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OFFICE OF THE UMPIRE No. E-115 JUNE 6, 1947
Release of a Temporary Employee Because of a Physical Defect
GRIEVANCE: Buick-Flint—Case E-54 "I protest discharge under Paragraph 56 of the Current Agreement. Request back pay as a result of grievance."
Umpire’s Decision: The grievance is dismissed. (Entire decision should be read)
In the Matter of: United Automobile Workers of America—C.I.O.—Local 599 and General Motors Corporation Buick—Flint Case E-54
On July 11th, 1946, Employee W., the complainant in this grievance, applied for employment at the Buick Motor Division and took the regular physical examination. A regular part of this examination is the taking of X-rays to determine whether or not the applicant has any internal physical defects. It is the established practice at Buick to forward such X-ray films to the Hurley Hospital in Flint for diagnosis by a roentgenologist. This procedure usually requires several days to complete. Since, in the majority of cases, the X-ray films disclose no physical defects, it has been customary at Buick to hire such employees as pass the external physical examination without waiting to receive and analyze the X-ray diagnosis. If, however, the X-rays, when returned, are found to disclose evidence of serious physical defects, the employee is at once released. The external physical examination of the complainant revealed no physical defects. In accordance with the practice above described he was hired for a job on the Final Assembly line. In this instance, however, abnormal circumstances at Hurley Hospital caused a delay in the return of the complainant’s X-rays until August 22nd, 1946. The complainant had therefore been in the employ of the Buick Motor Division for more than thirty days at the time his X-rays were received and examined by the Plant Medical Director. The Medical Director learned from these X-rays that the complainant had a supernumerary rib growing from the seventh vertebra and extending well into the nerves of the brachial plexus. It is the opinion of the Medical Director that if individuals having such a condition engage in muscular activity in certain positions severe irritation of these nerves may result with possible prolonged disability. For that reason it has been the practice at Buick to refuse to hire, or immediately to release, any individual found to have a supernumerary rib which extends into the brachial plexus. In accordance with this policy, the complainant was released on August 28th, 1946. The Union brings this case under the provision of Paragraph 56 that "Any claim by a temporary employee made after thirty days of employment that his layoff or discharge is not for cause may be taken up as a grievance." It contends that the Medical Director did not find that the complainant had any existing disability but only that such a disability might possibly develop and argues that "a possibility is not good cause for discharge." In most situations, this would undoubtedly be true. In laying down its medical standards for employment, however, Management must necessarily take into account not only the existing physical condition of the applicant but the probability that present defects will lead to future disability. It may reasonably ask not only "Is this applicant at present partially or totally incapacitated?", but also "Does this applicant possess a latent physical defect which is likely in the future to incapacitate him?" The medical judgments of a plant physician on this question, reasonably arrived at and uniformly and fairly applied, cannot be questioned by the Umpire. With regard to applicants for employment or to employees who have been hired less than thirty days, the Union would seem to concede this point. It points out, however, that after the expiration of thirty days an employee’s status changes and under Paragraph 56 he becomes subject to discharge or release only "for cause". Though a latent and undeveloped physical defect might have constituted reasonable grounds for an original refusal to hire, the Union argues, it does not constitute good cause for discharge. The Umpire agrees that the lapse of more than thirty days between the date of the complainant’s hire and the date of his release, necessarily introduces into this case the question of "good cause". In his opinion, however, the Medical Director’s finding that the complainant had a supernumerary rib extending into the brachial plexus, coupled with Management’s uniform policy of denying employment to individuals having such a condition, constituted good cause for his release. The Umpire bases this finding expressly upon the fact that at the time of the complainant’s application for employment, Management took steps to acquire the evidence necessary to permit a diagnosis of his condition and that it acted promptly upon its discovery of the facts. As was held in Decision E-81, a physical characteristic which is known to and ignored by Management at the time of hire cannot thereafter be considered good cause for discharge. A physical defect which Management uniformly treats as grounds for refusal to hire, however, may constitute good cause for discharge if Management took reasonable steps to learn of it at the time of hire and acted as soon thereafter as a diagnosis could be made.
Decision The grievance is dismissed. Signed, Ralph T. Seward UMPIRE June 6, 1947. |