uaw gm umpire decisions

OFFICE OF THE UMPIRE

No. A-1

OCTOBER 28, 1940

Decision on Issue of Alternate Committeemen’s Preferential Right to Work

GRIEVANCES

Chevrolet Bay City—Case No. 1

"I request back wages from 11:30 A.M., July 11 to July 27. I should have worked as an alternatecommitteeman during this time, as there were about 100 men working in my district."


"I request pay from July 3 to July 29 because there were 50 men in my district."


"I request pay for Saturday August 17. There were 65 employes working in my district. I was notbrought in as a committeeman."

Chevrolet Flint—Case No. 14

"Refused to allow committeeman 40 hours work for week of July 29 to August 3, 1940."

Chevrolet Gear & Axle—Case No. 17

"There were about 50 men working in my district last Thursday and some of them were productionmen. I want to know why I was not let work? I think I should be paid for time lost."


"I have been discriminated against by not being allowed to work last week (40 hours a regular workweek) when there are 10 men in my district. This is a violation of the agreement between the Unionand the Company."


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"I was discriminated against by not being allowed to work last Thursday and Friday. This is aviolation of the Agreement. I request to be compensated for my lost time."

SUMMARY

These employees (Alternate Committeemen) were not called in when the District Committeemanwas called to work on overtime and extra work. The Union claimed that under the Agreement, theAlternate has the same preferential right to work as the District Committeeman and that they shouldbe paid for time lost.

The UMPIRE ruled that:

There is no urgent need to call in both the Alternate and the Committeeman in order that one willalmost certainly be present. Most grievances do not call for attention "then and there." Many are nottaken up on the day they arise and a very large proportion of those that are could go over for a daywithout injury. The Alternate does not have the same preferential right to work as is possessed bythe Committeeman. The claims for back pay are denied.

The verbatim decision of the UMPIRE is as follows:

In the Matter of:

William R. Campbell, Chevrolet Parts, Bay City (Case 1); Joseph M. Douponce, Chevrolet Parts,Bay City (Case 2); William R. Campbell, Chevrolet Parts, Bay City (Case 4); Harvey M. Morton,Chevrolet Motor Division, Flint (Case 14); P. Mahoney, Chevrolet Gear and Axle, Detroit (Case17); Forrest S. Timmon, Chevrolet Gear and Axle, Detroit (Case 26); and Forrest S. Timmon,Chevrolet Gear and Axle, Detroit (Case 27).

These several employees claim that on specified days they were denied a right to work given themunder the Agreement between the General Motors Corporation and the International Union UnitedAutomobile Workers of America—C.I.O., and that they should be paid for time lost. All sevencases involve the same issue and have therefore been joined for consideration and decision.

The issue is whether alternate committeemen have the same preference in overtime and extra workwhen only a part of the plant is "running," as has been specifically provided for in the cases ofcommitteemen. The specific provision is found in Representation, Paragraph (3), page 7 of theAgreement. It reads:

Whenever ten or more employees covered by this Agreement are working in a district thecommitteeman for that district shall be allowed to work, provided there is work which he is capableof doing, and he shall be paid the current rate of pay for such work.



The Union’s Interpretation of the Agreement and Its Contentions

Though there is no corresponding provision relating to alternate committeemen, the Union contendsthat they and committeemen have the same preferential employment right. This contention is basedin part upon the fact that the two sets of representatives have the same seniority rights. "District andalternate committeemen shall head the seniority lists in their respective districts" (Agreement,General Provisions Regarding Seniority, Paragraph (16), page 23). In addition, the Agreementprovides that the duties of an alternate committeeman "shall be the same as those of the regularcommitteeman for that district while he is absent from the plant" (Agreement, Representation,Paragraph (2), page 7). The Union contends that for the alternate committeeman to be available as asubstitute for the committeeman when the latter is absent from the plant he, too, must be called inon overtime and extra work. Grievances can be handled only by the one or the other. No substitutecan be selected and receive recognition without prior notification to management. A recognizedofficial should be available at all times.

These are the Union’s main contentions. In addition to these, it notes the importance of making theposition of alternate committeeman attractive in order that it will not be shunned because of the timerequired outside of working hours, particularly in the collection of dues. It also calls attention to thefact that while dues are collected outside of working hours and on the Corporation’s property, noone not working on the particular day is admitted to the plant. Hence, were an alternatecommitteeman not working for a continuous period of a couple of weeks or more, as in Cases No. 1and No. 2, there would be no one present to collect dues in the usual manner from those members ofthe Union who were working.

Finally, the Union asserts that inasmuch as the preferential right to work in question is conditionedby ability to perform available work, sustaining its position "would not cost the Corporation apenny." It is merely a question whether for a day or so now and then an alternate committeemanrather than some one else will work. The alternate committeeman would earn somewhat more, theothers somewhat less, but this is said to be agreeable to the members of the U.A.W.

The Corporation’s Interpretation of the Agreement

The Corporation’s position is that none of these claims is justified by a proper interpretation of theAgreement. Incidentally, it calls attention to the fact that in all of the cases except Case No. 4 thecommitteeman was working and that in the exceptional case there was no work the alternate wascapable of doing. Under the same circumstances, a committeeman would have had no right to workand would not be used on overtime or extra work. Also, at the conference held by the Umpire inorder to supplement and clarify the briefs submitted, the Corporation took the position that theclaims had been presented too late to require compensation were they held to have merit. Finally,the Corporation expresses fear of loss in efficiency and of impaired morale. A worker may be lessefficient on available work he is able to perform than on the job to which he is regularly assigned.

As regards its main position, the Corporation contends that insofar as the Union’s case rests uponthe provision that "District and alternate committeemen shall head the seniority lists in theirrespective districts" (Agreement, General Provisions Regarding Seniority, Paragraph (16), page 23),it is without merit. Seniority has to do only with lay-off, which is not involved in any of these seven



cases. It has nothing to do with extra work; for such work selections are not made on the basis ofseniority.

Attention is called to the provision of the Agreement which relates specifically to committeemen—that quoted above on page 1. Had it been agreed that committeemen and alternate committeemenshould have the same preferential right to work, that both of them should work when ten or moreemployees were on extra work, the clause would have been differently worded. The words "andalternate committeeman" would have been inserted after the word "committeeman." TheAgreement, the Corporation contends, is to be interpreted and applied as written. Changes andadditions can be made only by successful negotiation between the parties in interest.

Interpreting the Agreement as written, Mr. Tanner on July 17, 1940, issued a letter with reference toalternate committeemen to all general managers of the plants covered by the Agreement, reading, inpart, as follows:

In cases where ten or more employees are working in a district on Saturdays or any other day whenthe plant is shut down, the district committeeman shall be allowed to work, so as to represent theemployees, if there is work he is capable of doing. The alternate committeeman need not workunless his regular job is operating or in case the district committeeman does not work.

It was upon the basis of this interpretation of the Agreement that the alternate committeemen filingclaims had not been used on extra work.

The Umpire’s Observations and Decision

The Umpire finds in these several cases no circumstance of past practice, no commitment, or otherreason for not following the words of the Agreement in making his decision. Of course it isimportant to make arduous jobs of union representatives attractive and to make it convenient forthese representatives to function, but such matters can be taken care of in various ways. Thecommitteeman or the alternate will almost always be among those engaged on extra work withoutboth of them having a preferential right. There is no urgent need to call in both in order that one willalmost certainly be present, for except on very rare occasions the committeeman will be presentwhen he, say at the close of the preceding day, is expected, and expects, to be present. Moreover,most grievances do not call for attention "then and there." Many of them are not taken up on the daythey arise and a very large proportion of those that are so taken up could go over for a day withoutinjury. Finally, were the Union’s position sustained, there might be some loss in efficiency inconcrete cases.

The Union’s interpretation of the Agreement, one which would give the alternate committeeman thesame preferential right to work as is possessed by the committeeman, is rejected. Insofar as theevidence goes, the Corporation in applying the rule in these several cases, was acting within itsright. The claims of the several alternate committeemen are disallowed.

In ruling as he does on these several cases, the Umpire assumes that no technical question of latepresentation of a claim will be raised by management when delay in its presentation is due to theabsence of both committeeman and alternate committeeman at the time the grievance developed.



H. A. MILLIS

UMPIRE

October 28, 1940.

Present at the October 21 meeting referred to in this decision were Messrs. Du Brul and Coen ofGeneral Motors, Messrs. Reuther, Livingston, and Johnstone of the Union, and the Umpire and hissecretary.

UMPIRE DECISION INDEX




No. A-28

MARCH 5, 1941

Claim for Plant-Wide Seniority

Claim of Discrimination

GRIEVANCE:

(Chevrolet Toledo—Cases Nos. 1 and 2)

"Due to the fact that there has been changes in products, methods and policies in Toledo-Chevrolet plant, I am about to be permanently laid off, therefore I claim I should be givenplant-wide seniority according to the Agreement between the Corporation and the Union."

At the second step of the Grievance Procedure the claim of each employee was extendedto include a charge of discrimination.

SUMMARY

Two employees’ seniority was restored under Clause 9-e (SENIORITY). They were notrecalled to work and on October 11, 1938, they again lost their seniority due to the fact thatthey had not been employed for a period of twenty-four months. The Union claimed thatthey were entitled to plant-wide seniority due to the fact that additional work, which was achange in product, had been taken into the plant and that the failure to recall themrepresented discrimination in respect to tenure of employment prohibited under Paragraph(3-a) (RECOGNITION).


1. The claim for plant-wide seniority has no merit whatsoever. The localseniority arrangement is on a group basis. Clause 4 (SENIORITY) ordinarilybecomes effective when a job being performed by an employee becomesobsolete and it certainly has no bearing in this case.

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2. The break in seniority of two men was not in conformance with therequirements of Clause 3-a of the Recognition Section. Not later than March24, 1941, these men are to be provided with work in their regular groups andtheir seniority is restored.


In the Matter of:

United Automobile Workers of America—C.I.O.

and

General Motors Corporation, Chevrolet-Toledo Division, Case Nos. 1 and 2.

The grievances considered by this decision have been joined because of a markedsimilarity in the facts and in the principles involved. As initially filed on Sept. 13, 1940, thegrievance in Case No. 1 reads:

"Due to the fact that there has been changes in products, methodsand policies in Toledo-Chevrolet plant, I am about to bepermanently laid off, therefore I claim I should be given plant-wideseniority according to the Agreement between the Corporation andthe Union."

The grievance filed on Sept. 13, 1940 for Case No. 2 reads virtually the same. At thesecond step of the grievance procedure the claim of each employee was extended toinclude a charge of discrimination. This is recorded in the Statement of UnadjustedGrievance as of Oct. 24, 1940. A hearing of this case was conducted at Toledo on Feb. 12,1941.

Facts of the Case

Each of the employees had a seniority date of Nov. 4, 1931. One was listed in theProduction Group, the other in the Material Handling Group. Early in 1938, there was a lay-off due to lack of work. Although the two men involved in the present case had lessseniority than others who were laid off, they were kept at work because of their preferentialstatus as Shop Committeemen. In October 1938, the two men were not reelected as ShopCommitteemen. Their names were accordingly removed from the preferential list and theirseniority dates of Nov. 4, 1931 determined their right to work. They were properly laid offon Oct. 11, 1938 with seniority rights in their respective groups which was in accordancewith the local seniority agreement. These men were not employed at this plant during thenext twelve months and their seniority was broken on Oct. 11, 1939 in compliance with theterms of the Agreement then in effect.



The present Agreement, signed on June 24, 1940, provides in Clause 9-e of the SenioritySection that seniority shall be broken if a man "is laid off for twenty-four (24) consecutivemonths. This provision shall be effective for all employees laid off since July 1, 1938." Thisclause applied to the two men in question. Their seniority was restored but would again bebroken if they were continuously unemployed until Oct. 11, 1940.

On Sept. 13, 1940, the present grievances were filed in anticipation of another possiblebreak in seniority. The men claimed they were entitled to plant-wide seniority under Clause4 of the Seniority Section which provides: "... When changes in methods, products orpolicies would otherwise require the permanent laying off of employees, the seniority of thedisplaced employees shall become plant-wide and they shall be transferred out of thegroup in line with their seniority, to work they are capable of doing, as comparable to thework they have been doing as may be available, at the rate for the job to which they havebeen transferred." The Union contended that these men were, on Sept. 13, soon to bepermanently laid off because of a change in product and that they should, therefore, begiven plant-wide seniority. The "change in product", it was argued, occurred whenmanagement started to produce a transfer case, never previously manufactured at thisplant. The Union stated that the two men would have been returned to work, before theircontinuous lay-off totaled 24 consecutive months, were it not for the fact that managementcould not get the production problems solved on the transfer case job. They were, theUnion claimed, about to lose their jobs because of a change in product.

Management contended that the two men had not been reemployed simply because therewas no work for them and denied their claim to plant-wide seniority. It was pointed out thatthe "change of product" referred to by the Union was really the addition of new work, thetransfer case and army truck parts, which provided more and not less employmentopportunities. The management further maintained that the addition of this new work isdefinitely not a change of product such as is contemplated by Clause 4 of the SenioritySection.

Before this claim of the two men for plant-wide seniority had been considered at thevarious steps of the Grievance Procedure, they were permanently laid off by managementand their seniority broken as of Oct. 11, 1940. Cognizance of this new circumstance wastaken at the second step of the Grievance Procedure and the Union added to the Notice ofUnadjusted Grievance a claim that these men were discriminated against because of theirUnion activity. In support of this contention, the Union claimed that (1) Management hadclearly indicated to the Committee that these men would not be brought back to workunder any circumstances, (2) that no men were being hired, despite the working ofovertime, with the deliberate intention of allowing the seniority of these two men to lapse,(3) the men who were not called back immediately after the summer lay-off "knew" theywould not get work until after the seniority of these two men were broken. The two men, itis said, suggested at a Union meeting that they would waive their seniority rights in order tohelp get the others back to work, (4) shortly after the seniority dates of these men werebroken, all others with seniority status were recalled to work as well as many formeremployees who lacked seniority.

At the second and third steps of the Grievance Procedure, plant management andCorporation representatives found no evidence of discrimination and held that the lay-off ofthe men was strictly in accord with the local seniority agreement and the national



agreement. It was held that a granting of the request for plant-wide seniority would haverepresented a violation of these agreements.

Union Contention

The Union contends in the first place that the two men were entitled to plant-wide seniorityas of the date of the original grievance, Sept. 13, 1940 since they were about to lose theirjobs permanently because of a change of product. In the second place, it is claimed thatthese men’s seniority was not broken in a normal way but as a result of management’sdesign which was so flagrant as to constitute Union discrimination. The Union seeksredress for the alleged discrimination.

Corporation Position

The Corporation maintains that the men were not entitled to plant-wide seniority under theoriginal grievance because their continued lay-off was not caused by any change ofproduct within the meaning of Clause 4 of the Seniority Section. It is pointed out, moreover,that the plant has long operated on a group seniority arrangement and the giving of plant-wide seniority to the two men in question would violate this understanding. Managementcontends that it has complied with the only pertinent provisions of the Agreement when itrestored the seniority of these men on June 24, 1940 and removed their names from theseniority list on Oct. 11, 1940 in compliance with Clause 9-e of the Seniority Section.

The Corporation disclaims the discrimination charge advanced by the Union, stating thatthe men’s seniority was broken simply because there was no work for them and that it isunder no obligation to employ men whose services are not needed just to prevent a breakin their seniority. Respecting the Union claim that there was an unwarranted lapse in newhirings until the seniority of the two men was broken, management pointed out that men ineach group with greater seniority had not been called to work by Oct. 11, 1940. Therecannot be, it is claimed, any valid charge of discrimination against the two men under suchcircumstances. There simply was no work to which they could be called, it is contended.

Analysis by Umpire and Decision

Two claims have been made by the Union, and they are so different in nature that theymust be considered separately.

Claim for Plant-Wide Seniority

As of Sept. 13, 1940, the Union claimed that the new work brought into the plantrepresented a change of product, and that delays in getting the changed product intoregular operation was responsible for the permanent lay-off of two men. It is claimed by theUnion, that, under Clause 4 of the Seniority Section, the men were entitled to plant-wideseniority.

This claim has no merit whatsoever. The local seniority arrangement is on a group basis.The Clause 4 in question ordinarily becomes effective when a job being performed by an



employed man becomes obsolete, and it certainly has no bearing in this situation. TheUnion claim for plant-wide seniority for these men cannot be recognized as valid.

Discrimination

The Union also claims that the break of seniority was caused by discrimination of themanagement against these men rather than by lack of work for them. This claim is madeunder Clause 3-a of the Recognition Section which provides that "The Corporation will notinterfere with, restrain or coerce employees because of membership or lawful activity in theUnion, nor will it by discrimination in respect to hire, tenure of employment or any term orcondition of employment, attempt to discourage membership in the Union." By thespecified terms of Clause 19 of the Grievance Procedure Section this claim of the Union issubject to the jurisdiction of the Umpire.

In supporting its claim of discrimination, the Union submitted, in a general way, thetestimony that has been summarized previously. As announced at the hearing of this case,the Umpire determined that such testimony could only be evaluated by reference to theplant records. The results of the investigation that was made by the Umpire’s office hasbeen used in arriving at the conclusions in this case.

It is apparent from company records that the recall after the 1940 lay-off was virtuallycompleted during the week ending August 16 when only twenty-seven employees havingseniority remained unassigned to jobs. Twenty of these men were in the Production Groupand two were in the Material Handling Group. For five weeks beginning with September30, 1940, eight hours of Saturday overtime was worked by a substantial number ofemployees in the two departments. There were no further recalls from either of these twogroups, however, until October 8 when eight employees from the Production Group werereturned to work, leaving twelve men with seniority in the group still not assigned. After theseniority of one man involved in this case was broken the remainder of the employeeshaving seniority in the production group were recalled in the following week. During thenext ensuing three weeks, 109 employees were hired in the production group from a list offormer employees who had no seniority status.

During the week beginning September 30, three material handlers each worked 8 hoursovertime on Saturday. The seniority of the material handler involved in this case wasbroken on Friday, October 11, leaving one man in the group still unemployed. OnSaturday, October 12, seven other material handlers each worked 8 hours overtime. Theremaining man in the group was recalled on Tuesday, October 15, in a week when elevenmaterial handlers each worked 8 hours overtime. Three men were hired in the groupduring the week beginning November 4 from a list of previous employees.

From the facts just outlined, it seems quite clear that the breaks in seniority do not appearto be the result of a lack of work encountered in the normal course of business operations.They appear, on the contrary, to have been the result of a management choice not to addmore employees even though production needs could be met only by the use of extensiveovertime work. This is more apparent from a closer analysis. On October 5, 1940, onehundred and thirty men in the production group worked 8 hours overtime for a total of 1040man hours. Only eight men were shortly thereafter recalled to the group. As matters turnedout, all the remaining twelve men holding seniority could well have been recalled on



October 8 because just four days later, or on Saturday, October 12, the management hadto work 191 men for 8 hours overtime. It was on Friday October 11, moreover, thatmanagement chose to break the seniority of one of the men in question and chose not toavail itself of the services of the twelve men still holding seniority rights. Shortly after theone man’s seniority was broken, however, every other man with status in the departmentwas recalled and large numbers of men without seniority were hired.

A somewhat similar situation existed in the material handling group. Three men worked 8hours overtime on October 5, 1940. At least one of the men who still held seniority in thegroup might well have been called to work because, on the following Saturday, October 12,seven material handlers were required to work overtime. Despite the impending overtimethat was in prospect, one man’s seniority in the group was broken on October 11 and theonly other man with seniority in the group was not called in until October 15. Elevenmaterial handlers had to work overtime on October 19 and it soon became necessary toemploy additional men in the group.

The facts disclosed by the investigation must be considered in the light of certainsurrounding circumstances. Management undoubtedly gave the Committee some reasonto believe that the two men would not get their jobs back, not simply because of their lowseniority in relation to available jobs but because they were not wanted. They were thennot hired when jobs were available and this fact cannot be obscured by reference to thedelay in hiring a relatively few other men. There were available jobs for all of them. While itnot directly pertinent, there is an indirect significance to that clause in the local seniorityagreement which reads: "When jobs are available for employees laid off, each employee isto be placed on his regular job."

After careful analysis of the evidence in this case, the Umpire is of the firm conviction thatthe seniority of the two men in question was broken under very unusual circumstances.There is no validity to the management’s contention that a number of men with senioritywere not recalled simply because there was no work for them. On the contrary, they werenot recalled to jobs, despite the necessity of considerable overtime work, until the seniorityof two men were broken. Then a plentiful supply of jobs became available. The onlyreasonable interpretation of these facts is that men were not called to available jobs inorder to insure that there would be the breaks in seniority that are under discussion.Because the men involved had long been such active advocates of the Union, the break intheir seniority could scarcely fail to affect the status of the Union.

What of the Corporation contention that the actions of management were in strict accordwith the agreement? Management’s actions technically conformed with Clause 9 of theSeniority section, but they were distinctly not in conformance with Clause 3-a of theRecognition Section which prohibits discriminatory use of Clause 9-e, as well as others, "inrespect to hire, tenure of employment or any term or condition of employment." Havingcertain seniority rights the two men in question were entitled by Clause 3-a of theRecognition Section to consideration for jobs without any discrimination. In the judgment ofthe Umpire this was not afforded them. They are unquestionably entitled to redress. TheUnion has requested plant-wide seniority for them. This would not be proper under thelocal seniority agreement which is based upon group seniority. The local seniorityagreement does provide, as previously noted, that "When jobs are available for employeeslaid off, each employee is to be placed on his regular job." It is quite proper under this



clause to provide them with employment in their respective groups and to restore theirseniority. They are to be provided with work in their regular groups not later than March 24,1941.

Decision

The break in seniority of two men was not in conformance with the requirements of Clause3-a of the Recognition Section. Not later than March 24, 1941, these men are to beprovided with work in their regular groups and their seniority is restored.

George W. Taylor,

UMPIRE.

March 5, 1941.





No. A-89

June 9, 1941

Promotion

Alleged Discrimination

GRIEVANCE:

Chevrolet Muncie—Case No. 56.

"Grievance No. 79556, discrimination, coercion, refusing me a hammer, stating I am notdependable and offering me an upsetter at 10c under rate, and if dependable on header—on hammer."

SUMMARY

A was hired at this plant as a Screw Machine Operator on April 9, 1936, but was soontransferred to a Heater job in the Forge Plant. On March 7, 1937, he was assigned to anUpset Operation as a beginner. When A was rehired on September 26, 1938, after a shut-down, he was again assigned to a Heater job.

On August 13, 1940, A filed a grievance when another employee was promoted to aHeader (Upset Operator), maintaining that his seniority entitled him to this job. Thisgrievance was settled when A agreed to go to a Heating job on a hammer instead ofcontinuing as Heater on the Upset Operation.

Toward the end of 1940, a vacancy occurred on a Hammer job. Management promoted atemporary employee to this job and states this was because he had previous experienceon such work. On December 16, A filed a grievance protesting the placing of the "new manon Hammer without seniority."

In answering the grievance, Management replied on December 31, 1940, that A "was notgiven a chance to run the Hammer job because he is not dependable. He lays off quitefrequently and is often late when he does come to work."


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On January 11, 1941, the foreman asked A if he wanted a promotion to a 3-inch Upset jobwhich was open. The Union states the foreman initially told A the job would pay $1.15 perhour, but came back about two hours later and informed A that the Superintendent hadruled that the job would start at $1.05, or 10c under the rate, but that the full rate would bepaid within 30 days if A qualified as an Upset Operator. A declined to take the job on theseterms, stating he would rather remain on Heat at $.95 than go to Upset at $1.05. A stateshe was reluctant to take this job because it was unfair to offer him a beginner’s rate on a 3-inch head when he had formerly run 4-inch and 5-inch heads as a regular Upset Operator.

The Union claims Management discriminated against A, a Union man with experience andseniority, when he was refused a Hammer job which was given to a temporary employewho is not a Union man and lacks experience.


There are cases where both parties have erred. This seems to be one of those cases. TheUmpire is not at all impressed with the validity of A’s claims when they are made to standon their own. Was he entitled to a Hammer job? He had no experience on a Hammer andhis record was not superior. It was not at all unreasonable, under the Agreement clauserespecting promotions, for Management to decide not to promote him to the Hammer butto recognize his "line of promotion" as leading from Heater on a Hammer to an UpsetOperation. A sought to short-circuit a reasonable line of promotion, as is indicated by hisrefusal of the Upset job, on unsubstantial grounds. In short, the evidence of the case doesnot indicate that A was deprived of something to which he was legitimately entitled whenhe was not given the Hammer job by Management even though the foremanrecommended him for the job.

A’s claim secures status only because Management improperly advanced a temporaryemploye to the Hammer job that is in question. A careful review of the evidence fails todisclose any valid reason why it should have been made.

The promotion of the temporary employee to the Hammer job was at least contrary toSection 3-e of the Local Seniority Agreement and has elements of Union discrimination.Management is to be afforded an opportunity to "show cause" why this employee shouldnot be required to resume his former status in order to permit a promotion to the Hammerjob that cannot be construed as discriminatory.

A has no preferred claim for promotion to the Hammer job. In the event of vacanciesManagement has the right to promote according to its own policy as long as no Uniondiscrimination is involved in its choice. Any possible Union discrimination in this case wasin the choice of the temporary worker and not in the failure to promote A.


In the Matter of:




and

General Motors Corporation—Chevrolet-Muncie

Division—Case No. 56.

The grievance that is before the Umpire in this case was filed by A. on January 23, 1941. Itreads: "Grievance No. 79556, Discrimination, coercion, refusing me a hammer, stating Iam not dependable and offering me an upsetter at 10c under rate, and if dependable onheader—on hammer." A hearing on the grievance was held in Muncie on May 13, 1941.

Nature of Case

A. was hired at this plant as a Screw Machine Operator on April 9, 1936 but was soontransferred to a Heater job in the Forge Plant. On March 7, 1937, he was assigned to anUpset operation as a beginner. When A. was rehired on September 26, 1938, after a shut-down, he was again assigned to a Heater job.

On August 13, 1940, A. filed a grievance when another employee was promoted to aHeader (Upset Operator), maintaining that his seniority entitled him to this job. Thisgrievance was settled when A. agreed to go to a Heating job on a hammer instead ofcontinuing as Heater on the Upset Operation. It is now contended by the Union that thisshift was made specifically to enable A. to learn the hammer job. He was assigned for thispurpose, it is claimed, to a 1500 1b. Steam Hammer on Forks which the Union says is theonly Hammer or Header job in the entire shop with which A. is not familiar. A. complainsthat, instead of giving him a chance to work on this job and to learn its operation, he wasthen shifted around from one job to another. Management contends that A. was definitelytold at the time of this transfer that he would not be permitted to run the hammer andfurther states it was necessary to move A. from one heating job to another because he"was not able to get along or cooperate with the operators for whom he had to heat."

Toward the end of 1940, a vacancy occurred on a Hammer job. Management promoted atemporary employee to this job and now states this was because he had previousexperience on such work. On December 16, A. filed a grievance protesting the placing ofthe "new man on Hammer without seniority." It was then pointed out that the man who waspromoted was a temporary employee of only about two months’ standing, and the Unioninsists that it has been unable to discover any evidence of previous experience on such ajob. In claiming that A. should have had the promotion, the Union contends that this wasrequired by the previous understanding respecting A.’s grievance of August 13 as well asby Clause 3-e of the Local Seniority Agreement which reads: "Whenever possible, newemployees shall be started in the lower occupation and men already in that occupationshall be moved upward progressively." It is emphasized by the Union that the ability of A.to perform this hammer job should not have been open to question since, in his dispositionof this grievance, the foreman stated that A. "should have hammer and would like to seehim on Hammer, and that he did try to get him on."



In answering the grievance filed by A. on December 16, management replied on December31, 1940 that A. "was not given a chance to run the Hammer job because he is notdependable. He lays off quite frequently and is often late when he does come to work."The Union states it then had no way of appraising the accuracy of this contention andaccepted it as correct. This grievance was not appealed. The charge of undependabilitywas supported by management at the hearing by the citation of several "outstanding"instances as well as by a record of the man’s lateness and absences computed from clockcards from January 7, 1939 to January 18, 1941. During this period he lost 6 days throughillness and 8 days for personal reasons or without advancing a reason. He was late oneleven occasions and there are nine failures to ring his clock card.

On January 11, 1941, the foreman asked A. if he wanted a promotion to a 3-inch Upset jobwhich was open. The Union states the foreman initially told A. the job would pay $1.15 perhour, but came back about two hours later and informed A. that the Superintendent hadruled that the job would start at $1.05, or 10c under the rate, but that the full rate would bepaid within 30 days if A. qualified as an Upset Operator. A. declined to take the job onthese terms stating he would rather remain on Heat at $.95 than go to Upset at $1.05. A.states he was reluctant to take this job because it was unfair to offer him a beginner’s rateon a 3-inch head when he had formerly run 4-inch and 5-inch heads as a regular UpsetOperator. Upon consideration of this incident, two questions were raised by the Union:

(1) Since A.’s "bid" for the Hammer job was turned down on the ground of undependability,didn’t the offer of the Upset job indicate the incorrectness of management’s sole reason fordenying him the Hammer job? Management sought to answer this question by saying thatA. had since become more dependable. This argument seems like a rather weakrationalization in view of the short period of time that elapsed between management’sdecision on the hammer grievance on December 31 and the offer of the Upset job to A. onJanuary 11. (2) The Union claimed that Management was quite "out of order" in offeringthe Upset job to A. contingent upon his acceptance of a $1.05 rate. The Shop Committeeheld that the minimum rate for this job under the local wage agreement was $1.15 per hourand that Management had no right to pay less. In this connection, the Union also referredto a local understanding that an "employe will receive rate of job, first Monday he is on saidjob." Management states, however, that this understanding does not apply in the ForgeShop where "A man must be able to set up his own machine and maintain normalproduction before he is entitled to the rate of the job."

Claim of Union

A. felt he had justifiable grievance as respects the two questions just considered and onJanuary 23 he filed the grievance in question making claims on the two matters. The Unionclaims Management discriminated against A., a Union man with experience and seniority,when he was refused a Hammer job which was given to a temporary employee who is nota Union man and lacks experience.

The decision made by management on this grievance was that "with the expectation of 25or 30 hammermen being required on the new Aluminum job, A. will be considered for ahammerman job when these jobs open up." This disposition is not acceptable to the Unionwhich feels "that since A. is an experienced Forge Room man, and management has hirednew hammer men and placed them ahead of A. that he, A., should not have to wait until



new aluminum job opens up."


In support of its position that A. has no valid claim, the Corporation refers to Clause 3-c. ofthe Recognition Section which states in part:

"The right... to promote... is the sole responsibility of the Corporation except that Unionmembers shall not be discriminated against as such." It is said that the operation of aHammer or an Upset machine requires considerable skill and among the principalrequirements is a need for steadiness and an ability to secure the full cooperation of theheater in doing the work. In addition, the regular operation of the hammer is so essentialthat a Hammerman must be regular in his attendance and work a full shift on the job. A.’srecord of tardiness and absences without explanation is said to have made it necessary formanagement to pass him over in consideration for the hammer job in December. It is saidthat he then started to show some responsibility and was more punctual so that he wasoffered a promotion on January 11, 1941. He refused this job. Since management hasreserved the sole responsibility to make promotions, the Corporation denies that A. hasany proper claim simply because he was not selected for the hammer job.

Analysis of the Issues

The only part of the Agreement that is involved in the present case is that portion of Clause3-c. of the Recognition Section which provides:

"The right... to promote... is the sole responsibility of the Corporation except that Unionmembers shall not be discriminated against as such." In considering the meaning of thatclause, one must recognize that reference is not to alleged discrimination of one man ascompared with another but solely to discrimination against an employee because he is aUnion member. The clause gives management a reserved right to make promotions aslong as Union members are not discriminated against as such.

Preference in Promotion to a Temporary Employee

In the first place, the present issue arises because a temporary employee was assigned toa hammer job in December, 1940 in preference to promoting employees with seniority inthe Department. There is no evidence that the temporary employee had any previousexperience on the job. A. did have experience in the department and he also had therecommendation of his foreman for promotion to the job. In addition, Clause 3-e. of theLocal Seniority Agreement is designed, according to management’s own contention in thecase considered by Umpire’s Decision A-88, to insure that "whenever possible" newlyhired employees will be assigned to the lowest paid classifications and the men already inthat classification will be promoted. It is also obvious that the man’s tardiness andabsences were no deterrent to a proposed promotion to an Upset job which was offeredwithin a relatively few days of management’s refusal to give the man a Hammer job. Itmust be noted, however, that the Upset job was considerably less desirable than theHammer job.

Considering all the evidence, and even recognizing that A.’s employment record is not



unblemished, not a single convincing reason has been advanced by management toexplain its preference of the temporary employee over A. for the hammer job. The Unionsuggests that the reason is that the temporary employee was and is not a member of theUnion while A. is a member of the Union.

The Umpire believes, however, that attention must also be directed to another aspect ofthis case. The evidence indicates that, for understandable reasons, management may wellhave been reluctant to promote A. to the hammer job for personal reasons entirely apartfrom his Union affiliation. It would appear that A.’s attitude is far from cooperative. Hisunrelenting insistence that he is a highly superior mechanic not only fails to convince butraises a very real doubt about his abilities. The Umpire has no doubt that such personalconsiderations accounted in a large measure for his failure to get the hammer job. There isalso a doubt as to whether, under a regular promotion procedure, A. was entitled to movefrom Heater on Hammer to Hammer operator. There would seem to be good reason topromote A. to Upset Operation and then later to Hammer Operation if his record made thispossible. Even though such a "progressive" move-up could not be made a hard and fastrule, it would seem that management attention to this question might well be in order sincethere is considerable confusion concerning management’s thinking in the matter.

The above line of reasoning may serve to explain why management chose not to promoteA. to the hammer job; and might also indicate that, at this time, A. was actually not entitledto the hammer job especially since management has broad discretion in the making ofpromotions. The resulting conclusion would have finally resolved the issue were it not forthe selection of the temporary employee for the job. How can he possibly be considered aseligible for the job by any kind of reasonable standard? On the evidence at hand hispromotion appears to have been a violation of Clause 3-e. of the Local SeniorityAgreement which is admittedly designed to prevent the assignment of newly hiredemployees to the better jobs. If A. was not entitled to the hammer job, and there arereasons to support this point of view, how then can management reason that it shouldproperly go to the temporary employee?

The Rate Payable on the Upset Job

The Union attributes significance to the initial offer of $1.15 to A. for the Upset job that waslater changed to $1.05 for a period of thirty days or less. The lack of a clearly stated wagepolicy applicable at this plant to such cases makes it utterly impossible to determinewhether or not the management program was proper. The evidence submitted to explainthe policy at this plant, respecting wage rates that are payable on transfers, is highlyconfusing. The lack of clarity about what is the appropriate rate undoubtedly contributed tothe unnecessary complexity of this case.

There appears to be a local understanding that when employees are transferred, theregular rate of the new job is payable to the employee beginning on the following Monday.Both parties seem to agree, however, that this rule is for transfers from productive jobs toproductive jobs. The management argues that, even as respects such transfers, rates maybe below standard by a widely varying amount for 30 days in some cases and 60 days inothers. Such a modification is not accepted by the Union as proper. Reference is alsomade by both parties to a "different" procedure when a man is transferred fromnonproductive work to productive work and management holds also that a different rule



has to be applied to certain Forge Shop jobs.

On considering the above testimony, one cannot but feel a sense of inescapableconfusion. It is impossible to decide whether the rate offer to A. on the Upset job was inaccordance with past practice or in conformance with a local understanding. There seemsto be some logical doubt about the propriety of management’s offer of the $1.05 rate for 30days, however, since (1) the foreman originally offered $1.15 and he should have knownwhether or not A. could do this job and (2) A. had previously been an Upset operator.

On the other hand, why did A. refuse this job? It was in a regular line of promotion for himand if he thought the beginning rate was improper, the grievance procedure was open tohim to secure the proper rate. His conduct would indicate that he refused a properpromotion in order to secure one for which he would have a claim solely becausemanagement had promoted a temporary employee to the Hammer job.

