Educational Outline
UAW-GM NATIONAL AGREEMENT
OCTOBER 9, 2000
THROUGH
OCTOBER 13, 2000
DUTY OF FAIR REPRESENTATION,
NON-DISCRIMINATION POLICTY
AND PARAGRAPH (6A)
RICHARD SHOEMAKER
VICE PRESIDENT DIRECTOR –
UAW GENERAL MOTORS DEPARTMENT
October 9, 2000
Greetings:
This Educational Outline and the material within was prepared by the UAW General Motors Department for our local union leadership. It is in conjunction with our continuing program of utilizing the Subcouncil forum for the purpose of education and familiarization regarding provisions of the UAW-GM and UAW-Delphi National Agreements, as well as other important UAW Policy letters.
I urge you to review it carefully, provide copies to your local union representatives and share the information therein with your membership.
Fraternally,
Richard Shoemaker
Vice President and Director
UAW General Motors Department
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Table of Contents
A. Forward.......................................................................................................................... 1
B. Union’s Duty of Fair Representation....................................................................... 4
1. Duty of Fair Representation Guidelines............................................................ 5
2. UAW Administrative Letter; Grievance Handling and the Union’s Duty of Fair Representation.................................................................................................... 6-9
3. UAW Letter; Providing Grievants with Copies of Grievances......................... 10
C. International Union UAW’s Non-Discrimination Policy..................................... 11-13
D. Paragraph 6(a) National Agreement......................................................................... 14
1. Procedures for the Civil Rights Committee to Investigate Grievances................... 15
2. UAW GM Civil Rights Investigation Form.............................................................. 16
3. UAW GM Local Civil Rights Committee Factual Investigation Form................... 17
4. Paragraph 33 of National Agreements.................................................................... 18
5. Paragraph 37 of National Agreements.................................................................... 19
6. Local Plant Equal Application Committee.............................................................. 20
· Composition........................................................................................................ 20
· Mission................................................................................................................ 20
· Goals.................................................................................................................... 20
· Operating Principles........................................................................................... 20
· Other Responsibilities......................................................................................... 21
7. Suggested Activities for Local Plant Equal Application Committees.................... 22-23
8. Document No. 31 of National Agreements Equal Application Committees National and Local................................................................................................................... 24-25
E. Paragraph 6(a) – Sexual Harassment....................................................................... 26
1. UAW Administrative Letter; Policy on the Elimination of Workplace Sexual Harassment................................................................................................................................... 27-31
2. Document No. 99 of National Agreements – Policy Regarding Sexual Harassment 32
F. Paragraph 6(a) – Disabilities; ADAPT Relationship to Paragraph 6(a)............. 33
1. ADAPT Accommodations....................................................................................... 34
2. Six-Step Job Placement In-Plant Process................................................................. 35
G. Diversity........................................................................................................................ 36
1. Document No. 41 of National Agreements – Commitment to Diversity.............. 37-38
F 0 R W A R D
The Union's obligation to provide fair representation extends to grievance handling, contract representation, as well as contract negotiations. This education outline will examine the Union's Duty of Fair Representation, the International Union, UAW's Non- Discrimination Policy, and Paragraph (6a) of the National Agreements (Non- Discrimination Clause).
The information provided in this outline will protect and serve the interests of our members regarding these important topics.
This outline will also assist union representatives involved with handling grievances. They will be able to process grievances in a manner designed to avoid a breach of the duty of fair representation. The Union is obligated and has a duty to act in good faith, to be honest, to be non-discriminatory, to be informed and to have a reasonable basis for making decisions on a grievance.
This educational outline is an important reference for union representatives. By adhering to the information provided in this booklet, the interests of both our members and our local union representatives will be protected. Attention to the materials provided in the outline may save the Union time-consuming appeals and/or expensive litigation.
Actual contract language is quoted from the UAW-GM National Agreement. With the exception of the name of the company, the UAW-Delphi National Agreement has identical language. This language is applicable to other pattern agreements.
UNION'S DUTY OF FAIR REPRESENTATION
The UAW Administrative Letter on Grievance Handling and the Union's Duty of Fair Representation is an excellent reference for all union representatives. Within the letter are some general principles of law regarding the duty of fair representation. Also included are some examples of conduct that might appear to violate the Union's duty of fair representation. The letter provides practical advice and a common sense approach in resolving grievances and the duty of fair representation.
On the next page are some general guidelines to assist you as a union representative. By utilizing these guidelines and thoroughly reading the UAW Administrative Letter, you will have a better understanding of how to effectively represent our membership.
DUTY OF FAIR REPRESENTATION GUIDELINES
The following guidelines should assist grievance handlers in avoiding the breach of the duty of fair representation.
· All grievances should be carefully and thoroughly investigated to determine all the facts.
· Written records of such investigations should be carefully made and maintained. (Records should be saved for a minimum of seven (7) years.)
· Process the grievance promptly. Contract time limits should be strictly observed and any extensions must be dated with confirmation in writing.
· You should communicate with the grievant regularly to provide assurance of the Union's interest, efforts and good faith.
· Decisions made regarding whether or not to pursue grievances and/or arbitration must be made solely on the merits of each case.
· Hostile or vindictive motivation must be avoided.
· Have a valid and justifiable reason(s) for any action(s) taken on a grievance.
· A decision to withdraw and/or settle a grievance along with the reason(s) should be communicated to the grievant.
· If a grievant requests copies of his/her grievance, copies must be provided (see letter).
· If contacted verbally by private counsel for the grievant, you should be courteous, but firm, informing them that the UAW is the exclusive representative for the grievant.
· If contacted in writing by private counsel on behalf of the grievant, you should refer the communication to your International Servicing Representative(s).
· If help or advice is needed on individual problems or borderline cases, you should contact your International Representative from the Region, and/or GM Department, who will contact the Legal Department, if necessary.
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TO ALL LOCAL UNIONS
Grievance Handling and the Union’s Duty of Fair Representation
GREETINGS:
This Administrative Letter updates the prior letter issued September 22, 1988, and addresses the Union’s Duty of Fair Representation. We restate some general principles of law impacting the duty of fair representation and offer some general advise for those in our Union who are responsible for the day-to-day operation of the grievance procedure.
