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OFFICE OF THE UMPIRE No. E-81 MARCH 19 1947
Replacement of Temporary Female Employees by Males: Claim of Discharge Without "Good Cause"
GRIEVANCE: Pontiac Motor Division—Case E-117 "Group. Protest being laid off out of line. Younger employees still working."
Umpire’s Decision: Good cause has not been shown for the layoff of these complainants on November 6th, 1946. They shall at once be reinstated to their jobs. For the reasons stated in the opinion no back pay is awarded. (Entire Decision should be read)
In the Matter of: United Automobile Workers of America—C.I.O.—Local 653 and General Motors Corporation Pontiac Motor Division Case E-117
This grievance is brought by six temporary female employees whose employment was terminated by the Pontiac Motor Division on November 6, 1946, in order that they might be replaced by male employees. All of them had been in employment for more than thirty days. They claim that good cause for their discharge did not exist within the meaning of Paragraph 56 of the National Agreement. It is conceded that the termination of these employees was occasioned neither by a reduction in force nor by any individual misconduct or inefficiency on their part. It was occasioned solely by the availability of males for hire to the jobs which the complainants held and by the belief of Management that lowering the percentage of women employees on the payroll would increase the over-all efficiency of plant operations. The Umpire understands that large numbers of other temporary female employees have likewise been replaced by males, that all or most of them have filed grievances, and that the present grievance is regarded by the parties as a test case whose decision will determine the outcome of all similar cases that are pending. Two principal questions are at issue:
In the judgment of the Umpire, the Union’s position on both questions must be upheld. The claims are brought under the provision of Paragraph 56 that:
In the view of the Umpire, Management’s claim that these employees were not "discharged" but were merely "laid off" is insufficient to avoid the application of this language. The employees have been "terminated." They have been "severed from the payroll." They have no right to be rehired upon the basis of seniority. If their present claim were dismissed, their rehire would be in Management’s uncontrolled discretion. Their situation is thus indistinguishable from that of a "discharged" employee, and must receive identical treatment under the Agreement. Any other ruling would permit the protections of Paragraph 56 to be nullified by the simple device of calling every termination of a temporary employee a "layoff" regardless of the circumstances. The Umpire must likewise reject Management’s claim that the quoted language of Paragraph 56 applies only to "disciplinary" discharges. It is true that in Decision D-2, he drew a 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" and indicated that "as to the latter, the rights of temporary employees have not been altered." This was only another way of stating, however, that bona fide reductions in force or changes in operating methods or processes are universally recognized as constituting "good cause" for the layoff or discharge of temporary employees and that the issue of "good cause" would therefore usually have substantial importance only in disciplinary cases. But nothing in that language can be taken as indicating that a category of discharges exists under Paragraph 56 which is immune to Umpire review. The plain language of the Paragraph provides that "any claim" by a temporary employee of more than thirty days’ service "that his discharge is not for cause" may be taken up as a grievance. The Umpire cannot place limitations on this language which the parties themselves have not seen fit to adopt. Paragraph 56 is within his jurisdiction as defined in the Agreement. When an employee raises before him the precise issue specified in the Paragraph he cannot refuse to decide it. As to the second issue, the Umpire holds that "good cause" for the severance of these complainants from the payroll did not exist. An employee’s sex alone does not constitute good cause for discharge. Any other holding would mean that every employee in the Corporation was liable to be discharged "for cause" at any time that Management decided that plant efficiency would be furthered by the replacement of employees of one sex by those of the other. This liability would exist from the moment he or she was hired. It would not disappear with the acquisition of seniority, for seniority is no bar to a discharge for cause. It would mean that the rights which employees held as individuals could be disregarded if only they were treated as a class. A holding with such potentials cannot be made. The Umpire wishes to make clear that in this decision he is not passing upon the merits of Management’s claim that the replacement of females by males would increase plant efficiency. It is within neither his proper function nor his professional competence to substitute his judgment for that of Management on this question. He is holding only that if Management desires to work toward increased efficiency by altering the composition of its working force it must do so within the limits established by its Agreement with the Union. That Agreement gives it full discretion in the hiring of new employees, in the laying off or discharging of temporary employees with less than thirty days of employment, and in the rehiring of any temporary employees who have been laid off in a bona fide reduction in force. The Umpire has previously held, moreover, that Management has full discretion to decide whether operations that are new or substantially altered should be performed by male or by female employees. In the instant case, however, there was no change in process or product that effected the competence of the complainants. Their individual ability to do their jobs efficiently was conceded by Management. Good cause did not exist for their discharge, and under Paragraph 56 Management could not discharge them without good cause. Management’s claim that the written statement which accompanied this grievance is defective because of its lack of detail or because it was signed by a Union Committeeman rather than by one of the complainants, is without merit. The facts and the issue in this case—though of far-reaching importance—are simple. They are simply but sufficiently stated. Paragraph 56 does not require that the written statement that accompanies the grievance must necessarily be signed by the complainant. Such signature is desirable where the complainant has a peculiar knowledge of the facts. The instant case, however, did not raise an issue of fact but of contractual interpretation, and the statement of that issue by the Committeeman did not render the grievance defective. No request for back pay was made in this case until the Third Step. It is, moreover, the first case in which the issue has been passed on by the Umpire. In accordance with established principles, no back pay will be awarded.
Decision Good cause has not been shown for the layoff of these complainants on November 6th, 1946. They shall at once be reinstated to their jobs. For the reasons stated in the opinion no back pay is awarded. Signed, Ralph T. Seward UMPIRE March 19, 1947. |