Conclusion and Decision of the Umpire

There are cases where both parties have erred. This seems to be one of those cases. TheUmpire is not at all impressed with the validity of A.’s claims when they are made to standon their own. Was he entitled to a hammer job? He had no experience on a hammer andhis record was not superior. It was not at all unreasonable, under the Agreement clauserespecting promotions, for management to decide not to promote him to the hammer but torecognize his "line of promotion" as leading from Heater on a Hammer to an Upsetoperation. A. sought to short-circuit a reasonable line of promotion, as is indicated by hisrefusal of the Upset job on unsubstantial grounds. In short, the evidence of the case doesnot indicate that A. was deprived of something to which he was legitimately entitled whenhe was not given the Hammer job by management even though the foremanrecommended him for the job.

A.’s claim secures status only because management improperly advanced a temporaryemployee to the hammer job that is in question. On the evidence submitted, the promotionof the temporary employee seems to have been based upon caprice, personal favoritism,or an effort to show favoritism to non-Union employees. A careful review of the evidencefails to disclose any valid reason why it should have been made. The most generousappraisal of the assignment of the temporary employee is that it was in violation of Clause3-e. of the Local Seniority Agreement which, as admitted by management, is designed toprevent the assignment of newly hired employees to better paying operations as long asemployees with seniority may be promoted to them. In so applying the clause,management automatically recognized that such an interpretation does not circumscribe itsfree right to make promotions. The choice of who will be promoted still rests withmanagement.

The evidence shows that the assignment of the temporary employee to the hammer jobwas not proper under the Local Seniority Agreement and was of such a nature as toindicate a possible conclusion that Union discrimination was involved. There are reasons,then, why the assignment of the temporary employee to the hammer job should berescinded because it represented an improper exercise of management’s right to promote.Before issuing any effectuating decision in this matter, the Umpire feels that an opportunityshould be afforded management to "show cause" why the temporary employee should not



resume his former job.

Although a vacancy might occur on the hammer job as a result of action that may be takenon assignment of the temporary employee, A. has no preferred claim to it. Selection ofemployees for promotion is still the free right of management as long as Uniondiscrimination is not involved. If the assignment of the temporary employee is revoked, it isto permit management to exercise its right to promote in a way that cannot be construed asdiscriminatory. In such an event, the qualifications of A. would be weighed along withothers.

Decision

1. The promotion of the temporary employee to the hammer job was at least contrary toSection 3-e. of the Local Seniority Agreement and has elements of Union discrimination.Management is to be afforded an opportunity to "show cause" why this employee shouldnot be required to resume his former status in order to permit a promotion to the hammerjob, that cannot be construed as discriminatory.

2. A. has no preferred claim for promotion to the hammer job. In the event of vacanciesmanagement has the right to promote according to its own policy as long as no Uniondiscrimination is involved in its choice. Any possible Union discrimination in this case wasin the choice of the temporary worker and not in the failure to promote A.

Signed GEORGE W. TAYLOR,

Umpire.

June 9, 1941.





No. A-118

June 30, 1941

Question Relating to Promotion Procedure

GRIEVANCES:

Fisher Flint No. 1 -- Case No. 83

"This man requests that he be placed in his former line of work and in his formerdepartment which is Final Assembly. His seniority would be more effective in FinalAssembly than it is in the Trim Department."

"This man wished to be returned to Final Assembly which is his former department. Hestates that his seniority would be more effective in Final Assembly than in the TrimDepartment."

"This man’s seniority would be much more effective in Final Assembly than it is in the TrimDepartment. Therefore, he requests that he be sent back to his former department."

SUMMARY

In February 1941, it became necessary to transfer several employees to the "LowerQuarters" group in the Trim Department and to select for transfer employees who wouldmeet certain physical requirements of the jobs and who were otherwise qualified toperform trim operations. Management states it also gave consideration to the fact thatsome employees had made requests for promotion to better paying jobs.

The three claimants in the present case were selected for transfer from $1.00 jobs in FinalAssembly to $1.10 operations in the Trim Department. They have protested the transferbecause they claim they would "be better off" to remain on the $1.00 job where theirseniority would make it more likely that they would secure relatively full-time employment.The consequent grievances of the three men were discussed by the Shop Committee andManagement on April 4, 1941. Management then stated the men would be returned toFinal Assembly because it was not considered desirable to have "the complainants work in


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the Trim Department against their will." It was emphasized by Management, however, thatit held the right to make such transfers, and that the return of the men to Assembly wouldhave to be "at the convenience of the company." The Committee expressed concern overthis approach to the matter and urged that the claimants be promptly placed back to FinalAssembly because "if the men were not placed back in their own department before sixty(60) days were up they would lose their seniority standing in the department." The Unionnow protests the Management position in the case.


The three claimants ask, in their grievances, to be transferred back to their old jobs in FinalAssembly. All are now back on their Assembly jobs so that answers to the basic questionsraised by the Union are not essential for a settlement of the claims as made in the filedgrievances.

Approval cannot be given, however, to the Union contention that all transfers or promotionsbetween occupational groups are prohibited by the terms of the Agreement of June 24,1940 or by the local seniority agreement. On the contrary, such transfers are contemplatedby Clauses 7 and 8 of the Seniority Section.

The question of whether consideration to seniority in making transfers betweenoccupational groups requires preference to high or to low seniority employees is not ruledupon in this case for obvious reasons.


In the Matter of:


and

General Motors Corporation, Fisher Body No. 1 -- Flint—Case No. 83.

On March 27, 1941, three grievances were presented in relation to the same matter. One,submitted by F., reads: "This man requests that he be placed in his former line of work andin his former department which is Final Assembly. His seniority would be more effective inFinal Assembly than it is in the Trim Department." A second grievance was filed by H. andit reads: "This man wished to be returned to Final Assembly which is his formerdepartment. He states that his seniority would be more effective in Final Assembly than inthe Trim Department." The third grievance was submitted by G. and reads: "This man’sseniority would be much more effective in Final Assembly than it is in the Trim Department.Therefore, he requests that he be sent back to his former department." A hearing on thesegrievances was held in Flint on June 12, 1941.



Nature of Case

In February 1941, it became necessary to transfer several employees to the "LowerQuarters" group in the Trim Department and to select for transfer employees who wouldmeet certain physical requirements of the jobs and who were otherwise qualified toperform trim operations. Management states it also gave consideration to the fact thatsome employees had made requests for promotion to better paying jobs.

The three claimants in the present case were selected for transfer from $1.00 jobs in FinalAssembly to $1.10 operations in the Trim Department. They have protested the transferbecause they claim they would "be better off" to remain on the $1.00 job where theirseniority would make it more likely that they would secure relatively full-time employment.In other words, their seniority dates would give them a relatively high position in Assemblybut a relatively low position in the Trim Department. The consequent grievances of thethree men were discussed by the Shop Committee and management on April 4, 1941.Management then stated the men would be returned to Final Assembly because it was notconsidered desirable to have "the complainants work in the Trim Department against theirwill." It was emphasized by management, however, that it held the right to make suchtransfers, and that the return of the men to Assembly would have to be "at the convenienceof the company." The committee expressed concern over this approach to the matter andurged that the claimants be promptly placed back to Final Assembly because "if the menwere not placed back in their own department before sixty (60) days were up they wouldlose their seniority standing in the department." The Union now protests the managementposition in the case.

Union Claim

In supporting the claims of these three men, the Union contends that their transfer wasmade in disregard of their wishes and was, moreover, contrary to the seniority agreementat this plant. Reference is to the seniority grouping, established on November 3, 1938 forthe North Unit Trim Department, under which an A seniority grouping is listed as subsidiaryto three major occupational groupings. At the time of these transfers, however, there wereno employes at work in the subsidiary grouping in question. The Union contends,nevertheless, that it was not proper to move these three men from Final Assembly to Trimbecause these major departments have been negotiated in the Seniority Agreement asnon-inter-changeable occupational groups. In addition, it is claimed that managementerred in transferring these particular three men because management did so without givingproper consideration to their seniority standing in the Assembly Group. This phase of theUnion claim raises the important question as to whether low or high seniority employeesshould be first transferred from $1.00 to $1.10 jobs in cases where there are other relativedisadvantages connected with the higher paying jobs. The Union also charges that thetransfer of the three claimants violated Clauses 3 and 4 of the Seniority Section of the June24, 1940 Agreement.

The claims of the Union add up to a request that "these men be placed back into the FinalAssembly Department with full group and department seniority."




It is contended by the Corporation that nothing in the National Agreement of June 24,1940, or in the local seniority agreements, limits or restricts the action of management intransferring employees from one non-interchangeable occupational group to another,providing seniority is given reasonable consideration in the making of such transfers. TheCorporation points out that the vacancies in question in this case paid $1.10 per hour andmanagement determined to promote employees with seniority to these jobs rather than tohire new employees for these higher rated jobs. Clause 3-c of the Recognition Section isreferred by the Corporation as giving management the sole right to select employees forpromotion.

Observations and Decision of the Umpire

The Union is in error in maintaining that Clauses 3 and 4 of the Seniority Section precludetransfers or promotions between occupational groups. Those clauses essentially concernthe manner in which seniority lists are made up and the manner in which the seniorityrights of employees are placed on such lists; they do not preclude transfers or promotionsbetween occupational groups. Recognition that such transfers may be made is clearlyevidenced by Clause 7 of the Seniority Section which provides that "When an employee istransferred from one occupational group to another for any reason, there shall be no lossof seniority..." This can only mean there will be cases where transfers will be madebetween occupational groups. Clause 8 further supports this conclusion since it providesthat "In transferring employees, seniority will be secondary to other qualifications but will begiven reasonable consideration..."

It is clear beyond any reasonable doubt that the establishment of seniority lists byoccupational groupings under Clauses 3 and 4 of the Seniority Section does not preventthe transfer of employees between occupational groups particularly since such transfersare specifically provided for by Clauses 7 and 8. It cannot be held that the transfers of thethree claimants violated Clauses 3 and 4 of the Seniority Section. As a matter of fact, if atransfer between occupational groups could not have been made in the present case, newemployees would have been hired at $1.10 per hour while employees with seniorityremained on $1.00 jobs. Such a situation would not fail to give rise to grievances of a moreserious nature than those of the present case. It would be unthinkable to countenance ageneral principle that would permit such a situation solely to find a reason for returning thethree claimants to Final Assembly. At any event, the establishment of such a generalprinciple is precluded by the very terms of the National Agreement.

The Union also claims that their seniority in the Assembly group was not given reasonableconsideration when the three employees were selected for transfers to Trim. This phase ofthe argument could easily get at "sixes and sevens" because management insists that itgave a very important consideration to the relatively long seniority record of these men in"promoting" them and also sought to act upon their earlier expressed desire for promotion.The trouble is that management apparently considered the transfer as a promotionbecause it was a change from $1.00 to $1.10 jobs. The claimants seem to haveconsidered their transfer as in the nature of a demotion because of the greater likelihood of



lay-off in the Trim Department. It would seem to be quite shortsighted, however, for theUnion to contend that low seniority employees are invariably to be selected first for transferfrom $1.00 to $1.10 jobs when such transfer is between occupational groups. This seemsto have been a desired objective of the Union in this case. Again, it seems that a principlehas been advanced principally to support the claims of the present case without muchthought of its general implication. In this connection, the Union revised its position butinsisted that, once an employee has established his seniority in an occupational senioritygroup, he then has a right to stay in that group, and management has no right to move himagainst his will to another non-interchangeable group.

Although it is undesirable, as recognized by management in this case, to transfer orpromote an employee against his will the right of an employee to refuse a transfer is notspecifically given to him under the June 24, 1940 Agreement. This agreement doesrecognize, moreover, the right of management to make such transfers under Clauses 7and 8 of the Seniority Section and under Clause 3-c of the Recognition Section as long asseniority is given reasonable consideration in transfers and as long as Union discriminationis not involved in transfers or promotions.

The transfers in question cannot be considered as improper on the ground that theyrepresented transfers between occupational groups or because they failed to givereasonable consideration to seniority. No claim has been made that Union discriminationwas involved. The case is that the transfers or promotions proved to be undesirablebecause they were made against the will of the employees and management quickly sawthe necessity of moving the men back to their old jobs as soon as practicable.

It is to be noted that H. and G. were transferred to their former Final Assembly operationson April 14, 1941 and that F. was transferred as of June 16, 1941. The claims of all theseemployees, as stated in their filed grievances have been met. As respects the Union claimthat their transfer was improper under the Agreement this can be substantiated only if itwere shown that seniority was not given reasonable consideration or that Uniondiscrimination was involved. There is no evidence bearing on the later phase, and thequestion raised as respects consideration to seniority cannot properly be appraised on thebasis of the evidence on hand. In view of the fact that the claims of each individual’sgrievance have been met and in view of the nature of the seniority question in this case, noruling will presently be made on this phase of the case.

Decision

1. The three claimants ask, in their grievances, to be transferred back to theirold jobs in Final Assembly. All are now back on their Assembly jobs so thatanswers to the basic questions raised by the Union are not essential for asettlement of the claims as made in the filed grievances.

2. Approval cannot be given, however, to the Union contention that all transfersor promotions between occupational groups are prohibited by the terms of theAgreement of June 24, 1940 or by the local seniority agreement. On thecontrary, such transfers are contemplated by Clauses 7 and 8 of the Seniority



Section.

3. The question of whether consideration to seniority in making transfersbetween occupational groups requires preference to high or to low seniorityemployees is not ruled upon in this case for obvious reasons.


Umpire.

June 30, 1941.





No. A-153

September 2, 1941

Appeal of the Record Made by Management

Concerning a Disciplinary Layoff

GRIEVANCE:

Chevrolet Flint—Case No. 289

"Request for back pay. C.G., 556064, asks for pay for 1-28-41 when he was penalized forrunning scrap. Foreman has since stated to man and committeeman that a man must runsome scrap or repairs to be running enough production."

Umpire’s Decision:

1. Although the grievance is written as a protest of a layoff, the basic claim ofthe employee was stated at the hearing as related to the reason for thediscipline that was placed on his employment record. The present grievancecan be properly considered by the Umpire only on this basis because it wasfiled about three weeks after the layoff and because Clause 3 of the Section onDisciplinary Layoffs and Discharges requires the filing of grievances on thesematters "within three days of the layoff or discharge."

2. There is no valid reason for assuming that G failed to follow the foreman’sinstructions respecting the proper operation of his job and the notation on hisrecord that he did fail to follow such instructions is to be removed.

3. Should G’s employment record indicate or infer, nevertheless, that he wasnegligent in the performance of his job and responsible, therefore, for theexcessive scrap that was made? In the judgment of the Umpire, the way thework was running did indicate the need for more than the usual inspection if areally workmanlike job were to be performed. G. did not give this addedinspection but there is evidence that he was deterred from doing so because of


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the emphasis placed by Management at the time on the meeting of certaindisputed production standards.

4. In order to avoid any future misunderstanding over the responsibility for thescrap that was made, it is ruled that this decision constitutes the record of thematter to be placed on G’s employment card. (Entire Decision should be read)

In the Matter of:


and

General Motors Corporation—Chevrolet-Flint Division—Case No. 289.

The grievance in this case was presented by G. on February 23, 1941. It reads: "Requestfor pay, C.G., 556064, asks for back pay for 1-28-41 when he was penalized for runningscrap. Foreman has since stated to man and committeeman that a man must run somescrap or repairs to be running enough production." A hearing on the matter was held inFlint on August 20, 1941.

Nature of Case and Claims of Parties

The claimant was hired by the Chevrolet Motor Company on April 13, 1927. While workingon finish grind and on bearing grind for the past six years, Employee G. has built up arecord as an efficient employee. He is presently assigned to the finish grind on frontbearing of camshafts.

On the morning of January 28, 1941, an inspector discovered a truck load of camshafts, onwhich the front bearing had been ground undersize on a large number of shafts. At justabout the same time, employee G. discerned the same condition on his work. A carefulexamination showed that about 26 of the 50 camshafts on the truck could not be salvagedand had to be classed as scrap.

In the performance of his grinding operation, G. is required to measure the size of the frontbearing of each camshaft by use of an indicator on the machine. He is also instructed touse a snap gauge on every 10 or 12 shafts to double check the size. When the above-outlined difficulty was noted, the gauges were examined. The indicator on G.’s machinewas found to be defective because the set screw at the bottom of the indicator hadbecome loose. This was repaired. Supervision felt, however, that if G. had used the snapgauge on every tenth or twelfth camshaft, in accordance with his instructions, he wouldhave found out that the camshafts were being ground undersize before so much scrap hadbeen made. It was felt that he was responsible for making excessive scrap and was givena layoff for the balance of the shift "because he failed to obey the orders of supervision tocheck every 10 or 12 pieces which resulted in his grinding 26 camshaft front bearings



undersize." The disciplinary layoff imposed upon G. totaled 5.7 hours.

The employee did not enter a formal grievance on this case until February 23 when heprotested the layoff imposed on January 28, 1941. The unusual delay is explained by himon the ground that he did not originally intend to file a grievance when he was laid off "formaking scrap" but he was moved to protest as soon as he found that he was charged with"failure to follow the foreman’s instructions." He claims that such a reason for his layoff wasnot advanced by management until a later date at the time of a discussion on anothergrievance filed by him relating to the production standard on the job. Such a notation is inerror, contends G., because he did follow the foreman’s instructions by gauging everytenth piece. He insists that the scrap in question was made despite this double check.

Could G. have ground 26 of 50 camshafts undersize even though he inspected every tenthpiece by the snap gauge? Management felt such a result could not occur if double checkinspection had been given because (1) it reasons that the type of defect on the gaugecould only have resulted in a series of undersize camshafts and not in some shafts groundto correct size interspersed with some that were undersize; (2) the entire 26 undersizecamshafts were said by management to have been found together on the truck precededand followed by shafts of the proper size. These factors are interpreted by management toshow that the undersize camshafts were made in sequence and that the required doublecheck by the snap gauge could not have failed to catch the trouble before so manyundersize shafts had been made.

The above-outlined analysis advanced by management is not supported by the evidence.It would be valid only if the operator had repaired the gauge after twenty-six undersizeshafts had been made. There is no doubt, however, that the gauge was still defective afterthe inspector discovered the trouble since it was then repaired. It must also be concluded,on the evidence submitted, that the undersize shafts were found on the truck interspersedwith shafts ground to the proper size. They were apparently placed together afterinspection.

Management determined, however, that excessive scrap was made solely because G. didnot snap gauge every tenth camshaft as required under the instructions for doing his job.For such alleged improper performance of his job, G. was given a disciplinary layoff andmanagement contends this was a proper exercise of its rights to act to maintain theefficiency of employees under Clause 3-c of the Recognition Section.

The employee insists that his discipline was improper because he did inspect at leastevery tenth camshaft as he was instructed to do. He believes, therefore, that the loose nuton the gauge must have caused the gauge to vary from correct size to undersize so thatthe pieces he inspected by the snap gauge happened to be the right size. The Unioncontends that such a result was most likely in view of the nature of the defect of the gauge.This version is substantiated, states the Union, by the fact that, entirely contrary tomanagement’s statement, the undersize camshafts on the truck were interspersed withproper size shafts.

In presenting its case, the Union emphasized that the "arbitrary" discipline imposed uponG. can only be explained in terms of the "overbearing attitude" that has long beendisplayed by the foreman who imposed the discipline. He has also, contends the Union,



insisted upon such a high rate of production for the job in question as to make it impossiblefor the employees to exercise the more than required precautions to maintain quality thatwould have avoided making the excessive scrap that is under discussion.

Because of the above considerations, the employee insists that he did not fail to follow theinstructions of the foreman and that a notation to such an effect should not be enteredupon his record. The Union emphasizes G.’s long record of efficient workmanship andmaintains that the making of the scrap in question was not due to any negligence or poorworkmanship on the part of G. but was caused solely by a defective gauge. Inconsequence, it is claimed by the Union, that G. cannot be held guilty of the act for whichhe was disciplined and should receive back pay for the time he lost.

Findings and Decision of the Umpire

It was made clear at the Umpire hearing that the fundamental grievance of the employeerelates to the record of the incident that was made on his record. The grievance as written,however, does imply a protest of the disciplinary layoff. A claim for back pay was alsomade by the grievance as written. In properly appraising the status of the claim, it isimportant to note that the grievance was not filed until about three weeks after thedisciplinary layoff. Clause 3 of the Section dealing with Disciplinary Layoffs and Dischargesstates: "It is important that complaints regarding unjust or discriminating layoffs ordischarges be handled promptly according to the Grievance Procedure. Grievances mustbe filed within three working days of the layoff or discharge..." If the claimant in this casefelt that his layoff was unjust and that back wages should be paid, he had an obligation toappeal it in a prompt manner. Since the filing of the present grievance was delayed forabout three weeks, and in view of the above quoted Section of the Agreement the claimunder discussion can only properly be considered by the Umpire as a grievanceconcerning the notation of the incident on the employee’s record rather than as an appealof the layoff as such. Such an approach is not only necessary in view of the limitationimposed by the quoted term of the Agreement but it is also logical since the claimant hasmade it clear that his actual grievance concerns the notation on his employment record.This is clearly the matter that is now properly before the Umpire.

Alleged Failure to Follow Foreman’s Instructions.

In the judgment of the Umpire, it cannot properly be recorded that G. failed to follow theforeman’s instructions to snap gauge every tenth camshaft. The employee’s directtestimony that he did follow such instructions was convincing. It would have been quitepossible for G. to make such an inspection, and yet for the excessive scrap to be made,since (1) the defect of the gauge on the machine did not mean that an uninterrupted run ofundersize camshafts would necessarily occur but it could have resulted in undersize shaftsbeing interspersed with those of correct size. (2) The evidence indicates most strongly thatthe undersize shafts were not all together when they were placed on the truck but that theywere placed in that order only after inspection. There is no sound reason, therefore, for theassumption that the employee failed to follow the foreman’s instructions in the performanceof his job and his record is to be adjusted accordingly.



Was G. Nevertheless Negligent in the Performance of his Job?

Even though G. was not responsible for disregarding a foreman’s instructions, is it properto indicate on his record that the production of the scrap resulted from his negligence orpoor workmanship? In ruling on this matter, it is important to note that, even on theprevious truckload of camshafts, the size was not running just right and G. himself admitsthat he was "suspicious" of the size of the work. In view of this advance warning, goodworkmanship would seem to involve more than the usual or required inspection in orderthat the source of the evident difficulty could be eliminated before it became really serious.

If G. could be held responsible for the large amount of scrap that was made, it was onlybecause he failed to exercise more than the usual care and to make more than the usualinspection when that was indicated as necessary. On the evidence that is available, it isnot clear whether the above responsibility can be placed upon G. The Union claims thatany unusual inspection could not possibly have been expected at the time because theforeman was vigorously insisting upon attainment of a production standard that wasextremely "difficult to achieve." It is said by the Union that fear of the consequences of afailure to meet the production standard deterred G. from taking the time to make theindicated extra inspection. The fact remains that the production standard of the job was anissue at the time and it is quite possible and even likely that G. was actually deterred fromspending any time on extra inspection because of the emphasis at the moment upon themeeting of the production standards. On the basis of the evidence, the notation on G.’srecord should consist of the above statement since there can be no conclusive statementthat the making of the scrap was caused by G.’s negligence.

Decision

1. Although the grievance is written as a protest of a layoff, the basic claim of the employeewas stated at the hearing as related to the reason for the discipline that was placed on hisemployment record. The present grievance can be properly considered by the Umpire onlyon this basis because it was filed about three weeks after the layoff and because Clause 3of the Section on Disciplinary Layoffs and Discharges requires the filing of grievances onthese matters "within three days of the layoff or discharge."

2. There is no valid reason for assuming that G. failed to follow the foreman’s instructionsrespecting the proper operation of his job and the notation on his record that he did fail tofollow such instructions is to be removed.

3. Should G.’s employment record indicate or infer, nevertheless, that he was negligent inthe performance of his job and responsible, therefore, for the excessive scrap that wasmade? In the judgment of the Umpire, the way the work was running did indicate the needfor more than the usual inspection if a really workmanlike job were to be performed. G. didnot give this added inspection but there is evidence that he was deterred from doing sobecause of the emphasis placed by management at the time on the meeting of certaindisputed production standards.

4. In order to avoid any future misunderstanding over the responsibility for that scrap that



was made, it is ruled that this decision constitutes the record of the matter to be placed onG.’s employment card.


Umpire.

September 2, 1941.





No. B-16

October 10, 1941

Termination of Employment Because of Extended Absence

GRIEVANCE:

Linden -- Case No. 3

"I claim I was discharged without cause. Due to the fact that I had my wife phone thecompany of my absence."

Umpire's Decision:

1. The notice of S's absence was undoubtedly defective but, in the judgment of the Umpire,a "satisfactory reason" has been provided in explanation. It is held, therefore, that S'sseniority was not broken by application of Part (c) of Paragraph 64 of the Agreement ofJune 3, 1941.

2. S's extended absence, without securing a Leave of Absence, was improper andrepresented a violation of Shop Rules respecting regular attendance and a failure to meethis responsibilities as an employee. For the consequent loss of employment from May 23,1941 to October 20, 1941, S must bear full responsibility and such loss is construed as adisciplinary layoff. This establishes no precedent, however, as respects appropriatepenalties for such cases.

3. S is reinstated on his regular job, without loss of seniority as of October 20, 1941. (EntireDecision should be read)

In the Matter of:

United Automobile Workers of America -- C.I.O. Local 595

Page 1 of 5UMPIRE DECISION B-16

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and

General Motors Corporation -- Linden Division -- Case No. 3

On June 23, 1941, the following grievance was presented on behalf of S.: "I claim I wasdischarged without cause. Due to the fact that I had my wife phone the company of myabsence." A hearing on the matter was held in Philadelphia on October 1, 1941.

Nature of Case

On April 25, 1941, S. was absent from work and no reason was given. He was againabsent on April 29 on which day his wife notified management that the absence wasbecause of a "sick brother." A second notification in explanation of S.'s continued absencewas given by S.'s wife on May 5 when she reported that an "uncle had died inPennsylvania" but that S. would report back to work in a week or so.

Because of the apparent inadequacy of these reasons, the Employment Departmentinvestigated and states it found that the employee was serving a 30-day jail sentence fordriving while under the influence of liquor. Management says that "on May 6, a release waseffected and another man hired to take S.'s place" on the ground that S. was absent formore than three days without advancing a proper reason.

S. reported in person to the Employment Office on May 23 and at first failed to give the realreason for his absence. Management states that S. was then informed "when he had failedto give a satisfactory reason for his absence, he had been considered as having quit hisjob and a release to that effect had been put through on May 6th." S. was told that therewas no work available at the time but that he would be considered for a job when a futureopening occurred. The grievance in this case was filed on behalf of S. by his districtcommitteeman, it being contended that management's action represented a dischargewithout cause.

Position of Corporation

The Corporation points out that "when an employee is hired on a job, he assumes certainresponsibilities toward the conduct of such job... When it is necessary for an employee tobe absent from work for any reason, the employer has a right to expect notificationregarding the absence and the reason for same." It is further urged that "efficiency ofoperations and production could not be maintained if employees were allowed to be absentfor indefinite periods without proper notification."

In the present case, S. had been absent for six consecutive working days when his tenurewas terminated. Although it received notice that he would be absent, management claimsthat no satisfactory reason for the absence had been advanced and that there was noproper notification as to how long the absence would continue. It is contended, therefore,that S. lost his right to a job pursuant to Paragraph 64 (c) under which seniority is broken:"If the employee is absent for three working days without properly notifying theManagement, unless a satisfactory reason is given."



Management maintains that a satisfactory reason for the absence was not given and thatthe notice was not proper or correct. It is argued, therefore, that S.'s seniority was brokenwhen he was absent for more than three days. Had the employee submitted the properreason for the absence and asked for a Leave of Absence, management says,"undoubtedly proper arrangements could have been made." Management says, however,that "he chose subterfuge and, in so doing, his supervision had no chance to rearrange thework or secure replacement without releasing him and hiring another man in his place."

Union Contention

The Union emphasizes that management was actually notified on several occasions thatS. would be unable to return to work and was aware of his unavailability for employment. Itis said in the Union brief that "Mrs. S. did not give the real reason for S.'s absence throughfear that, if management learned the true facts, it would jeopardize his standing with theCorporation and because she was ashamed to admit that her husband was in jail."

The Union contends "that management imposed a penalty upon S. that was far too severeunder the circumstances." While admitting that S. was responsible for an irregularity whichcannot be condoned, the Union insists that management erred in applying Paragraph 64 tocause an automatic break in S.'s seniority. This break in seniority was effected, stated theUnion, when management held S. responsible for "being absent from work without asatisfactory reason." The Union maintains, however, that the "satisfactory reason" angle toParagraph 64 is not applicable to the present case but has been incorporated "for theprotection of those employees who might be absent for three or more days withoutnotifying management." This part of Paragraph 64 has no bearing on this case, claims theUnion, since S. arranged for notification to management of his absence within three days.The Union admits that S. did not meet his obligation as an employee but maintains that hisaction is not covered by Paragraph 64.

Opinion and Decision of the Umpire

Management states that the issue in this case "is the release of S. for being absent fromwork without permission and without a satisfactory reason" as required by Paragraph 64 ofthe June 3, 1941 Agreement.

Under Part (c) of Paragraph 64, an employee's seniority is broken if he is absent for threeworking days without properly notifying the Management. An exception to the requirementjust stated is provided by the same clause when it states "unless a satisfactory reason isgiven." Under this paragraph, an employee who is absent for three working days or moreassures retention of his seniority by notifying management on the third day of absence.The required "proper notification" clearly includes a statement of the reason for theabsence and its likely duration. Both factors are important to management in the conductof the business. In the absence of proper notification as outlined, an employee's seniority isnevertheless not broken if he later advances a "satisfactory reason" to explain his failure togive such notice. This is the clear meaning of the clause as it is written and it is not properto extend the coverage of that clause.

In the present case, management was actually notified that S. would be absent. Thenotification was clearly defective, however, as respects the reason advanced for the



absence and the likely duration of the absence. Under Paragraph 64, S.'s seniority wouldtherefore be broken because of the lack of proper notification "unless a satisfactory reasonis given" for this situation.

The defect in the notice of absence resulted because it was given by S.'s wife while S. wasnot at liberty. She was obviously beset with unexpected and serious troubles. In the midstof them, and not knowing how best to proceed, she gave a report to management that isquite understandable under the circumstances. If she made a mistake, it was a veryhuman error. These circumstances, in the judgment of the Umpire, provide a "satisfactoryreason" for the defect in the notice. It is concluded, therefore, that the technical defect inthe notice of absence that was given does not result in a break of seniority under the termsof Part (c) of Paragraph 64.

It is ruled, therefore, that S.'s seniority was not broken by application of Paragraph 64. Thisdoes not mean that S. met his responsibilities in this case. By not seeing to it that someonerequested a leave of absence for him for the definite period when he would be unavailable,S. failed to meet his obligation as an employee. Under Paragraph 101 it is provided that "aleave of absence may be granted for personal reasons for a period not to exceed thirtydays..." By failing to proceed under this clause, the extended absence of S. constituted aviolation of Shop Rules regarding regular attendance. Such violation resulted from his ownnegligence. It is held, therefore, that loss of employment by S. from May 23 to October 20,1941 constitutes a disciplinary layoff for his contributory negligence which constitutes aviolation of Shop Rules. It is also held that S. is to be reinstated on his regular job withoutloss of seniority as of October 20, 1941.

The time lost by S. is not to be construed as establishing any precedent as respectsappropriate penalties in such cases. Under all the circumstances of this particular case, thecontributory negligence of S. is considered by the Umpire to be of such a nature as torequire this employee to bear the mentioned loss of employment.

In reinstating S. to his job, the Umpire calls attention to certain fundamental aspects of thiscase. S. did make a grave mistake as respects his personal conduct and has paid thepenalty exacted for his error. To deprive S. of his job on a technicality concerning thegiving of the notice of his absence would actually result in the imposition of a second andmuch more severe penalty because of his personal shortcoming. Such pyramiding ofpenalty is neither equitable nor realistic since S. still has to work for a living for himself andhis family. As a matter of fact, his employment is now the more important in order to assistin getting him back onto the right track.

Under all these circumstances, the Umpire is of the firm conviction that while S. shouldbear the responsibility for his loss of work because he failed to secure a leave of absence,his seniority should not be considered broken since that could be effected only by atechnical and highly doubtful interpretation of Paragraph 64.

Decision

The notice of S.'s absence was undoubtedly defective but, in the judgment ofthe Umpire, a "satisfactory reason" has been provided in explanation. It is held,therefore, that S.'s seniority was not broken by application of Part (c) of



Paragraph 64 of the Agreement of June 3, 1941.

S.'s extended absence, without securing a Leave of Absence, was improperand represented a violation of Shop Rules respecting regular attendance and afailure to meet his responsibilities as an employee. For the consequent loss ofemployment from May 23, 1941 to October 20, 1941, S. must bear fullresponsibility and such loss is construed as a disciplinary layoff. Thisestablishes no precedent, however, as respects appropriate penalties for suchcases.

S. is reinstated on his regular job, without loss of seniority, as of October 20,1941.

Signed GEORGE W. TAYLOR

UMPIRE

October 10, 1941.





B-17

OCTOBER 10, 1941

Job Transfers of Incapacitated Employees

GRIEVANCES:

Linden -- Case No. 12

"I charge T. Walker with discrimination. He is about to send me home because I cannotkeep up with my operation because I am injured. Yet he keeps other injured men on jobsthey can do."

"I hurt my hand two weeks ago. Two days ago the splints were taken off. Now Ted Walkersays if I cannot do my operation I must go home. I think this is hardly fair."

In the Matter of:

United Automobile Workers of America -- C.I.O. -- Local 595

and

General Motors Corporation -- Linden Division -- Case No. 12

On June 6, 1941, Employee M. filed the following grievance: "I charge T. Walker withdiscrimination. He is about to send me home because I cannot keep up with my operationbecause I am injured. Yet he keeps other injured men on jobs they can do." On July 19,1941, a grievance presented by employee P. read: "I hurt my hand two weeks ago. Twodays ago the splints were taken off. Now Ted Walker says if I cannot do my operation Imust go home. I think this is hardly fair."

Both of the above cases were heard at the third step of the Grievance Procedure on July25th and the discussion of both cases centered about the interpretation of Paragraph 72 of


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the Agreement of June 3, 1941. It was locally agreed that both issues would be combinedinto one case and appealed to the Impartial Umpire as one issue, namely, "aninterpretation of Paragraph 72 of the Agreement as applied to cases such as the above."The two employee grievances noted above show, states the Union, that management'sinterpretation "does not follow either the spirit or the letter of the agreement." Managementcontends, on the other hand, that it has properly interpreted the Paragraph in question inholding that it is not applicable in such cases.

An Umpire hearing on this matter was held in Philadelphia on October 1, 1941.

Nature of Case

Despite the local agreement of the parties to combine the two individual grievancesmentioned above as an interpretation question, certain differences in facts necessitate aseparate statement of each case.

The M. Case

Employee M. injured his right hand on April 1, 1941. He was given medical treatment andassigned to work other than his regular operation until June 4, 1941. In accordance withthe advice of the plant doctor, M. was instructed by his foreman to return to his regularoperation on June 6, 1941. The employee worked at his regular job but soon said that hewas unable to do this operation which involved considerable use of the right hand.

The employee's personal physician had recommended on June 5, 1941 that M. "be kepton light work until the hand feels better." There is a difference of opinion as to whether M.'sregular operation was such "light work." In this connection, the Union emphasizes that itprimarily required the use of the right hand; management emphasizes that it is light work.

At any event, the foreman told M. "that if he did not desire to do this operation he could gohome until such time as he felt he would be able to do so." The matter was then taken upwith the Personnel Director and the Union pointed out that there were several operatorscapable of performing M.'s operation and all that was necessary to keep M. at work was toswitch the two men. The Personnel Director agreed to investigate the case but stated thatanother job could not be immediately found and "unless the employee wanted to do hisregular operation for the balance of the day, he could go home until such time as anotherjob could be found for him."

Employe M. went home and lost about five hours' work.



As a result of the investigation by the Personnel Director, certain operations werereassigned and, when M. returned on the next work day, he was given another operation,other than his regular job, which he was capable of doing. The Union states that this wasthe job which the committee had earlier suggested should be assigned to M. The laterassignment of M. to this job indicates to the Union that he should not have been assignedto his regular operation on June 6 since he was considered by management on June 9 tobe still incapable of doing his regular work. The insistence of management that M. do hisregular job when M. felt unable to do so is considered by the Union as a violation ofParagraph 72.