General Principles
• Under the law. the Union has exclusive representation rights. If a UAW member, or any other- member of a UAW bargaining unit, believes he or she is aggrieved, such person usually will request the Union to file a grievance. If the grievance is initiated, the Union has the power to process, settle or withdraw it. The courts have made it clear that the Union does not have a duty to process every case, not even every discharge case, through to arbitration or to strike action. It does not have a duty to do "everything possible." It does not have the duty to supply excellent, superior, or inspired representation to a grievant. A grievance should be processed, unless it is, on its face, without merit or untimely, If it is concluded that a grievance should not be processed, an explanation of that action should be provided to the employee. Where the employee challenges the decision not to process a grievance, it may be best to either make a note of the discussion or send the employee a letter confirming the explanation. While the Union has no duty to "fight' every case. it does have the duty to be honest, to act in good faith, to be nondiscriminatory, to be informed and to have a rational basis for making a decision. The duty of fair representation extends to every person in our bargaining units and not just to Union members.
• The Union is accorded considerable discretion in the handling of grievances. In other words, the Union is permitted “a wide range of reasonableness” in deciding whether to process and how to process a grievance.
The latitude afforded a Union under the law, however, is “subject always to complete good faith and honesty of purpose in the exercise of its discretion.”
• The Union may not withdraw or fail to process a grievance because of hostility, discrimination or arbitrariness. It may not arbitrarily ignore a meritorious grievance or investigate or handle it in a perfunctory manner, that is, by merely going through the motions.
Page 2 Administrative Letter May 6, 1997
No individual member has an absolute right to insist that a grievance be pursued through any particular step of the procedure. Any grievance is the property of the Union and can be settled or withdrawn without the consent of the grievant. The Union may screen grievances and press only those it concludes should be pursued in terms of benefit to the unit as a whole and to take into account such matters as time. expenses and other considerations.
Stated differently, the Union may fail to initiate or process and may settle or withdraw a grievance for any valid reason as long as there is a legitimate reason and the Union has some reasonable basis for its action. Mere whim, or no reason at all, may lead to the conclusion that the Union official did not exercise proper judgment.
Some Examples
· Here are some examples of conduct which might appear to violate the Union's duty of fair representation.
· An all male grievance committee decides not to appeal a discharge grievance by the leader of a female caucus within the Local which is hostile to the incumbent administration (Discrimination).
· An International Representative or a Committeeperson withdraws a grievance but, when asked why, can offer no rational explanation (Arbitrariness).
· The Chairperson of the grievance committee has a personal grudge against the grievant and pressures the committee into withdrawing the grievance (Hostility).
· The Chairperson misleads the grievant, half informs her or him, or lies to the grievant (Dishonesty).
· The Chairperson barely examines the grievance and then withdraws it (Perfunctory).
Here are some examples of conduct which probably would not be found violative of the Union's duty of fair representation.
· The Chairperson of the grievance committee honestly, but mistakenly, believes that the employer has not violated the contract and persuades the committee to withdraw the grievance.
· The committee thinks a grievance has merit even though it is a close case; but the Local doesn't have money to arbitrate it.
Advice
Most of the advice in this section will seem elementary, rudimentary and just plain common sense, but attention to these matters may save the Union from time-consuming internal appeals and, possibly, expensive litigation. Although the actions suggested by our advice are not required by law or by the UAW Constitution, they protect the interests of both our members and our Local Union Representatives.
· In these litigious times, the Union should try to avoid even the appearance of bad faith, discrimination, hostility, arbitrary or perfunctory conduct.
Page 3 Administrative Letter May 6, 1997
· Obviously, Union Representatives Processing grievances should distinguish between minor and serious grievances. A reprimand or a OLO of three days may be unlikely to lead to litigation, but such matters as a six-month layoff. a discharge, the loss of seniority, valuable transfer or promotional rights are obviously serious enough to require more care. It is like the difference between a misdemeanor and a felony.
· We advise that all grievances and especially important grievances, such as long layoffs. discharges, etc., be investigated promptly and carefully and. if signed statements are not taken from witnesses, timely notations of discussions and statements be recorded and kept on file. Remember the “six W's -- Who? What? When? Where? Why? And VVhoa?” (the sixth being the double check). It is important that the Union Representatives obtain and record such basic information promptly. An early and thorough investigation and recordation of these kinds of basics cannot be over emphasized. It is important not only that we conduct a good investigation, but also that we can prove we did.
· If a Union representative decides not to file a grievance because he/she has concluded it cannot be won, then an attempt should be made to convince the grievant of the same. Failing to convince the grievant, it is wise for the Union Representative to make a written record of the reasons why he or she didn't file the grievance.
· If a worker requests that a discharge or other serious discipline. be grieved, then we advise filing the - grievance. Although, this is not a legal requirement, it is the safest way to proceed, especially if the grievant has considerable seniority and a good record. Union Representatives should always try to avoid filing grievances that have no merit. In a case of the discharge of a high seniority person, however, we advise arbitration unless the grievance clearly lacks merit. While this is not a legal requirement, a Union Representative is, first and foremost. an advocate. If there are factual disputes, the grievance handler should accept the grievant's version of the facts, if credible.
· If it is decided not to process a grievance involving a serious matter, such as a discharge, because it lacks merit, then a thorough explanation should be made to the grievant of the same. We further advise that Union Representatives make sure they have all the facts and make written notes of the reasons for dropping or settling grievances.
· As we have stated, the Union has the right to settle grievances as it sees fit and when it sees fit. Any appearance, however inaccurate, that A got a better settlement than B because of whom the parties are, should be avoided. Moreover, there should be no wholesale grievance handling or horse-trading whereby one grievant is 'sacrificed' in order to save others; nor should there be even the appearance of such actions.
· It is critical that the grievant be notified promptly of the disposition of his/her grievance. The notice can be written and sent to the grievant by certified mail so as to prove actual notice. If verbal notice is used, it should be adequately documented. A dissatisfied grievant has six months to file an NLRB charge or sue, but the six months does not begin to run until the date the grievant has been notified.
· If the grievant is a personal, political, or ideological opponent of a Union Representative, then, when it is possible, it is better for another Union official to process the grievance. Where there has been a personal altercation between a particular management personality and a worker, and the grievance, by virtue of the contract, has to be filed with the supervisor who was personally involved,
Page 4 Administrative Letter May 6, 1997
we advise that the Union request a substitution of management personnel. If the employer refuses, we advise that the grievance be processed at least one more step so that a management official not personally involved has the opportunity to respond.
