot be refused as a matter of contractual right under Paragraph 63 (b). III. Does Paragraph 63 (b) affect Management’s right to fill vacancies in higher rated classifications by new hires in lieu of promoting seniority employees? As has been noted, Paragraph 63 (b) provides that employees who have made the necessary application and are capable of doing the job requested "shall be given preference for the openings in their department over new hires". In the opinion of the Umpire, this preference extends to transfers into higher rated classifications as well as to transfers which would involve no change in rate. A promotion to a higher rated classification has always been recognized as a form of transfer. Nothing in the present wording of Paragraph 63 alters that construction. Subsection (a) is as clearly a qualification on Management’s "sole responsibility" in the "transferring of employees" as is Subsection (b). The language of the latter section makes no distinction between transfers which involve an increase in rate and transfers between equally rated classifications *. It applies by its terms to any "transfer" whether an employee’s rate is affected or not. The last sentence of Paragraph 63 (b) refers, it is true to "promotions" as well as to "transfers without regard to seniority standing". The distinction here, however, is not between a "promotion" and a "transfer", but between those types of transfer which fall under Paragraph 63 (a) and those which may be made "without regard to seniority standing". It is true that at the hearing both parties stated that the addition of subsection (b) does not alter the established rules and principles that have long governed the application of Paragraph 63(a). The Umpire agrees. It is not necessary to file an application to be considered for a promotion. The filing of such an application would ordinarily give an employee no right to be preferred over any employees who failed to file. This is true, however, not because Paragraph 63 (b) does not apply to promotions, but because under the special and additional rules which are provided for that type of transfer in 63(a), the filing of an application would usually be meaningless. Paragraph 63(a) provides that "in the advancement of employees to higher paid jobs when ability, merit and capacity are equal, employees with the longest seniority will be given preference". The filing of an application does not affect an employee’s ability, merit and capacity. It does not lengthen his seniority. As between two candidates for promotion, both of whom are seniority employees, therefore, the filing of an application would be material only if they were equal in ability, merit and capacity, had exactly the same seniority date, and were being considered for a job in their existing department. Under any other circumstances, Management would be free—as in the past—to award the promotion to any employee who stood "head and shoulders" above his fellows in ability, merit and capacity—whether he had applied for the job or not. And if no such employee was available, Management would be obliged—as in the past—to consider a group of employees whose abilities, merits and capacities were approximately equal and promote the employee in that group with the longest seniority—even though one of the others might have applied for the job. As between seniority employees, then, Paragraph 63(b) could affect the operation of 63(a) only under highly unusual circumstances. This is not true, however, as between seniority employees and new hires. As the Umpire recognized in Decisions C-75 and C-139, Paragraph 63(a) was never a limitation on Management’s right to fill a vacancy by a new hire. Paragraph 63(b) contains such a limitation. And since the Paragraph applies by its terms to all types of "transfer", that limitation must apply in favor of an employee requesting a higher rated vacancy as well as to one requesting a transfer at no change in rate. It follows, then, that an employee who applies for a vacancy in another classification in his department must—if he can do the job applied for -- be given preference over a new hire whether or not his transfer to the vacancy would involve an increase in rate. Preference, however, is only over the new hire. As regards other seniority employees his rights to promotion would be governed by Paragraph 63(a). With the clarification of these basic issues the way is cleared for the decision of the instant case and the five others which are before the Umpire. The claim in Guide Lamp E-28, relates to Management’s refusal to honor an application by an employee for a change in his job assignment from a tapping operation to soldering work on head lamp doors. The requested change in assignment would not have involved a change in the complainant’s existing wage classification. It was not a request for a transfer and Paragraph 63 (b) did not require Management to grant it. The grievance must be dismissed.
Decision: 1. Paragraph 63(b) applies only to applications for a "transfer". The word "transfer" does not include changes in job assignment that do not involve a change in an employee’s wage classification, department, shift, or seniority group. 2. Paragraph 63(b) gives employees no contractual right to refuse a transfer. 3. Under Paragraph 63 (b) an employee who applies for a vacancy in another classification in his department and who can do the job requested must be given preference over a new hire, whether or not his transfer would involve an increase in rate. 4. As the instant grievance did not involve a request for a transfer, Paragraph 63(b) does not apply to it. The grievance is dismissed. Signed, Ralph T. Seward UMPIRE January 13, 1947. |