The P. Case

On June 2, 1941, Employee P. injured his hand which was placed in a splint. Shortlythereafter he was assigned to work, other than his regular operation, which he wascapable of doing. The splints were removed on June 17 and, two days later, P. was told bythe foreman to resume his regular operation after this had been recommended by the plantdoctor. P. maintained he could not yet do his regular work and asked to remain on thetemporary job for about another day and a half "to finish the week out." The employeestates his doctor had told him, upon removal of the splints, not to exert a great pressure onhis hand for several days after the splints were removed so the numbness in the handcould be worked out. He claims his regular job involved pressure on the hand.

Supervision states it "would be willing to assign him to other work in his group if he couldfind an operation that he felt capable of doing." A job transfer was suggested by theCommittee but it would have required some instruction of P. The extent of training of P.involved in the suggested transfer has been appraised differently by management and bythe Committee. Management nevertheless considered P. to be not capable of doing thejob in question because some instructions to him were required. P. was then sent home"until such time as he felt he was able to perform his regular operation." He returned to hisregular job on July 23rd.

Union Claim

The Union contends that, in each of these cases, supervision insisted that an injured manmust work on his regular operation or go home even though the man felt unable to do hisregular job. It is argued that local management thereby failed "to comply with Paragraph 72of the National Agreement, which provides that an employee injured at his regular job maybe employed in other work in the plant which he can do, without regard to any seniorityprovisions of the Agreement."

The Union says it recognizes that the right to maintain efficiency is the sole responsibility ofthe Corporation but claims that "if it is possible to keep injured employees at work on aregular operation, without affecting the efficiency of the department, we believe a sincereeffort should be made to do so." The claim is made by the Union that M. and P. should nowbe paid for the time they lost "for if supervision had shown the slightest desire to cooperate



with the Union, there would have been no need for these two men to lose any time."

In ruling on this question, the Umpire is requested to appraise the Union claim thatParagraph 72 requires employment of injured employees under the circumstances of thepresent case. It is the Union's contention that under Paragraph 72, management has anobligation to see that injured employees are immediately placed on jobs they are capableof doing.


Management submits that Paragraph 72 as written clearly specifies that the placement ofinjured employees on work other than their regular operation is optional on the part ofmanagement. It is noted that any employee injured in the plant is covered by Workmen'sCompensation and that Paragraph 72 states that such an employee may be given otherwork. The Corporation insists it is not required by Paragraph 72 to change an operatorfrom job to job whenever, in the operator's opinion, he is temporarily unable to perform hisregular operation. In particular, management maintains that it has the sole responsibility formaking work assignments and if an employee cannot perform the job assigned to him, theemploye may be sent home.

Management believes, moreover, that Paragraph 72 is designed solely to provide work foremployees who have suffered an injury which results in some permanent disablementrequiring their permanent transfer to some other work. Management does not believe theparagraph requires it to change operators from job to job whenever some injury makes ittemporarily impossible for an employee to work on his regular operation.

As respects the two employees involved in this case, management notes that during theirperiod of temporary partial disability they were placed on other work within theirdepartment that they were capable of doing. It is contended that this is not required byParagraph 72 but was done to assist the employees. When the plant doctor determinedthat their temporary disability had ceased, they were assigned to their regular operations.Both employees refused the assignment, saying they were not physically capable of doingit. They were then given the option of performing their regular work or of going home untilthey felt able to do such work.

The Corporation insists that the above-noted procedure was not in violation of anyprovision of the Agreement of June 3, 1941 and claims that the employees involved shouldbe denied any back pay for time lost as a result of going home on the days in question.


Meaning of Paragraph 72

The Paragraph 72 which is under discussion reads: "Any employee who has beenincapacitated at his regular work by injury or compensable occupational disease while



employed by the Corporation, may be employed in other work in the plant which he can dowithout regard to any seniority provisions of this Agreement."

Two kinds of cases may arise under this Paragraph. An employee may receive an injurywhich makes it permanently impossible for him to return to his regular work. In suchinstances, Paragraph 72 clearly permits a transfer to another job, which the employee cando, without regard to seniority provisions. The specifying of a procedure in such cases is ofprimary importance in order to permit the job rehabilitation of an injured employee who canno longer work at his regular operation.

The Corporation takes the position that Paragraph 72 applies only in the instance outlinedabove and has no bearing on the second type of case in which an employee is injured andis consequently unable temporarily to perform his regular operation. A reading of theclause as written fails to disclose any restriction of its application as contended bymanagement. The Umpire concludes that Paragraph 72 is applicable when an employee,because of certain injuries, is either permanently or temporarily unable to perform hisregular work.

The Union errs, however, in interpreting Paragraph 72 as making it mandatory that aninjured employee, incapable of doing his regular operation, must be immediately providedwith a job which he can do and without any loss of time whatsoever. The Paragraph simplydoesn't say that. It is a permissive paragraph and common sense requires that it remainso. It would be absurd to require an injured employee to work on some job irrespective ofthe extent of his injuries or to require management to place every injured employee atsome work. The injured employee may not desire to work for a period of time or the plantdoctor may properly conclude that some absence from work is essential to the injuredman's recovery. It cannot even be said that an employee temporarily incapacitated for hisregular work should have the choice of deciding whether or not he will take another jobsince the employee cannot be expected to appraise all the limitations imposed by an injury.

There is no doubt that Paragraph 72 provides that an injured employee, permanently ortemporarily unable to perform his regular work, "may be employed in other work in theplant which he can do without regard to any seniority provisions of the Agreement." It is nota mandatory but a permissive paragraph which emphasizes that when an injuredemployee is placed on a job, other than that he regularly performs, the assignment may bemade despite any seniority provisions of the agreement.

The question in the present case thus centers about when an injured employee may beemployed at other work. It would seem that such assignments by management are properwhen the plant doctor reports that an employee is unable to perform his regular job but iscapable of performing another job, which may be assigned to him if it does not interferewith the efficiency of plant operations. By the very terms of Paragraph 72, management ischarged with the major responsibility for a common-sense application of the clause.

The Cases of M. and P.

The individual cases at issue actually do not involve the question of whether or not injured



employees, who are temporarily unable to perform their regular jobs, should be assignedto other work. Both of the claimants, when injured, were given temporary assignments atother than their regular work. The cases in question involve the question of how suchemployees are reassigned to their regular work.

M. was given a temporary job for about two months. The plant doctor then felt he was ableto return to his regular work. M. tried to do his regular job and, despite the doctor's report,felt that he could not keep up. He lost five hours of work while management found anothertemporary job. Management's procedure was unquestionably not in violation of Paragraph72. Management acted quite properly in reassigning M. to his regular job when the plantdoctor approved since neither management nor the employee can professionally answerthe question of when an employee was able to resume his regular duties. In the presentcase, for instance, one cannot be certain whether M. could not do his regular job or did notcare to do so. Apparently management gave M. the benefit of the doubt and assigned himto another temporary job. In the judgment of the Umpire, management did not violateParagraph 72 in this instance but fully met the spirit of that clause in going beyond anycontractual obligations in assigning M. to further temporary work.

P. was also assigned to his regular job when the plant doctor said he was ready for it. Theemployee, however, disagreed with the plant doctor and insisted that he would not be ableto do his regular work until several days later. Under such conditions, management canonly rely upon the doctor's report. It went beyond any contractual obligations in seeking tofind another job that P. was capable of doing for the additional day and a half that herequested. In order to provide such a short temporary job, management cannot also beexpected to instruct P. how to do the work even though the instructions would require butan hour or two. An employee cannot be considered capable of doing a certain job for a dayand a half if he can do so only upon receiving instructions for an hour or two. That is notapplying common sense to the situation.

Conclusions

The cases of M. and P. relate to the termination of temporary jobs given to injuredemployes. Such assignment to temporary work cannot provide an injured employe with a"lease" on the temporary job that continues until he is willing to return to his regular work.Management must depend upon the advice of the plant doctor in determining when suchemployes should return to their regular jobs and cannot give such employes the right toveto the plant doctor's recommendation. In the cases of M. and P. managementreassigned them to their regular jobs upon recommendation of the plant doctor. They wereunable or unwilling to do their regular work. Management then evidenced a willingness tofind other temporary work but properly insisted that it would have to be work they werecapable of doing without a learning period. M. was given another job after a loss of fivehours' work, but no job was found for P.

It is entirely unreasonable to charge that such procedure represents a violation bymanagement of Paragraph 72. On the contrary, the Umpire feels that managementcooperated in trying to find other jobs for these men after the plant doctor had certified thatthey were ready to resume their regular jobs.



Decision

Paragraph 72 provides that an injured employee, permanently or temporarilyunable to perform his regular work, "may be employed in other work in the plantwhich he can do." The Umpire cannot uphold the Corporation contention thatthe application of this Paragraph is restricted to those permanently unable toperform their regular work.

That Paragraph, however, does not make it mandatory for such an injuredemployee to be assigned to another job; it permits the making of such anassignment without regard to seniority provisions of the Agreement. The Unionis in error in claiming that an injured employee must be immediately assigned toa job which he can do without any loss of time whatsoever. Paragraph 72simply doesn't say that and the proposed interpretation of the Union is bothimpractical and unreasonable.

The cases of M. and P. have been improperly appraised by both parties. Theyinvolve the transfer of injured employees from a temporary assignment back totheir regular jobs. In basing such transfer upon the advice and recommendationof the plant doctor, management acted reasonably and within its rights.

In the cases of M. and P., management procedure was not in violation ofParagraph 72. On the contrary, management cooperated in an effort to findother jobs for these men even though the plant doctor had certified that theywere ready to assume their regular operations.

Signed GEORGE W. TAYLOR

UMPIRE

October 10, 1941.





No. B-24

November 15, 1941

Request of Employee for Transfer

GRIEVANCE:

Chevrolet Oakland -- Case No. 2

"Man requests that he be transferred to repair department in place of new men beinghired."

Umpire's Decision:

Through paragraph 63 of the June 3, 1941, Agreement, Management reserves the soleright to decide upon transfers of employees between jobs which carry the same rate of payas long as personal prejudice or Union discrimination is not involved. Since these factorsare not involved in the present case, the determination of a policy governing the transfer inquestion is designated by the National Agreement as the sole responsibility ofManagement. D's claim in the present case cannot, therefore, be upheld by the Umpire.(Entire Decision should be read)

In the Matter of:


and

General Motors Corporation -- Chevrolet -- Oakland Division – Case No. 2

The grievance in this case was filed by D. on June 9, 1941. It reads: "Man requests that he


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be transferred to repair department in place of new men being hired." A hearing on thematter was held in Oakland on October 29, 1941.

Nature of Case

The claimant in this case has a seniority date of March 29, 1934 and is employed as anassembler on the motor line in the truck plant at $1.10 per hour. On several occasions, D.has requested a transfer to the repair department at a light repairman job where he feelshe would have a better opportunity for advancement. The negotiated rate for lightrepairman is $1.10 per hour or the same rate that is paid the assemblers. During the pastyear, a number of new employees have been hired in the repair department. Theavailability of vacancies in the repair department has prompted the filing of the presentgrievance.


Management has stated that D. was refused the transfer in question "because transfers ofthis nature, which do not involve a promotion, require the breaking in of two employees,whereas if a new employee is placed on the job it only involves the breaking in of oneemployee." In addition, management emphasizes "there has been a flood of requests fromother employees on the assembly line to be transferred to the repair department and to thenew car conditioning department." It is noted that many of the requests have come fromemployees with greater seniority than D. and all have been refused in order to avoid a dualtraining program and because "transfers of this nature tend to disrupt departmentalseniority ratings particularly when an employee so transferred has greater seniority thanthe employees of the group to which he is being transferred."

The Corporation contends that the transfer of employees is the sole responsibility ofmanagement as outlined by paragraph 63 of the National Agreement of June 3, 1941. It ismaintained that in this case there has been no violation of the National Agreement and thatthe employee has not been discriminated against by management's refusal to transfer D.from the assembly line to the repair department.

Union Contention

The Union claims that D. is a qualified employee on the repair work and that his transfer asrequested would not, therefore, precipitate an additional training problem. Nor would histransfer, according to the Union, result in a deluge of similar requests since many of themen would not be capable of doing these jobs.

The Union also contends that Paragraph 63 does not give management the soleresponsibility in making transfers because it also states, in part, "when ability, merit andcapacity are equal, employees with the longest seniority will be given preference."

Comments and Decision of the Umpire

Paragraph 63 of the June 3, 1941 Agreement is applicable to the present issue. Its terms



are quite clear. In that paragraph it is initially stated that "the transferring of employees isthe sole responsibility of management." This responsibility must be exercised, however,within the two limits specifically set forth by the succeeding parts of the paragraph. One ofthese limits is that in the advancement of employees to higher paid jobs, "when ability,merit and capacity are equal, employees with the longest seniority will be givenpreference." Contrary to the Union contention, this part of the paragraph does not apply tothe present issue which concerns a requested transfer between two jobs paying the samerate. The paragraph further provides that, as respects any transfers, "any claims ofpersonal prejudice or any claims of discrimination for Union activity in connection withtransfers may be taken up as grievances." No such claims of personal prejudice or ofUnion discrimination have been made in the present case.

It is apparent that, under Paragraph 63, management has reserved the sole right todetermine the policy that is to be followed in the making of transfers such as the one that isin question in the present issue where advancement to a higher rated job is not involved. Acontrary interpretation would substantially modify Paragraph 63 which, as written, clearlyreserves to management the sole responsibility for making transfers as long as the twopreviously mentioned requirements are met. It is emphasized that such requirements arenot involved in this issue. Management cannot be denied the right, specifically reserved toit by Paragraph 63, of deciding upon the transfer policy to be applied in the present case.

As stated at the hearing, the question at issue is actually an intra-plant personnel problemrather than of alleged contract violation. Granting that the widespread transfer ofemployees between jobs of the same rate is not conducive to efficient operations, it is alsoevident that judicious transferring of employees, where desired by the employee, can havebeneficial results. Management seeks to fit the employee to the job and transfers can buildup a more versatile work force. It is emphasized, therefore, that this decision does notpreclude the transfers of employees between jobs that carry the same rate. A policy to befollowed in such cases is, however, a personnel matter that must be worked out to meetthe management needs in each plant.

Decision

Through Paragraph 63 of the June 3, 1941 Agreement, Management reserves the soleright to decide upon transfers of employees between jobs which carry the same rate of payas long as personal prejudice or Union discrimination is not involved. Since these factorsare not involved in the present case, the determination of a policy governing the transfer inquestion is designated by the National Agreement as the sole responsibility ofManagement. D.'s claim in the present case cannot, therefore, be upheld by the Umpire.


UMPIRE.

November 15, 1941.




No. B-25

November 16, 1941

Request of Employee for Transfer

GRIEVANCE:

Chevrolet Oakland -- Case No. 3

"Why are we kept on lower paying job when in line with our seniority we wish to get off?"

Umpire's Decision:

1. Under Paragraph 63 of the June 3, 1941, Agreement, longer seniority entitlesan employee to preference in advancements to a higher rated job "when ability,merit and capacity are equal." In the present case, the capacity of the claimantto do the higher rated job is in question.

2. In seeking the advancement of T, the Union fails to recognize that hiscapacity has been legally found by the Industrial Accident Commission to bepermanently impaired as respects his ability to perform the jobs to which heseeks advancement. Under such circumstances, his seniority alone does notentitle him to advancement under Paragraph 63.

3. If the mentioned incapacity has actually been eliminated, the employee hasan obligation to have the findings of the Industrial Accident Commissionamended to recognize the change in his status. Then he could be consideredcompetent to perform the job in question and would be eligible for considerationto receive the rights he seeks under Paragraph 63. (Entire Decision should beread)

In the Matter of:


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and

General Motors Corporation -- Chevrolet -- Oakland Division – Case No. 3

This case arose when Employees T. and C. filed a grievance, on June 6, 1941, whichreads: "Why are we kept on lower paying job when in line with our seniority we wish to getoff?" A hearing was held in Oakland on October 29, 1941, at which time the Unionwithdrew the claim made by Employee C. The issue as submitted for decision, therefore,relates to the claim of T. that he be transferred to another job.

Nature of Case

The claimant, with a seniority date of December 6, 1932, is classified under "Drivers --Unlicensed Cars" which pays a rate of $.90 per hour. T. was assigned to this classificationafter being injured while at work in the plant. He now feels he is entitled to a better ratedjob.

T. sustained a knee injury on March 11, 1935, while he was working as an assembler. OnNovember 18, 1935, he returned to the assembly line on a job comparable to the one heperformed prior to the accident, but he continued to receive medical treatment. The kneedeveloped a tendency to "get out of place," however, which prevented T. from doing thisjob. In an effort to find another job for T., which would permit him to work without aconstant weight on the injured leg, the employee was assigned to truck driving on March 7,1938. He has since been employed on this job.

On May 18, 1938, T.'s compensation case resulting from the knee injury was closed whenthe Industrial Accident Commission gave him a permanent disability rating of 12 3/4% totaldisability or compensation equal to 51 weeks at disability payments at the rate of $18.24per week. This resulted in a lump payment to T. on May 31, 1938.

T. now claims a virtually complete recovery from the knee injury and seeks an assignmentto a job on the assembly line. He claims his seniority entitles him to such a job.


The Corporation maintains that T. "has been given a proper job assignment taking intoconsideration his permanent disability". On the basis of his most recent examination, theplant doctor reports: "Although Mr. T.'s injured knee was apparently sound in December1940, there is presumable susceptibility to re-injure which makes it advisable that this



patient not be allowed to work at occupations which would throw strain or excessive use onthe knee... I believe that Mr. T.'s present job, driving trucks between the two plants, allowsabout as little likelihood of injury to the left knee as any general plant occupation, exceptsedentary work".

Management feels that it has a very real obligation to make a work assignment for T. thatis in conformance with the doctor's report. This is particularly so, states the Corporation,since the Industrial Accident Commission records show that T. is permanently disabledbecause of the knee injury. It is emphasized by management that the permanent disabilityrating was made after T. had contended he could not perform his regular work because ofa knee injury which was then legally adjudged to be permanent. In view of this legal recordand of the doctor's report, management feels that assignment of T. to an assembly jobwould represent an undue risk not only to the employee but also to the Corporation whichcould readily be adjudged negligent if a further knee injury developed while the claimantwas on assembly work. Management feels that if the knee injury has in reality beencompletely cleared up, such a recovery should be attested by a competent doctor and therecords of the Industrial Accident Commission should be amended accordingly. Then,states management, consideration could properly be given to T.'s claim for an assemblyjob without any complications.

Union Contention

The Union feels that T. is capable of performing plant operations at a higher rate of paythan he presently receives and which have been available in recent months. It isemphasized that a new type of treatment has shown such good results that the knee injuryhas been finally cleared up to such a degree that his family doctor has pronounced himphysically fit to perform operations inside the plant.

Under the above-mentioned circumstances, the Union contends that it is contrary toParagraph 63 to keep T. on a lower rated job while less competent employees with lessseniority are transferred to higher rated jobs. Reference is made by the Union to that partof Paragraph 63 which reads: "In the advancement of employees to higher paid jobs whenability, merit and capacity are equal, employees with the longest seniority will be givenpreference." Under this paragraph, the Union claims that T. is entitled to transfer sincemany higher rated jobs were filled by temporary employees who had to be trained in thework for which they were hired.


There is no doubt that if T. is physically capable of performing a higher rated job, he isentitled to preference in assignment to such a job over employees with less seniority if hisability, merit and capacity are at least equal to such employees. The question in thepresent case, however, concerns his capacity to perform a higher rated job in view of theknee injury he sustained some years ago.

One cannot fail to recognize that the Industrial Accident Commission legally adjudged T. tobe permanently incompetent to perform an assembly job when it classed his knee injury as



a permanent incapacity. Management would be remiss if it ignored such findings in makingwork assignments for T. and has taken an entirely reasonable position in this matter. Toassign T. to a factory job, despite the above-mentioned finding of the Commission, couldeasily open management to the charge of negligence in the event of another accident.There is reason and merit to the Corporation position that, if the knee injury has beenfound to be not a permanent injury, there should be an appropriate amendment to the legalrecord of the Industrial Accident Commission. Then consideration could properly be givento the claim of T. for an assembly job.

In such cases, it is also evident that the parties are not in a position to declare whether ornot an employee with a physical defect can nevertheless work at certain jobs withoutundue risk to himself and to fellow employees or without exposing management to thecharge that an injured employee has not been given a proper job. The parties and theemployee can only depend upon professional medical advice in such cases. In the presentcase, the plant doctor has made certain recommendations in good faith that cannotproperly be ignored by plant management, particularly in view of the previously mentionedfindings of the Industrial Accident Commission.

As the present issue now stands, it has been determined by the plant doctor and by theIndustrial Accident Commission that T. lacks the capacity to perform the jobs to which heseeks transfers. Lacking such capacity, his seniority does not give him the right to such atransfer under Paragraph 63 which specifically mentions capacity as one of the factors tobe taken into account in the making of promotions. T.'s claim to a transfer to a better jobunder Paragraph 63 would arise, however, if later medical examination disclosed that theincapacity had been removed, as he claims, and if he were then to be declared competentto perform the work in question by the Industrial Accident Commission.

Decision

1. Under Paragraph 63 of the June 3, 1941 Agreement, longer seniority entitlesan employee to preference in advancements to a higher rated job "when ability,merit and capacity are equal". In the present case, the capacity of the claimantto do the higher rated job is in question.

2. In seeking the advancement of T., the Union fails to recognize that hiscapacity has been legally found by the Industrial Accident Commission to bepermanently impaired as respects his ability to perform the jobs to which heseeks advancement. Under such circumstances, his seniority alone does notentitle him to advancement under Paragraph 63.

3. If the mentioned incapacity has actually been eliminated, the employee hasan obligation to have the findings of the Industrial Accident Commissionamended to recognize the change in his status. Then he could be consideredcompetent to perform the job in question and would be eligible for considerationto receive the rights he seeks under Paragraph 63.


UMPIRE.



November 16, 1941.





No. B-39

December 8, 1941

Disciplinary Layoff

GRIEVANCE:

Pontiac Motor -- Case B-8

"Laid off one week because I laid off July 2 and 3, 1941 and after the foreman promisedme those days off. I ask pay for the time off."

Umpire's Decision

1. It was understood by the foreman and W. on June 26 that the employeewould be permitted to be off on July 2nd and 3rd.

2. The later revocation of this leave by the foreman was not proper since it wasby arbitrary order made at the last minute and in disregard of the foreman'sprior commitment as well as of the plans already made by the employee on thebasis of the understanding. In short, the leave of absence was not properlyrevoked.

3. W.'s responsibility in the matter is confined to a technical violation of aforeman's instructions, and to a failure to file a grievance or notify hiscommitteeman of the position of the foreman, made clear on July 1, that afailure to report on July 2 and 3 would be construed as a violation of the ShopRules. Only the absence of such procedure on W.'s part lends substance to theclaim that he arbitrarily failed to follow a foreman's instructions.

4. The penalty to be imposed upon W. is not to exceed a one day layoff. He isto be reimbursed with the wages he lost as a result of the disciplinary layoffexcept for the first day of that layoff. Such a decision appears necessarybecause the one-week layoff was entirely disproportionate to the violation ofshop rules that is involved. (Entire Decision should be read)

In the Matter of:

United Automobile Workers of America -- C.I.O. -- Local No. 653


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and

General Motors Corporation -- Pontiac Motors Division -- Case No. 8-B.

The grievance in this case was presented on July 7, 1941 and reads:

"Laid off one week because I laid off July 2 and 3, 1941 and afterthe foreman promised me those days off. I ask pay for the time off."A hearing on the matter was held in Detroit on November 25, 1941.

Nature of Case

The claimant, employee W., is classified as a Pipe Fitter in the Maintenance Department.There are 13 pipe-fitters on W.'s shift, 10 of whom had definite assignments as floormen.The other 3 employees, including W., did not have definite assignments but were givenmiscellaneous pipe-fitting jobs and were also used to replace any of the 10 pipe-fittersoperating as floormen who might be absent or on leave.

On June 26, 1941, W. asked his foreman for permission to be away from work on July 2and 3, 1941. Management says "the foreman at that time told employee W. that he thoughtit could be arranged but he did not make a definite promise." The Union contends that "W.had been promised by the foreman to be allowed time off on July 2nd and 3rd" and,therefore, made definite arrangements for a trip.

On June 29, 1941, one of the pipe-fitters, who is regularly assigned to floor work, wasgiven permission to take time off because of a serious illness of his mother. One of thegroup of 3 pipe-fitters used for miscellaneous work was assigned to the temporaryvacancy, thus reducing the number of men available for miscellaneous or emergency pipe-fitting work.

In view of the above-outlined situation, the foreman discussed the matter with W. onMonday, June 30. The foreman states he then told W. "that it would not be possible togrant him the leave which he had requested on June 26 to be away from work on July 2and 3." Employee W. insists that, on the contrary, the foreman merely asked him on June30 "to see whether or not he could cancel his trip and make other arrangements." TheUnion emphasizes that on June 30 the foreman did not definitely instruct W. to come towork on the 2nd and 3rd and that W. had no reason to believe the foreman intended torevoke the leave. W. did check into the possibility of making other arrangements asrequested, states the Union, and found that they could not readily be changed. When hecame to work on July 1, therefore, the Union says that W. had every reason to believe hewould be off on the 2nd and the 3rd.

The Union states that on Tuesday, July 1, toward the end of the night shift, the foremanagain raised the question of whether or not W. would report to work on July 2nd and 3rd.Management reports that W. says "he had been granted permission to be off on July 2 and



3 and that he was going regardless of what the foreman said at this time." The Unionstates that the insistence of W. was natural since he could not possibly cancel hisarrangements for his trip at the last moment. At any event, the foreman then told W. thathis failure to report on July 2 and 3 would result in a disciplinary penalty upon a return towork. Management states that W. then "repeated his statement that he was going andcontinued by saying he would see whether or not he would be disciplined when hereturned to work on Monday, July 7." W. did not take up the matter with his committeemannor did he file a grievance even though the foreman had made his position very clear.

Employee W. did not report for work on either July 2 or 3 and, when he returned to work onJuly 7, he was given a disciplinary layoff of one week "for not reporting to work asinstructed by his foreman." In the present case, the employee and the Union appeal thislayoff.


Management contends that employee W. was properly instructed by his foreman to reportfor work on July 2 and 3, 1941, and W. nevertheless chose not to report on these days. Hisactions, claims the Corporation, constitute insubordination and violation of the shop rules.This matter is considered by management to be particularly serious because his serviceswere necessary. The Corporation refers to Umpire Decision A-63 for support of itscontention that "employees should follow the instructions of their foreman and may appealdecisions which are felt to be infringements of their personal rights rather than decide thematter for themselves."

In disciplining employee W., the Corporation contends that Pontiac Motor Division wasproperly exercising its responsibility under Paragraph 8 of the June 3, 1941 Agreementwhich reserves to management the right to "discipline for cause."

Union Contention

The Union contends that "this is not a simple case of an employee refusing to obey aforeman's order." On the contrary, the Union feels that the incident represents anunjustified revocation of a leave, made by the foreman at the last moment, so that theemployee was not able to change the plans he had made. A definite permission for W. totake off was given, states the Union, by the foreman on June 26. This fact is substantiated,according to the Union, (a) by the foreman's asking W. on June 30 "to see if he could makeother arrangements" and (b) by the foreman's request of W. to be back by July 7 to takeanother man's place. The Union feels it is only reasonable to conclude that W. had definitepermission for the leave.

It is the position of the Union "that the foreman, having made the promise, should live up tothe promise unless the employee was willing to make other arrangements." In view of thepersonal commitments made by W., the Union feels that management was entirelyarbitrary in ignoring its responsibilities in the matter as well as the necessities of theemployee. This seems particularly the case to the Union in view of its belief that W.'sservices were no more necessary on July 2 and 3 than on other days when less men wereworking in the group. The Union also emphasizes that the penalty in question was whollyunreasonable in view of the fact that, prior to this incident, W. had only been off work no



more than several days in seven years.

The Union request that W. be paid back pay for time lost as a result of the disciplinarylayoff in question.


A review of the evidence leads to the conclusion that, on July 26, the foreman definitelyagreed to W.'s request for time off on July 2 and 3. The real question at issue is whether ornot management later had a right to revoke the leave which had been granted. Commonsense indicates that management action to revoke such a leave should not be by thesummary issuance of an arbitrary order at the last minute but by a mutual consideration ofmutual problems. This is particularly true of the present case in which a minimum of noticewas given to the employee and where a lack of consideration was given by managementto the employee's problem. He had made extensive plans on the basis of a leave grantedby management. It is the opinion of the Umpire that management did not seek clearly torevoke the leave until July 1. This means that W. cannot be held responsible for failing touse the established grievance procedure, prior to July 1, in order to handle his case in anorderly manner.

The Umpire feels that, in a technical sense, W. did not follow the foreman's instructions inthe present case. On the other hand, the foreman's conduct of this case was exceedinglyill-advised. If he felt it necessary to have W. report for work on July 2 and 3, after havingpreviously given him permission to be off, one would logically expect that a matter of someurgency in the plant was involved. In the judgment of the Umpire, the unforeseen absenceof another pipe-fitter did not justify the revocation of W.'s leave by the simple issuance ofan order that failed to take W.'s commitments into account and which ignored theforeman's earlier promise. One cannot fail to be impressed with the arbitrariness of theforeman's approach. This is particularly evident since the department was not faced with ahighly unusual method of operation, because of the absence of two men, since three menare regularly employed for filling in on absences and for emergencies.

By the terms of Paragraph 47 of the June 3, 1941 Agreement "the Corporation delegatesto the Umpire full discretion in cases of violation of shop rules." In the present case, W.was given a one-week disciplinary layoff on the ground that he violated a Shop Rule infailing to follow the instructions of a foreman. It is the judgment of the Umpire that W.'sfailure to follow the instructions in question did represent a technical violation of the ShopRules. Under the unusual circumstances of this case, however, the layoff of one week waswholly unreasonable and failed to take into account either the foreman's part in creatingthe incident or the foreman's arbitrary handling of the case. It is held that W.'s responsibilityin the matter was confined to a failure to file a grievance or to notify his committeeman ofthe foreman's statement on July 1 of an intent to impose a disciplinary layoff.

Such a procedure would have permitted discussions on the question of whether or notviolation of a foreman's orders was involved. It is the absence of this procedure on W.'spart that lends some substance to the claim that he arbitrarily ignored a foreman's order.An evaluation of the various factors of the case, however, leads to a conclusion that thelayoff penalty imposed on W. should not equitably exceed one day. He is, therefore, to bereimbursed with back wages for all the time lost by him as a result of the disciplinary layoff



except for the first day of that layoff. This decision is necessary since management'shandling of the case was ill-advised and because the one-week layoff penalty was sounduly disproportionate to the violation of Shop Rules that was in question.

Decision

1. It was understood by the foreman and W. on June 26 that the employeewould be permitted to be off on July 2nd and 3rd.

2. The later revocation of this leave by the foreman was not proper since it wasby arbitrary order made at the last minute and in disregard of the foreman'sprior commitment as well as of the plans already made by the employee on thebasis of the understanding. In short, the leave of absence was not properlyrevoked.

3. W.'s responsibility in the matter is confined to a technical violation of aforeman's instructions, and to a failure to file a grievance or notify hiscommitteeman of the position of the foreman, made clear on July 1, that afailure to report on July 2 and 3 would be construed as a violation of the ShopRules. Only the absence of such procedure on W.'s part lends substance to theclaim that he arbitrarily failed to follow a foreman's instructions.

4. The penalty to be imposed upon W. is not to exceed a one day layoff. He isto be reimbursed with the wages he lost as a result of the disciplinary layoffexcept for the first day of that layoff. Such a decision appears necessarybecause the one-week layoff was entirely disproportionate to the violation ofShop Rules that is involved.


UMPIRE

December 8, 1941





No. B-44

December 5, 1941

Discharge of Employee

GRIEVANCE:

Saginaw Steering Gear -- Case B-4

"That I have been unjustly discharged and am asking to be returned to my job with pay fortime lost."

Umpire's Decision:

1. Since he is a Committeeman representing the Union, B.'s irregularattendance record including unnecessary absences and lateness for personalreasons is a matter for Union concern. It is highly improper for Committeemento seek to use their Union position to secure personal privileges that may tendto make them undesirable employees.

2. B.'s attendance record is bad. He was, however, given a warning on July 15,1941 that provided a reasonable opportunity for him to meet the requirementsof steady attendance. Since that time, it is found that his record has beenmarkedly improved. This factor must be taken into account in the present case.

3. The Umpire cannot absolve B. of all responsibility for his irregular attendancein September 1941. There is a real doubt as respects the legitimacy of oneabsence, or possibly two absences, and he was careless in reporting very lateon one occasion. These irregularities cannot be lightly treated in view of hisprevious record and previous warnings.

4. In view of the above-outlined circumstances, it is ruled that B. is to bereinstated on his regular job, without loss of seniority, as of December 15,1941. The time lost by him is considered as a proper disciplinary layoff for hisirregularity of attendance.

5. B.'s continued employment naturally requires that he develop an attendancerecord that is compatible with efficient workmanship and that irregularities forunnecessary personal reasons be eliminated. The International Union is urged


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to see that B. learns how properly to perform his Union duties withoutunnecessary interference with the performance of his job. (Entire Decisionshould be read)

In the Matter of:


and

General Motors Corporation -- Saginaw Steering Gear Division – Case No. B-4.

On September 23, 1941, a grievance was filed by B. which read: "That I have beenunjustly discharged and am asking to be returned to my job with pay for time lost." Ahearing on the matter was held in Detroit on November 26, 1941.

Nature of Case and Basis of Disciplinary Action

Employee B. was classified as "Automatic Screw Machine Operator—Second Class" andreceived a rate of $1.15 per hour. He was hired on October 27, 1936 and was dischargedon September 22, 1941 with the following notation on his release slip: "Undependableemployee. Absent and late an unreasonable number of times."

In support of its discharge of B., management submitted a detailed record of B.'sirregularity in attendance for the full period of his employment. No amount of explanationby the Union can make B.'s record acceptable. The Union notes, however, that B. hasbeen a committeeman and claims that performance of his various Union duties largelyaccount for his irregularities. Such a claim lacks real merit. It is the primary responsibility ofcommitteemen properly to perform their Union business while still meeting their primaryobligations as an employee. Even when allowance is made for these irregular attendanceentries which might be related to Union business, the record of B. still remains highlyunsatisfactory. It is to be noted that whenever B. reported he was on "Union Business," hisrecord was so marked and such items were not included as an attendance irregularity.

The failure of B. to be reasonably regular in his attendance resulted in his being taken tothe Personnel Office on several occasions in 1939 when he was warned that his serviceswere unsatisfactory. In July 1939, he was given a disciplinary layoff and warned that"continuation of this carelessness on your part can only result in further disciplinary layoff."Later warnings were given in November 1940. that "if he reported late again he would notbe allowed to go to work." This was followed by the same pattern of irregular attendanceand repeated warnings.

On July 15, 1941, B. was given a second disciplinary layoff of one week on the basis of



"Unsatisfactory and Undependable Attendance." He filed a grievance on that penalty. In itsdisposition of the grievance at the Appeal hearing, management stated: "We also wish atthis time to formally advise Mr. B. and the U.A.W. Shop Committee (of which Mr. B. is amember) in the interest of good collective bargaining that unless Mr. B. shows animmediate and complete improvement in his attendance and attitude toward his work, thenext disciplinary action must of necessity be a complete separation."

The above outlined warning was given on July 15, 1941. B.'s record then apparentlyimproved because it discloses no irregularities in attendance until August 28, 1941. Fromthat date until September 20, B. was absent on five occasions when he was reported sickand was also late on one occasion. On September 19, Mrs. B. phoned the plant at 11:45P.M. and stated "that Mr. B. would not be in to work at midnight as he was sick." A memberof the Personnel Department, who was sent to Mr. B.'s home, reports that "although herapped on the door several times he was unable to get a response." A further check-up at1:30 P.M. is said to have showed "Mr. B.'s car in the driveway and the lights in the houseturned on."

Management discharged B. as of September 22, 1941 on the ground that he was an"Undependable Employee." In the present grievance, B. appeals the discharge.