· Do not file multiple grievances attacking employer action on many grounds, some spurious, with the idea of getting a settlement by offering to withdraw some of the grievances,
· If grievant asks about his/her recourse after a grievance is withdrawn, he/she should be referred to the UAW remedies or given a copy of the UAW Constitution and told to examine it. In general, UAW remedies under Article 33 must be exhausted before a grievant can sue the Union.
· All Union Representatives should consider the facts surrounding a grievance to be confidential information to be shared only on a "need to know” basis.
· Union officials should never mislead, confuse, or refuse to inform a grievant of rights available under internal Union procedures, or the contract.
· The grievant should be informed of the status of the grievance. If the grievant requests copies of the grievance “files,” only the grievance, the grievance answers, the grievance disposition and the collective bargaining agreement should be provided - at no charge.
· The appropriate National Department or Regional Representative should be contacted if the Union Representative is uncertain about the contract.
· Do not let the fear of a lawsuit change the way you would ordinarily handle a grievance. Considering the large number of grievances which are processed there are few duty of fair representation suits, and almost none of those suits succeed. If you are contacted by an attorney regarding a grievance, we suggest you ask your International Representative to review the matter with the UAW Legal Department prior to responding.
Presently Available Materials
The UAW Education Department offers training programs to Local Union Representatives who are involved in the grievance procedure. Included is an explanation of the Union's responsibility under the Duty of Fair Representation. Locals requesting training and/or related materials should contact their Regional Education Representative.
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UAW's NON-DISCRIMINATION POLICY
The International Union, UAW has its own policy regarding non-discrimination. This Union has a long history dating back to its beginning as a diverse melting pot of various races, nationalities, creeds, colors, sexes, religions, ages, political affiliations, etc. We have always been in the forefront for civil rights and our members' right to no discrimination.
Our Non-Discrimination Policy is covered in detail on the next two pages. If we as union representatives are going to provide effective representation, it is important for all of us to understand this policy.
INTERNATIONAL UNION,
UAW's NON-DISCRIMINATION POLICY
The fundamental policy of the UAW as it relates to the question of discrimination is set forth in Article 2, Section 2, of the International Constitution:
"To unite in one organization, regardless of religion, race, creed, color, sex, political affiliation or nationality, age, disability, marital status or sexual orientation, all employees under the jurisdiction of this International Union."
This is basic UAW Non-Discrimination Policy and only the International Convention can change it. No official of the UAW, nor any local union, has the authority to approve any acts that are contrary to this Constitutional policy. Final decision on what is and what is not a violation of this policy rests with the International Executive Board and the Convention; but it is understood that the words "to unite in one organization," definitely means the following:
· To offer the same benefits of membership to all workers in the UAW.
· No workers are to be excluded because of religion, race, creed, color, sex, political affiliation or nationality, age, disability, marital status or sexual orientation.
· No local union or officer of a local union may, either expressly or implicitly, sanction segregated employment opportunities, work assignments, wage differentials, or workplace facilities for any member or group of members regardless of the approval of any portion or all of the local's membership.
· All members of the local must be made to feel that their membership and active assistance in the affairs of the local are desired and appreciated and that they are just as important to the continued growth and success of the local as other members.
· There should be a mutual feeling of solidarity.
· There must be no restrictions on the. right of any member to run for office because of religion, race, creed, color, sex, political affiliation or nationality, age, disability, marital status or sexual orientation.
· No local union member may be excluded or restricted from participation in any affairs of the local union which the local gives, sponsors or finances in whole or in part.
· The name of the local, as well as its finances and property, belong to all of its members and no group may use them to the exclusion of any other group.
· All seniority clauses and other conditions of employment negotiated by the UAW locals must apply with equal force and effect to every member of the local.
· There must be a single uniform procedure for the handling of all grievances.
· No worker is to be favored over another because of religion, race, creed, color, sex, political affiliation or nationality, age, disability, marital status or sexual orientation; nor can a local or its officers sanction favoritism by any steward or committeeperson in the settlement of legitimate grievances.
· Every meritorious grievance, when timely filed, must be assumed to be legitimate until decided otherwise by those entrusted with processing grievances under the contract.
· It is consistent with International policy to negotiate in each collective bargaining contract, a clause obligating management not to discriminate against any worker because of religion, race, creed, color, sex, political affiliation or nationality, age, disability, marital status or sexual orientation.
· The initial responsibility for the proper enforcement of the UAW's Non-Discrimination Policy rests with elected officers and the members of each local union.
· The International Executive Board will hold each local union to strict accountability for any violation of that policy by the local or by its officers or by any of its members.
· In accordance with the International Constitution, charges may be filed against any local union officer, steward, committeeperson, or member believed to be guilty of any act in violation of the UAW's Non-Discrimination Policy.
Paragraph (6a) of the UAW-General Motors and UAW-Delphi National Agreements states the Corporations' policy regarding non-discrimination.
· Paragraph (6a) of the National Agreements describes the commitment of the UAW, GM Corporation and Delphi Automotive Systems to set forth policies preventing discrimination because of age, race, color, sex, religion, national origin, disability or sexual orientation as required by appropriate state and federal law. It also identifies the contractual grievance and arbitration procedures available to our members for resolving alleged violations.
· All UAW-represented GM and Delphi members are entitled to equal employment opportunities and freedom from discrimination and harassment.
· This contract language is intended to affirm that all UAW GM and Delphi members are entitled to work in an environment that is non-discriminatory in all aspects and free of any harassment that interferes with an individual's work performance or creates an intimidating hostile or offensive work atmosphere.
· It is very important that union representatives protect our members from discrimination of any kind and follow the procedure mentioned in the provisions of Paragraph (6a) and this outline.
(6a) It is the policy of General Motors and the UAW that the provisions of this Agreement be applied to all employees covered by this Agreement without discrimination based on age. race, color, sex, religion, national origin,, disability or sexual orientation as required by appropriate state and federal law. Any claims of violation of this policy, claims of sexual harassment or of any laws regarding discrimination or harassment on account of disability may be taken up as a grievance.
When a grievance containing a claim of violation of this paragraph is appealed to the Shop Committee the Chairperson of the Shop Committee may refer the claim to a designated member of the Civil Rights Committee of the Local Union for a factual investigation and report. Any such investigation will be conducted in accordance with the provisions of Paragraph (33). Neither the Chairperson of the Civil Rights Committee, nor the member of the committee that the Chairperson may designate to investigate such a claim in the Chairperson's place, shall receive pay from the Corporation based solely upon any activity arising pursuant to this paragraph.
The grievance and arbitration procedure shall be the exclusive contractual procedure for remedying such discrimination claims.
Procedures for Utilization of the Civil Rights Committee to Investigate Grievances
· First of all, it is recommended that the Civil Rights Committee have a minimum of five (5) members and include representation from various protected groups in the workplace. They shall be elected or appointed as provided for in the Local Union By-Laws.
· Secondly, the Local Union President must notify, in writing, the Labor Relations Supervisor at the Plant, the UAW GM Department, and the UAW Civil Rights Department, of the names of the Chairperson and committee members prior to any of them being designated to investigate a claim of discrimination pursuant to Paragraph (6a) of the UAW-GM and UAW-Delphi National Agreements. All committee members will be seniority workers at work in the plant or facility.
The following should apply when utilizing the Civil Rights Committee:
· If a Paragraph 6(a) grievance is appealed to the Shop Committee, the Chairperson of the Shop Committee may refer the grievance to the designated member of the Civil Rights Committee for a factual investigation and report.
· The Chairperson of the Shop Committee will notify the Labor Relations Supervisor of the date and time the investigation is to be conducted and the identity of the committee member who has been designated to make the investigation. Such notice will be given on a Civil Rights Investigation Form. (See next page)
· Upon receipt of an authorized Civil Rights Investigation Form, the investigator will have his/her supervisor record the time released from the job to conduct the "factual investigation" of the unresolved grievance. It is understood that such investigation will be done in a prompt and expeditious manner in keeping with efficient and orderly operations.
· Following completion of the "factual investigation," the investigator shall record his/her findings and recommendations on the Civil Rights Committee Factual Investigation Form (see next two pages). The investigator, following completion of the investigation, reports back to the supervisor to have the time recorded on the Civil Rights Investigation Form and signed by both the supervisor and the investigator.
· The investigator is required to submit both forms to the President of the Local Union in connection with their reimbursement for lost time in connection with the factual investigation. The forms can be obtained from the President of the Local Union.
· Remember, as of the 1999 National Agreements, Civil Rights Committee Chairpersons are permitted to leave work up to four (4) hours per week during straight time hours to conduct in-plant investigations of written grievances alleging a violation of Paragraph (6a) of the National Agreement.
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PARAGRAPH (33)(c) of the NATIONAL AGREEMENTS
As provided in Paragraph (6a), an investigation may be conducted in accordance with the following provisions of the National Agreements.
(33) After a written grievance signed by the employee making the complaint has been appealed to the Shop Committee by a committeeperson, the Chairperson of the Shop Committee may designate one of its members to make a further investigation of the grievance in order to discuss the grievance properly when it is taken up by the Shop Committee at a meeting with the Management. After a grievance has been discussed at the Shop Committee Meeting and before the submission of Notice of Unadjusted Grievance, the designated Shop Committeeperson may reinvestigate the grievance in the light of any new facts disclosed in the Shop Committee Meeting or appearing in the Shop Committee Minutes.
If a Paragraph 6(a) grievance is not resolved at 2nd Step and the Shop Committee believes it has grounds for an appeal, Paragraph 37 of the National Agreements provides the procedure.
Step Three. Appeal to Corporation and International Union
(37) If the grievance is not adjusted at this step and the Shop Committee believes it has grounds for appeal from the Plant Management decision, the Chairperson of the Shop Committee will give the Plant Management a written "Notice of Unadjusted Grievance," on forms supplied by the Corporation, and the Chairperson or designated member of the Shop Committee will then prepare a complete "Statement of Unadjusted Grievance," signed by the Chairperson of the Shop Committee, setting forth all facts and circumstances surrounding the grievance, and where an alleged violation of Paragraph 6(a) is included in the grievance, a statement of the facts and circumstances supporting such claim. The Plant Manager, or a designated Management representative, will also prepare a complete "Statement of Unadjusted Grievance" and the Management's reason in support of the position taken, signed by the Plant Manager or an authorized Management representative. Three copies of the Union's statement will be exchanged with the Management for three copies of the Management's statement as soon as possible and in any event within five (5) working days of the date of filing the Notice of Unadjusted Grievance. The exchange of statements shall take place fifteen (15) working days after receipt of the Plant Management's decision, unless this time is extended by mutual agreement in writing, in which event the thirty days for appeal by the Regional Director as provided in Paragraph (Z5) shall be automatically extended by the same number of days as the amount of extended time for exchanging “Statements of Unadjusted Grievance." Each Shop Committee shall consecutively number each "Statement of Unadjusted Grievance" from one upward for identification purposes.
LOCAL PLANT EQUAL APPLICATION COMMITTEE
COMPOSITION
At each plant or facility covered by the National Agreements, a Local Plant Equal Application Committee may be established consisting of three (3) representatives of the Local Union and two (2) representatives of Management. The three (3) representatives of the Local Union shall consist of: the Chairperson of the Shop Committee, the Chairperson of the Civil Rights Committee and the Local Union President. The two (2) representatives of Management shall be the Plant Manager or a designated representative, and a member at the plant, active in the Corporation's Equal Employment Opportunity program. The Local Plant Equal Application Committee will meet on a scheduled quarterly basis.
MISSION
The mission of the Local Plant Equal Application Committee is to provide advice and consultation to assure that all GM and Delphi members in the plant they represent have equal employment opportunities and freedom from discrimination as set forth in Paragraph (6a) of the National Agreements.
The Local Committee is also responsible for implementing UAW GM and Delphi diversity programs and training.
GOALS
The goal of the Local Plant Equal Application Committee is to bring together labor and management, increasing communication and cooperation in their efforts to:
i. encourage employees and grievance representatives to use the grievance and arbitration procedure as the exclusive contractual method for the prompt resolution of all claims of denial of equal application rights;
ii. determine the cause of such claims in order to reduce the probability of these claims arising or recurring.