Union Claim

While readily admitting that B.'s attendance record has been unsatisfactory, the Unionfeels there has been "a studied attempt to make the record more damaging than the factsknown to management would warrant." Certain questionable entries on the record werereferred to by the Union in this connection. It is also contended that some of the entriesused to show unjustified irregularity in attendance were undoubtedly for Union business. Itis said that, prior to the June 3, 1941 Agreement, Committeemen were not required tonotify management in writing of tardiness, absences, or leaving early for Union businessand necessary arrangements were customarily made verbally, sometimes by telephone.The Union submits corroborative statements of other committeemen to substantiate thiscontention. Since B. worked on the "C" shift and since the Personnel Department closes at5:00 P.M., this committeeman is said to have been frequently unable to give proper notice.The Union says B. would work on Union activities during the day and would, therefore,often be unable to report at midnight. It is also said that he was sometimes called to Detroitfor early morning meetings which would necessitate his leaving work prior to the end of hisshift.

The Union expresses a belief that management "has taken advantage of this situation tobuild up a case against Mr. B. in regard to being tardy and sent when it has beennecessary to fulfill the duties placed upon him by the U.A.W.-C.I.O." It is also suggested bythe Union that "management discriminated against Mr. B. due to the fact that the records ofthe other shop committeemen in regard to being tardy and absent are comparable to Mr.B.'s and they have never received any warning and the management has never given saidcommittee members any discriminatory layoffs."

As respects the present discharge, the Union states that B.'s record showed a decidedimprovement since July 15, 1941. It is said that from August 28 until September 20, B.experienced unusual troubles because of his own illness and because of illness in his



family which made it absolutely necessary for him to stay away from work, on a number ofoccasions, after first reporting such situations to management. It appears from B.'sappearance at First Aid, as well as from testimony supplied by B.'s physician, that allmembers of B.'s family suffered from influenza during this period. B. contends that onSeptember 19, while visiting, he suffered a recurrence of the influenza symptoms. He sayshis wife called the plant and that he managed to get home by about 12:30 and says "Iimmediately went to bed and was only in bed for several minutes when my wife stated acar had driven up in front of the house. She said she had gone to the door and turned onthe porch light and the car immediately drove away." B. now says the call was presumablyfrom a member of the Personnel Department staff.

The Union also protests the manner of B.'s discharge. On September 22, 1941, B. was metoutside the gate by his foreman who said "I have your check in full and your clearancepapers here, and I want your badge." B. says his request for a committeeman was deniedbecause the foreman claimed there was none in the plant and because he had been fired.The Union maintains that management violated the agreement by adopting an arbitraryprocedure to circumvent collective bargaining on its proposed disciplinary action. It isurged that such a procedure made it impossible for B. to tell his side of the story andmeant that management had taken action without being aware of all the facts of the case.

The Union now contends that B.'s discharge was not proper and protests management'salleged refusal to bargain collectively on the matter at the time the penalty was imposed orto discuss the case at the various steps of the Grievance Procedure. In its brief, the Unionrequests "a penalty commensurate with the circumstances" which it is contended "shouldnot exceed a disciplinary layoff of 60 days." It is claimed that Mr. B. should becompensated for all time lost in excess of such a layoff.


Management submits "it to be self-evident that this or any other plant could not operate ifsuch an attendance record, as detailed above, was maintained by even a minority of itsemployee s." B.'s irregular attendance was particularly detrimental to efficient operations,states management, because he was assigned to operate three automatic screwmachines. His irregularities have constantly upset the planning of this entire departmentand the Corporation has too frequently suffered the loss of use of valuable equipment.

It is contended that the discharge of B. was proper and necessary for the efficientoperation of the plant and that management exercised its responsibility in accordance withthe provisions of Paragraph 8 of the June 3, 1941 Agreement.


As a committeeman representing the Union, B.'s attendance record unfortunately reflectsno credit upon his organization. Such a representative can best set an example of interestin and loyalty to the Union purposes by combining zeal for Union business with a meetingof his obligations as an employee. It is the Umpire's considered opinion that, over a periodof time, B. had sought to use his Union position to assume privileges that are notcompatible with the proper meeting of his obligations as an employee of the company. Onemust recognize that the normal duties of a committeeman necessarily entail absences from



work and some irregularities of working time. There is no intention of curtailing the properperformance of such necessary duties. On the other hand, B. has unquestionably goneentirely too far in assuming the right to work as he wills. Such conduct cannot becondoned. It is suggested that the International Union might well instruct its committeemenas to proper policy in this regard.

The Umpire is impressed with the fact that B.'s record was particularly bad prior to July 15,1941, on which date he received a warning that he would be discharged unless hisattendance showed an immediate and complete improvement. It is important that,immediately following this warning, B.'s attendance record did show a decidedimprovement. There were no entries at all until August 28, when B. was absent becauseFirst Aid recommended it. He was also apparently absent for several days in Septemberbecause of illness.

If all of B.'s absences in September were actually justifiable because of illness, thisemployee must realize that management's patience with him was understandablyexhausted as a result of his past record. There is a real doubt in the mind of the Umpire,moreover, as to whether the absences on September 18 and 20 were necessary. On theface of it, it appeared that B. might have merely developed a new type of excuse for hisirregularities.

It is necessary to realize, however, that after the July 15, 1941 warning, B. was entitled, bymanagement's own terms, to a fair opportunity to fulfill the requirements of regularattendance. In appraising whether or not he met such requirements, he cannot be heldaccountable for illness which made it impossible for him to work. When this factor is takeninto account, it must be concluded that B.'s attendance record since July 15, 1941 hasbeen markedly improved. This is to his credit. The Umpire believes that this improvementof record was not fully taken into account by management which was simply exasperatedwith B. After having displayed much patience in the handling of the case, managementthen lost all patience. This resulted in B.'s discharge in a questionable manner. Employeesare not fired out on the street and B.'s story might well have been heard by the PersonnelDepartment which is expected to show almost infinite patience.

The Umpire cannot absolve B. of all responsibility for his irregular attendance inSeptember 1941. There is a doubt as respects the legitimacy of two of his absences andno doubt that he was careless in reporting 45 minutes late for work on September 19.These irregularities are not to be lightly treated in view of his previous record andwarnings. On the other hand, he is to be credited with a decided improvement in hisattendance record after July 15, 1941.

In view of these circumstances, the Umpire feels that a disciplinary layoff was in order butthat the discharge penalty should not have been invoked at this time. B. is to be reinstatedas of December 15, 1941 without loss of seniority. The working time lost by him is to beconsidered as a disciplinary layoff occasioned by his irregularity in attendance. Hiscontinued employment naturally requires that B. develop an attendance record that iscompatible with efficient operations and that irregularities for unnecessary personalreasons be eliminated. The International Union is urged to assume the responsibility forseeing to it that B. learns properly how to perform his Union duties without unnecessaryinterference with the performance of his job.



Decision

1. Since he is a Committeeman representing the Union, B.'s irregularattendance record including unnecessary absences and lateness for personalreasons is a matter for Union concern. It is highly improper for Committeemento seek to use their Union position to secure personal privileges that may tendto make them undesirable employes.

2. B.'s attendance record is bad. He was, however, given a warning on July 15,1941 that provided a reasonable opportunity for him to meet the requirementsof steady attendance. Since that time, it is found that his record has beenmarkedly improved. This factor must be taken into account in the present case.

3. The Umpire cannot absolve B. of all responsibility for his irregular attendancein September 1941. There is a real doubt as respects the legitimacy of oneabsence, or possibly two absences, and he was careless in reporting very lateon one occasion. These irregularities cannot be lightly treated in view of hisprevious record and previous warnings.

4. In view of the above-outlined circumstances, it is ruled that B. is to bereinstated on his regular job, without loss of seniority, as of December 15,1941. The time lost by him is considered as a proper disciplinary layoff for hisirregularity of attendance.

5. B.'s continued employment naturally requires that he develop an attendancerecord that is compatible with efficient workmanship and that irregularities forunnecessary personal reasons be eliminated. The International Union is urgedto see that B. learns how properly to perform his Union duties withoutunnecessary interference with the performance of his job.


UMPIRE.

December 5, 1941.





No. B-45

december 4, 1941

Disciplinary Layoff

GRIEVANCE:

Saginaw Malleable -- Case B-1

"Unfair penalty -- I ask that I be paid for two days I was unfairly penalized."

Umpire's Decision:

1. The two day disciplinary layoff imposed upon P. represented a rigid application of theShop Rule that failed to give proper weight to the extenuating circumstances of the case. Itis ruled that the disciplinary layoff is to be reduced from two days to one day.

2. P. is to be provided with extra work, before his next seniority layoff or within six months,equivalent to that lost by him on the second day of his disciplinary layoff. If such work is notprovided within six months of the issuance date of this decision, P. shall receive backwages for the day in question. (Entire Decision should be read)

In the Matter of:

United Automobile Workers of America -- C.I.O. -- Local No. 455.

and

General Motors Corporation -- Saginaw Malleable Iron Division – Case No. 1-B.

Employee P. presented the following grievance on August 20, 1941: "Unfair penalty -- I askthat I be paid for two days that I was unfairly penalized." A hearing on the matter was heldin Detroit on November 26, 1941.



Nature of Case and Claims of the Parties

The disciplinary lay-off in this case was imposed because of an employee's failure toreport, in a timely manner, his inability to get to work. Operations at this plant are on acontinuous basis. In years past, employee absences were too numerous. This resulted inan undue loss of production and in excessive losses in employment to other employees.Management and the Shop Committee agreed, therefore, that a two day lay-off penaltywould be imposed upon any employee who failed to report by his lunch period that hewould be unable to come to work. Management states this rule has been effective inmeeting the above-described problem. It is also stated that reason has been exercised inthe imposition of the mentioned penalty. Allowances have been made in cases where ithas later been shown to have been impossible for the required notice to be given.

Employee P. works in the core-cleaning department on a shift which begins at 6:30 A.M.and which has a lunch period from 10:45 A.M. to 11:24 A.M. Under the above-mentionedunderstanding, which forms the basis of Shop Rule No. 8, an absence of P. should bereported no later than 11:24 A.M.

On Monday August 11, 1941, P. called the plant at 12:20 P.M. and reported that he wouldbe unable to come to work because the wires in his car were wet and the car would notstart. The Union notes that this condition of his car was discovered when P. started forwork at the regular time. It is said that P. "lives several miles out in the country" and thatthere was no available means of notifying the plant until the car had been repaired andused by P. to get to a telephone. The Union says the car was gotten in running order about11:30 A.M. or 12:00 Noon when P., and his brother, immediately drove into town andphoned the plant at about 12:20 P.M.

Management contends that the delay in calling the plant represents negligence on P.'s partsince there are numerous telephones available within a short distance of P.'s home.Management feels that "any man living within eight miles of the plant, if he thought verymuch of his job, could certainly notify us within five hours." It is urged that propercompliance with Shop Rule No. 8 was actually quite feasible and that P.'s negligence infailing to comply with it represented a violation.

It appears that, after calling the plant, P. had teeth extracted. On August 12 he reported tothe Personnel Department in person and stated that, because of the extraction of his upperteeth, he would be off for several more days. When he returned to work on Friday, August15, 1941 he was given two days disciplinary lay-off for not reporting his absence onMonday, August 11, 1941 by lunch time on his shift. This failure was construed byManagement as a violation of Shop Rule No. 8 which reads:

"Failure to call in or report by lunch time of shift on which absenceoccurs. (Two days to discharge)"

Management contends that P. violated the rule and that the disciplinary lay-off was aproper penalty to be imposed by management by virtue of its rights under Paragraph 8 ofthe June 3, 1941 Agreement.



The Union maintains that the lay-off of P. was inequitable because "he made an honesteffort to comply with the rule and that the rule itself, which was originally designed tocorrect a particular situation in the foundry, should not be enforced when the evidenceshows that a sincere attempt at observance has been made." The Union notes that theclaimant in this case called at 12:20 for himself and for his brother who also works at theMalleable Iron Plant. The application of the rule meant that the claimant was penalizedwhile his brother was not "because his lunch hours on occasions extended past 12:20P.M."

Contrary to a Management contention, the Union does not feel that the basic principleembodied in the rule is being challenged in the present case. The Union contends,however, that good judgment must be exercised in applying the rule. It calls attention to thefact "that this rule has been in force since the summer of 1937 and that, until the last fourmonths, good judgment has been used in enforcing it." The Union goes on to say "prior tothat time only one lay-off was protested by the Shop Committee although a number ofpeople had been given time off for not making a reasonable effort to notify the plant whenabsent."

In the present case, the Union maintains that P. made a sincere effort to comply with therule and should not have been penalized. The Union emphasizes that reasonable excuseshave resulted in a modification of the penalty under discussion and that Management erredin not recognizing P.'s excuse as a reasonable explanation. It is requested that P. becompensated for all lost time and that the rule be modified so that a reasonable excuse willbe accepted in the future.


The Shop Rule in question has unquestionably been applied, not in a rigid manner, but inrecognition of the fact that circumstances may make it impossible for an absent employeeto notify the plant strictly as required. In such cases, the prescribed penalty has beenmodified by Management.

Management feels strongly that it was by no means impossible for P. who lived within eightmiles of the plant, to get word of his absence to the plant within five hours. It is said thereare numerous phones available in the neighborhood. There is no doubt that P. did not goout of his way to get word to the plant.

On the other hand, P. did not entirely disregard his obligations to notify the plant since hedid call the plant from the first public telephone to which he had access after his car hadbeen repaired. He violated the shop rule in notifying the plant at the first convenientopportunity rather than at the earliest possible opportunity.

The Umpire is of the opinion that the penalty imposed upon P. was at least partially relatedto his later absences that were incident to dental care, a fact that was not clearly broughtout in certain earlier consideration to the case. With such absences adequately accountedfor, it does not seem that P. should have been subjected to the same kind of a penalty thatwould have been imposed had he ignored the Shop Rule completely and failed to take anysteps at all to notify the plant. His error was that the notification was about one hour late.



It is concluded, then, that the two day disciplinary lay-off represented a rigid application ofthe Shop Rule without taking into account any of the extenuating circumstances of thecase. On the other hand, the employee did not make as complete an effort to notify theplant as would be required in order to effect entire compliance with the Shop Rule. In viewof these factors, the Umpire holds that the disciplinary lay-off penalty should be reducedfrom two days to one day. It is also held that before his next seniority layoff and within sixmonths, P. shall be given extra work equivalent to that lost on the second day of hisdisciplinary lay-off. If such work is not provided within six months, P. shall receive backwages for the day in question.

Decision

1. The two day disciplinary lay-off imposed upon P. represented a rigidapplication of the Shop Rule that failed to give proper weight to the extenuatingcircumstances of the case. It is ruled that the disciplinary lay-off is to bereduced from two days to one day.

2. P. is to be provided with extra work, before his next seniority lay-off or withinsix months, equivalent to that lost by him on the second day of his disciplinarylay-off. If such work is not provided within six months of the issuance date ofthis decision, P. shall receive back wages for the day in question.


UMPIRE.

December 4, 1941.





No. B-52

December 30, 1941

Transfer Under Paragraph 63

GRIEVANCE:

Chevrolet Gear & Axle -- Case B-79

"I charge Company with violation of National Agreement P.P. 63 by rating No. 130416 asreliefman when he does not have the seniority I do and I too have been rated as areliefman and can do the work."

Umpire's Decision:

1. In order to give meaning to Paragraph 63 as written, and in order to precludethe nullification of the seniority factor mentioned in it, the following proceduremay well be followed:

(a) An outstanding employee, "head and shoulders"above others in ability, merit and capacity, is entitled topromotion irrespective of seniority considerations. Ifnecessary, Management should have no difficulty inpointing out the factors that account for his superiorqualifications.

(b) When such an outstanding employee is not available,Management may select several employees whose"ability, merit and capacity" are adjudged byManagement to be approximately equal. The individualin the group with greatest seniority may then be selectedfor the promotion. Such an approach reserves toManagement the right to make selections for promotionwhile giving proper weight to the seniority factormentioned in Paragraph 63.


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2. In the present case, the evidence does not support a conclusion that T. wasthe one employee with superior ability, merit and capacity to perform the job inquestion.

3. Since the relief job in question is not now in operation, it is ruled that it shouldbe considered a vacancy when it is resumed. It is then to be filled inconformance with the principles developed by this decision.

4. It is emphasized that the procedure outlined by this decision is but one of theways in which Paragraph 63 as written may be effectuated. This procedurecannot be applied retroactively, nor is it the only procedure that is to befollowed in cases of future promotions. It is set forth, not to establish aninflexible precedent in such cases, but as one of the ways by which Paragraph63 may be applied in a practical and equitable manner. (Entire Decision shouldbe read)

In the Matter of:


and

General Motors Corporation -- Chevrolet Gear & Axle Division -- Detroit -- Case B-79.

This case concerns a grievance, presented by Employee M. on August 15, 1941, whichreads:

"I charge Company with violation of National Agreement P.P. 63 byrating No. 130416 as reliefman when he does not have the seniorityI do and I too have been rated as reliefman and can do the work."

A hearing on the matter was held in Detroit on December 8, 1941.

Nature of Case

On August 4, 1941, a reliefman vacancy occurred on the first shift of Plant No. 3 in GroupNo. 20 which includes the Spring Housing job and the King Pin Support job. Employee T.was selected to fill the vacancy. The present grievance represents a claim of Employee M.that, in accordance with Paragraph 63, his seniority and previous experience entitle him tothe reliefman's job in question.

Management notes that the Spring Housing and the King Pin Support jobs have not beenin regular production since 1938 and are now operated in order to supply service parts.



Employees are used interchangeably between the two operations and the reliefman is alsorequired to be able to work on both types of work. The relief job in question was not inoperation at the time of the discussions of the case in the earlier steps of the grievanceprocedure, but the Union "requests that M. be placed in line for the job so that when workis resumed he will be made the reliefman."

The previous experience of T. on this work includes service as a reliefman on the King PinSupport job when it was in production as a separate job. He has had other service as areliefman in Group No. 20 but no significant experience as a reliefman on the SpringHousing job. Altogether T. has had about twenty months' experience as a reliefman and hehas a seniority date of 11/21/30.

The claimant in this case, Employee M., served as a reliefman on the Spring Housing jobwhen it was in regular production but has apparently had no experience as a reliefman onthe King Pin Support job. His experience as a reliefman totals approximately elevenmonths and his seniority date is 3/12/24.


Management is of the opinion that T. has better qualifications than M. to fill the reliefmanvacancy. Of the 16 machines included in the King Pin Support job, T. is said to have set up14 and to have operated all sixteen. Of the 17 operations on the Spring Housing job, T.has set up 15 and has operated 16 of them. Management has weighed T.'s experiencewhich is said to provide him with better qualifications as compared to M. who, it is claimed,has not set up any of the sixteen machines in the King Pin Support job and has onlyoperated eight of them. Of the Spring Housing machines, management reports that M. hashad set-up experience on ten and operating experience on thirteen of them.

The selection of an employee for transfer to the vacancy in question had to take intoaccount, states management, the necessity for interchanging employees between twotypes of work. It is said, therefore, that the best qualified candidate for the reliefman's jobwould be the one who was most familiar with the various jobs. T.'s longer and widerexperience as a reliefman on both the King Pin Support job and later in Group No. 20 isappraised by management as giving him superior qualifications, as compared to M., for thejob to which he was promoted. The selection of T., contends management, was a properexercise of management's responsibility as outlined in Paragraph 63 of the June 3, 1941Agreement.

Union Contention

The Union, in its brief, recognized that the relief job in question requires a considerableversatility to do various operations and that only a few men have such all-aroundexperience because the jobs are for past model service rather than for current modelproduction.

It is contended by the Union, however, that M. was not only better qualified to fill thereliefman's vacancy but had greater seniority than T. In its brief, the Union expresses itsbelief that, under Paragraph 63, "when a promotion is to be made, the agreement impliesthat the employee with the longest seniority shall be the first considered and in the event



he can do the job adequately, he is to be given the promotion without the personalitycomparisons usually made in promoting men."

The Union contends, then, that M. was entitled to selection for the reliefman's vacancy andthat he should "be placed in line for the job so that when work resumed he will be made thereliefman."


Paragraph 63 of the June 3, 1941 Agreement provides, in part, "The transferring ofemployees is the sole responsibility of the management. In the advancement of employeesto higher paid jobs when ability, merit and capacity are equal, employees with the longestseniority will be given preference."

There have been marked difficulties in the effort satisfactorily to apply this clause. It isdifficult to define, let alone evaluate, such intangible factors as "merit and capacity." TheUnion certainly errs in its present argument, however, that the clause specifies preferenceto the employee with most seniority and gives him a right to promotion "in the event he cando the job adequately." Since such an interpretation would give importance to seniorityirrespective of relative "ability and capacity," the approach of the local Union is obviouslynot in accordance with Paragraph 63 as written.

Under Paragraph 63 seniority becomes the determining factor in a selection for promotiononly as between employees whose "ability, merit and capacity are equal." In order toattribute a reasonable meaning to the clause, it must be recognized that (1) the relativeability, merit and capacity of individual employees cannot be precisely evaluated; (2) thesefactors in one employee's work will be differently rated by different supervisors becausetheir appraisal involves personal judgment; (3) seniority is, however, a definite factor thatcan readily be measured; (4) in making a selection for certain promotions, under thisclause, management may properly proceed by designating several men whose ability,merit and capacity are considered by management to be equal. The seniority factor canthen be applied in making the choice of the individual who is to be promoted.

In considering employees for promotion under Paragraph 63, it may be that an employee'srecord is so outstanding that he is "head and shoulders" above any other possiblecandidate. In such cases, he is entitled to promotion irrespective of seniority and, ifnecessary, management should have no difficulty in pointing out his superior qualifications.Unless such an individual is available for promotion, Paragraph 63 can properly beeffectuated by management's selection of several employees who are competent to fill thejob and whose "ability, merit and capacity" are considered by management to beapproximately equal. From the several candidates adjudged by management to beapproximately equal in "ability, merit and capacity," it would then become possible toeffectuate Paragraph 63 by selecting for promotion that individual in the group who has thegreatest seniority.

Such a procedure follows Paragraph 63 in recognizing that qualifications of severalemployees are often approximately equal and in recognizing the compelling importance of



seniority in such cases. The Umpire must assume that the parties sought to givecompelling importance to seniority as respects certain promotions or Paragraph 63 wouldhave been written in different terms. It is emphasized that, under such a procedure,management retains the sole responsibility for designating the employees who are to bepromoted.

How would such a procedure be applied to the facts of the present case? Managementhas made its choice as between T. and M. principally on the basis of the relative number ofmachines on the relief job, that had been previously operated by each of these men: To besure, this is a factor that is important because of the nature of the job. The relative ability ofthese men in operating such jobs is, however, a considerably different factor and thementioned experience has little to do with merit and capacity. It is the opinion of theUmpire that the evidence does not show that T. had the outstanding "ability, merit andcapacity" for the job in question.

It is to be noted that the reliefman job is not now being operated. This provides anopportunity to apply the above-outlined procedure when it resumes operation. At that time,the job should again be considered as a vacancy. If a review of the qualifications of thecandidates for the job shows that one is "head and shoulders" above all others, not only inexperience but in ability, merit and capacity, it is in conformance with Paragraph 63 formanagement to assign him to the job. If such an individual is not available, managementmay designate two or three employees who are competent to take the assignment andwho are considered by management as being approximately equal as respects ability,merit and capacity. The individual assigned to the vacancy should be the one in the groupwho holds the greatest seniority.

Decision

1. In order to give meaning to Paragraph 63 as written, and in order to precludethe nullification of the seniority factor mentioned in it, the following proceduremay well be followed:

(a) An outstanding employee, "head and shoulders"above others in ability, merit and capacity, is entitled topromotion irrespective of seniority considerations. Ifnecessary, management should have no difficulty inpointing out the factors that account for his superiorqualifications.

(b) When such an outstanding employee is not available,management may select several employees whose"ability, merit and capacity" are adjudged bymanagement to be approximately equal. The individualin the group with greatest seniority may then be selectedfor the promotion. Such an approach reserves tomanagement the right to make selections for promotionwhile giving proper weight to the seniority factor



mentioned in Paragraph 63.

2. In the present case, the evidence does not support a conclusion that T. wasthe one employee with superior ability, merit and capacity to perform the job inquestion.

3. Since the relief job in question is not now in operation, it is ruled that it shouldbe considered a vacancy when it is resumed. It is then to be filled inconformance with the principles developed by this decision.

4. It is emphasized that the procedure outlined by this decision is but one of theways in which Paragraph 63 as written may be effectuated. This procedurecannot be applied retroactively, nor is it the only procedure that is to befollowed in cases of future promotions. It is set forth, not to establish aninflexible precedent in such cases, but as one of the ways by which Paragraph63 may be applied in a practical and equitable manner.


UMPIRE.

December 30, 1941.





No. B-55

December 31, 1941

Transfer of Employee Under Paragraph 63

GRIEVANCE:


"At least five (5) men in 791 want the opportunity of having the job of die-setter in 791-A3. They are breakingin a press operator from another Dept. (790) on this job."

Umpire's Decision:

1. The promotion of C. was not improper solely because it was an inter-department transfer.Such transfers are not prohibited by Paragraphs 8 and 63; but are specifically contemplated byParagraph 62. Nor are such transfers precluded by past practice at this plant which is that inter-department promotions will be made as far as practicable.

2. Paragraph 63 cannot interfere with Management's exercise of its sole responsibility to selectand to train supervisors and foremen, the proper performance of which is a vital necessity forthe efficient operation of the plant. In selecting employees for assignment to jobs specifically forsuch training, as in the present case, Management's evaluation of the "ability, merit andcapacity" of the employees has a compelling status.

3. In view of the above, the Umpire cannot approve the Union claim that C. be returned toDepartment 790 and that J. be assigned to the die setting job. This would represent anunwarranted interference with Management's program for the training of foremen. (EntireDecision should be read)

In the Matter of:


and

General Motors Corporation -- Pontiac Motors Division -- Case B-24


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The following employee grievance was presented by J. on August 20, 1941: "At least five (5) men in 791want the opportunity of having the job of die-setter in 791-A3. They are breaking in a press operator fromanother Dept. (790) on this job." A hearing on the matter was held in Detroit on December 9, 1941.


A vacancy on the die-setter job in Department 791-A3 of the Sheet Metal Plant was filled on August 17, 1941by the transfer of Employee C. who had been a punch press operator in Department 790 and who holds aseniority date of March 9, 1934. The grievance in the present case was filed by Employee J. whose senioritydate is July 10, 1933. None of the other employees in Department 791-A3 have greater seniority than C.; thisis admitted in the Union Statement of Unadjusted Grievance.

Management explains the assignment of C. to the die-setter's job by noting that for the past two years thisemployee has worked with the die-setters and, in the absence of one of them, has often set dies himself. It issaid that "in this work he showed interest, initiative and adaptability superior to that of employee J. who hadno experience in die-setting." Management takes that position that "Employees who are selected as die-setters must have several qualifications beside the ability to break in as a die-setter. As practically allforemen in the sheet metal plant are selected from the die-setter group, consideration is given bysupervision, before a die-setter is selected, as to whether or not he has the potential qualifications of aforeman." Under Paragraph 63, it is contended, management has the sole right to judge such qualifications.Before assigning C. to the vacancy in question, management states the ability, capacity and merit of allemployees in Department 791 were reviewed and compared with the resultant conclusion "that no one inDepartment 791, including J. was qualified to fill the vacancy." Although J.'s seniority date is earlier than thatof C. management notes that Paragraph 63 makes seniority a determining factor in advancement only ifability, merit and capacity are equal. In line with its conclusion that C.'s qualifications re superior to those ofJ., management maintains that J.'s seniority has no bearing on the case. The Corporation contends that C.'spromotion was in conformance with Paragraphs 8 and 63 of the June 3, 1941 Agreement.

The Union maintains that, at this plant, it has been the practice to make promotions from within a department.In the present case, it is insisted that since any one of a number of employees in Department 791 was fullycapable of taking the die-setting job, there was no need to deviate from established practice. It is said thatsome of the men in the group have had experience as Die Setter Helpers. Although the Union maintainedthat the promotion of C. was improper under Paragraph 63, an examination of the case shows that thisparticular contention was somewhat subsidiary to the principal claim that the transfer was out of orderbecause it was inter-departmental. In this regard, the Union claims "the oldest capable man in 791 shouldhave been offered the job." The Union notes it would not complain if an experienced Die Setter had beentransferred from another department to Department 791, but feels it is inequitable so to transfer aninexperienced man to the higher rated job who has less experience on the machine in the department thanthose there employed.

If management felt that it was necessary to go outside the department, however, the Union contends otherqualified employees with greater seniority than C. should have received the assignment under Paragraph 63.It is emphasized by the Union that management actually selected C. for the job principally because most ofthe supervision is selected from the Die Setters group. This would imply that the advancement of employeesto die setting jobs is subject to the same considerations as are involved in the selection of foremen. In theopinion of the Union, such a basis for promotion to die-setting vacancies is contrary to the terms ofParagraph 63 which specifies other qualifications as being important in the making of promotions. The use ofdifferent measures means, says the Union, that other employees were not being given the consideration towhich they were entitled under Paragraph 63 of the Agreement and in line with past practice. The Unionrequests "that C. be returned to Department 790 and that J. as the next qualified man in Department 791 begiven the job of Die Setter." It is emphasized that J. not only has a greater seniority than C. but has worked inthe department since 1934, has had some Die Setter Helper experience, and has worked on practically allthe machines and presses in the department.




Inter-Departmental Transfer

The principal claim of the grievance, evident from negotiations at earlier steps of the grievance procedure, isthat the promotion of C. violated an established practice of making promotions on an intra-departmental basisas far as practical. The inter-department transfer which is involved in this case may properly be consideredas an exception to the general rule, encompassed within the rule, and does not, therefore, institute anychange in the existing procedure. The practice to which the Union refers cannot possibly be interpreted asprohibiting each and every inter-departmental transfer.

The Umpire cannot revoke the promotion of C. on the ground that it was improper solely because it was aninter-department transfer.

"Ability, Merit, and Capacity"

The second claim made by the Union is that employee J. had greater qualifications, as defined by Paragraph63, and was entitled to the promotion in preference to C. It is contended that such qualifications of J. wereimproperly evaluated because C. was selected on other grounds entirely. In appraising this contention, theUmpire is impressed with the fact that management did make the transfer in question as a phase of trainingan employee for foremanship responsibilities. The job to be filled, therefore, was not just a diesetter's job buta die-setter's job that would contribute to the training of a supervisor.

An important management function is to train supervisors and foremen. This task must be properly performedif the business of the Corporation is to be efficiently operated. It is evident that a prospective foreman mustordinarily be given training on various production jobs. In the present case, management has stated that "theemployee selected is not to remain as a die-setter, this job being assigned as a step in his training foreventual foremanship." Management cannot be denied the right to train foremen by a reasonable programand in the ordinary manner. This is a vital part of the proper management of a business. When transfers ofemployees are directly related to this training process, full recognition must be accorded that part ofParagraph 8 which provides, in part, "The right to... promote... and to maintain... efficiency of employees isthe sole responsibility of the Corporation... the methods, processes and means of manufacturing are solelyand exclusively the responsibility of the Corporation."

Management must train supervisors and foremen and in carrying out this responsibility it has no alternativebut to assign them to various jobs as a part of the training program. The necessary transfers cannot possiblybe affected by Paragraph 63 since, in such cases, management must be accorded the right to make its ownevaluation of the "ability, merit and capacity" of employees eligible to be transferred to such a training job asdistinct from a regular production job. On this basis, it is held that J. cannot be given consideration as havingequal or greater qualifications than C., as outlined in Paragraph 63.

While fully recognizing management's right to select and to train its supervisors and foremen, it would beunreasonable to conclude that promotions to every die-setting vacancy in the department in question shouldbe related to the selection of a potential foreman. Such a policy would not only close an important avenue topromotion to employees not considered as "foremanship material" but it would give an impermanence toassignments to the die-setters which seems to be incompatible with the importance of this work. In otherwords, every die-setter is not a foreman in the making. The present decision is not to be construed, therefore,as establishing a precedence for the future filling of each and every die-setting vacancy.

Decision

1. The promotion of C. was not improper solely because it was an inter-department transfer.Such transfers are not prohibited by Paragraphs 8 and 63; but are specifically contemplated byParagraph 62. Nor are such transfers precluded by past practice at this plant which is that inter-department promotions will be made as far as practicable.

2. Paragraph 63 cannot interfere with management's exercise of its sole responsibility to select



and to train supervisors and foremen, the proper performance of which is a vital necessity forthe efficient operation of the plant. In selecting employees for assignment to jobs specifically forsuch training, as in the present case, management's evaluation of the "ability, merit andcapacity" of the employees has a compelling status.

3. In view of the above, the Umpire cannot approve the Union claim that C. be returned toDepartment 790 and that J. be assigned to the die-setting job. This would represent anunwarranted interference with management's program for the training of foremen.


UMPIRE.

December 31, 1941.





No. B-68

JANUARY 12, 1942

Employee Transfer Under Paragraph 63

GRIEVANCE:

Guide Lamp -- Case B-1

"P.C. -- 390015. Hired in Production 9-9-35. Apprentice -- 4-29-36. Die Repair -- 12-8-40.This man was made lathe leader regardless of qualifications of others."

Umpire's Decision:

1. Management erred in depriving F.F. of consideration for promotion to theleader job. He was entitled to such consideration under Paragraph 63 and didnot waive his rights in this particular as is claimed by Management.

2. It follows, therefore, that F. C.'s promotion was not proper under Paragraph73 and it cannot be recognized. To approve it would signify that neither relativequalifications nor relative seniority had any bearing on promotions which is notthe case under Paragraph 63.

3. The leader job in question is declared to be vacant as of January 25, 1942.

4. In filling the leader vacancy, due consideration must be given byManagement to F. F.'s qualifications and to filling the job in conformance withParagraph 63. (Entire Decision should be read)

In the Matter of:




and

General Motors Corporation -- Guide Lamp Division -- Case B-1.

A grievance signed by Employee F., dated August 5, 1941, reads as follows:

"P.C. -- 390015. Hired in Production 9-9-35. Apprentice -- 4-29-36. Die Repair -- 12-8-40.This man was made a lathe leader regardless of qualifications of others." A hearing on thisgrievance was held in Indianapolis on December 17, 1941.

Nature of Case

On August 4, 1941, Management promoted Employee F. C. from a job of die repairman tothat of a Lathe Leader. The promotion was to the second shift in the tool and die room andto a job which Management claims did not exist prior to August 4, 1941 when there wasnot a sufficient number of lathe operators to require the appointment of a leader.

Employee F. C. had considerably less seniority than a number of lathe operators and itwas felt by the Union that these other men also possessed greater qualifications for theleader job. The Union singles out Employee F. F. as having exceptional qualifications forthe promotion because, the Union avers, he had previously been acting as the Leader ofthe second shift lathe operators and had been tacitly recognized as such by the workersand by supervision. The Union, therefore, protests the promotion of Employee F. C. andcontends that Employee F. F. should have been advanced to the Leader job.

Union Claim

The Union claims that, in order to conform with Paragraph 63 of the June 3, 1941Agreement, an employee in the lathe classification with the necessary skill and experienceshould have been promoted to the opening of Lathe Leader rather than a Die Repairmanwho had little skill and experience as a lathe operator. The Union holds that the man whoreceived the promotion did not possess nearly the ability, merit and capacity of EmployeeF. F. who has actually had considerable experience in performing the job in question.

F. F. not only acted as leader for the group for approximately five years, contends theUnion, but he also operated a lathe. Since he was only paid the operator's rate, andbecause the dual job represented too great a responsibility, F. F. recently requested thathe be relieved of his responsibility as a leader. There is no reason for concluding, says theUnion, that F. F. does not wish to be a leader; his mentioned reaction is said to have beenmotivated by a desire to receive either the classification and rate of a Leader, or to beconsidered only as a lathe operator.

The Union further emphasizes that Employee F. C., who received the promotion, hadnever had any experience in a tool room prior to serving his apprenticeship and that hisexperience on lathe work was limited to approximately two months which he served during



the course of his apprenticeship. The Union points out that at the time of his promotion,Employee F. C. was classified as a die repairman and was receiving the minimum rate forthat classification. His experience is so limited, the Union claims, that he is unable toinstruct workers who have been upgraded from production to toolroom lathe operation. Afurther contention of the Union is that Employee F. C. received much of his training duringhis apprenticeship from the men who have since been placed under his leadership. In theUnion's opinion this state of affairs does not lend itself to a fully cooperative attitudebetween the operators and their leader.