It is important to remember, the Union has agreed that it will encourage its members to utilize the grievance and arbitration procedure with respect to any claim or complaint against the Corporation which may be made the subject of a grievance under the contract.
OPERATING PRINCIPLES
The Local Plant Equal Application Committee shall meet on a scheduled quarterly basis. The chair of the Local Union Civil Rights Committee shall receive pay from the Corporation at the regular hourly rate for time spent in such meetings if the Chairperson is an employee of the plant.
In addition, the Chairperson will be permitted to leave work up to four (4) hours per week during straight time hours to conduct in-plant investigations of written grievances alleging a violation of Paragraph (6a) of the National Agreements.
A summary of the Local Plant Equal Application meetings will be prepared and provided to the International Union.
OTHER ROLES AND RESPONSIBILITIES
Recommend to the National Committee ways and means of promoting use of the grievance procedure as the exclusive contractual method for resolving claims of denial of equal application rights.
Suggest guidelines for Union and Corporation representatives active in the grievance procedure in the proper and prompt handling of grievances alleging such claims.
Recommend to the National Committee means for determining the cause of equal employment opportunities and discrimination problems and tensions in the plant.
Advise the National Committee, Local Union and Plant leadership, especially those responsible for grievances.
While the Corporation and the Union will welcome the recommendations the Committee may make, the Committee may not commit either party to a specific course of action.
SUGGESTED ACTIVITIES FOR
LOCAL PLANT EQUAL APPLICATION COMMITTEES
Goal 1: Resolution - Promoting Use of Grievance Procedures
One of the goals of the Local Plant Equal Application Committee is to promote use of the Grievance Procedure. Any employee who feels that they have suffered discrimination because of age, race, color, sex, religion, national origin, disability or sexual orientation, may complain using the Grievance Procedure. The grievance and arbitration procedure is the contractual procedure for remedying such claims.
The following are activities that may be considered to achieve this goal:
· Develop a thorough understanding of the Grievance Procedure among Local Plant Equal Application Committee members.
· Assure that the Procedure is followed according to the language of the Agreements.
· Identify attitudes of other factors inhibiting use of the grievance procedure to resolve equal application complaints.
· Assure that the Civil Rights Committee is prepared to represent all protected groups employed at the plant and that their names have been submitted to Management, the UAW GM Department and the UAW Civil Rights Department.
· Discuss suggested new or modified plant policies and practices that will improve use of the procedure.
· Train all committee members involved in the grievance process on the procedure.
· Inform and conduct educational programs for members of the Civil Rights Committee and the workforce. Activities may include such things as posters, information on plant marquees, articles in newsletters or other special activities.
Goal 2: Prevention - Determining Causes of Discrimination and Preventing Future Occurrences
The Committee may consider pursuing the following activities to achieve this goal:
• Assess the workforce's perception of the environment; how equal employment opportunities are promoted and whether advantage is being taken of these opportunities.
• Identify potential issues, set priorities and develop an agenda for the Committee's work.
• Discuss potential educational campaigns (posters, informiiion on plant marquees, articles in newsletters, special events or activities).
• Implement a pilot test of the activity.
• Collect information about the effectiveness of the activity. • Modify the activity to improve its effectiveness..
• Periodically collect information of the effectiveness of the education campaign.
GENERAL MOTORS CORPORATION
September 28, 1999
Mr. Richard Shoemaker
Vice President and Director
General Motors Department
International Union, UAW
8000 East Jefferson Avenue
Detroit, Michigan 48214
Dear Mr. Shoemaker:
During the course of the current negotiations, General Motors and the International Union, UAW reaffirmed the matter of the Corporation's letter of November 19, 1973, regarding the National and Local Equal Application Committees. In line with that letter, the Parties have agreed to the following:
For many years the Corporation and your Union, in their respective fields, have been leaders in adopting and effectuating policies against discrimination because of age, race, color, sex, religion, national origin, disability or sexual orientation, and sexual harassment and to this end the parties have expressly incorporated Paragraph (6a) in their National Agreement that both insures adherence to that principle in all aspects of employment at General Motors and provides the contractual grievance and arbitration procedure for the resolution of alleged violations of that principle.
The parties recognize the desirability of increased communication and cooperative effort on this subject (1) to encourage employees and grievance representatives to use the grievance and arbitration procedure as the exclusive method for prompt resolution of all claims of violations of Paragraph (6a), (2) to determine the cause of such claims in order to reduce the probability of these claims arising or recurring, and (3) to maintain liaison with appropriate federal and state civil rights agencies for the following purposes: (a) to increase understanding, (b) to promote and encourage the use of the grievance and arbitration procedure in order to avoid multiplicity of litigation in many forums simultaneously which is frequently time consuming, contradictory and hence, nonproductive to relieving employee problems, (c) to seek solutions to mutual problems, (d) to relieve tensions in this area, and (e) to exchange information, expertise and advice, (4) to provide and monitor jointly approved diversity training modules.
Accordingly, the parties agree to establish within thirty (30) days of the ratification of the National Agreement dated today a National Equal Application Committee and Local Plant Equal Application Committees.
The National Equal Application Committee will be composed of three (3) representatives of the International Union, one of whom will be a member of the International Unions Civil Rights Committee, or a designee, and three (3) representatives of the Corporation, one of whom will be active in the Corporation's equal employment opportunity programs. The National Committee will meet quarterly or more frequently if mutually deemed desirable or necessary and its functions shall be the following:
a. Review and discuss ways and means of encouraging employees an grievance representatives to use the grievance and arbitration procedure as the exclusive method to resolve claims of violations of Paragraph (6a).
b. Conduct or arrange for investigations and/or studies into the cause of equal employment opportunity and discrimination problems and tensions in an attempt to prevent such problems from arising or recurring.
c. Maintain liaison with appropriate federal and state agencies for purposes set forth in the second paragraph of this letter.
d. Review and discuss ways and means of implementing General Motors policy regarding employment of the individuals with disabilities set forth in the letter from Gary L. Cowger to the International Union.
e. Advise and counsel Local Plant Equal Application Committees.
f. Review and jointly develop the necessary tools that would allow the parties to monitor and evaluate UAW-GM diversity initiatives.