The Union claims that heretofore Management has stressed experience in the matter ofpromotion but in this instance it has used less tangible factors as a means of supporting itsselection. The considerations used by Management in rating the various men who wereeligible for the promotion, in the Union's opinion, are in too many instances irrelevant andoutside the provisions of Paragraph 63 of the Agreement. The Union concludes thatexperience has been given far too little weight in this promotion.

For the reasons cited, the Union holds that Management was entirely illogical in itspromotion of Employee F. C. and that in keeping with Paragraph 63 of the Agreementdated June 3, 1941, should have promoted Employee F. F. The Union, therefore, requeststhe Umpire to advance Employee F. F. to the classification of a Lathe Leader.


The Corporation holds that the promotion of Employee F. C. followed Management'scareful consideration of the seniority, merit, ability and capacity of all the lathe operatorsand other men in the tool room. It was only after careful investigation, Management claims,that Employee F. C. was determined "to have more ability, merit and capacity to instructand lead other men than any lathe operator with more seniority." Management contendsthat Employee F. C. had advanced rapidly over a short period of time and, in its opinion,"possessed the most potential value."

Management has presented an appraisal of various employees in order to show why itrated other lathe operators as having less ability, merit and capacity than F. C. As respectsEmployee F. F., Management stressed the fact that he was not considered for thepromotion because he had previously requested his Foreman "to relieve him of allresponsibility other than that of lathe work." Management claims, however, that it hadnever considered Employee F.F., as a Lathe Leader although supervision and the latheoperators on the second shift admittedly considered him as the "Number One" latheoperator.

Management, in making its decision on this promotion, was quite satisfied with theexperience of Employee F. C. on lathe operation during the time that he worked as a dierepairman. Management claims that in this promotion, experience could not be given muchweight because there were so few men with experience to fill the job. It was for this reason,Management states, that other factors had to be given considerable importance in makingthe choice for promotion. In the Corporation's opinion, the choice of Employee F. C. wasentirely within the provisions of Paragraph 63 of the Agreement dated June 3, 1941.




Management has readily admitted that claimant F.F. was not considered as a possiblecandidate for the leader job because "he had previously requested to be relieved of suchresponsibilities." It appears to the Umpire, however, that Management thereby erroneouslyinterpreted F. F.'s attitude toward leader responsibilities. This employee had been actingas a leader of a relatively small group of employees but had also been required to operatea lathe. There is no doubt, moreover, that he did a pretty good job. As the number of latheoperators increased, however, F. F. understandably felt that he could not properly be heldresponsible for leading while still operating a lathe and while receiving an operator's rate.His protest against such a job assignment cannot reasonably be considered as a waiver ofhis claim for promotion. Management's seizure of his statement as a means of excluding F.F. from consideration for promotion was not reasonable since it completely disregarded F.F.'s long experience in acting as a leader, his acceptance by the employees and bysupervision as a leader, and his cooperative attitude in past years in assuming leadershipresponsibilities without any added compensation.

In contrast to F.F.'s evident qualifications for the job in question, F. C. was quiteinexperienced as a lathe operator or as a leader. Even if he did seem to Management topossess "potential," his ability and displayed capacity was unquestionably inferior to F. F.

Although Paragraph 63 gives Management the sole responsibility for transferringemployees, it specifically provides that in exercising this responsibility in the advancementof employees to higher paid jobs "when ability, merit and capacity are equal, employeeswith the longest seniority will be given preference." This part of Paragraph 63 would beentirely meaningless if it were to be held that F. C.'s promotion to a higher paid job wasproper and that F. F. could be excluded from consideration on the basis mentioned above.It is all too apparent that F. F.'s qualifications were not taken into account simply becauseManagement did not consider him as a possible candidate for the job in question.

It is the conviction of the Umpire that F. F. should not be deprived of consideration for thevacancy in question and that Management erred in filling the vacancy withoutconsideration of F. F.'s qualifications. It is ruled, therefore, that the promotion of F. C. wasnot in compliance with Paragraph 63 because it was not made with regard for F. F.'s rightsunder that part of the Paragraph which provides that "in the advancement of employees tohigher paid jobs when ability, merit and capacity are equal, employees with the longestseniority will be given preference." The facts do not show that F. C. had greaterqualifications that F. F. At most it could only be determined that they had approximatelyequal qualifications as respects "ability, merit and capacity." In such a case, F. F.'s greaterseniority would entitle him to the promotion. There can be no reasonable doubt on thepoint that F. C.'s promotion was not proper under Paragraph 63 and it cannot be approved.Such an approval would signify that neither relative qualifications nor relative seniority hadany bearing on promotions under Paragraph 63.

Decision

1. Management erred in depriving F. F. of consideration for promotion to the



leader job. He was entitled to such consideration under Paragraph 63 and didnot waive his rights in this particular as is claimed by Management.

2. It follows, therefore, that F. C.'s promotion was not proper under Paragraph63 and it cannot be recognized. To approve it would signify that neither relativequalifications nor relative seniority had any bearing on promotions which is notthe case under Paragraph 63.

3. The leader job in question is declared to be vacant as of January 25, 1942.

4. In filling the leader vacancy, due consideration must be given byManagement to F. F.'s qualifications and to filling the job in conformance withParagraph 63.


UMPIRE.

January 12, 1942.





No. B-83

January 27, 1942

Disciplinary Layoff

GRIEVANCE:

Fisher Tarrytown -- Case B-12

"Man suspended unjustifiably. Requests to be returned to work. Claim discrimination alsointimidation, back pay for every day he is kept out. Foreman A. at fault."

Umpire's Decision:

The layoff of F. was not in any way intimidating nor discriminatory. It is determined to havebeen a disciplinary layoff, but the length of such layoff is held to be in error because it wasbased on the alleged violation of three shop rules, only one of which was violated by thisemployee. The layoff of F. is, therefore, reduced to two days and he is to receive backwages for the remainder of the layoff which is held to have been unjustified disciplinaryaction by Management. (Entire Decision should be read)

In the Matter of:


and

General Motors Corporation -- Fisher Body -- Tarrytown Division -- Case B-12

On September 23, 1941, Employee F. presented a grievance which reads: "Mansuspended unjustifiably. Requests to be returned to work. Claim discrimination also


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intimidation, back pay for every day he is kept out. Foreman A. at fault." A hearing washeld on this matter at New York on January 7, 1942.

Nature of Case

Employee F. on the Trim Line at the Fisher Body -- Tarrytown Division, on September 23,1941 was asked by his foreman if he knew that a certain job had gone down the linewithout being completed. The employee answered in the affirmative and stated that on theprevious model run it had been the custom to let jobs go down the line if no stock had beenplaced in them. A discussion followed during which the foreman instructed this employeenot to permit any more jobs to go down the line incomplete, but to call the Foreman if itwas impossible to complete a job because of the lack of stock.

After a brief interval the Foreman noticed this employee was talking to his partner; theForeman maintains that while this talking was taking place, F. was not working. The Unionclaims that the employee was working and that he was merely telling his partner the resultof his previous discussion with the Foreman. The Foreman then told F. he should stoptalking and try to get his job back in position. A rather heated argument followed in whichF. used certain language that was felt by the Foreman to be abusive, and to show a lack ofrespect for supervision. F. was told to leave his job and was laid off for an indeterminateperiod; this layoff occurred on September 23, 1941. A few days later, in answer to thegrievance filed by this employee, Management stated F. would be returned to work onOctober 1, 1941. This case arose out of the Union's objection to the disciplinary layoff thatwas invoked by Management.


In its original reply to the instant grievance, Management merely stated that it did not feelthat the layoff involved either discrimination or intimidation. At the second step in thegrievance procedure, Management listed three shop rules which it claims were broken byF. The breaking of these rules, Management maintains, was sufficient cause for thedisciplinary layoff invoked in this case. The shop rules cited by Management as allegedlybroken by this employee, are as follows:

Rule No. 13 -- "Refused to obey orders of foreman or other supervisors. (From one daylayoff to discharge.)

Rule No. 27 -- "Deliberately restricting output. (From one week layoff to discharge.)

Rule No. 29 -- "Use of abusive or profane language to fellow employees or supervision.(From reprimand to discharge.)"

Management holds that F. violated Rule No. 13 because, when he was told to stop talkingand start to work, he failed to do so and instead started an argument. Rule No. 27 wasviolated by this employee, Management maintains, because "the job on which F. wasworking was considerably out of position when his Foreman requested that he stop talkingand get back to work." Management states that Rule No. 29 was clearly violated by theemployee's admitted use of strong language directed at the Foreman.



The Union charges of discrimination and intimidation in connection with this layoff aredenied by Management. The latter holds that there was no attempt by the Foreman andSuperintendent "to scare the operators into dropping their just complaints," in connectionwith some trouble on the line, "by taking a man to the office and suspending him." Nodiscrimination because of Union membership or activity has been shown in this case,contends Management, and therefore the charge of discrimination "was not a propercharge to be made." The discipline invoked in this instance is felt by Management to havebeen in full accord with Paragraph 8 of the June 3, 1941 Agreement which gives toManagement the sole responsibility to "discharge or discipline for cause; and to maintaindiscipline... except that Union members shall not be discriminated against as such."

Union Position

The Union claims that the layoff of F. was originally invoked only on the basis of anincident arising out of a question put to him by his partner as respects his first conversationwith the Foreman. The Union notes that while this first conversation was being conducted,F. was not able to do his work and his next job was going down the line; in the Union'sopinion, this did not represent restriction of output but was merely orderly conducting ofcollective bargaining. The second discussion which followed the Foreman's order to stoptalking and get back to work did lead to an argument, the Union admits, but it claims thatthe Foreman also used strong language. The use of such language by both the employeeand the Foreman is claimed by the Union to be ordinary "shop talk" in which both sidesoften indulge. Finally, the Union maintains that F. did not refuse to carry out an order of theForeman but merely answered him when the Foreman objected to the talking between F.and his partner. For these reasons, the Union claims that F. did not violate any of the shoprules cited by the Management, and holds that the disciplinary layoff was reallydiscriminatory in nature.

The Union offers as support for its charge of discrimination the fact that this employee'spartner, and many other operators on the line, were out of position but received no layoff.Intimidation is charged by the Union on the grounds that Management enforced thisdisciplinary action when faced with a series of other complaints on the same line, which inthe Union's opinion, represented an attempt "to scare other operators into maintainingposition on line." Because of its contention that the layoff was not for cause, but wasdiscriminatory in nature, the Union requests that F. be paid for the time lost fromSeptember 23, 1941 to September 30, 1941 inclusive.


The claim against the discipline invoked by Management in this instance must beappraised on the basis of Paragraph 8 of the Agreement dated June 3, 1941. Thisparagraph reads in part as follows: "The right to... discipline for cause; and to maintaindiscipline... of employees, is the sole responsibility of the Corporation except that Unionmembers shall not be discriminated against as such." The Union's claim that the layoff ofF. represented intimidation has not been supported with any real facts, and must thereforebe disregarded by the Umpire. In like manner the claim of discrimination for Union activityis not proven on the grounds that one Union member is laid off for a series of acts forwhich he is allegedly responsible, while other Union members receive no discipline forsingle acts of which they are not accused by Management.



Management has claimed that it had cause for the enforcement of the disciplinary layoff ofF. because of its claim that he violated three shop rules. It must be assumed, therefore,that the length of the layoff was set by Management on its own weighing of the importanceof the breach of all three of the shop rules, i.e., that the number of days of the layoffrepresented the sum total invoked for the alleged violation of all three of the shop rules. Tobe sustained in whole, therefore, the layoff must be found to have resulted from theviolation of all three of the rules cited by Management; to be sustained in any part it mustbe found to have resulted from the violation of at least one of the shop rules.

It is quite clear that F. violated Shop Rule No. 29 in using strong language in a manner thatwas undoubtedly abusive to his foreman. If the sort of remark made by F. in this instancewould result in no disciplinary action, it is doubtful if any discipline could be maintained inhis department. It follows that the part of the layoff that resulted from this action by F. isentirely his responsibility and he must bear the consequences.

Violation of the Shop Rule No. 27, as cited by Management, is not proven by the facts.While it is true that F. was out of position when the two discussions with his Foreman tookplace, and that the discussions caused him to go further out of position, it cannot be saidthat he was "deliberately restricting output." Other employees were out of line and manyproblems arose on the line in question on the particular day involved, all of whichcontributed to F. being out of position. The first discussion he had with his Foreman was areasonable attempt to obtain an explanation over a shop problem. Management wasentirely incorrect in labeling any action by F. as deliberate restriction of output.

The contention that F. refused to obey an order is likewise not supported by the facts. Thefirst discussions with his Foreman led F. to accept the order and to pass on the informationto his partner not to let any more jobs go down the line incomplete because of the lack ofstock. The second discussion, which became an argument, led to the use of abusivelanguage, but it did not represent failure to abide by an order from the Foreman. While theargument took place it is quite likely that F. stopped work and then, as a result of theargument, he wasn't permitted to continue work. The employee was wrong for arguing andusing abusive language, but any stoppage of work during the argument was incidental anddid not represent a refusal to carry out an order of the Foreman.

The claim in the instant case is that F. was not guilty of the violations charged to him byManagement and that his layoff should be revoked entirely with back pay for all time lost.The Umpire finds that F. did violate the Shop rule concerning abusive language, but did notviolate the two other shop rules as claimed by Management. The penalty imposed byManagement for the alleged violation of all three shop rules is therefore held to be toosevere for the actual violation of a single shop rule. Under the circumstances involved inthis case, then, the Umpire holds that the layoff imposed on F. shall be reduced to twodays, and he shall receive make-up pay for the remainder of the time lost betweenSeptember 23, 1941 and September 30, 1941, because of such layoff.

Decision

The layoff of F. was not in any way intimidating nor discriminatory. It is determined to have



been a disciplinary layoff, but the length of such layoff is held to be in error because it wasbased on the alleged violation of three shop rules, only one of which was violated by thisemployee. The layoff of F. is, therefore, reduced to two days and he is to receive backwages for the remainder of the layoff which is held to have been unjustified disciplinaryaction by Management.

Signed G. ALLAN DASH, JR.,

UMPIRE.

January 27, 1942.





No. B-100

February 6, 1942


GRIEVANCE:

Buick Motor -- Case B-11

"Man with less service than I have has been called back to work on job which I am capableof doing. Request back pay for all time lost."

Umpire's Decision:

1. The factors of ability, merit and capacity were not compelling determinants inthe selection of T. for promotion to die welding.

2. The promotion of T. was not in conformance with the terms of Paragraph 63of the June 3, 1941 Agreement and is, therefore, held to have been improperlyeffectuated.

3. Since this job will shortly be discontinued, it shall be considered vacant as ofFebruary 16, 1942, and when the die welding is resumed, it shall then be filledin a manner complying with Paragraph 63 of the Agreement dated June 3,1941. (Entire Decision should be read)

In the Matter of:


and

General Motors Corporation -- Buick Motor Division -- Case B-11.


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Employee C. on August 18, 1941, presented a grievance which reads: "Man with lessservice than I have has been called back to work on job which I am capable of doing.Request back pay for all time lost." A hearing was held on this matter at Flint on January15, 1942.

Nature of Case

Early in July 1941, Management felt it necessary to have temporary help on welding in theDie Room of the Sheet Metal Plant. The foreman of the Die Room had no availablewelders and requested the foreman of the fender repair welding to furnish any availablewelder that would be suitable in this work. When the latter foreman suggested thatEmployee T., who was on fender repair welding, should be able to do the operation, hewas given the temporary work over a period of approximately one month. Employee C.,who filed this grievance, had also been working on the fender repair welding work and hadeleven months' seniority over T. Employee C. complained to his foreman about notreceiving the temporary work in the Die Room and, as a result, his foreman checked therecords of both T. and C., as Management states, "to determine exactly what previouswork they had done." This examination apparently convinced the foreman that T. was thebetter man for the job and he was therefore retained on the temporary welding work in theDie Room.

On July 30, 1941, production was closed down for the model changeover and both T. andC. were laid off from their respective welding jobs. Shortly thereafter the die workincreased and another permanent welder was needed in the Die Room. The two foremenagain conferred and agreed that T. was the proper man to fill the job. When the transfer ofT. was completed on August 16, 1941, C. filed the present grievance claiming that heshould have been given the promotion.

Union Contention

The Union contends that C. was entitled to the welding job in the Die Room because itrepresented a promotion, and C. had greater seniority, more experience as a die welder,and was more capable than the man who received the promotion. The Union notes that C.had worked for some time in Plant No. O3 as a die welder on the third shift, and had donevery satisfactory work. On the other hand, the Union notes that T.'s experience in diewelding was limited to the short period he spent on it on a temporary basis. The Unionclaims further that C. was a more efficient fender repair welder than T., and that he wasexceptionally fast at his work. Finally, the Union claims that friendship was a distinctdeterminant in the promotion of T., and that Management violated Paragraph 63 of theJune 3, 1941 Agreement by failing to give consideration to the relative ability, merit andcapacity, of the two men available for the promotion.


The Corporation maintains that in selecting T. for the permanent job as welder in the DieRoom of the Sheet Metal Plant, "Management selected the employee with the most ability,merit and capacity for the available job." Management notes that, "The opinion of



Management as to the ability, merit and capacity of Employee T. is confirmed by theopinion of Mr. S. for whom Employ T. had worked in Factory 12, and by the opinion of Mr.H. for whom Employee T. had done temporary welding in the Die Room."

Management contends that the seniority of C. was considered, but that C. did not have thesame ability, merit and capacity as Employee T. It is further contended by Managementthat T. did better fender repair welding than did C., and that the attitude of C. at his workand the number of times he was found off the job, "made C. less attractive toManagement." Management claims also that C.'s experience in die welding had beenlimited to a rough type of welding, while T.'s work gave him needed experience for theexact type of work required in the new operation. It is concluded by Management,therefore, that the promotion of T. was not in violation of Paragraph 63 of the NationalAgreement dated June 3, 1941.


The question concerned in this case must be considered according to Paragraph 63 of theAgreement dated June 3, 1941. This paragraph reads in part as follows:

"(63) The transferring of employees is the sole responsibility of theManagement. In the advancement of employees to higher paid jobswhen ability, merit, and capacity are equal, employees with thelongest seniority will be given preference."

The classification held by both T. and C., before the promotion in question, was noted inthe local wage agreement as: "Welding, Acetylene -- Rough and Heavy--Range $1.05 to$1.20." The operation to which T. was transferred is classified as "Welder -- Die -- Range$1.20 to $1.35." The highest bracket in the range of T.'s old job was equaled by the lowestbracket in the range of the new job. It is obvious, therefore, that the transfer of T.represented a promotion. As such, since it has been questioned, the promotion of T. mustshow clear evidence of a consideration by Management of the factors of ability, merit andcapacity, if it is to be sustained.

The foremen of the two departments concerned apparently conferred together on thetemporary transfer of an employee and agreed upon T. There is little evidence at this stagethat any careful consideration was given to an actual weighing of the factors of ability,merit, and capacity of all of the available employees. A cursory consideration of T. and C.was evidently made, but there is no evidence of a careful weighing of the necessaryfactors for all of the employees who were available for the job. The fact of the matter is thatmost of the consideration given the question of the choice, was after C. complained aboutthe use of T. on temporary work. Compelling support for this conclusion is shown byManagement's statement that after C. complained about the temporary transfer, "Mr. H.checked the records of both employees C. and T. to determine exactly what previous workthey had done."

When the promotion to the permanent job was made, another brief conference betweenthe two foremen seems to have been all that was needed to decide upon T. as the final



choice. Evidence of this fact is shown by the statement of Management which reads: "Mr.H. thereupon asked Mr. S. about securing employee T. for a permanent job as a welder.Both Mr. S. and Mr. H. agreed that T. would be the proper man for the job." Here, again,there is an evident lack of any conclusive consideration of the factors of ability, merit andcapacity in choosing T. for the promotion.

Management notes that because of the agreement of the two foremen that T. was theproper man for the job, "because he had satisfactorily done the work on a temporarybasis," and because "Management felt he had more ability, merit and capacity for the job,"he was given the promotion. It should be noted here that a factor which apparentlyweighed heavily in the selection of T. for the promotion, was his temporary experience atthe job. It is not within the spirit of Paragraph 63 of the Agreement to make a temporarypromotion, and then give great weight to the resulting experience as a determinant ofrelative ability, merit and capacity for a permanent promotion. Further more, Management'sstatement that it "felt he had more ability, merit and capacity," finds no compelling support;it must be considered to be in the form of an opinion that was based mainly on theconclusion that had been reached by the two foremen.

From all of the available evidence, the Umpire is of the opinion that proper considerationwas not given to the factors of ability, merit and capacity, in the choice of T. for the diewelding job. It is evident that T. did not stand "head and shoulders" above the employeesavailable for the job. At best it can only be said that T. had "ability, merit and capacity"equivalent to at least one employe, and perhaps several others. The Umpire has noauthority to determine that C. was entitled to the promotion rather than T., because theelement of choice rests with Management. In the present instance Paragraph 63 can wellbe effectuated, as has been suggested in several recent decisions, by the selection byManagement of several men who it feels are capable of fulfilling the job, and whose"ability, merit and capacity" are considered by Management to be approximately equal.From this group Management can then select the individual with the greatest seniority tofulfill exactly the provisions of Paragraph 63 of the Agreement.

In conclusion, it is held that the promotion of T. to the die welding job, was not incompliance with the terms of Paragraph 63 of the June 3, 1941 Agreement. Since this jobis momentarily expected to shut down, it is held that it should be considered a vacancy onFebruary 16, 1942 and when the work is resumed, it shall be filled in a manner to conformwith Paragraph 63 of the Agreement dated June 3, 1941.

Decision

1. The factors of ability, merit and capacity were not compelling determinants inthe selection of T. for promotion to die welding.

2. The promotion of T. was not in conformance with the terms of Paragraph 63of the June 3, 1941 Agreement and is, therefore, held to have been improperlyeffectuated.

3. Since this job will shortly be discontinued, it shall be considered vacant as ofFebruary 16, 1942, and when the die welding is resumed, it shall then be filledin a manner complying with Paragraph 63 of the Agreement dated June 3,



1941.


UMPIRE.

February 6, 1942.





No. B-116

MARCH 9, 1942

Promotion Procedure

GRIEVANCE:

Chevrolet Norwood -- Cases B2-9

"We charge the Management with breaking the agreement (Par. 63) and are asking forback pay from this date."

Umpire's Decision:

1. Promotion at this plant has been along the lines of departmental or senioritygroups, and has only varied there from when no employees were thus availablewho were qualified to fill job openings.

2. Management's promotion of four men within the limits of the Light and HeavyRepair Department represented conformance with previous practice, and withParagraph 63 of the June 3, 1941 Agreement.

3. The eight men whose grievances have been combined for consideration inthis decision are held to have had no rights to promotion to the four openings inthe Light and Heavy Repair Department, and their claims to back pay for failureto receive such promotions are denied. (Entire Decision should be read)

In the Matter of:


and


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\b-116_13C08A4C.htm

General Motors Corporation -- Chevrolet-Norwood Division -- Cases B-2 to B-9.

On October 3, 1941, eight grievances were presented which read in common as follows:"We charge the management with breaking the agreement (Par. 63) and are asking forback pay from this date." A hearing was held on these combined grievances atIndianapolis on February 26, 1942.

Nature of Case

The eight employees involved in the combined grievance herein considered, wereemployed in the new Car Conditioning Department (No. 81) at the Chevrolet-Norwoodplant at the time the grievance was filed. The Light and Heavy Repair Department (No. 71)was in the same building as the New Car Conditioning Department, but was a separatedepartment and a separate seniority group. Part of the work of the Light and Heavy RepairDepartment was to mount Cargo and Commercial bodies. On certain government work ofthis latter nature, increased schedules required additional men to mount cargo andcommercial bodies in September, 1941. Four additional men were needed for this workand Management selected the four men in the Light and Heavy Repair Department who itconsidered were most worthy of promotion to higher paid jobs in their seniority group onthe basis of their respective ability, merit, capacity, and seniority. The Union objects to thepromotions, and claims that the eight men who signed the instant grievance were entitledto receive the promotions granted to the four men, as well as to other jobs made availablesubsequent to the date of the instant grievance.

Union Claim

The Union seeks to support its position that the men concerned in this grievance shouldhave received promotions on two premises, only one of which is a part of the June 3, 1941Agreement. In the first place it claims that an "understanding" existed between the ShopCommittee and Management that if any higher rated jobs opened up, men in the New CarConditioning Department would be given the first opportunity for promotion, after whichmen in certain other departments would be given the opportunity provided by the higherpaid jobs. The Union maintains that most of the men in the New Car ConditioningDepartment were hired as mechanics, but had become sidetracked in a job that did notcarry a very high rate. It was this reason, the Union claims, that caused the two parties toagree to move these men into higher paid operations at the first opportunity.

The second premise on which the Union maintained the right to promotion of the eight menhere concerned, is based on Provision 2 of the so-called O.P.M. agreement, dated October2, 1941, and signed by representatives of the Union and Corporation. Provision 2 of thatagreement reads, in part, as follows:

"Transfer of employees from non-defense to defense work in eachlocal bargaining unit shall be in line with agreements regarding thetransfer of employees. Employees fully qualified for skilled and



semi-skilled jobs on the basis of past experience and training shallbe transferred in line with their seniority."

The Union maintains that the eight men who signed the instant grievance wanted to beshifted to defense work, had the mechanical ability to perform the work, and had thegreatest seniority of those available for such work.

The jobs to which the Union feels these men were entitled were paid at the rate of $1.10per hour. Because they did not receive these jobs, the Union claims they should bereimbursed for the difference between their own rates and the rates they would haveearned on the defense jobs, for the total hours they would have received had they been onsuch defense jobs. The Union notes finally, that while only four jobs were open in the Lightand Heavy Repair Department just prior to the date of the instant grievance, additional jobsdeveloped in the department shortly thereafter that should have properly been filled by theeight men who signed this grievance.


The Corporation maintains that it has been the recognized practice at this plant to give thefirst opportunities for advancement to openings on higher rated jobs, to employees onlower rated jobs in the same department, provided they are capable of doing the work. Thispractice had been followed previously in the Light and Heavy Repair Department,Management notes, and many employees have received temporary and permanentpromotions in such a manner. Management maintains that the special understanding thathad been reached as respects the men in the New Car Conditioning Department was tothe effect that, as jobs opened up in any department, if men in that department capable ofdoing the work were not available, then men in the New Car Conditioning Departmentwould be given the opportunity to qualify for the promotion before the men in any otherdepartment. In the present case, Management maintains that the men selected to fill thefour available openings in the Light and Heavy Repair Department were selected entirelywithin the procedure noted.

Management denies that the so-called O.P.M. agreement supersedes the existingAgreement as respects method of promotion. In fact, Management notes, Provision No. 7of the O.P.M. agreement specifically removes any portion of that agreement from theprovisions of the Grievance Procedure of the June 3, 1941 Agreement. Provision No. 7, ascited by Management, reads as follows:

"Any claim of discrimination by an individual employee arising out ofthese provisions may be reviewed by the Shop Committee with thelocal Plant Management but shall not be subject to further appeal.The Shop Committee is given the right to appeal any charge ofgeneral discrimination to the Corporation through the DefenseEmployment Division of the International Union, UAW-CIO. Suchcharges must be supported by written evidence at the time theappeal is made."

For the reasons noted, then, Management contends that the promotions contested in thisgrievance were in conformance with the recognized practice at this plant, and were not in



violation of any of the terms of the Agreement dated June 3, 1941.

Conclusions and Decision of the Umpire

The issue in this case is whether or not Management has acted within the terms of theJune 3, 1941 Agreement in promoting certain men to higher paid jobs in the Light andHeavy Repair Department, instead of the eight men who signed the instant grievance.

All of the evidence available in this case clearly supports the conclusion that promotionpractice at this plant has been along departmental and seniority group lines. Firstopportunities for advancement have obviously been given within the department in whichopenings on higher rated jobs occurred, when employees qualified to do the job have beenavailable. It is clear, also, that a recent understanding has been reached that if men are notavailable within a department to qualify for higher paid jobs in that department, firstopportunity for advancement will be given to employees in the New Car ConditioningDepartment.

The promotion of the four men within the Light and Heavy Repair Department was madedirectly in conformance with the practice noted above. In its selection, Management gaveproper recognition of the factors of ability, merit, capacity, and seniority, and therebyconformed with Paragraph 63 of the June 3, 1941 Agreement. It is held, therefore, thatfailure of Management to promote any of the eight signators to the instant grievance to thefour available jobs in the Light and Heavy Repair Department, was not in violation of anyprovision of the June 3, 1941 Agreement.

The citation by the Union of Provision 2 of the so called O.P.M. Agreement, in support ofthe right of the eight men here involved to promotion to defense work, is quite obviouslyoutside of the jurisdiction of the Umpire. Provision 7 of that same agreement, as cited byManagement, clearly removes any question arising under that agreement from the purviewof the regular grievance procedure established by the terms of the June 3, 1941Agreement.

Inasmuch as Management has not violated past practice or any provision of the June 3,1941 Agreement, the Union's claim for back pay for the eight men, whose grievances havebeen herein combined, is held to be improper and is denied.

Decision

1. Promotion at this plant has been along the lines of departmental or senioritygroups, and has only varied there from when no employees were thus availablewho were qualified to fill job openings.

2. Management's promotion of four men within the limits of the Light and HeavyRepair Department represented conformance with previous practice, and withParagraph 63 of the June 3, 1941 Agreement.



3. The eight men whose grievances have been combined for consideration inthis decision are held to have had no rights to promotion to the four openings inthe Light and Heavy Repair Department, and their claims to back pay for failureto receive such promotions are denied.


UMPIRE.

March 9, 1942.





No. B-129

March 31, 1942

Appeal of a Discharge

GRIEVANCE:

Detroit Transmission -- Case B-8

"I was unjustly discharged without notice. I demand reinstatement, back pay and fullseniority in department 77 which would have gone into effect on November 15, fromdepartment 4. Discharge slip said I hadn't enough experience. Have followed this work for20 years. I claim discrimination."

Umpire's Decision:

1. The discharge of Employee D., for failure to fulfill the requirements of themachine repair job to which he was transferred, was to a great extent, a misuseby local Management of the Corporation's right to discharge for cause.

2. Because of his very poor attendance record, Employee D. is held subject toa disciplinary layoff from the date of his improper discharge to December 8,1941.

3. Employee D. is to be reinstated on the payroll as of December 8, 1941,without loss of seniority, and is to receive back pay for any wages lost up toDecember 30, 1941, as directed in the body of this decision.

4. Within two weeks of the date of this decision, or at the proper time in thefuture if his seniority does not entitle him to recall on that date, D. shall beoffered a job comparable in rate to his previous production job. Failure toaccept such a job shall result in the termination of his employment as a "quit,"as of December 30, 1941. (Entire Decision should be read)

In the Matter of:




and

General Motors Corporation -- Detroit Transmission Division – Case B-8

On November 6, 1941, Employee D. presented a grievance which read: "I was unjustlydischarged without notice. I demand reinstatement, back pay and full seniority inDepartment 77 which would have gone into effect on November 15 from Department 4.Discharge slip said I hadn't enough experience. Have followed this work for 20 years. Iclaim discrimination." A hearing was held on this matter in Detroit on March 11, 1942.

Nature of Case

Employee D.'s seniority hiring date is February 27, 1940. From the date of his hire untilSeptember 12, 1941, D. was employed in production work, but for several extendedperiods he was absent because of major medical treatment, including at least twooperations. Sometime during the latter part of the period noted above, D. was told that hisattendance record was not good. D. admitted his poor attendance record but claimed that,in addition to his major medical operations and treatment, his sinus had been aggravatedby the oil spray connected with the production job he was then operating. Managementnotes that D. requested a transfer from this work to machine repair work, in which heclaimed to have had a long period of experience prior to his employment at the DetroitTransmission Division.

On September 12, 1941, D. was transferred to the machine repair department (No. 77)where he worked for approximately six weeks. During this period his attendance recordwas not good, but the major fault he evidenced in this period, Management notes, was hisinability to perform the machine repair work required at this plant. After six weeks' trial atthis work, D. was discharged "for lack of experience." The Union protests the discharge onthe ground that it was not warranted under the circumstances involved in this case.


For a period of six months prior to his transfer to machine repair work, Management notesthat D. was absent thirty-two working days, and in addition was granted a leave of absencefor approximately six weeks. When this poor attendance record was called to D.'sattention, Management indicates that it accepted his request for a transfer, and, onSeptember 12, 1941, placed him in Department No. 77 (Machine Repair) "in order that hemight have another chance to make good at Detroit Transmission Division."

The period that D. spent on machine repair work was sufficient, in Management's opinion,to indicate that he lacked the experience to do the type of machine repair work required atthis particular plant. "Accordingly," Management notes, "D. was released." For the periodof six weeks prior to his discharge, Management presented data that showed that D. wasabsent eleven days. Because of the fact that D.'s attendance record showed noimprovement in the six weeks he was on machine repair work, Management notes, "no



consideration was given to transferring the man back to production."

In discharging D. "for lack of experience," Management contends it exercised itsresponsibilities as set forth in that part of Paragraph 8, of the Agreement dated June 3,1941, that reads: "The right to hire; promote; discharge or discipline for cause; and tomaintain discipline and efficiency of employees, is the sole responsibility of the Corporationexcept that Union members shall not be discriminated against as such."

Union Position

The Union's major contention in this case is that, if Management found D. unablesatisfactorily to fulfill its requirements as respects machine repair work, he should havebeen transferred back to his previous occupation. The transfer to the machine repair job,though at the behest of D. himself, is interpreted by the Union as an indication thatManagement considered D. as a capable worker. Had he not been considered as anefficient worker, with past experience that would fit him for the machine repair work, theUnion contends Management would not have granted him the promotion. If by acceptingthat promotion, D. subjected himself to discharge through failure to make good on the job,the Union contends all other employees at this plant would rightly fear to acceptadvancements in the future. An employee has rights to his job, the Union maintains, andhe should not place those rights in jeopardy by accepting advancement to a job with whichhe is not completely familiar.

While the Union notes it does not wish to defend habitual absenteeism, it claims that D.'scase is peculiar in that a substantial medical history has resulted in absences in excess ofthe usual experience. Questioning at the hearing on this matter divulged the fact that D.had an extremely unusual medical history in the past three or four years which, in theUnion's opinion, explains D.'s relatively poor attendance record. In the six-week period D.worked on machine repairs, four of the eleven days of absence noted by Management,were claimed by the Union and D. to have been caused by the death of D.'s brother-in-lawin Toronto, Canada. Questioning at the hearing, and a study of the time cards of D., lendcredence to this latter contention. In addition to the four days thus accounted for, the Unionnotes that D. reported off sick for two other days out of the eleven, and maintains that all ofthe remaining days of absences in this period were likewise caused by illness.

Because of its contention that D. should have been returned to his former job, rather thanto have been discharged for lack of ability on the machine repair work, the Union asks thatthe discharge be invalidated, that D. be reinstated with no loss of seniority, and that he bepaid back pay for all wages lost.


A study of the rather impressive medical record of D. divulges many sources of potentialillness that can well account for a considerable part of his poor attendance record.However, while his medical record explains many of his absences, it does not explain theconsistency with which he was absent for some of the period prior to the date of histransfer to machine repair work. D.'s attendance record is not good even when theabsences explained by his medical history have been taken into account.



The shift of D. from production to machine repairs cannot be considered as a promotion,even though he received a higher rate on the latter work. It is obvious that D. requestedthis work as a means of getting away from work in which an oil spray was involved, andthat Management made the change partly with this thought in mind. The Umpire, therefore,considers the change in D.'s work in the form of a transfer rather than as a promotion.

When D. was transferred to machine repair work, it is evident that he was cognizant of hispoor attendance record. However, when the transfer to machine repair work was profferedto him there is simply no evidence that any intimation was given to him that failure to makegood on the work, or a continuation of his previous attendance record, would lead to hisdischarge.