At each plant or facility that the National Agreement covers, a Local Plant Equal Application Committee will be established consisting of three (3) representatives of the Local Union and two (2) representatives of Management. The three (3) representatives of the Local Union shall consist of the Chairperson of the Shop Committee, the Chairperson of the Civil Rights Committee of the Local Union and the Local President. The two (2) representatives of Management shall be the Plant Manager, or a designated representative, and a member of Management at the plant active in the Corporation's equal employment opportunity program. Local Plant Equal Application Committees will meet on a scheduled quarterly basis, and shall have the following duties:
a. Recommend to the National Committee ways and means of promoting use of the grievance procedure as the exclusive method for resolving claims of violations of Paragraph (6a).
b. Suggest guidelines for Union and company representatives active in the grievance procedure in the proper and prompt handling of grievances alleging such claims.
c. Recommend to the National Committee means for determining the cause of equal employment opportunity and discrimination problems and tensions in the plant.
Very truly yours,
Gary L. Cowger
Group Vice President, Labor Relations
"Claims of Sexual Harassment" are covered by the provisions of Paragraph (6a) of the National Agreements. It is important for union representatives to understand the UAW Administrative Letter titled, "Policy on the Elimination of Workplace Sexual Harassment."
The agreements state, "that complaints of sexual harassment should be dealt with promptly and fairly under existing internal procedures as provided under Paragraph (6a) of the National Agreements."
· The Corporations have a legal duty to maintain a workplace free of any form of sexual harassment. The UAW has a legal obligation to require management to promptly investigate charges of sexual harassment and take immediate corrective action(s) where necessary.
· The Union has a duty to investigate complaints of sexual harassment and take prompt corrective action where the investigation indicates sexual harassment has occurred. Writing a grievance is prompt corrective action in this context.
· The UAW Policy on the Elimination of Workplace Sexual Harassment Administrative Letter, reviews in detail our legal and institutional requirements. Under the law, conduct that is initially welcomed may later become unwelcome. While it may complicate proof of unwelcomeness, initial acceptance or acquiescence does not waive the right to complain later.
· If the facts show sexual harassment has occurred, a grievance should be pursued.
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To All Local Unions:
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Greetings:
Sexual harassment of workers by members of supervision or co-workers should not be tolerated at any workplace organized by the UAW. Nonetheless, UAW members have been victims of sexual harassment. This letter confirms the policy of the International Union that sexual harassment is a serious obstacle to the achievement of full employment opportunity for workers of both sexes. The International Officers, Directors and staff, and Local Union leadership must commit their efforts to its
elimination. Just as the UAW abhors the use of racial or ethnic slurs, the International Union views sexual harassment of any form as an attack on the dignity of the worker who is its victim.
Definition of Sexual Harassment
Sex-based harassment may be unwanted attention directed to an employee because of their sex. Equal Employment Opportunity Commission (EEOC) guidelines stress that sexual harassment can be verbal abuse as well as unwanted physical contact or offensive pictures, cartoons, slogans or posters displayed in a work area:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
Recent court decisions also have recognized that sexual harassment can occur in many different ways. A worker need not be propositioned, touched offensively or harassed by sexual innuendo.
In some sexually charged workplaces, proving the "unwelcomeness' of the harassment activity is complicated by the behavior of the complainant. Mixed signals may indicate the complainant is showing welcomeness, while in fact, the employee's behavior is simply an effort to adjust to the prevailing workplace culture. Under the law, conduct that is initially welcomed, may later become unwelcome. An employee's initial acceptance does not waive their right to complain about later conduct, but the initial acceptance may complicate any attempt to prove unwelcomeness.
There are at least four types of victims of sexual harassment: 1) those who are penalized for refusing the harasser's advances; 2) those whose fear of reprisal or desire for privileges traps them in unwanted sexual relationships; 3) workers who suffer as a result of the harasser's favoritism toward one of them who does submit to sexual advances; and 4) everyone who is required to work in an environment tainted with hostile or offensive language, behavior or visual displays.
Sexual Harassment is Grievable
Sexual harassment of a union member by another union member is a matter of grave concern. some union representatives have been reluctant to write grievances that they feel may be against another member. These kinds of grievances should be written against management, citing the employer's responsibility to maintain an environment free of hostility.
Over the years, EEOC sexual harassment guidelines and the federal courts have established that sexual harassment is sex discrimination and violates Title VII of the 1964 Civil Rights Act, as amended.
In 1986, the U.S. Supreme Court unanimously ruled, in Meritor Savings Bank v. Vinson, that sex-based harassment was unlawful if it created a hostile, abusive, offensive and intimidating work environment even if no sexual favors were sought. This had long been the law concerning hostile environment created due to an employee's national origin, race or religion.
Because sexual harassment may cause a form of hostile work environment, the employer has a legal duty to maintain a work environment free of any form of sexual harassment. Likewise, the Local Union has an obligation, under law, to require management to promptly investigate such charges and to take immediate corrective action(s) where necessary when sexual harassment is reported.
We advise Local Unions to file and pursue grievances if the employers fail to meet any part of their legal responsibilities to provide a workplace free of sexual harassment. It is the position of the International Union that sexual harassment may be grieved as a form of sex discrimination under a no-discrimination clause and/or equal application clause where such language exists in the contract.
Sexual harassment may result in other contract violations which could also be grieved, for example, unjust discipline. We believe that sexual harassment can best and most speedily be remedied through the grievance procedure where it is possible to do so under the provisions of the contract. Just as with any other complaint of unfair treatment, grievance handlers have a duty to investigate complaints of sexual harassment. The Union also has a duty to take prompt corrective action where the initial investigation indicates that sexual harassment has occurred. In this context, "prompt corrective action” means writing a grievance.
Proof that sexual harassment has occurred often involves a credibility dispute between the victim and the "harasser". As with any credibility problem, additional evidence, while not necessary, is highly desirable where it is available. Two frequent sources for such outside support in sexual harassment cases are co- workers who witness sexual comments or overtures toward the grievant and present or former co-workers who were also sexually approached by the same harasser. However, the absence of testimony from other victims should not preclude the writing of a grievance.
The Union could also be named as a respondent, along with management, in an EEOC charge or a subsequent lawsuit. Therefore, if the facts show that sexual harassment has occurred, a grievance should be pursued.