Management has clearly indicated that D. was discharged because of his lack ofexperience in machine repair work, and because of his inability to perform many of thekinds of machine repairs required at this plant. While D. did show an intimate knowledge ofmany kinds of machine repair work, Management has supported with real evidence itscontention that he could not satisfactorily perform much of the machine repairs required inits plant. Since the discharge was enforced because of D.'s inability to do the machinerepair work, the question arises whether the discharge was "for cause," as required byParagraph 8, of the June 3, 1941 Agreement. Management has not cited D.'s attendancerecord as a cause for his discharge, but has stated that his attendance record preventedconsideration being given to transferring him back to production.

In effect, what local Management has done in this instance is to say D.'s attendance recordwas not good cause for his discharge while he remained on production, but when he failedto make good on another job, his attendance record blocked his return to his former joband made his discharge necessary. If D.'s attendance record was not sufficient cause forhis discharge while he remained on production work, it was not sufficient cause to block hisreturn to that work and indirectly to cause his discharge. If Management's action in thisinstance were to be upheld entirely, it would follow that D. pyramided the risk involved inhis attendance record by accepting the transfer, without being aware that he was exposinghimself to an additional risk.

Management has the sole responsibility of transferring employees under Paragraph 63 ofthe June 3, 1941 Agreement. Paragraph 8, of the same Agreement, grants to Managementthe right to discharge "for cause." Since the immediate cause for the discharge of D. washis inability to perform work to which he had been transferred, the Umpire is of theconsidered opinion that the discharge was not "for cause." The inability of D. to perform themachine repair work gave Management the clear right to remove him from such work, butas an employee who still held seniority in the production group, he should have beenreturned to his previous job on some other one comparable in nature. Any otherinterpretation of the Agreement would obviously cause other employees to hesitate toaccept promotions for fear that they would lose all accumulated rights if they should fail tomeet the requirements of the new job.

While it has been ruled here that D. was not discharged for cause, the Umpire is of the firmconviction that Management had real reason for disciplinary action against D., because ofhis very poor attendance record. With a view to indicating to D. the seriousness of his poorattendance record, and to emphasize the need for a distinct improvement in that record in



the future, the Umpire directs that the disciplinary action be changed from discharge to adisciplinary layoff of approximately one month beginning with the date he was informed ofhis discharge.

Employee D. is to be reinstated to the payroll at this plant as of December 8, 1941, and hisseniority shall not be affected. Any loss in wages that D. may have suffered betweenDecember 8, 1941, and December 30, 1941 (when he obtained employment at a rate ofpay higher than he had received at this plant) shall be made up in the form of back pay inaccordance with Paragraph 50 of the June 3, 1941 Agreement. Payment shall be made forthis period, however, only for the days that D. would have received work in keeping withhis seniority date. If D.'s hiring seniority date now entitles him to a production job he shall,within two weeks of the date of this decision, be offered a job comparable in rate to thatwhich he previously held in production work. If his seniority date does not entitle him torecall at the present time, he shall be offered a job as soon as his seniority would so entitlehim, under the terms of the seniority agreement in effect at this plant. Because of thecircumstances involved in this case, the Umpire directs, further, that if D. does not acceptrecall as noted above, Management shall terminate his employment as a "quit," as ofDecember 30, 1941.

Decision

1. The discharge of Employee D., for failure to fulfill the requirements of themachine repair job to which he was transferred, was to a great extent, a misuseof local Management of the Corporation's right to discharge for cause.

2. Because of his very poor attendance record, Employee D. is held subject toa disciplinary layoff from the date of his improper discharge to December 8,1941.

3. Employee D. is to be reinstated on the payroll as of December 8, 1941,without loss of seniority, and is to receive back pay for any wages lost up toDecember 30, 1941, as directed in the body of this decision.

4. Within two weeks of the date of this decision, or at the proper time in thefuture if his seniority does not entitle him to recall on that date, D. shall beoffered a job comparable in rate to his previous production job. Failure toaccept such a job shall result in the termination of his employment as a "quit,"as of December 30, 1941.


UMPIRE.

March 31, 1942.





No. B-138

April 10, 1941

Disciplinary Layoff

GRIEVANCE:

Saginaw Malleable Iron -- Case B-11

"Arbitrary enforcement of shop rule No. 8. I ask that I not be given time off under the aboverule."

Umpire's Decision:

1. Shop rule No. 8 at this plant, which requires employees to call in or report bylunch time of the shift on which an absence occurs, has been in effect for sometime, and has been qualified only to extent of recognizing the need to applysuch rule with proper recognition of the extenuating circumstances that may beexistent in any particular case.

2. No compelling reasons have been advanced for H.'s failure to notify the plantwithin the time required by the rule here noted. The imposition of a two-daypenalty against H., therefore, represented a proper application of the rule herequestioned. The Union's request for the reimbursement of H. for the two-daylayoff is denied. (Entire Decision should be read)

In the Matter of:


and

General Motors Corporation -- Saginaw Malleable Iron Division – Case B-11


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\b-138_13C09FEE.htm

On December 17, 1941, Employee H. presented a grievance which read: "Arbitraryenforcement of shop rule No. 8. I ask that I not be given time off under the above rule." Ahearing on this matter was held in Flint on March 26, 1942.

Nature of Case

On December 11, 1941, Employee H. found it necessary to be away from his job and failedto call in before his lunch hour. Management held that this failure to call was a violation ofshop rule No. 8 which reads: "Failure to call in or report by lunch time of shift on whichabsence occurs. (Two days to discharge.)" As a result, Management assessed theminimum penalty of two days' layoff against H., but the Union objected to this penalty onthe grounds that a representative of Management, as late as June 10, 1941, stated that, "ifa man called in any time during his shift, rule No. 8 would be considered complied with."The Union contends that inasmuch as H. called in during the afternoon of the shift fromwhich he was absent, he complied with the interpretation of rule No. 8 as advanced by amember of supervision.

Union Claim

The Union notes that the excerpts of a meeting held between Management and the ShopCommittee on June 10, 1941, in which the content and application of rule No. 8 wasdiscussed, show that the presiding representative of Management made the statement:"We have thrashed that over and have been agreed that as long as the man calls in on hisshift it will be O.K." The Union holds that this statement represents a qualification of ruleNo. 8 that must continue to be operative unless specifically changed through negotiationsbetween Management and the Shop Committee. The Union contends, therefore, that thereis a definite misunderstanding between Management and the Shop Committee as to whatrepresents compliance with shop rule No. 8.

The Union notes that the circumstances in this case are almost identical with thoseconsidered by the Umpire in Decision B-45, in which it was ruled that Management's actionrepresented such a rigid enforcement of the rule that back pay was awarded to theemployee involved. In the present instance, the Union states that H. attempted to informthe Company of his absence, although he called in at 12:20 P.M., just 20 minutes laterthan noted in the rule. The Union insists that Management in this particular instance failedto consider that if the rule as written was violated, it was rather a technical infraction.

The Union notes that since Management has insisted on an exact interpretation of rule No.8 as written, it has made several proposals to change the rule. One of these proposals wasto incorporate what the Union considered a modification of the rule by a representative ofManagement on June 10, 1941, namely, to permit employees to call in any time duringtheir respective shifts. When Management objected to this change in the rule, the Unionfurther notes that it proposed that the rule be changed to read: "reprimand -- first offense;two days' layoff -- second offense." After failing to reach an agreement on any of theseproposals, the Union still further notes that it "asked that some discretion be used in



enforcing the rule."

To settle the instant dispute, the Union requests that the Umpire recognize the statementwhich the Union claims was made by a representative of Management on June 10, 1941,as an effective qualification of rule No. 8, and that this decision be made the vehicle for afinal ruling on the content and interpretation of that rule. Finally, the Union asks that H. bereimbursed for the two-day disciplinary layoff on the grounds that this layoff resulted fromManagement's arbitrary position in regard to Rule No. 8.


Management notes that the shop rules at this plant have been in effect for several years,are posted in conspicuous places throughout the plant, and that every employee has beengiven a copy of these rules as recently as June 27, 1941. Management contends that sinceH. did not call in by his lunch hour, and presented no extenuating circumstances inexplanation of his failure to comply with rule No. 8, it was quite proper to invoke theminimum penalty of a two-day layoff. The shop rules in effect at this plant, Managementstates, "have existed for some time as one of the means of enabling Management tomaintain the efficiency and proper attendance of employees." The particular rule here inquestion is claimed by Management to be in no sense a violation of any provision of theJune 3, 1941 Agreement.

Decision B-45 is cited by Management as evidence that the Umpire has considered ruleNo. 8, and has interpreted it as being in full force and effect as written. The findings in thatdecision are reasoned by Management to support the rule here questioned, and to noteonly that the rule should not be applied so rigidly as to fail entirely "to give proper weight tothe extenuating circumstances of the case."

Observation and Decision of the Umpire

The entire history of rule No. 8 at this plant is replete with evidence of attempts to enforcethe rule with a recognition of the fact that existing circumstances may make it impossiblefor a particular employee to notify the plant of his absence within the exact time provided inthe rule. In Decision B-45 there was noting cited as to the content of the rule itself, but itwas particularly stressed that the rule had been applied in the past with full recognition ofextenuating circumstances of each individual case.

The Union has noted that a representative of Management on June 10, 1941, made astatement which it claimed changed the content of the rule and waived the necessity foremployees to call in by lunch hour. The Umpire wishes to note the complete question andanswer that concerned this matter, to indicate the full meaning of the statement ofManagement's representative. The excerpts of the meeting between Management and theShop Committee held on June 10, 1941, show that Committeeman F. asked the followingquestion concerning rule No. 8: "Isn't this the rule: If an employee lays off and does not callin before noon and does not have a satisfactory reason for laying off he is given two days



off?" To this question a representative of Management replied: "I think so. We havethrashed that over and have been agreed that as long as the man calls in on his shift it willbe O.K."

The question as placed by Committeeman F. did not seek approval of a change in the rulefrom that which was written, but was directed toward an understanding as to its application.The question of Committeeman F. specifically included a recognition of the need to call inby lunch time, and the affirmative answer to that question indicated approval of theCommitteeman's interpretation of the rule including the need to call in by lunch time. Thesecond part of the answer, when directed to the question as placed, can mean only that anexplanation of extenuating circumstances that prevented an employee from calling in byhis lunch time, if advanced some time during his shift, will be accepted by Management asa reasonable fulfillment of rule No. 8. There was absolutely no agreement to waive therequirement that employees call in by lunch time. The Umpire is of the firm conviction,therefore, that rule No. 8 is still effective as written, and that Management has only agreedto qualify that rule to the extent of applying it in recognition of the particular circumstancesinvolved in each particular case.

The requirement that an employee call in by lunch time on the days he must be absent isstill in effect, as is the penalty for failure to abide by that requirement. However, as notedabove, there has been agreement that the rule will be applied in recognition of thecircumstances surrounding each particular case. By its request in this case, the Union isreally seeking to have the Umpire change rule No. 8 to a form that it has beenunsuccessful in getting Management to agree to for some time past. The Umpire obviouslyhas no right to change the rule in question, nor can he reinterpret it in a manner that wouldmake that part of the rule requiring calling in by lunch time entirely inoperative. The twoparties have been unable to agree on a change in the rule, and the Umpire's positioncannot be used to force such an agreement on either party.

In the particular case of H. cited in this grievance, no compelling reasons have beenadvanced for his failure to call in by his lunch time. The only explanation made was that heunderstood the rule to mean that he would call in any time during his shift. Ignorance of therule, or of its full content, cannot be supported as an extenuating circumstance for H.'sfailure to call in by lunch time on December 11, 1941. In the absence of reasonablequalifying circumstances, the two-day disciplinary layoff imposed on H. represented properapplication of rule No. 8. The Union's request for the reimbursement of H. for the two-daylayoff, therefore, must be denied.

Decision

1. Shop rule No. 8 at this plant, which requires employees to call in or report bylunch time of the shift on which an absence occurs, has been in effect for sometime, and has been qualified only to the extent of recognizing the need to applysuch rule with proper recognition of the extenuating circumstances that may beexistent in any particular case.

2. No compelling reasons have been advanced for H.'s failure to notify the plant



within the time required by the rule here noted. The imposition of a two-daypenalty against H., therefore, represented a proper application of the rule herequestioned. The Union's request for the reimbursement of H. for the two-daylayoff is denied.


UMPIRE.

April 10, 1942.





No. B-204

August 28, 1942


GRIEVANCE:


"Violation of Paragraph 63 of June 1941 Agreement. Not giving seniority enoughconsideration in promoting job setter."

Umpire's Decision:

1. The factors of ability, merit and capacity of available employees were notgiven proper consideration in the selection of W. as a job setter. The limitationof the choice for promotion to the employees on a single shift within onedepartment also caused the selection to have been questionable as respectspast practice.

2. The promotion of W. was not in conformance with Paragraph 63 of the June3, 1941 Agreement, and his position as a job setter shall be considered asvacant as of September 15, 1942. The job shall then be filled in a mannercomplying with Paragraph 63 of the Agreement, but without consideration of theexperience gained by W. as a job setter in the interim. (Entire Decision shouldbe read)

In the Matter of:


and


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General Motors Corporation -- Pontiac Motor Division -- Case B-79

On March 13, 1942, Employee R. presented a grievance which reads: "Violation ofParagraph 63 of June 1941 Agreement. Not giving seniority enough consideration inpromoting jobsetter." A hearing on this grievance was held in Detroit on August 20, 1942.

Nature of Case

On March 13, 1942, Employee W. was promoted to the position of a jobsetter inDepartment 460 of the Pontiac Motor Division. Employee R. presented the instantgrievance claiming that the promotion was made without full consideration of the factors ofability, merit, capacity and seniority as required by Paragraph 63 of the June 3, 1941Agreement. Initially the grievance was discussed only as respects Employee R., but at thelater steps of the grievance procedure consideration was given by both parties to otheravailable employees in the same group and department. The Union contends thatManagement did not give proper weight to the correct determining factors for a sufficientlylarge number of men to arrive at the decision to promote W. to the jobsetter vacancy. TheUnion requests, therefore, that this job be declared vacant, and that it be filled with properconsideration of the factors included in Paragraph 63 of the Agreement.

Union Contention

When the General Foreman of the department concerned in this promotion was asked by arepresentative of the Shop Committee as to how the jobsetter was selected, the Unionstates the foreman replied that, "as long as he picked what he considered the best manthat seniority was not a factor to be considered." Under such a procedure, the Unioncontends that the foreman merely picks out who he thinks is the best man, and noconsideration is given to other men whose ability, merit and capacity may be approximatelyequal to that of the promoted man. In the present instance, the Union strongly urges that atleast a half dozen men in the group in which W. worked were equal to W. in ability, meritand capacity. It contends that any one of these six men should have been promoted inpreference to W. because they were equal to him in ability, merit and capacity, and inaddition had greater seniority. To support its contention in this particular, the Unionpresented data which showed that in W.'s department, out of a total of twenty-eight men ofgreater seniority than W., twenty-five had more machine experience than W. The Unionfurther notes that five of these men were transferred to Department 460 before W., andseven more of them were transferred in the same month as W. Four or five of the mencited by the Union as having much greater machine experience than W. (in severalinstances three to four times as great) are noted as having a much wider variety ofexperience than W. as respects the types of machines operated.

The abilities of particular employees in the group in which W. worked were cited by theUnion to support its conclusion that Employee W. did not stand "head and shoulders"above his group, but was merely a good worker who was approximately equal to at least ahalf dozen other available employees. Management's claim that W. worked on virtually



every machine in his group finds little objection from the Union (hones, jobbers and deephold drills are set up by the operators), but it does maintain that on several machines thiswork by W. involved nothing more than a few hours that he was employed as a helper. Thetime spent by this employee in the new department (#460) is contended by the Union tohave been insufficient to warrant the weight attributed to it by Management as a majorpoint in the selection of W. for promotion.

A further contention of the Union in this instance is that Management did not consider asufficiently large number of men as available for the promotion to jobsetter. Only the menin a small group and on one shift were given any consideration, the Union maintains, andout of a total of 135 men in the department, only seven of the 47 on the same shift as W.were given any consideration whatsoever. By limiting the selection to such a small group ofemployees on a single shift, the Union claims that Management did not follow the practiceit had adopted in several past promotions by extending selection beyond a singledepartment and shift (Decision B-55).


Management points out that W. was employed in that part of Department 460 supervisedby Foreman R., and that since the jobsetting vacancy occurred in that area, the mensupervised by Foreman R. were the first considered. Since these men had the bestknowledge of the machines to be set up in that area on that shift, Management states that,"Supervision reviewed the ability, merit and capacity of these employees and determinedthat W. was the best qualified of any employee in the group."

Employee W. is noted by Management as having been one of the first fourteen employeesassigned to Department 460 (he was assigned on August 22, 1941), and in additionManagement points out that he worked in the particular group where the jobsetter vacancyexisted longer than any other employee. Furthermore, Management urges that, "he haddisplayed considerable aptitude for machine work and possessed the ability to move fromone machine to another with a minimum amount of training and break-in time on newoperations." Because of his adaptability, Management states he was used on various jobsand has operated practically all of the machines in the department. His versatility andability as a machine operator is contended by Management to be evidenced by severalsituations in which he was able to produce much greater quantities of various war productsthan other men in his group.

While Management admits that all promotions are not necessarily made within a particulardepartment and shift, it contends that most promotions are made in this manner at thisplant. In W.'s department and shift, Management notes that W. was forty-seventh in line ofseniority as of March 13, 1942, but that 40 of the men who preceded him on the senioritylist had been in the department less than three months when W. was promoted. (EmployeeW. had been in Department 460 for a trifle less than seven months at the time of hispromotion.) Within the particular group and shift in which W. was working at the time, then,Management contends no one had demonstrated their ability to fulfill the duties of thejobsetter on the particular machines there in place as conclusively as had Employee W.

Management urges that the Shop Committee at this plant has always contended thatseniority is the primary element to be considered in advancing employees to higher rated



jobs. In this connection, Management observes, "The Committee has frequently stated...that Management should start at the top of the seniority list and ask each employee in theorder of his seniority whether or not he wants the available higher rated job." Managementargues that it is not obliged to select the employee with the longest service who is capableof doing the job. Such a conclusion is unwarranted, claims Management, and is notsupported by any past decision of the Umpire. Management points out that it has alreadybeen ruled that seniority only becomes an element for consideration in the advancement ofemployees when ability, merit and capacity are equal. The evaluation of the ability, meritand capacity of W. is concluded by Management to have placed him "head and shoulders"above those in his group and on his shift, and to have warranted his promotion within themeaning of Paragraph 63 of the June 3, 1941 Agreement.


The promotion of W. in this case must be considered in conjunction with Paragraph 63 ofthe Agreement dated June 3, 1941. This paragraph reads in part as follows:

"(63) The transferring of employees is the sole responsibility ofManagement. In the advancement of employees to higher paid jobswhen ability, merit and capacity are equal, employees with thelongest seniority will be given preference."

If the local Union has taken any position of the nature cited by Management, to the effectthat the employee of greatest seniority who is capable of fulfilling a particular job andwishes to try for the job should be promoted, it disregards entirely the wording ofParagraph 63, and the several decisions which have been issued interpreting thatparagraph. The first factors that must be considered are the ability, merit and capacity ofparticular employees. If an evaluation of those combined factors does not result in thedetermination of one employee as standing "head and shoulders" above the rest, then pastdecisions have already indicated that the employees whose ability, merit and capacity aredetermined to be approximately equal may be grouped together, and from this group theemployee with the greatest seniority should be promoted. It is only through such aprocedure that proper weight can be given to seniority.

The promotion of W., since there was no grouping of employees of approximately thesame ability, merit and capacity, can only be held to have been in conformance withParagraph 63 of the Agreement, if W. clearly stood "head and shoulders" above all otheremployees who should have been considered available for the promotion.

One factor which apparently weighed very heavily in the selection of W. for promotion wasthe small amount of extra time he had spent in Department 460 over other men who weretransferred to this new Department a month or two later. This additional time permitted W.to gain brief experience on the operation of most of the machines in his group, but it isnoted that this experience in several instances extended no further than to allow for acursory knowledge as to how a particular machine operated. It would seem, therefore, thatthe few weeks of additional experience of W., plus his ability to secure considerableproduction on a few machines, was used by supervision as the determinants for W.'s



promotion. There is little evidence of any real evaluation of other factors such as length ofmachine experience, variety of machines operated, productive ability on machinesoperated prior to the production of war materials, etc. Without an evaluation of such factorsfor the available employees, it is difficult to see how any real attention could have beenpaid to the elements of ability, merit and capacity as is required by Paragraph 63 of theAgreement.

Still another shortcoming in the promotion of W. was the limitation of the number of menwho were considered by Management as available for promotion to jobsetter. While thenewness of the Department may have indicated the advisability of limiting the selection tothe men who had worked in this Department, there is little to support the limitation to aparticular shift. Such a limitation is not entirely in conformance with past practice, andleads to the conclusion that, in making its selection, supervision looked no further after theforeman had decided that a particular employee on the shift he supervised was qualified tofill a job available on that shift. In the limitation of the selection to a small group ofemployees on a single shift, then, Management failed to make the choice of an employeefor promotion in a proper manner.

The available evidence causes the Umpire to conclude that the promotion of W. was notmade with proper consideration to the factors of ability, merit and capacity of availableemployees, and the selection was incorrectly limited to employees on a single shift. Itseems quite evident that W. did not stand "head and shoulders" above all of theemployees who should have been considered available for promotion to jobsetter. It mustbe held, therefore, that the promotion of W. was not in compliance with Paragraph 63 ofthe June 3, 1941 Agreement.

While the Umpire cannot determine who should have been promoted in the place of W.,since the element of choice rests only with Management, proper compliance withParagraph 63 can be effectuated by the selection by Management of several men on all ofthe three shifts in Department 460, whose ability, merit and capacity are considered asapproximately equal. From this group, Management can then select the man with thegreatest seniority for promotion, and can thereby fulfill the requirements of Paragraph 63.The position of jobsetter held by W. shall be considered as a vacancy on September 15,1942, and shall be filled in a manner to conform with Paragraph 63. In so doing, however,no weight shall be given to W.'s experience as a jobsetter that he has gained since thedate of his improper promotion.

Decision

1. The factors of ability, merit and capacity of available employees were notgiven proper consideration in the selection of W. as a jobsetter. The limitation ofthe choice for promotion to the employees on a single shift within onedepartment also caused the selection to have been questionable as respectspast practice.

2. The promotion of W. was not in conformance with Paragraph 63 of the June3, 1941 Agreement, and his position as a jobsetter shall be considered as



vacant as of September 15, 1942. The job shall then be filled in a mannercomplying with Paragraph 63 of the Agreement, but without consideration of theexperience gained by W. as a jobsetter in the interim.


UMPIRE

August 28, 1942





No. B-265

FEBRUARY 10, 1943

Promotion Under Paragraph 63

GRIEVANCE:

Chevrolet Flint -- Case B-236

"Group charge Management with violation of National Agreement, Paragraph 63, in thetransferring of men to armor plate welding. Request this violation be stopped and menaffected be paid all pay due them due to this violation."

Umpire's Decision:

1. The claim of Employee W.M. that he should have been advanced to theposition of Welder Leader instead of Employees L.H. and J.M. is without meritinasmuch as it does not represent timely presentation of his grievance. If anyclaim existed on the part of W.M., it should have been filed at approximately thetime that these two other employees were placed in training for the WelderLeader classification.

2. On August 26, 1942, the date of the instant grievance, Employees L.H. andJ.M. had been assigned to the Welder Leader classification for almost onemonth. Though they undoubtedly possessed greater ability, merit and capacitythan did Employee W.M. to fulfill the Leader classification on that day, theopportunity of W.M. to claim that he possessed approximately equal ability,merit and capacity to these two men no longer existed because of the lapse offour months in the filing of his grievance. His request for assignment to theWelder Leader classification, together with his claim for back pay are denied.(Entire Decision should be read)

In the Matter of:


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and

General Motors Corporation -- Chevrolet-Flint Division -- Case B-236

The grievance in this case, which was initiated as a group grievance on August 26, 1942,reads as follows: "Group charge Management with violation of National Agreement,Paragraph 63, in the transferring of men to armor plate welding. Request this violation bestopped and men affected be paid all pay due them due to this violation." This grievancewas signed by Employee W.M., but through the various steps of the grievance procedure ithas been argued only as respects Employee W.M.'s claim that he should have beenpromoted to a welder leader classification instead of Employees L.H. and J.M. Aspresented to the Umpire, then, the grievance is confined entirely to the question of the rightof Employee W.M. to promotion in the place of these two other employees. A hearing onthis matter was held in Flint on January 15, 1943.

Nature of Case

Early in 1942, Management of the Chevrolet-Flint Division found it necessary to set up aplan for the training of a group of supervisors, leaders, and welders to perform productivewelding operations on a new war product. The records of all employees in the Press MetalDepartment were studied, and groups were selected on the basis of their ability and pastexperience for training as potential foremen and leaders for the new welding operation.The men who were selected as potential foremen and leaders (including L.H. and J.M. butexcluding W.M.) began their training in welding. Early in April, 1942, additional employeeswho had been selected from applications for welding jobs were placed in training aspotential productive welders. Employee W.M., who was one of this group, began histraining on June 23, 1942.

The employees who had been selected as potential foremen, leaders and welders finishedtheir welding training at various times and many of them were placed in other jobs pendingthe beginning of productive welding. On August 3, 1942, the particular war productrequiring the use of the new welders was placed in production and a group of the men whohad been trained as potential foremen and leaders (these men had been performingexperimental welding from the date they qualified as welders) were placed in a newclassification of "Welder Leaders" to begin the productive operations. Later, other menwere placed in the leader classification and still other newly trained welders were placedon regular production welding work. On August 26, 1942, Employee W.M. filed the presentgrievance, but not until October 13, 1942, was it made clear that he was protesting thepromotion of Employees L.H. and J.M. to the leader classification that had beeneffectuated on August 3, 1942. In presenting the instant grievance, then, the Union takesthe position that Management failed to give proper recognition to the relative ability, meritand capacity of Employee W.M. as compared to these two other employees when itpromoted these employees to the leader classification.

Union Claim



The Union's major contention in this case is that inasmuch as all of the men who wereplaced on the welding work were trained at about the same time they should all have hadapproximately the same relative ability, merit and capacity. If this contention is supported,as the Union believes it should, the Union reasons that promotions to the leaderclassification should have been made entirely on the basis of seniority. Any additionaltraining that may have been given to the men who were considered as potential leaders isreasoned by the Union to have been training which should have been made available tothe welders on the basis of seniority since they all had approximately the same ability,merit and capacity as welders.

In particular, the Union insists that Employee W.M. should have been considered aspossessing the same relative ability, merit and capacity as Employees L.H. and J.M.because of the fact that he had experience as a leader from 1931 to 1934. The versatilitywhich W.M. showed in the many jobs which he held from 1934 to 1942 is cited by theUnion as an additional reason why he should have been selected for promotion to theleader classification over and above the two other employees. It is the Union's contention,then, that Employee W.M. had at least the same ability, merit and capacity as EmployeesL.H. and J.M., and that his greater seniority should have entitled him to promotion to theleader classification. Though the original claim sought back pay for all of the men affectedby what the Union claimed was a violation of Paragraph 63 in the promotion of all leaders,the instant grievance as presented to the Umpire has been limited to the case of EmployeeW.M. in such a manner that the claim for back pay can apply only to his individual case.


Management maintains that it gave proper consideration to the relative ability, merit andcapacity of all the employees in the Press Metal Department whose records indicated anywelding experience, potentiality for welding work, or leader qualifications. The firstselection of men to be trained for welding, Management states, was made from amongthese men whom Management felt showed the greatest ability, merit and capacity tobecome leaders in the welding classification. Later, when many of the men had completedtheir welding training, Management contends that it again gave particular attention to therelative ability, merit and capacity of the various individuals who were placed in the leaderclassification. Had it followed the Union's suggestions that promotions to the leaderclassification be based only upon the seniority dates of the employees who had finishedtheir training as welders over a short interval of time, Management reasons that it wouldhave disregarded entirely the need for leadership ability. To have judged all employeessolely on their ability to weld would, in Management's opinion, have been to give absolutelyno consideration as to their relative abilities, merits and capacities to fulfill the positions ofleaders.

Inasmuch as the National Agreement does not provide for promotions to higher rated jobson the basis of seniority alone, but rather on the basis of seniority when ability, merit andcapacity are equal, Management reasons that its promotion of Employees L.H. and J.M.does not represent a violation of the Agreement. It is Management's strong contention thatthe relative ability, merit and capacity of Employees L.H. and J.M. to fill the job of welderleaders far exceeded that of Employee W.M. Employee W.M. was transferred toproduction welding in line with his seniority from among those men who had qualified asproductive welders, Management notes, but he was not promoted to the position of a



leader for the reasons that he has never held the position of leader and has not shown thecapacity or ability to assume real responsibilities.


Paragraph 63 of the June 3, 1941 Agreement has been the subject of many decisions ofthe Umpire in the "B" series. It is hardly necessary at this late date to state again thatseniority is only a factor in promotion to a higher paid job when the ability, merit andcapacity of a group of employees available for that job are considered to be relativelyequal. In the present case the only point on which the Umpire can rule is whether or notthe relative ability, merit and capacity of Employee W.M. was approximately equal to thoseof Employees L.H. and J.M. If such were found to be the case, it would only then bepossible to hold that the greater seniority of Employee W.M. entitled him to promotionbefore the other two employees.

If Employee W.M. had any real claim in this case it should have been made early in 1942when employees were selected for training in the welding classification. If he felt his ability,merit and capacity were equivalent to the two men to whose job he now lays claim, itseems clear that he should have made his claim known at the time these men wereselected for training in the welding operation. Of course, such a claim could only havegained merit had the welding classification carried a rate that would have represented apromotion for him and for the men to whose jobs he lays claim.

When Employees L.H. and J.M. were selected in April, 1942, to be trained as welderleaders, Management apparently made its choice on the basis of the relative ability, meritand capacity of these men as compared to other applicants. Had Employee W.M. felt thathe was improperly treated in that selection he should have made his claim known at thattime. By his failure to press his claim, these two employees had been in training forapproximately two months before Employee W.M. began productive welding, and both ofthem had already qualified as welders at about the time that W.M. entered the weldingtraining program. By September 15, 1942, when W.M. began productive welding, thesetwo men already had approximately five months' experience as welders and wereobviously far above him in ability, merit and capacity to do the welding task. Their positionsas welder leaders were then firmly entrenched, and it is difficult to conceive how EmployeeW.M. could claim on August 26, 1942, that he should have been given one of the jobs forwhich the two men had completed their special leader training and had such a relativelylong period of experience (as a welder and a leader).

All of the available evidence in this case leads to the conclusion that on August 26, 1942,when Employee W.M. presented the instant grievance, the position of welder leader hadbeen held by Employees L.H. and J.M. for almost one month and that these twoemployees had already had an excess of four months' training and experience as welders.On that date, Employee W.M. had only qualified as a welder and had not done anyproductive welding. Since Employee W.M. raised no objection in April, 1942, when thesetwo other employees were first given training as potential welder leaders, the claim he filedin late August is certainly not a timely presentation of his individual grievance. On August26, 1942, Employee W.M. had absolutely no claim to the jobs held by Employees L.H. and



J.M. inasmuch as he had failed to lay claim to such jobs at the time the two men were firstplaced in training for the welder leader job. His request for assignment to the WelderLeader classification and for back pay, therefore, must be denied.

Decision

1. The claim of Employee W.M. that he should have been advanced to theposition of Welder Leader instead of Employees L.H. and J.M. is without meritinasmuch as it does not represent timely presentation of his grievance. If anyclaim existed on the part of W.M., it should have been filed at approximately thetime that these two other employees were placed in training for the WelderLeader classification.

2. On August 26, 1942, the date of the instant grievance, Employees L.H. andJ.M. had been assigned to the Welder Leader classification for almost onemonth. Though they undoubtedly possessed greater ability, merit and capacitythan did Employee W.M. to fulfill the Leader classification on that day, theopportunity of W.M. to claim that he possessed approximately equal ability,merit and capacity to these two men no longer existed because of the lapse offour months in the filing of his grievance. His request for assignment to theWelder Leader classification, together with his claim for back pay, are denied.

Signed G. ALLAN DASH, JR.

Umpire

February 10, 1943.





B-271

FEBRUARY 20, 1943

Layoff of Temporary Employees

GRIEVANCE:

Electro-Motive -- Case B-18

"I have worked for 5 months. I was laid off Friday on ground of curtailing production. Manymen with as little as 1 or 2 months service are still working while I have been laid off. I feelthat I have been unjustly discriminated against and demand that I be rehired at least untillayoffs affect men with 5 months service or more."

Umpire's Decision:

1. No provision of the June 3, 1941 Agreement applies seniority rights totemporary employees. By the very nature of the Agreement, temporaryemployees do not gain such rights until they have completed six months'service. Since Employee A. had only five months' service, seniority rights onlayoff were not applicable to him.

2. No claims of personal prejudice or discrimination for Union activity inconnection with the layoff of Employee A. have been made. Since he had noseniority rights in connection with such layoff, his entire claim in this mattermust be denied. (Entire Decision should be read)

In the Matter of:


and


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General Motors Corporation -- Electro-Motive Division -- Case B-18

On October 17, 1942, Employee A. presented a grievance which read: "I have worked for 5months. I was laid off Friday on ground of curtailing production. Many men with as little as1 or 2 months service are still working while I have been laid off. I feel that I have beenunjustly discriminated against and demand that I be rehired at least until layoffs affect menwith 5 months service or more." A hearing on this matter was held in Chicago on January21, 1943.


Due to a curtailment of work in the Locomotive Division at this plant in October, 1942,transfers of seniority employees resulted in the layoff of a number of temporary employees.Employee A., one of these temporary employees, had been working approximately fivemonths at the time of his layoff. When A. was laid off, a number of employees doing workhe felt capable of performing, and who had worked for periods much shorter than he, werestill employed. The Union contends in his case, therefore, that he should not have beenlaid off until all other men with less service at this plant had been laid off.

The Union's major contention here is that, within the group of temporary employees, "theprinciples of seniority should equally obtain". It is the Union's feeling that a temporaryemployee should continue to work, at jobs he is capable of performing, until all personswith a shorter service record have been laid off. In accordance with Paragraph 56 of theJune 3, 1941 Agreement, the Union reasons that Employee A. should not have been laidoff, and requests that he be granted compensation for all time lost by reason of his layoff.

Management lays particular emphasis on the fact that no charge accompanied by writtenevidence has been made in support of the original allegation that there was discriminationagainst the employee for any kind of activity. In the absence of such evidence,Management reasons that Paragraph 56 of the June 3, 1941 Agreement does not requirethat the temporary employees be laid off according to length of service, and does notextend to such temporary employees the rights given by the Agreement to employeespossessing seniority. For this reason, then, Management maintains there was no obligationto retain Employee A. in a job until all other employees with less than five months' servicehad been laid off.


The only means by which Employee A. could have supported his claim of improper layoffin this instance is to have presented clear and unmistakable evidence that there waspersonal prejudice, or discrimination for Union activity, in connection with his layoff. Therehas been no such material presented in written form in this case, nor has any suchevidence been referred to in the final step of the grievance procedure. For this reason, the



part of A.'s claim that originally alluded to discrimination has no basis in fact.

The remainder of the Union's claim in this case is that Employee A. should have hadseniority rights in his layoff, and that all other employees with less than five months' serviceshould have been laid off before him. There is simply nothing in the Agreement which canbe cited as extending seniority to employees who do not possess seniority until they havebeen employed for a period of six months. To do so would be to extend to temporaryemployees the seniority provisions of the National Agreement, at least insofar as layoffsare concerned. Since no provision of the June 3, 1941 Agreement gives any seniorityrights to temporary employees, there was no obligation on the part of Management toretain A. until all other temporary employees with less than five months' service had beenlaid off. Employee A.'s entire claim is denied.

Decision

1. No provision of the June 3, 1941 Agreement applies seniority rights totemporary employees. By the very nature of the Agreement, temporaryemployees do not gain such rights until they have completed six months'service. Since Employee A. had only five months' service, seniority rights onlayoff were not applicable to him.

2. No claims of personal prejudice or discrimination for Union activity inconnection with the layoff of Employee A. have been made. Since he had noseniority rights in connection with such layoff, his entire claim in this mattermust be denied.


Umpire

February 20, 1943.