Special Protection Against Sexual Harassment
In addition to grievances on sex discrimination, additional efforts can be made through collective bargaining to eradicate sexual harassment. Since 1979, the problem of sexual harassment has been brought to the bargaining table for frank and open discussion with management. Contractual language was won at Chrysler, Ford, and General Motors which identifies sexual harassment as a subject within the jurisdiction of the National and Local Equal Application Committee. In 1996 letters, these auto employers agreed that discrimination because of sexual orientation could be grieved the same as other types of improper discrimination.
The International Union encourages the development of special complaint provisions to address the problem of sexual harassment, as long as such provisions offer an additional avenue of relief, rather than a substitute for the grievance procedure and can be applied equally to-all UAW members.
Probationary Employees
Probationary employees are frequently the most vulnerable to sexual harassment because they are less aware of their rights and can be intimidated into believing that successful completion of the probationary period depends on their cooperation with a harasser's sexual advances.
For these reasons, it is important that Union leadership be sensitive to the potential problems of sexual harassment encountered by probationary employees and provide the support and information necessary to prevent the probationary employee from becoming a victim.
In some of our contracts, probationary employees have the right to file a grievance based on discrimination. Where it exists, this right may be exercised. As indicated earlier, sexual harassment of even probationary employees may be grieved as a form of sex discrimination. If it is believed that probationary employees may not have their grievances processed, even if they relate to discrimination, they should be referred to the Equal Employment Opportunity Commission (EEOC) or certain state agencies responsible for fair employment practices where they can pursue a claim with those government agencies. In this case, time limits for filing charges must be checked immediately and carefully watched. As with any other sex discrimination charge, copies of any charge should be forwarded to your Regional Director, National Department Director, and the Civil Rights Department of the UAW. If legal advice is needed, they will contact the UAW Legal Department. In some states, harassment victims can file civil lawsuits in state courts. However, a charge with an outside agency or a lawsuit should not be used as a substitute for the grievance procedure if the situation is grievable.
Remedies for Sexual Harassment
The remedy for a victim of sexual harassment depends on the particular case. For example, if the grievant has suffered economic harm (e.g., demotion, suspension, discharge) due to retaliation by a supervisor for the employee's failure to submit to the supervisor's advances, the requested remedy should include the standard "make whole" demand. On the other hand, if the grievance is directed at stopping harassment, the requested remedy should at least demand that the supervisor cease and desist the objectionable conduct. It can also request that the supervisor be transferred or disciplined up to and including discharge and that the company fulfill its duty to provide a workplace free of sexual harassment.
Other forms of relief or grievance settlement may include a demand that management print, distribute and post a policy against sexual harassment in the workplace. This demand can also be pursued during contract negotiations.
Confidentiality
A sexual harassment complaint is a very sensitive topic and must be handled with great seriousness and respect for the rights of all concerned. Sometimes workers are too embarrassed or humiliated by the experience to come forward with their complaints. This problem can only be corrected if workers fee! assured that the Union will take their complaints seriously and will treat them as confidential as possible.
Of course, the filing of a grievance on sexual harassment means that the complaint will not be totally secret forever. However, the substance of the grievance can determine how much detail must be revealed to management or how prominent a role the individual victim must play. For example, the committeeperson may wish to file a union policy grievance or group grievance when the aim of the grievance is to stop a harasser's conduct and no economic award for an individual grievant is sought. The names of the alleged harasser and victim(s) should be included in the grievance in order for it to be properly investigated. As with any other grievance, supporting facts should be released on a "need to know" basis only and be kept confidential. This will decrease the probability that anyone will file a defamation suit.
Unemployment Compensation
In the event a member quits a job to avoid sexual harassment, certain state employment security commissions (including Michigan) have ruled that the employee should not be considered a voluntary quit and should not lose unemployment benefits. Workers should be encouraged to appeal any agency denial of unemployment benefits in this situation.
Sexual Harassment by CO-Workers
Unfortunately, sexual harassment is not only practiced by supervision. Co-workers have too often been known to sexually harass other workers. Sexual harassment in the form of remarks, gestures, physical touching, etc., by co-workers can make the victims' work lives miserable and hurt their ability to do their jobs.
Sexual harassment of co-workers runs contrary to the basic Union objective of decent working conditions free of discrimination, as set forth in Article 2.of the CONSTITUTION and reaffirmed in innumerable policy statements and actions.
Sexual harassment of a Union member by another Union member is a matter of concern and may be dealt with in the grievance procedure as described elsewhere in the ADMINISTRATIVE LETTER. Sexual harassment is particularly offensive if it involves a Union official abusing their position of Union authority. These offenses should be called to the attention of the Regional Office and the International Union for remedy.
Local leadership should also assist the International Union in educating our membership on this problem. Sexual harassment violates the fundamental principles of fairness and equality for which the Union has fought so hard.
Assistance
For additional information on the problem of sexual harassment and ways to combat it, contact the appropriate International Representative from your Region who will contact the Civil Rights Department of the International Union, if assistance is needed.
As far back as February 1951, the UAW issued an ADMINISTRATIVE LETTER on how to assure members of a workplace free of sex discrimination. Until sexual harassment has been eliminated, we can never meet this goal.
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Doc. No. 99
GM POLICY REGARDING SEXUAL HARASSMENT
GENERAL MOTORS CORPORATION
September 28, 1999
Mr. Richard Shoemaker
Vice President and Director
General Motors Department
International Union, UAW
8000 East Jefferson Avenue
Detroit, Michigan 48214
Dear Mr. Shoemaker:
The following is the text of General Motors written and published policy regarding sexual harassment.
"General Motors has had for many years a written and widely distributed policy on equal opportunity employment. Sexual harassment, as in the case of harassment based on age, race, color, sex, religion, national origin, disability or sexual orientation has long been regarded as a violation of this policy.
"All employees are expected to deal fairly and honestly with one another to ensure a work environment free of intimidation and harassment. Abuse of the dignity of anyone, through ethnic, racist or sexist slurs or through other derogatory or objectionable conduct, is offensive employee- behavior. Sexual harassment also includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.