No. C-4

February 9, 1943

Protest of Disciplinary Action

GRIEVANCE:

Saginaw Steering Gear—Case C-8

"I was given 3 days leave of absence from work to go deer hunting by my foreman. I wasabsent one day over my leave. When I reported for work with a reasonable alibi I was told Iwas a voluntary quit, and as such was cleared out. I asked for a committeeman and wasdenied that also. I therefore claim violation of Par. 113-75 and 121-b. I ask that I bereturned to work, and be reimbursed for all lost time."


1. The complete loss of seniority standing as a disciplinary action assessedagainst Employee M. for leaving the plant one week prior to the time he wasexcused to go deer hunting, is considered as too severe a penalty for the actioninvolved. A member of supervision is largely responsible for M.’s belief that hewould be subjected only to a disciplinary layoff if he failed to comply withManagement’s instructions in this matter.

2. Employee M. is held subject to a disciplinary layoff and to a partial loss ofseniority, because of his utter disregard of Management’s orders, together withthe advantage which he took of Management’s unsolicited attempt to grantleave to deer hunters.

3. The period that elapsed between the date a "voluntary quit" notice was sentto Employee M. and the day he resumed work, is held to have been a properdisciplinary layoff. His penalty for his act shall be considered complete by anadjustment in his original seniority date to the extent of the number of days ofthat disciplinary layoff. (Entire Decision should be read)

Page 1 of 5UMPIRE DECISION C-4

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In the Matter of:

United Automobile Workers of America—C.I.O.—Local 434

and

General Motors Corporation—Saginaw Steering Gear Division—Case C-8

The employee grievance in this case, which was presented by Employee M. on November19, 1942, reads as follows: "I was given 3 days leave of absence from work to go deerhunting, by my foreman. I was absent one day over my leave. When I reported for workwith a reasonable alibi I was told I was a voluntary quit, and as such was cleared out. Iasked for a Committeeman and was denied that also. I therefore claim violation of Par. 113-- 75 and 121-b. I ask that I be returned to work, and be reimbursed for all lost time." Ahearing on this matter was held in Saginaw on January 13, 1943.

Nature of Case

Past experience during the Michigan deer hunting season led Management of the SaginawSteering Gear Division to believe that steps would be necessary to cope with anabnormally high rate of absenteeism. For this reason, plans were formulated by whichemployees were excused for several days to go hunting, but these plans did not enable allemployees to leave at the beginning of the season. Employee M. was excused for thedates of November 21, 22, and 23, 1942, to go deer hunting, but he absented himself fromthe plant on November 14, 15, 16, and 17, 1942, so that he could start his hunting at thebeginning of the deer season.

At the end of the shift on November 17, 1942, Management sent M. a letter informing himthat he was a "voluntary quit without notice" for being absent for three working dayswithout proper notice. Management offered to return him to his job, but did so with thestipulation that his seniority would be broken. The Union protests this action asrepresenting discipline far in excess of that warranted by the circumstances, and requeststhat M. be reinstated in his job with his previous seniority standing. It is noted that anoriginal request for back pay for the time lost, together with other charges included in theoriginal grievance, have been dropped by the Union through the steps of the grievanceprocedure. The only recent request of Union has been that M.’s seniority be reinstated.

Union Claim

When Employee M. was told that he would not be granted time to go deer hunting untilNovember 21, 1942, the Union observes that he discussed the matter with his foreman"from the point of view of determining the possible penalty" if he should go hunting at thebeginning of the deer season. In this connection, it is claimed by the Union that theforeman indicated that a disciplinary layoff would undoubtedly be invoked against M., andthat M. left at the beginning of the deer hunting season with full cognizance that he would



be subject to a disciplinary layoff for his act. The expectation that Management would actleniently in this case is reasoned by the Union to have arisen from the fact that M.’sdepartment had been working on a seven-day week basis for a considerable period oftime.

In the Union’s opinion, Management was aware of Committeeman M.’s intention to absenthimself from the plant on November 16, and 17, 1942.

In fact, the Union claims that M. informed three different members of supervision onseparate occasions that he intended to go deer hunting on November 15, 1942. Though itagrees that he should have been subjected to a disciplinary layoff for such an act, theUnion does not feel that disciplinary action should have taken the extreme form of a loss ofseniority. Furthermore, the Union contends that M.’s absence on November 14, 1942, wasoccasioned by the loss of time which he experienced in getting his car repaired at a localgarage. His absence on November 15, 1942, is claimed by the Union not to haverepresented the loss of a regular work day, because of the fact that it was a Sunday, andhis job was not necessarily to be operated on that day. In conclusion, the Union contendsthat the loss of income which Employee M. suffered through his act should be a sufficientpenalty, and requests that his seniority date be re-established as of its original date.


Management observes that it made every effort to establish some plan wherebyemployees at this plant, who were interested in deer hunting, would have an opportunity topursue their hobby as early in the season as was possible. When M.’s foreman informedhim that he would be excused on November 21, 22 and 23, 1942, Management maintainsthat M. "declared in the presence of other supervisors and employees in the departmentthat he was going to take the opening week whether anyone liked it or not." When thisemployee did not report to work, and did not notify Management as to the reason for hisabsence on November 14, 15, 16, and 17, 1942, Management maintains that he absentedhimself without reporting, and was logically held responsible for severing his seniorityunder the terms of Paragraph 64-C of the October 19, 1942 Agreement.

In the instant case, Management maintains that it had two alternatives, namely, toterminate M.’s employment by discharging him for failure to report to work in disregard ofhis foreman’s instructions, or to have cleared him out as a voluntary quit. Managementnotes that it decided on the latter course because of the employee’s length of service atthis plant. Disciplinary action is noted by Management to have been taken in only a fewcases of the hundreds of men who were given leaves of absence to go deer hunting. Ineach of these cases, Management observes that "discipline was meted out to fit thesituation." Had Management taken any other action than it did in the instant case, it iscontended that "shop discipline would have been challenged, discrimination would havebeen shown, and production employees could have claimed that the alleged aggrieved hadbeen permitted to disregard the rules because he was a skilled employee." In such a case,Management reasons, "the loss of an employee’s seniority is not too severe a penaltywhen the violation concerns a deliberate and complete disregard of posted rules andregulations particularly when such violation is known to not only the men in his own groupbut to others in the plant." For these reasons, Management contends that its action in thiscase should be supported by the Umpire.




The action protested by the instant grievance cannot be adjudged in any other form exceptas a disciplinary action invoked for failure to abide by orders of Management. While it isevident that Employee M. absented himself improperly for three days, and thereby violatedParagraph 64-C of the October 19, 1942 Agreement, it is nevertheless true thatManagement’s action in this case was wholly in the form of discipline that was invoked foran act by an employee which it determined to be entirely improper. It is necessary,therefore, for the Umpire to consider whether or not the loss of seniority to this employeewas a proper disciplinary action under all the circumstances involved in this case.

When Employee M. decided to disregard Management’s instructions to do his deer huntingon November 21 to 23, 1942, he took a distinctly improper advantage of Management’sreal attempt to give an opportunity to deer hunters at this plant to follow their distinctivehobby. By his action of leaving a week earlier than the period granted to him, M. made itrather difficult for Management to carry on the projected production schedules in hisdepartment. Furthermore, he flaunted Management’s authority in this instance andseverely affected Management’s ability to maintain proper discipline in part of this plant.For such a violation of his responsibilities as an employee, M. was obviously subject tosome sort of disciplinary action.

The fact that the Saginaw Steering Gear Division is a relatively new plant as respects theseniority of its employees, makes the seniority standing of Employee M. a very importantmatter. In fact, loss of seniority in such an instance is second only to discharge as toseverity of discipline. The Umpire is of the conviction that M. should have been subjectedto a severe disciplinary layoff, but feels that the complete loss of seniority as a disciplinaryaction in this instance is too severe a penalty. This conclusion is particularly based on thefact that M.’s foreman was responsible for M.’s belief that he would be subjected only to adisciplinary layoff if he disregarded Management’s instructions in the matter.

Inasmuch as Employee M. lost approximately one month of employment at this plant (hereturned to work on December 16, 1942), he experienced a real loss of income as anoutgrowth of his entirely improper action. However, such a loss as a disciplinary layoff isnot considered by the Umpire to be a sufficient penalty under the circumstances. While acomplete loss of seniority is too severe a penalty, it is held that Employee M. should besubjected to a loss of seniority equivalent to the period between the day the notice wassent to him that he was a "voluntary quit," and the day he started back to work.

Decision

1. The complete loss of seniority standing as a disciplinary action assessedagainst Employee M. for leaving the plant one week prior to the time he wasexcused to go deer hunting, is considered as too severe a penalty for the actioninvolved. A member of supervision is largely responsible for M.’s belief that hewould be subjected only to a disciplinary layoff if he failed to comply withManagement’s instructions in this matter.



2. Employee M. is held subject to a disciplinary layoff and to a partial loss ofseniority, because of his utter disregard of Management’s orders, together withthe advantage which he took of Management’s unsolicited attempt to grantleave to deer hunters.

3. The period that elapsed between the date a "voluntary quit" notice was sentto Employee M. and the day he resumed work, is held to have been a properdisciplinary layoff. His penalty for his act shall be considered complete by anadjustment in his original seniority date to the extent of the number of days ofthat disciplinary layoff.


Umpire

February 9, 1943.





No. C-6

February 10, 1943

Disciplinary Layoff

GRIEVANCE:

Oldsmobile Forge—Case C-1

"I was given a 4-day layoff for infraction of company rules. I did not violate any companyrule and demand that I be paid for the four days."


1. Employee B.’s failure to notify the plant of his expected absence on October16, 1942, when it followed an incident of like nature on October 12, 1942, andin addition occurred at the end of a three-day period during which B. failed tonotify Management of his improperly recorded presence in the first instance,indicates clearly that he was guilty of complicity in a plan to record his time forwork not performed. His act, therefore, was in direct violation of existing ShopRules for which he was rightly the subject of discipline.

2. The disciplinary layoff of four days invoked against Employee B., whencompared with the two-week layoff which was assessed against the employeewho actually punched his clock card on the two days in question, is deemed asa proper evaluation of his part in the entire incident. His claim for back pay isdenied. (Entire Decision should be read)

In the Matter of:


and


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General Motors Corporation—Oldsmobile—Forge Plant—Case C-1

On October 23, 1942, Employee B. presented a grievance to Management which read asfollows: "I was given a 4-day layoff for infraction of company rules. I did not violate anycompany rule and demand that I be paid for the four days." The discipline in this case wasimposed for alleged complicity in an improper recording of B.’s time on his clock card. Ahearing on this case was held in Flint on January 15, 1943.


On Monday, October 12, 1942, Employee B. did not report for work, although his clockcard was punched in at 12:02 A.M. and out at 8:01 A.M. He worked the next three daysand later admitted that he noted that his card had recorded his presence on Monday buthad made no attempt to report the fact to any member of supervision. On Friday, October16, 1942, Employee B. was again absent, but his card was punched in at 12:00 Midnight.An observer was placed near the time clock at the close of the shift and another employee,who Management alleges is a close friend and associate of Employee B. was detected inthe act of ringing B.’s clock card at approximately 8:00 A.M. This second employee wasgiven a two-week layoff and a like penalty was first assessed against Employee B. for hisalleged complicity in the matter. Through an error, Employee B. was told to report to workon October 21, 1942, after having served four days of his disciplinary layoff. His penaltywas then reduced to four days, and two days later he filed the instant grievance protestingthe entire disciplinary action.

Management points out that Employee B. did not telephone to the plant, nor did he haveanyone report his expected absence to supervision on October 12, or 16, 1942. Though hefailed to call in on Monday, October 12, 1942, Management does not contend that he wasnecessarily involved in having his time card punched in and out by another employee onthat day. However, when he failed to report the matter on the following three days, andthen was absent without reporting on the final day of the week, Management feels that hewas definitely involved in the second incident in which his time was recorded improperly onhis clock card. By his failure to notify supervision of his expected absence on the two days,plus his failure to report the fact that his card was punched in for a day on which he did notwork, Management claims that Employee B. was involved in a violation of the two followingShop Rules: "Rule 1 -- Falsification of personnel or other records. (Penalty: One weeklayoff to discharge.)" "Rule 2 -- Knowingly ringing the clock card of another. (Penalty: Twoweeks layoff to discharge.)"

While Management recognizes that Employee B. did not admit that he conspired withanother employee furtively to record his time on the two days he was absent, it holds thatB. was benefited by the act, failed to bring the improper record to the attention ofManagement, and neglected on two separate occasions in the same week to report hisexpected absence to the plant. In view of these facts, Management holds that B. was"guilty of complicity in this dishonest act." Management, therefore, concludes thatEmployee B. was rightly disciplined by a four-day layoff, and maintains he should not bereimbursed for the time lost.



The Union reasons that it is not the duty of an employee to report time which is recordedincorrectly on his time card, but that it is Management’s responsibility to make thenecessary checks to avoid any improprieties. In the present case, it is the Union’s opinionthat there was absolutely no proof that Employee B. conspired with the man who punchedhis time card on the days in question, and that Management assessed the penalty entirelyon the basis of conjecture. Without the presence of telling evidence to connect EmployeeB. with the act of improperly recording his time, the Union reasons that Managementproceeded on the basis of pretext or fancy in assessing B.’s discipline. The Union’s majorcontention in this case, then, is that disciplinary action properly applied is entirelynecessary, but that such discipline should be assessed on the basis of facts which cansustain the reason for such action on the part of Management. Finally, the Union contendsthat not only has an injustice been done in this particular case, but it strongly urges that "avery distinct principle of collective bargaining is involved... namely, that a worker should notand cannot be disciplined upon assumption". In view of what it contends is the absence ofirrevocable facts in this case, the Union requests that Employee B. receive reimbursementfor the four days of his disciplinary layoff.

Conclusion and Decision of the Umpire

The facts in this case point definitely to the conclusion that Employee B.’s card waspunched in and out on October 12, and 16, 1942, in a manner that casts serious suspicionupon Employee B. On at least three separate occasions he had an opportunity to take astep which would have shown clearly that he had no part in the improper recording of timefor which he alone could benefit. The first instance was when he failed to call the plant, orhave anyone report to the plant, on October 12, 1942, relative to the fact that he would notreport to work. Had B. notified supervision, it would have been clear that the employee whopunched in B.’s card did so entirely upon his own initiative. When Employee B. reportedback to work, and on three separate days failed to notify any member of supervision thathe was improperly recorded as having worked on Monday, he again missed an opportunityof lifting suspicion as to his complicity in this entire matter. Even though he may not havefelt it his responsibility to report the recording of such time to Management, his failure to doso causes him to be responsible for any suspicion which was later thrown upon him as tohis connection with this whole incident. When, after three days of failing to report hisimproperly recorded presence, he again absented himself from the plant and failed tonotify Management in any way, his connection with the second act of recording hispresence in the plant seems certain beyond all question of doubt.

The final failure of Employee B. to notify the plant as to his expected absence on October16, 1942, when it followed all of the other factors which caused real suspicion to be thrownupon him, forces the Umpire to conclude that he was directly connected with a dishonestplan to record his presence in the plant. In as much as Employee B is found to have beendirectly involved in a plan to record his presence in the plant improperly, the Umpire mustconclude that he was rightly subject to a disciplinary layoff. The fact that he received afour-day disciplinary layoff, as compared to that of two weeks for the man who actuallypunched his card on the two days in question, seems to attach proper weight to his part inthe matter. For this reason, then, it is ruled that Employee B. was rightly subjected to afour-day disciplinary layoff, and his claim for back pay is denied.



Decision

1. Employee B.’s failure to notify the plant of his expected absence on October16, 1942, when it followed an incident of like nature on October 12, 1942, andin addition occurred at the end of a three-day period during which B. failed tonotify Management of his improperly recorded presence in the first instance,indicates clearly that he was guilty of complicity in a plan to record his time forwork not performed. His act, therefore, was in direct violation of existing ShopRules for which he was rightly the subject of discipline.

2. The disciplinary layoff of four days invoked against Employee B., whencompared with the two-week layoff which was assessed against the employeewho actually punched his clock card on the two days in question, is deemed asa proper evaluation of his part in the entire incident. His claim for back pay isdenied.


Umpire

February 10, 1943.





C-12

February 20, 1943

Job Classification and Wage Rate

GRIEVANCE:

Chevrolet Bloomfield—Case C-6

"The department demands new classifications retroactive from November 9th, starting dateof the new operation."


The classification of the work of assembling trucks, that had been previouslyboxed for export, was not correctly established as "Loading and BoxingAutomobiles—Export". Neither can the Union point to any classification in thelocal wage agreement that can be held to be directly applicable to this particularwork.

The present case is returned to the parties for the negotiation of a correctclassification and wage rate. Any rate agreed upon is to be applicable on aretroactive basis to November 11, 1942, the date of the instant grievance.(Entire Decision should be read)

In the Matter of:


and


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General Motors Corporation—Chevrolet—Bloomfield Division—Case C-6

The employee grievance in this case, which was presented by Committeeman Z. onNovember 11, 1942, reads as follows: "The department demands new classificationsretroactive from November 9th, starting date of the new operation." The hearing on thismatter was held in New York on January 19, 1943.


For many years prior to the date of the instant grievance the Chevrolet-Bloomfield Divisionperformed an export boxing operation which consisted of boxing completely knocked-downautomobiles and trucks for export. A classification in the local wage agreement entitled"Loading and Boxing Automobiles—Export", with a rate of $1.09 per hour, has beenapplied to this work. In November 1942, this division received a temporary assignment toremove approximately 250 trucks from boxes in which they had already been crated, andto replace these units in their original form for delivery to Military authorities. This operationrequired the performance of a series of operations which Management felt was merely thereverse order of the operations of disassembling and packing the trucks for export.Inasmuch as this was a temporary job that was to be completed in approximately fourweeks, Management placed the men who performed the work under the classificationnoted above. The Union filed the instant grievance requesting a new classification and ratefor this job.

The operation performed by the men in question in this case is claimed by the Union tohave been of a nature customarily performed in Assembly plants. Inasmuch as the localwage agreement has no classification or wage rate for this job, the Union contends that therate for the new job should have been negotiated with the Union committee pursuant to theprovisions of Paragraph 112 (a), and 112 (b), of the October 19, 1942 Agreement. TheUnion requests, therefore, that a proper rate be established for this job, and that it be maderetroactive to November 9, 1942, the starting date of this particular job.

Inasmuch as the performance of the work here in question was so much like that of"Loading and Boxing Automobiles—Export", in that it required the same tools, and involvedidentical operations performed in a reverse order, Management reasons that the job wasproperly classified under that heading. In Management’s opinion, this work could not becompared to the regular assembly operations that are performed in Assembly plants,inasmuch as it consisted of rebuilding trucks from complete units that had been previouslyboxed for Export. Furthermore, it is noted that this work was not performed on movingconveyors with established times. Because of the similarity of the operation involved withthat of the loading and boxing of automobiles for export, and because of the fact that thework was of a temporary nature "which could not be established under any other existingclassification at this location", Management reasons that the work was correctly classifiedunder the terms of the local wage agreement. Management concludes its argument in thiscase as respects the events that occurred after the job was classified as above, as follows:"Negotiations were opened on the basis that the export loading classification would cover



this work and that the production job rate would be established under the same factors asthe rate for this classification."

Observations and Conclusions of the Umpire

In the job in question in this case, Management sought a classification in the local wageagreement that would most closely apply, in order to assign a rate to a job which it wasaware would last for only a short period. In doing so, however, Management selected aclassification which was quite different from the actual work involved. Instead ofdisassembly for boxing this operation actually consisted of assembly of a complete truckfrom a box of disassembled units. While many of the operations which are performed in thedisassembly job were performed in this instance, they were obviously performed in adifferent manner. Instead of disassembling a series of parts and units to be packed in abox, the men involved had to apply the necessary skills to assemble a truck that would bein working order when completed. Under such circumstances, the classification and ratewhich applied to the disassembly of the trucks for export, clearly should not have appliedfor the assembly of the trucks for actual operation.

In the earlier steps of the grievance procedure, the Union has cited rates in the vicinitywhich have applied to the assembly operations. Inasmuch as these operations are not apart of the local wage agreement, they are clearly not applicable. Rather, the parties mustapply themselves to the negotiation of a classification and rate which should apply to thisparticular job on a retroactive basis. This conclusion is necessary inasmuch as neitherparty can point to any particular classification in the local wage agreement which can beheld to have been specifically applicable to the operations here in question. For thisreason, the present case is returned to the parties for their negotiations, and it is held thatany rate which they may agree upon shall be applicable on a retroactive basis toNovember 11, 1942, the date of the instant grievance.

Decision:

The classification of the work of assembling trucks, that had been previouslyboxed for export, was not correctly established as "Loading and BoxingAutomobiles—Export". Neither can the Union point to any classification in thelocal wage agreement that can be held to be directly applicable to this particularwork.

The present case is returned to the parties for the negotiation of a correctclassification and wage rate. Any rate agreed upon is to be applicable on aretroactive basis to November 11, 1942, the date of the instant grievance.




Umpire

February 20, 1943.





No. C-34

April 19, 1943

Disciplinary Layoff

GRIEVANCE:

Saginaw Malleable—Cases C-7 and C-8

"I ask that I be returned to work and that I be paid for all time lost."


Employees K. and S. are held to have violated a deer hunting privilege extended byManagement, and to have subjected themselves to the two-week penalty which wasinvoked in all instances in which employees were guilty of such a violation. Had either ofthe employees made any real attempt to return to the plant, and had not "hidden" behindthe excuse of a break-down of their car, the inevitable conclusion in this case could nothave been reached by Management or the Umpire. The two employees’ requests forreimbursement are denied. (Entire Decision should be read)

In the Matter of:

United Automobile Workers of America, C.I.O.—Local 455

and

General Motors Corporation—Saginaw Malleable Division—Cases C-7 and C-8

Two employee grievances have been combined for consideration in this case. These twogrievances, signed by employees K. and S. on November 25, 1942, read as follows: "I ask


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that I be returned to work and that I be paid for all time lost." A hearing on these matterswas held in Saginaw on March 19, 1943.


In anticipation of the deer hunting season, Management of the Saginaw Malleable Divisionarranged a plan whereby employees could take time off with a minimum loss of operatingefficiency. Employees K. and S. asked for and received permission to be absent from workfrom November 26, through November 29, 1942, for the expressed purpose of deerhunting. When they filed their requests for leave, these two employees asked theirsuperintendent what they could expect in the way of discipline if they should absentthemselves on days other than those for which they were excused. Management statesthat they were both informed that they would get "time off" if they should take any suchaction. Two days before the hunting season opened they repeated this query and wereagain informed in the same manner. It is also noted that the committee at this plant wasnotified ten days prior to the opening of the deer season that all employees who tookunauthorized leaves would be given two weeks off as a penalty.

Employees K. and S. went hunting on the day the deer hunting season began, November15, 1942. On the morning of November 16, 1942, a telephone call was received at theplant to the effect that the two men would not be in to work that day "as their car brokedown." The message also stated that "they might possibly be back on Tuesday (November17) or Wednesday, November 18." Both men reported to work on November 18, 1942, butwere sent home because replacements had already been secured for them. A few daysafter they returned to work a disciplinary layoff was invoked against them for takingimproper leave. The Union has filed the instant grievance contending that the disciplinarylayoff was invoked without proper proof that a violation of the deer hunting privilege hadoccurred.

Management’s position is that these two employees left with the admitted intent of goingdeer hunting and simply found an excuse for failing to return to the plant on November 16,1942. Had the "convenient" break-down occurred as the men claimed, Managementreasons that other transportation could have been arranged by them inasmuch as thebreak-down is said to have occurred while they were on the highway on their way back toSaginaw. Management felt that "these two men had improperly absented themselvesthereby violating a condition of their employment and later chanced upon the car break-down excuse to permit them added days of hunting at the opening of the season ratherthan to wait for their excused ‘leaves’ from November 25 to November 29..." Because ofwhat it contends represents a "flagrant violation" of the deer hunting privilege,Management maintains that it exercised discipline in this case commensurate withParagraph 8 of the October 19, 1942 Agreement.

The Union admits that the men concerned went hunting on November 15, 1942, but itmaintains that they had every intention of returning to work on Monday, November 16,1942. When these employees notified Management that their car had broken down, theUnion contends that they fulfilled their obligation to inform Management of their expectedabsences and should not have been held responsible for a violation of the deer huntingprivilege. It was pointed out that the two men went approximately 100 miles from Saginawto hunt and had a great deal of equipment in their car which they could not leave at some



distant location. The Union presented a copy of a receipted bill from a garage in Fairview,Michigan, which noted that a total of $11.89 was paid by one of the employees forautomobile repairs. It is the Union’s opinion that the two men were not guilty of stayingaway from the plant improperly, and it cites as a basis for this conclusion its thought thatthe two men would not have paid a repair bill if their excuse was not authentic. The Union,therefore, requests that the disciplinary layoff of these two men be revoked, and asks thatthey be reimbursed with back pay for all time lost.


Management’s attempt to make a period available for employees to indulge in their favoritehunting sport is an act which should be encouraged rather than being taken advantage ofby unthinking employees. By their acts prior to the beginning of the deer season,employees K. and S. definitely indicated that they were weighing the discipline that mightbe meted out to them if they should take improper leave at the beginning of the season.They were definitely told that they would be given "time off" if they took such an action, andtheir committeeman was informed that a two-week disciplinary layoff would be invoked forany such infraction.

When the two employees, who had anticipated what their potential layoff might be if theywent deer hunting prior to their excused leave, went deer hunting on November 15, 1942,with all of their equipment, they brought upon themselves the potentiality of being found inviolation of the deer hunting privilege. If the break-down of their car actually occurred, itseems reasonable that at least the employee who was not the owner of the car would havemade every attempt to return to the plant immediately so that the obvious conclusion whichcould be drawn from their absence would lose any reason for existence. By the failure ofeither of them to make any attempt to get back to the plant within a reasonable interval, theonly obvious conclusion that can be drawn is that the days of November 16 and 17, 1942,represented two additional days that they had planned to go deer hunting, and for whichthey were merely seeking an excuse. Upon both of the employees rests the onus for thisconclusion, and they must bear the responsibility for placing themselves in jeopardy of atwo-week layoff.

Under all of the circumstances here present, then, the Umpire must conclude thatEmployees K. and S. violated the deer hunting privilege. For this reason they are heldproperly the subject of a two-week disciplinary layoff. Their claims for back pay are denied.

Decision

Employees K. and S. are held to have violated a deer hunting privilege extended byManagement, and to have subjected themselves to the two-week penalty which wasinvoked in all instances in which employees were guilty of such a violation. Had either ofthe employees made any real attempt to return to the plant, and had not "hidden" behindthe excuse of a break-down of their car, the inevitable conclusion in this case could nothave been reached by Management or the Umpire. The two employees’ requests forreimbursement are denied.




UMPIRE

April 19, 1943.





No. C-35

April 20, 1943

Disciplinary Layoff

GRIEVANCES:

Saginaw Malleable—Cases C-9 and C-10

"I ask that I be returned to work at once and paid for all time lost."

"I ask that I be returned to work at once and that I be paid for all time lost."


1. Employees B. and J., upon the basis of the specific charges made againstthem by Management as respects their alleged violations of certain shop rules,are found to be neither guilty nor subject to disciplinary layoffs.

2. It is held that both employees were improperly disciplined for their absenceson November 27, 1942, and it is ruled that they be reimbursed with back pay forall time lost by May 1, 1943. (Entire Decision should be read)

In the Matter of:

United Automobile Workers of America—C.I.O. Local 455

and

General Motors Corporation—Saginaw Malleable Division—Cases C-9 and C-10


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Two employee grievances have been combined for consideration in this single decisionbecause of the likeness of the issue involved. The first was presented by Employee B. onNovember 30, 1942, and reads: "I ask that I be returned to work at once and paid for alltime lost." The second grievance, which was presented by Employee J. on December 1,1942, reads "I ask that I be returned to work at once and that I be paid for all time lost." Ahearing on these two matters was held in Detroit on March 19, 1943.


Employees B. and J. were told by their superintendent on the Wednesday beforeThanksgiving to report on Friday, November 27, 1942, the plant being closed onThanksgiving Day. Neither of these employees reported to work, though telephone callswere received on the morning of November 27, 1942, concerning both of their cases. Arepresentative of the Personnel Department called at B.’s home and was told that no onethere had any knowledge of B.’s whereabouts. Another representative called at J.’s hometo investigate J.’s absence and found no one at home. The unexcused absences of the twomen necessitated the use of a group leader on an overtime basis to complete work thesetwo men were expected to perform. Because of the absences, Management imposed anine-day layoff on B. and an eight-day layoff on J. The two grievances that are the subjectof this decision were filed in protest of these layoffs.

Management submits that no permission was granted for the absence in either instance.Though telephone calls were received in both cases, Management contends that atelephone call in itself does not constitute an excused absence "since it is a primaryobligation of employment for all employees to report for work when work is available unlessthey have been excused or advanced a satisfactory reason for such absence". Thedisciplinary layoffs, Management states were imposed "for failure to meet a condition oftheir employment, that of being present when work was available or being properlyexcused, and for failure to follow the specific instructions of their supervision". Discipline ofthis nature is contended by Management to be within the meaning of Paragraph 8 of theOctober 19, 1942 Agreement.

The Union protests Management’s disciplinary action in these cases upon the grounds thatboth employees had telephone calls made for them to report their absences to the plant,and that they thereby complied with the plant rules requiring an employee to report hisabsence before lunch time. The Union admits that neither of the men were home at thetime the representative of the Personnel Department called, but strongly contends thatthese single isolated absences did not violate any plant rule for which they could besubjected to discipline. Upon the grounds that these layoffs represented unjust penalties,the Union requests that both of the men be reimbursed for all time lost.


At the hearing on these layoff questions, the parties cited various shop rules which shouldbe noted for purposes of this decision. Four of these shop rules are quoted below:

"6. Habitual absence without reasonablecause. (One week to discharge.)



"8. Failure to call in or report by lunch time ofshift on which absence occurs. (Two days todischarge.)

"7. Absence three days without notification.

"14. Refusal to obey orders of foremen orother supervision. (One day or more todischarge.)"

The first three of the shop rules quoted above may be said to anticipate that absences mayoccur, and set up limits within which discipline will be invoked if such absences happenunder specified sets of circumstances. It must be noted that the absences of B. and J. onthe day in question did not violate any of these shop rules inasmuch as telephone callswere received at the plant within the proper time, the one day did not represent three daysof absence without notification, and no claim has been made that the two men werehabitually absent without reasonable cause. Obviously single days of unexcused absencesoccur at this plant without penalty; it is only when these unexcused absences total threeconsecutive days without notification, or become habitual, that a penalty has beenordinarily imposed.

Management’s contention that the failure of these two men to be present on the day inquestion represented a "refusal to obey orders of... supervision" is not a tenable reason forupholding the disciplinary action taken in these cases. To give support to such a contentionwould be to extend the shop rules on absences at this plant to all sorts of situations.Obviously such an extension of these shop rules would go far beyond their ordinaryapplication.

Of particular significance to the disposition of this case is the fact that Management failedto present its major contention throughout the entire grievance procedure. At the hearingon this question it became clear that Management had originally learned that there was tobe a joint effort on the part of all of the men in B. and J.’s group to remain away from workon November 27, 1942. Had Management assessed its discipline in this matter on thegrounds that there was an organized "stay-at-home" that amounted to a form of stoppageof work, there would have been real reason to support Management in its position—in factit is highly probable that any reasonable proof of such a situation would have prevented thematter from proceeding very far through the grievance machinery. Local Management’sfailure to present its real contention in this matter, then, causes it to be responsible for thecase being considered and evaluated on other grounds. That the strength ofManagement’s position in the assessment of the discipline here being tested is muchweakened by such a procedure should be obvious.

Inasmuch as the Umpire fails to find any tenable point in Management’s position thatEmployees B. and J. were guilty of violating existing shop rules, it is necessary to hold thatthe two men were unjustly disciplined. It follows that both men on the basis of thisreasoning are entitled to receive reimbursement for the number of days each of them wasdisciplined. Such reimbursement is directed to be made by May 1, 1943.



Decision

1. Employees B. and J., upon the basis of the specific charges made againstthem by Management as respects their alleged violations of certain shop rules,are found to be neither guilty nor subject to disciplinary layoffs.

2. It is held that both employees were improperly disciplined for their absenceson November 27, 1942, and it is ruled that they be reimbursed with back pay forall time lost by May 1, 1943.


UMPIRE

April 20, 1943.





No. C-75

July 9, 1943

Seniority in Bargaining Unit and Promotion Under Paragraph 63

GRIEVANCE:

Detroit Diesel—Case C-50

"Supervision violated Par. 59 by transferring Clerks from office to Stock Chasing out of lineof seniority. Request the oldest qualified in A3A to be given Stock Chasing jobs."


No provision of the National Agreement was applicable to the two clerical employeesconcerned in this grievance prior to the date that they were moved into the bargaininggroup. When they were placed in that group they were properly treated as new employees,and no violation of any Agreement provision can be said to have obtained. The Union’sclaim in this entire matter, therefore, must be denied. (Entire Decision should be read)

In the Matter of:


and

General Motors Corporation—Detroit Diesel Division—Case C-50

A policy grievance in this case was presented by District Committeeman N. on March 18,1943. The grievance protests the assignment of two clerical employees to jobs within thebargaining units on the grounds that such jobs should have been given as promotions tomen in the bargaining unit who possessed the greatest ability, merit and capacity for thejobs. The grievance reads as follows: "Supervision violated Par. 59 by transferring Clerks


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from office to Stock Chasing out of line of Seniority. Request the oldest qualified in A3A tobe given Stock Chasing jobs." A hearing on this matter was held in Detroit on June 25,1943.


The grievance in this case was presented as a policy grievance in protest of the placing oftwo clerical employees in jobs in the clearing group that is a part of the bargaining unit atthe Detroit Diesel Division. These two men had been employed as clerks on Service MoveOrders in the Material Handling Office. When Management determined that they should bereplaced by women employees because of the shortage of manpower, they decided tomove them to the work of Stock Chasing in the plant. Consequently, on February 9, 1943,and March 1, 1943, Employees D. and G. respectively were transferred into the bargainingunit as "Stock Chasers." The Union protests this action, claiming that it represented aviolation of Paragraphs 59 and 63 of the October 19, 1942 Agreement.

The Union’s contention that the move-up of the two clerical employees into the jobs abovethe minimum of the clearing group constituted a violation of Paragraph 59 of theAgreement, arises out of its opinion that such an act represented a transfer of theemployees out of line with their seniority. The Union further contends that the ability, meritand capacity of several employees already in the clearing group far surpassed the relativeability, merit and capacity of the two clerks as stock chasers. Management’s action ofmoving these clerks into jobs in the bargaining unit without giving employees already in theunit the opportunity of securing promotions to such jobs, is held by the Union to set aprecedent which will deny promotion to employees already covered by the agreement. TheUnion concludes by asserting that, "the oldest qualified employees in Department A3A,should be immediately transferred to the stock chasing jobs with retroactive adjustment to3-18-43 the date original claim was made."

Management notes that the clearing group to which the clerks were moved, is comprisedof truckers, stock pickers, and stock chasers. While Management concedes that the clerksin question were not entitled to carry their period of service with the Division into the stockchaser jobs when they were transferred into the bargaining unit, it strongly contends thatthere was no violation of any National Agreement provision when it moved the two meninto the stock chaser classification. It is pointed out that no provision of the NationalAgreement prohibits the transfer of an employee outside of the bargaining unit to a jobwithin the bargaining unit. It is the contention of the Corporation that the two employees"possessed the ability, merit and capacity for stock chasing by virtue of having worked asclerks in the Material Handling Office."

Had the two clerical employees never worked for the Division prior to the date they wereplaced in the stock chasing jobs, Management observes that it would have been quiteproper for it to have assigned them to stock chasing as new employees. Furthermore,Management maintains that since the two employees were transferred from one job toanother paying the same hourly rate, the change in their job was simply a transfer in whichseniority was not a factor. In conclusion, Management declares itself of the opinion thatany Agreement provisions that may have been applicable in this case were not violated in



any manner by the transfer of the two clerks into the bargaining unit.