"All GM employees are entitled to a work environment in which words and actions do not have even the appearance of disrespect. Sexually-oriented jokes, cartoons, pictures, language, certain gestures and touching may be offensive to people and, therefore, may result in a hostile work environment. This type of conduct will not be tolerated in the workplace. General Motors facilities must be free of hostility resulting from sexually- oriented behavior. It is the responsibility of management and each employee to maintain an environment free of hostility.
"As in the case of other unfair employment practices, if you believe you have been subjected to sexual harassment, you may bring your concerns to the attention of either your immediate supervisor, personnel director, representative, or union representative, or you may utilize appropriate and existing internal complaint procedures."
General Motors and the UAW are in agreement that complaints of sexual harassment should be dealt with promptly and fairly under existing internal procedures as provided under Paragraph (6a) of the National Agreement.
Very truly yours,
Gary L. Cowger
Group Vice President – Labor Relations
Paragraph (6a) prohibits discrimination and/or harassment based upon a disability.
· The ADAPT Placement Program allows UAW-represented GM and Delphi workers to be retained at work or returned to work from a Sick Leave or Workers' Compensation Leave of Absence and to be placed on jobs in line with their physical and/or mental restrictions or disabilities as well as the applicable provisions of the Local and National Agreements and appropriate state and federal laws.
· The Six-Step placement process ensures a consistent placement procedure throughout all UAW-represented GM and Delphi facilities. This creates an environment that is designed to eliminate or reduce the risk of injury, enhance the workers' safety, and prevent discrimination.
· The Local Union should use the grievance procedure under Paragraph (6a) to resolve claims of discrimination and/or harassment, based upon a disability.
· Additional ADAPT information and a copy of the Six-Step ADAPT process are provided for reference purposes. The Document No. 46 ADAPT representative in the plant has the National Guidelines and Resource Manual for this program.
ADAPT Accommodations
The ADAPT program utilizing the Six Step ADAPT process, allows UAW-represented General Motors and Delphi members to be retained at work or returned to work from sick or worker's compensation leave of absence, and to be placed on jobs in line with their restrictions and the applicable provisions of both the Local and National Agreements.
Accommodations for workers with restrictions or disabilities are based on the circumstance of the particular case. The job assignments must be within the employee's restrictions and can not violate another employee's seniority rights under the Local or National collective bargaining agreements.
A reasonable accommodation is any change or adjustment to a job or work environment that permits a member with restrictions from plant medical to participate in the job application process, perform the essential functions of a job, and/or enjoy benefits and privileges of employment equal to those enjoyed by employees without restrictions or disabilities. The Corporations shall provide reasonable accommodation to the known physical or mental limitations of an employee with restrictions from plant medical, unless doing so creates an undue hardship upon the Union, General Motors or Delphi. Reasonable accommodations may include:
· Purchasing or modifying equipment or devices.
· Job restructuring.
· Reassignment to vacant position. "And the applicable provisions of both the Local and National Agreements."
· Adjusting or modifying examinations.
· Writing new training materials or policies.
· Providing qualified reader or interpreters.
· Making the workplace readily accessible and udable by employees with restrictions or disabilities.
All information about the employee's disability must be kept confidential.
SIX STEP JOB PLACEMENT
IN PLANT PROCESS
1. Review restrictions
2. Interview employee
3. Conduct job search
4. Refer employee to medical or place on job
5. Complete required documentation
6. Review temporary restrictions and placements for re-evaluation
These steps may be continuous or separate functions depending on the availability of the employee. The decision may be to place an employee on either a permanent job, temporary job or determine that there is no job available at that time.
· Our joint efforts in the promotion of diversity in the workplace are focused on creating an environment of mutual respect and understanding. The history of our union has proven the value of a diverse membership united to attain shared goals while respecting each other's individuality.
· Learning about and valuing the diverse cultural backgrounds of our co-workers creates an awareness of the context within which words and actions can be hurtful and even hateful. The workplace must be an open environment where we can say words or acts are objectionable without creating a disagreement which escalates into conflict. This requires that every worker knows what is appropriate conduct in the workplace. For example, what may be regarded as humor outside of the workplace or in certain social settings can contribute to an intimidating and hostile work environment.
· By understanding and talking about our differences, our shared values will result in a workplace which discourages discrimination in all forms.
DOCUMENT No. 41
COMMITMENT TO DIVERSITY
NEW
COMMITMENT TO DIVERSITY
GENERAL MOTORS CORPORATION
September 28, 1999
Mr. Richard Shoemaker
Vice President and Director
General Motors Department
International Union, UAW
8000 East Jefferson Avenue
Detroit, Michigan 48214
Dear Mr. Shoemaker:
The UAW and GM have worked together for many years to understand and promote diversity in the workplace, a goal we absolutely agree on and are fully committed to. The parties have long recognized that diversity is the collective mixture of our similarities and differences. Both organizations recognize that diversity includes race and gender, as well as broader dimensions such as family status, religion, sexual orientation, education, abilities, disabilities, military status, union, non-union, language and many others.
Diversity is a positive asset to an organization because only by leveraging our diversity will we be able to achieve the kind of relationship that we know is necessary if General Motors is to prosper and provide good jobs that allow employees, both union- represented and salaried, to be secure in today's complicated world.
Our vision is to have a workplace that naturally enables the people of UAW-GM to fully contribute and achieve personal fulfillment. The UAW and GM continue to support and integrate the many voices of diversity, increasing our appreciation of cultural differences, beliefs, values, abilities, disabilities and sexual orientation. The UAW and GM work together at the national and local levels to develop and deliver diversity training. The principles that guide UAW-GM Diversity Initiatives include:
· creating a learning organization;
· seeking diverse input and involvement;
· leading the cultural change process; and
· pursuing continuous improvement in diversity actions and programs.
The National Equal Application Committee works with local Plants to provide educational materials to the UAW-GM workforce regarding diversity and equal employment opportunities. They also identify community agencies involved in civil rights and diversity activities and work with community leaders to discuss and work towards solutions to mutual problems regarding discrimination. Action plans can be developed to include such activities as:
· utilizing plant communication methods to celebrate cultural diversity and share the UAW-GM joint commitment to diversity;
· seeking input from identifiable diverse employee groups and individuals;
· identifying opportunities to celebrate diversity with educational awareness events and exhibits;
· communicating how diverse employee groups can participate in plant and community projects; and
· recognizing activities that are inclusive of diverse employee groups.