The clearing group in the department involved in this case includes classifications that varyas to wage rate. However, there is no requirement in the local seniority agreement, or thelocal wage agreement, which provides that new employees must be hired in at the bottomor lowest rated jobs in the group. Past practice has been to hire employees directly into allof the jobs in the clearing group. Inasmuch as the two clerical employees were placed inthe clearing group without taking their hiring dates with them to affect their seniority, it isobvious that they were treated simply as new employees.

Since Management had the perfect right to hire new employees for any of the jobs in theclearing group that it desired, it cannot be held that there was a violation of any paragraphof the National Agreement when the two clerks were placed in that group. NeitherParagraph 59 nor 63 were applicable in this case, inasmuch as the two clerical employeeswere not covered by either of those paragraphs before being placed in the bargaining unitand neither paragraph could be cited as affecting them when they were placed in theclearing group. They were new employees insofar as the bargaining unit was concerned,and their treatment as new employees did not violate any provision of the NationalAgreement. The Union’s request in this case, then, is denied.

Decision

No provision of the National Agreement was applicable to the two clerical employeesconcerned in this grievance prior to the date that they were moved into the bargaininggroup. When they were placed in that group they were properly treated as new employees,and no violation of any Agreement provision can be said to have obtained. The Union’sclaim in this entire matter, therefore, must be denied.


UMPIRE

July 9, 1943.





No. C-83

August 2, 1943


GRIEVANCE:

Eastern Aircraft Trenton—Case C-6

"I charge Management with a direct violation of Paragraph 63. Seniority was not taken intoconsideration in this case. Request that this case be reviewed and the wrong donerighted."


1. Though Employee L. was not "head and shoulders" above Employee G. withrespect to ability, merit and capacity, Employee G. could not be said to havebeen approximately equal to Employ L. in these criteria. His record of warningsand reprimands, plus his evidenced inability to gain cooperation of some of themen with whom he worked, did not warrant placing him in the same group asEmployee L. when relative abilities, merits and capacities of the availableemployees were considered.

2. Inasmuch as Employee G. was not approximately equal to Employee L. inability, merit and capacity at the time of L.’s promotion, G.’s contention that heshould have received the promotion given to L. in February, 1943, cannot besupported. His claims, therefore, are denied. (Entire Decision should be read)

In the Matter of:


and


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General Motors Corporation—Eastern Aircraft—Trenton Division—Case C-6

Two grievances presented on February 11, 1943, by Employees G. and S. were originallycombined for consideration in this single decision. At the hearing on this matter the Unionwithdrew the case of Employee S. and presented its claim only with regard to Employee G.Employee G.’s grievance reads as follows: "I charge Management with a direct violation ofParagraph 63. Seniority was not taken into consideration in this case. Request that thiscase be reviewed and the wrong done righted." The complaint made by the employee inthis case was that he was not promoted to the job of pipefitter leader that was awarded toEmployee L. in early February, 1943. A hearing on this matter was held in New York onJuly 8, 1943.

Nature of Case

Early in February, 1943, a need developed for an additional leader in the pipefitter group atthis plant. Supervision reviewed the records of eligible pipefitters and promoted EmployeeL. (seniority date November 22, 1940) to the new position. Employee G. (seniority dateOctober 17, 1938), a pipefitter with approximately seven years more experience thanEmployee L., filed the instant grievance claiming that he should have received thepromotion. It is the contention of the Union that the ability, merit and capacity of EmployeeG. was approximately equal to that of Employee L., and that his greater seniority shouldhave caused him to be promoted in place of L.

Union Claim

The Union observes that the plant history record of the aggrieved Employee G. is an exactduplicate of Employee L. It states that these records read as follows:

Employee Employee

G. L.

Seniority date 11/7/38 11/20/40

Quantity of work A-A A-A

Quality of work A-A A-A

Attendance O O

Cooperation A-A A-A

Safety A A

Adaptability A-A A-A



The information contained in the table noted above is reasoned by the Union to give fullsupport to its contention that L. was not "head and shoulders" above G., but that they wereapproximately equal as to "ability, merit and capacity". For Management to say thatEmployee L. was "head and shoulders" above Employee G. in ability, merit and capacity,the Union maintains, is simply not supported by the facts of the case.

The Union notes that Management has cited other types of nebulous qualities which itmaintained led it to choose L. over G. for the promotion to the leader classification. Sincethe gradings noted by the Union are deemed by it to be such significant determinants ofthe qualities of a good employee, and those qualities have actually been recorded, theUnion maintains that the two employees concerned should have been evaluated on thosequalities and not on the basis of some nebulous criteria which Management cannotactually define or cite in any concrete form. The statement made by Management to theeffect that Employee L. successfully operated his own business for a number of years andthereby indicated his leadership and initiative, is severely questioned by the Union. Thoughsome minor significance might attach to this point, the Union maintains that it could notpossibly be a reason to hold that L. was "head and shoulders" above G. in ability, meritand capacity.

In the earlier steps of the grievance procedure, the Union notes, Management has statedthat "fellow employees have sometimes requested that they not be assigned to work withG." If it is true that employees requested not to be assigned to work with G., the Unionmaintains that the hesitancy occurred only because some workers are not prone to seek towork with a journeyman who sets a very exact pace. The competence of G. as a mechanicand his outstanding service record attest to the fact that he has set an outstanding pace asa pipefitter to which some workmen might not care to expose themselves, the Unionreasons.

In conclusion, the Union maintains that Management has made only statements of ageneral nature to support its claim that L.’s potentialities of leadership and initiative aregreater than G.’s and has cited no precise evidence or reasons on which it has based itsconclusions. Since Management’s records and supervisor’s ratings are identical for the twomen, the Union asserts that they should have been considered equal in ability, merit andcapacity. The Union asks, therefore, that Employee L.’s job as a pipefitter leader bedeclared vacant and be awarded to Employee G. It requests also that Employee G. receivea wage adjustment for the losses suffered by failure to receive promotion to the pipefitterleader’s job in February, 1943.


While Management admits that plant records covering quality and quantity of work,attendance, cooperation, safety, and adaptability of the two men in question show them tobe approximately equal as mechanics, it maintains that other elements caused it toconsider L. "head and shoulders" above G. when it made the promotion to the pipefitterleader classification in February, 1943. The fact that Employee L. had thirteen years’experience as a journeyman plumber as compared to the twenty years’ experience ofEmployee G. is claimed by Management to be more than offset by the fact that in nine ofthe years L. successfully operated his own business. By operating a business in thismanner Management maintains that he indicated his potentialities of leadership and



initiative. Furthermore, Management claims L. has "proven himself to be very cooperative,conscientious, and progressive in his work". It is said that he has led other employees invarious work assignments and has succeeded in commanding the respect and cooperationof men working with him due to his knowledge and ability of his trade.

In the case of Employee G., the complainant, Management agrees that he is competent asa mechanic, but maintains that he has allowed "his attitude to reflect carelessness in hiswork". It holds that his cooperation and attitude have caused Management to find himunsuitable for the position as a leader. Several times, Management points out, it has beennecessary for supervision to call G.’s shortcomings in regard to his cooperation andattitude to his attention, but it is maintained that these warnings have had little effect. OnJune 5, 1942, when pipefitters were engaged in changeover work, it is observed that G.received a reprimand for poor workmanship. It is also noted that the statement ofreprimand calls attention to the fact that G. had been verbally warned on several occasions"but each time had given a surly and sarcastic reply". On still another occasionManagement asserts that G. was requested to make an adjustment shortly after hisstarting time (December 27, 1940). It is said that he expressed resentment to the requestand responded with an oath. On that occasion and several other times, Managementmaintains that G. was warned regarding his negative and belligerent attitude. Finally, it issaid that several employees have stated that they do not care to work with G. becausethey have experienced real difficulty in working peacefully with him. This latter problem hasbeen so serious at times, Management maintains, that it has been necessary to have G.work practically alone. Under these circumstances, Management reasons that G.’ssuitability to become a leader was far below that of Employee L. at the time that it madethe promotion in question.

Though Management admits that as workmen and mechanics there is an approximateequality between the employees in question, it asserts that Employee L. "proved to bemore deserving in point of merit and better fitted in point of capacity to assume theresponsibilities of the leader job". His ability to work with men in a congenial andcooperative manner was proven by his experience in working as a pipefitter with helpers,Management states. On the other hand, a complete absence of ability to work in acongenial and cooperative manner has been proven by G.’s experience, Managementmaintains. Since G., in its opinion, lacked the qualifications of leadership and dependabilitythat are necessary prerequisites for a leader’s job, and since over a period of time he hasbeen reprimanded on several occasions for a negative and belligerent attitude,Management maintains that its decision to promote L. to the pipefitter leader classificationinstead of Employee G. was in full compliance with the requirements of Paragraph 63 ofthe National Agreement.


The Umpire cannot agree with Management that Employee L. stood "head and shoulders"above Employee G. with respect to his ability, merit and capacity to perform the pipefitterleader’s operation. The seven years of additional experience which Employee G. had overEmployee L. could easily have offset any advantage which Management may feel aroseout of L.’s conduct of his own plumbing business. All of the elements of objective rating



which Management had used, and of which the Union was aware, showed the two men inquestion to be equal as to quantity and quality of work, attendance, cooperation, etc. Withthose measurements in mind it cannot be said, then, that Employee L. stood "head andshoulders" above Employee G. with respect to ability, merit and capacity.

However, the Umpire is likewise convinced that Employee G. should not have beengrouped with Employee L. as being approximately equal to him with regard to ability, meritand capacity. Though all of the objective ratings cited by the Union, plus the offset ofgreater experience on the part of Employee G. over L.’s operation of his own business,should have resulted in the conclusion that they were approximately equal in ability, meritand capacity, there are several offsetting factors present.

The record of Employee G. with respect to the warnings and reprimands which were givento him for improper actions on his part find no equal in the record of Employee L. Inaddition, there is no question that Employee G.’s potentialities as a leader were far lessthan those of Employee L. because he has evidenced some inability to work well with othermen. Though this problem may be effaced in the near future it certainly existed at the timethat the promotion was made. Since the leader classification is one from whichManagement often picks its members of supervision, an inability to get along with fellowworkmen is a serious impediment to fulfilling the requirements of the leader classification.With respect to his record of warnings for improper acts, and his inability to obtaincomplete cooperation of the men with whom he worked, then, it must be held that G. wasnot in the same class as L. When a grouping of available pipefitters was made within whichmen of approximately equal ability, merit and capacity were placed, it seems quite properto have excluded G. from the group in which L. had been placed.

Since Employee G. did not properly belong in the same group as Employee L. insofar ashis relative ability, merit and capacity were concerned, it follows that the promotion of L.over G. in February, 1943, did not represent a violation of Paragraph 63 of the NationalAgreement. Employee G.’s requests that L.’s job be declared vacant, that it be awarded tohim, and that he be reimbursed for alleged improper loss of income, are denied.

Decision

1. Though Employee L. was not "head and shoulders" above Employee G. withrespect to ability, merit and capacity, Employee G. could not be said to havebeen approximately equal to Employee L. in these criteria. His record ofwarnings and reprimands, plus his evidenced inability to gain cooperation ofsome of the men with whom he worked, did not warrant placing him in thesame group as Employee L. when relative abilities, merits and capacities of theavailable employees were considered.

2. Inasmuch as Employee G. was not approximately equal to Employee L. inability, merit and capacity at the time of L.’s promotion, G.’s contention that heshould have received the promotion given to L. in February, 1943, cannot besupported. His claims, therefore, are denied.




UMPIRE.

August 2, 1943.





No. C-122

October 8, 1943


GRIEVANCES:

Chevrolet Flint—Cases C-97 and C-112

"Request that dipping parts in wax be put in its right classification. (Rust Proofing.) Requestretroactive pay."

"Request that I be paid the proper rate, $1.09 per hour, for the work I am doing, dippingunit parts in rust preventative compound. Request retroactive pay."


The operation of covering packaged parts completely by brushing or dipping them was notin existence at the time the local wage agreement and the June, 1942 supplement wereeffectuated. Neither party can cite a specific job classification in the local wage agreementwhich correctly applies to this work. Therefore, the present grievances are returned to theparties for their negotiations of a proper classification and rate for this new work. If anyadjustment appears to be necessary after such negotiations, the adjustment shall be madeunder the terms of Paragraph 112 of the National Agreement. (Entire Decision should beread)

In the Matter of:


and

General Motors Corporation—Chevrolet Flint Division—Cases C-97, C-112.


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Two employee grievances that involve the same type of work have been combined by theparties for consideration in this single decision. The first grievance was presented byEmployee O. on March 22, 1943, and read:

"Request that dipping parts in wax be put in its right classification. (Rust Proofing) Requestretroactive pay." The second grievance presented on April 20, 1943, by Employee A., readas follows: "Request that I be paid the proper rate, $1.09 per hour for the work I am doing,dipping unit parts in rust preventative compound. Request retroactive pay." A hearing onthese two grievances was held in Flint on September 10, 1943.

Nature of Case

The employees covered by the instant grievances are classified as "Unitizers" in the PartsDivision at this plant. A part of this unitizing operation included the sealing of packageswith wax, gum tape or compound. Shortly before the filing of the instant grievance asystem was installed that involved the wrapping of certain packages in "NO-OX-ID" cloth orwaterproof paper and closing the package either by brushing or dipping it in wax or someother compound. Some of these parts have already been rust-proofed by having beendipped before wrapping into rust-proofing compound.

The instant grievance claims that the work of applying the wax or compound should beclassified under the heading "Rust-proofing" which Supplement No. 11 of the local wageagreement defines as "spraying, dipping or brushing oil or other rust-proofing compoundson service parts". It requests that the reclassification of this work be made effective as ofthe date of the instant grievances.

Union Claim

The Union observes that on June 18, 1942, a supplement was negotiated and added to thelocal wage agreement to cover the work of rust-proofing. The Union maintains that it wasunderstood during these negotiations that the classification was to include all rust-proofingin the Service Parts Department. A considerable time after this supplementary agreementwas reached, the Union notes, employees classified as unitizers were assigned to the jobof dipping wrapped packages into rust-proofing compounds. The Union holds that theprimary reason for this procedure is to rustproof the package while the sealing is ofsecondary importance.

In the particular case of A., the Union states that the employee’s job consists of dipping thepackaged parts into the same rust-proofing vat as two other employees who dip the "bare"parts. The significance of this point is noted to arise from the fact that the aggrievedemployee is classed as a "Unitizer" while the two other employees are recognized as beingengaged in "Rust-proofing". It is particularly noted that these three men use the same tank,the same solution, and are required to perform their activities in an identical manner so that



no bubbles remain on the surface of the dipped parts or package.

The Union maintains that the primary object of the dipping of the packages is to rustproofthem. The application of this rust preventative compound whether the part is bare metal,partially wrapped or wholly wrapped, in the Union’s opinion, is not a significant element ofthe job. Rather, it maintains that the packages are dipped or brushed for rust-proofingpurposes and the employees who cover the packages completely with wax or compoundshould be paid the rust-proofing rate. It asks, then, that the employees covered by theinstant grievances be classified under the heading of "Rust-proofing", and be paid theappropriate rate from the date of their grievances.


Management maintains that the classification of rust-proofing that was negotiated with theUnion was to cover the application of oil or rust preventative compounds "to the bare metalparts". In the cases covered by the instant grievances, Management contends that theapplication of the wax is for sealing purposes only. Since unitizers have always beenassigned the job of sealing containers in which they wrap parts, Management reasons thatit was correct in assigning this sealing work to them in their existing classification.

Supplement No. 11 of the local wage agreement, which refers to the classification of rust-proofing, is noted by Management to read as follows:

"Spraying, dipping or brushing oil or rust preventing compounds on service parts". Thephrase "on service parts" is held by Management to refer only to the application of rustpreventing compounds directly to the bare metal. To give this phrase any meaning otherthan to cover the application of rust preventing compounds to the bare metal, inManagement’s opinion, would be to give meaning to the job classification that was notagreed to by the parties. Even if the wax sealing should have rust-proofing value,Management contends that it is not a part of the rust-proofing classification as defined inthe agreement and is not a necessary process in the case of parts that have already beenrust-proofed. The section of the wage agreement relating to rust-proofing, Managementconcludes, does not place any limitation on the unitizer classification that did not existbefore the rust-proofing classification was established.


The contentions of both parties in this case are partly correct and partly incorrect.Management’s claim that the jobs of dipping packages in wax or other compounds, or ofcovering them completely by brushing, were not contained in the original rust-proofingclassification is obviously correct because such jobs were not operative at the time therust-proofing classification was established. The Union’s contention that the work ofcompletely covering a package with wax or other compound by brushing or dipping is notincluded in the unitizer classification, is likewise correct. Management’s position that thiswork should be considered as "Unitizing", and the Union’s position that it should be



considered as "Rust-proofing", are both in error.

The major reason that both parties have had such difficulty in attempting to classify the jobhere in question is that this work did not exist at the time that they negotiated the rust-proofing or unitizing classifications. Both parties, then, have been trying to place a new jobwithin existing classifications and have had great difficulty in convincing the other party thatthe elements of the new job rightly places it in one or the other classification.

The Umpire cannot agree with either party in this particular case. It would seem that theidea of completely covering a packaged part (whether or not the part is rust-proofed on thebare metal) by brushing the wax or compound on the package or by dipping it completelyinto a vat, is an entirely new operation that was added after the local wage agreement andthe June 1942 Supplement were effectuated. The Umpire is convinced that neither partycan look to the local wage agreement for a specific job classification into which this workcan be placed. For this reason the Umpire must return the instant case to the parties anddirect that they enter negotiations to establish a classification and rate for this job. Anyadjustment that appears to be necessary after negotiating a final classification and rate onthis work should be made under the terms of Paragraph 112 of the National Agreement.

Decision:

The operation of covering packaged parts completely by brushing or dipping them was notin existence at the time the local wage agreement and the June 1942 Supplement wereeffectuated. Neither party can cite a specific job classification in the local wage agreementwhich correctly applies to this work. Therefore, the present grievances are returned to theparties for their negotiations of a proper classification and rate for this new work. If anyadjustment appears to be necessary after such negotiations, the adjustment shall be madeunder the terms of Paragraph 112 of the National Agreement.


UMPIRE

October 8, 1943





No. C-130

October 18, 1943

Selection for Promotion Under Paragraph 63

GRIEVANCE:

Hyatt Bearings—Case C-34

"We, the undersigned feel that there has been a violation of clause (63) of the contract.The clause states that whenever there is an advancement into higher paid job, whereability, merit, and capacity are equal the employees with the longest seniority shall begiven preference. We also feel that the man appointed for the job at the present time hasnot the disposition to make the men want to work for him without feeling that there hasbeen an injustice done. The men feel that they have nothing to work for in the future underthese conditions. We request that this situation be adjusted."


1. Management’s selection of Employee H.B. for promotion to the position ofElectrician—Leader was not in compliance with Paragraph 63 of the October19, 1942 Agreement. Employee H.B. did not stand "head and shoulders" aboveall other employees in his group with respect to ability, merit and capacity.Employee J.L. was at least equal to Employee H.B. in these particulars.

2. Inasmuch as the two employees who are considered to have been relativelyequal in ability, merit and capacity have both been promoted to the job ofElectrician—Leader, it is not necessary to vacate the job held by EmployeeH.B. These two men were in a class by themselves insofar as warrantingpromotion to the Leader classification is concerned, and both have beenadvanced to that classification.

3. The concomitant request of the Union that Employee E.M. be awarded thepromotion granted Employee H.B. is denied, because it is an improper requestto make of the Umpire, and because Employee E.M. is judged as not being



equal to the two other noted employees with respect to relative abilities, meritsand capacities. (Entire Decision should be read)

In the Matter of:


and

General Motors Corporation—Hyatt Bearings Division—Case C-34

On May 6, 1943, some ten employees, headed by Employee E. M., presented a grievancewhich read: "We, the undersigned feel that there has been a violation of clause (63) of thecontract. The clause states that whenever there is an advancement into higher paid job,where ability, merit, and capacity are equal the employees with the longest seniority shallbe given preference. We also feel that the man appointed for the job at the present timehas not the disposition to make the men want to work for him without feeling that there hasbeen an injustice done. The men feel that they have nothing to work for in the future underthese conditions. We request that this situation be adjusted." A hearing on this grievancewas held in New York on October 1, 1943.

Nature of Case

Shortly before the date of the instant grievance, Employee H. B. was promoted from thejob of Electrician to Electrician—Leader. Some dissension occurred among the otherelectricians of longer service over this promotion and caused a group of them to file theinstant grievance protesting the promotion of H. B. Although the Union has presented aclaim with respect to at least ten employees, it stresses the contention of four employeeswho hold that they possessed at least equal ability, merit and capacity to Employee H. B.(Seniority date 3-6-36), and should have been promoted in his place. Specifically the Unioncited the cases of the employees whose initials and seniority dates are shown below.

Initials of employee Seniority date

J. L. 10-22-17

E. M. 7-24-35

M. M. 7-25-35

E. S. 1- 8-36

It is observed that Employee J. L., who leads the list noted above, was promoted to the



classification of Electrician—Leader on June 28, 1943. In the final steps of theconsideration of the instant grievance, the Union has narrowed its claim and contends thatEmployee E. M. should be given the job of Electrician—Leader in place of Employee H. B.

Union Claim

The Union urges that a considerable number of electricians in the group from whichEmployee H. B. was selected were at least equal to him in ability, merit and capacity. Itcontends that the three specific jobs which had been performed by Employee H. B., and onwhich his selection had largely been based, were of a nature which any of the allegedlyaggrieved employees could have performed had they been given the opportunity and thenecessary equipment to perform the work. Because they were not given an opportunity toshow their merit, the Union notes that the ability of the individual employees to perform thework could not be demonstrated. The single exception that it makes in this particular is inthe case of Employee J.L., whom it notes performed several Leader jobs of undoubtedmerit.

The Union has cited a number of individual jobs (not Leader work) which were performedby several of the aggrieved employees. It maintains that the workmanship on all of thesejobs was sufficiently outstanding to merit the consideration for promotion of the men whoperformed them. The Union has also stressed some of the background of the variousclaimants to indicate that their experience covered a longer period of time than EmployeeH. B. and should have qualified them for consideration for the job as Leader.

The Union takes the position that Employee H. B. was not "head and shoulders" above allof the candidates for the Leader’s job. It feels that while he may have been equal to otheremployees in these attributes, conformance with past decisions of the Umpire and properrecognition of Paragraph 63 of the National Agreement should have caused Managementto group H. B. with other employees of like ability, merit and capacity before making apromotion to the Leader classification. If such a step had been taken, the Union holds thatEmployees J. L. or E. M. would undoubtedly have been promoted. Inasmuch as EmployeeJ. L. has been promoted since the date of the instant grievance, the Union reasons thatEmployee E. M. should be given the job held by Employee H. B. because of his equalability, merit and capacity and his longer seniority.


Management maintains that Employee H. B. "was outstanding in ability, merit and capacityamong other electricians in his group and had manifested qualifications embracing thesequalities needed for the fulfillment of the duties of Electrician—Leader". It holds that H. B.surpassed all other electricians with respect to ability, merit and capacity and that he stood"head and shoulders" above all others in his group. The Corporation claims that localManagement gave every consideration to the qualifications of all of the availableelectricians and states that it was fully satisfied that "B. excelled in these qualificationswhich are so essentially necessary for the fulfillment of the duties of Electrician—Leader."

Particular emphasis in the choice of Employee H. B. for promotion, Management notes,was based on the fact that Mr. S. and Mr. G. (two members of supervision) "recalled thevarious occasions when Mr. B. had been given assignments which gave him an



opportunity to demonstrate leadership qualities". On these occasions Management feelsthat H. B. demonstrated his possession of leadership qualities to the extent that he wasconsidered to be "head and shoulders" above the other electricians in the department inthis respect. Management does not deny that many of the other electricians were excellentmechanics, but it holds that none of them demonstrated leadership qualifications equal toH. B. Upon the basis of its contention that Employee H. B. was "head and shoulders"above all other electricians available for the Leader job, Management maintains that hispromotion was in proper compliance with Paragraph 63 of the National Agreement.

Observations and Decisions of the Umpire

Many past decisions of the Umpire have indicated that one method of promoting anemployee in compliance with Paragraph 63 of the National Agreement is to group thoseemployees who stand relatively equal as to ability, merit and capacity and then to promotethe employee in that group with the greatest seniority. It has also been indicated that if anemployee is found to stand "head and shoulders" above other available men insofar astheir relative abilities, merits and capacities are concerned, there is no question but that thepromotion of such an employee would be in compliance with Paragraph 63 of the NationalAgreement. It has also been indicated that the rather nebulous character of the threeattributes of ability, merit and capacity make difficult any objective measure. The verydifficulty of the measure should make it evident that an employee should certainly beoutstanding in relation to other employees to be considered "head and shoulders" abovethem with respect to relative ability, merit and capacity. A fine shade of difference betweentwo employees does not make one stand "head and shoulders" above the other.

In the present case, it cannot be said that supervision attempted to use any objectivemeasures in the determination to promote Employee H. B. to the job of Electrician—Leader. It is noted, for instance, that when two members of supervision discussed thepossible future necessity for additional Leaders, one of the supervisors stated that "in hisopinion Mr. B. was the outstanding electrician in the department for consideration as aLeader", and another member of supervision "concurred with his opinion". When the actualneed for an additional Leader arose, it is said that two members of supervision, "mutuallyagreed" that H. B. should be advanced to the classification of Leader. In arriving at thisdecision, it is stated that these two members of supervision "recalled the various occasionswhen Mr. B. had been given assignments which gave him an opportunity to demonstrateleadership qualities".

Because of three instances in which it was recalled that Employee H. B. had demonstratedcertain leadership qualities, it is now said that he stood "head and shoulders" above allother electricians in his group. With such fragmentary evidence the determination that H.B. stood "head and shoulders" above all of the other electricians can hardly be supportedespecially with respect to Employee J. L. who had 19 more years seniority at this plant andhad demonstrated leadership potentialities in other jobs. Certainly the few jobs whichEmployee H. B. had performed satisfactorily to "demonstrate his leadership qualities" werenot sufficient to offset the 19 years of additional experience on the part of J. L. who hadalso demonstrated the same qualities in other jobs which he performed satisfactorily.



The available evidence in this case convinces the Umpire that Management did not makeits original choice of Employee H. B. for promotion to the job of Electrician—Leader inconformance with Paragraph 63 of the National Agreement. It seems quite evident thatthough Employee H. B. stood above most of the other employees with respect to ability,merit and capacity, he did not exceed Employee J. L. in these attributes. To comply withParagraph 63 of the Agreement, then, Employee H. B. should have been consideredapproximately equal in ability, merit and capacity to Employee J. L. before the promotionwas made. Had this been done, it is evident that Employee J. L. would have received thepromotion because he held 19 years more seniority than Employee H. B.

Management’s failure to make its choice in the manner noted above must be held to haverepresented a violation of Paragraph 63 of the October 19, 1942 National Agreement.However, inasmuch as Employee J. L. was advanced to the position of Electrician—Leader on June 28, 1943, it is not necessary for the Umpire to declare H. B.’s job vacant tobe filled by Employee J. L. These two men were obviously in a class by themselves withrespect to relative ability, merit and capacity to become Leaders. Since both of them havebeen advanced to the Leader classification, there is no necessity to declare vacant the jobheld by Employee H. B.

The final request presented by the Union, namely that Employee E. M. be given thepromotion that was made available to H. B., cannot be granted. Obviously the Umpire hasno right to order the promotion of any individual but can simply declare a job vacant to befilled by Management in compliance with Paragraph 63 of the National Agreement. Sincethe Umpire has already found that Employee H. B. should have been grouped only withEmployee J. L. before the original promotion, he has already disposed of the contention ofE. M. that he should have been grouped with these two employees for consideration forthe Leader job. The Union’s specific request in the case of E. M., therefore, must bedenied.

Decision

1. Management’s selection of Employee H. B. for promotion to the position ofElectrician—Leader was not in compliance with Paragraph 63 of the October19, 1942 Agreement. Employee H. B. did not stand "head and shoulders"above all other employees in his group with respect to ability, merit andcapacity. Employee J. L. was at least equal to Employee H. B. in theseparticulars.

2. Inasmuch as the two employees who are considered to have been relativelyequal in ability, merit and capacity have both been promoted to the job ofElectrician—Leader, it is not necessary to vacate the job held by Employee H.B. These two men were in a class by themselves insofar as warrantingpromotion to the Leader classification is concerned, and both have beenadvanced to that classification.

3. The concomitant request of the Union that Employee E. M. be awarded thepromotion granted Employee H. B. is denied, because it is an improper request



to make of the Umpire, and because Employee E. M. is judged as not beingequal to the two other noted employees with respect to relative abilities, meritsand capacities.


UMPIRE

October 18, 1943.





No. C-139

November 29, 1943

Hiring of Women

GRIEVANCES:

Chevrolet Gear & Axle—Cases C-105, C-109 and C-120

"Management is violating local seniority agreement by putting employees with no seniorityon grinding when I am on the waiting list for grinding."

"I am being discriminated against by Supt. O’C. for Union activity. My name has been onthe waiting list for Grinder for 1 year. The available list is now exhausted and newemployees are being placed on Grinders while Supt. O’C. refuses to have me placed onGrinder because I am a Committeeman."

"Management is violating the local agreement by putting on employees with no seniority ongrinders when I am on the waiting list."

This grievance was amended in the Shop Committee-Management meeting of July 6,1943, by adding the following statement:

"This is also a violation of National Agreement Paragraph 63."


1. No provisions of the October 19, 1942 National Agreement, of the localseniority agreement, or the local wage agreement limit Management in thehiring of female employees for higher rated jobs. In the absence of suchprovisions, the hiring of the female employees protested in the instantgrievances was entirely within the rights of Management.

2. Inasmuch as the female employees concerned in these cases were newemployees, it could not be said that their respective abilities, merits and


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capacities should have been compared with those of the complainants todetermine who should have been given the available job openings. Paragraph63 of the October 19, 1942 Agreement was not applicable in such a situation.

3. The requests of the complainants for transfers, which really representrequests for promotion, must be denied. Such denial does not arise merelyfrom the fact that the requests are for promotions of a nature that cannotpossibly be granted by the Umpire. It is primarily based on the fact that norights of the complainants were violated when Management placed femaleemployees in the jobs to which the complainants were awaiting promotion.

(Entire Decision should be read)

In the Matter of:

United Automobile Workers of America, C.I.O. Local #235

and

General Motors Corporation—Chevrolet Gear & Axle Division—Cases C-105, C-109, C-120.

The three employee grievances in this case have been combined by the parties for asingle decision. The first of these, which was presented by Employee M. on July 7, 1943,reads: "Management is violating local seniority agreement by putting employees with noseniority on grinding when I am on the waiting list for grinding." The second and thirdgrievances were presented by Employee D. on July 7, 1943 and July 5, 1943, respectively.The first of these refers to D.’s status as a Committeeman and reads as follows: "I ambeing discriminated against by Supt. O’C. for Union activity. My name has been on thewaiting list for Grinder for 1 year. The available list is now exhausted and new employeesare being placed on Grinders while Supt. O’C. refuses to have me placed on Grinderbecause I am a Committeeman." The final grievance reads: "Management is violating theLocal Agreement by putting on employees with no seniority on grinders when I am on thewaiting list." This grievance was amended in the Shop Committee-Management meeting ofJuly 6. 1943, by adding the following statement: "This is also a violation of NationalAgreement Paragraph 63."

While the above grievances do not mention the fact, the issue in this case really concernsthe rights of the complainants for promotion to jobs (from existing "waiting lists") that werefilled by newly hired female employees. A hearing on these three combined grievanceswas held in Detroit on October 28, 1943.

Nature of Case



On May 26, 1943, increased production demands, plus losses of personnel to the armedforces, necessitated the adoption of a schedule of six days per week at the Chevrolet Gearand Axle Division. In order to keep the weekly working hours of the employees withinreason, management began to hire a large number of female employees. The physicallimitations of women and the regulations of the State Labor Laws necessitated the placingof women within limited types of jobs. Consequently, Management found it necessary toplace the new female employees on jobs within the higher rated classifications as well aswithin the lower rated jobs. While some of the female employees were moved from lowerrated jobs to higher rated jobs, the large majority of openings were filled by newly hiredfemale employees who had not previously worked in the plant.

When female employees were brought into the plant and assigned to various jobs,complaints arose from the male employees who were on the so-called "waiting lists"pending possible promotion to higher rated classifications. These male employeescomplained that the placing of women in the jobs just above them in rate prevented themale employees from gaining the promotions to which they would ordinarily have beenentitled.

The grievances covered by this decision are simply illustrative of a large number ofgrievances that were filed about the same time. At the hearing on these three cases,however, it was indicated that the parties might well use the decision in these cases tosettle the other pending grievances.

Union Claim

While the Union presented specific details with respect to the two individuals who filed theinstant grievances, the Umpire does not deem it pertinent to cite these particular facts. Thegeneral arguments common to each of the grievances represent the real significance ofthe case.

The local Union contends that Management violated Paragraph 63 of the October 19, 1942‘Agreement by placing female employees on various jobs while male employees, who wereawaiting promotion to such jobs, remained in their previous classifications. It notes thatParagraph 63 states that in the advancement of employees to high paid jobs, when ability,merit and capacity are equal, employees with the longest seniority will be given preference.The two complainants are claimed by the Union to have possessed greater ability, meritand capacity than the women employees who were given the available jobs. The Unionreasons, then, that Management did not consider the ability, merit and capacity of theavailable male employees to fill the various jobs, and consequently violated Paragraph 63of the October 19, 1942 Agreement.

The Union also contends that Management has violated past practice with respect to thewaiting lists by hiring new female employees instead of promoting male employees fromthe waiting lists. The Union holds that the employee with the greatest seniority whosename appears on the waiting list should be promoted when an opening occurs in theoccupational group to which the employee has requested promotion. When Managementfailed to follow this procedure, and brought female employees into various jobs withoutconsidering the promotion of the complainants who were on the waiting lists, the Unioncontends that the principle of the waiting list was violated.



In the cases here at issue, the Union seeks to have the two complainants promoted to theclassifications to which they feel they would have been promoted had female employeesnot been brought into the plant. In addition, the Union seeks to have the two men grantedback pay for all monies lost by them through failure to receive the promotions as of thedate of their respective grievances.


The Corporation emphatically denies that the employment of females at this plant violatedthe written local seniority agreement or the October 19, 1942 National Agreement. TheCorporation maintains that the right to hire employees is the sole responsibility ofManagement under Paragraph 8 of the National Agreement, and notes that this right wasupheld by the Umpire in Decision C-75 that involved a similar issue.

The Union’s charge of a violation of the local seniority agreement with respect to waitinglists, is also denied by the Corporation. It notes that this section simply provides that "awaiting list shall be kept by the plant superintendent of employees requesting to go onanother shift". It maintains that this provision does not preclude the hiring of newemployees for higher rated jobs, nor does it specify the manner in which the waiting listsshall be used for promotions, transfers, etc. Management is not committed by agreementor practice to a policy of filling all job openings from a waiting list, the Corporation reasons.In fact, it is strenuously maintained that the established practice at this Division has beento place new employees on any jobs requiring their services.

The charge of discrimination for Union activity contained in Case C-109, is denied by theCorporation with the observation that this charge has not been supported by written orverbal evidence.


No provision of the October 19, 1942 National Agreement, of the local wage agreement, orof the local seniority agreement limits Management of the Chevrolet Gear and AxleDivision as to the manner in which it may hire new employees. If there was any provision inany of these agreements that required Management to hire new employees into the lowestrated jobs or into clearing groups, there may have been some merit in the presentgrievances. However, in the complete absence of any such provisions, Management of theChevrolet Gear and Axle Division has a right to hire employees for higher rated jobs and toplace them directly into such jobs.

The claims presented in the instant grievances were not affected in any manner simplybecause female employees are involved. There is no more of a limitation with respect tothe hiring of female employees than there is with male employees. Management’s right toplace these employees in higher rated jobs has not been affected by any agreementprovisions.

The contention of the Union that consideration must be given to the ability, merit andcapacity of the complainants to fill the available jobs, is not correctly made in the present



instances. The female employees here concerned were not employees who had beenpromoted after a period of time on the company payroll. Paragraph 63 would be ofsignificance in the advancement of persons already on the payroll of the company, but isnot compelling when the employee who is given a particular job is a new employee and isin no sense being advanced to a higher paying job from a lower rated job. Paragraph 63 ofthe National Agreement, therefore, was not applicable in the instances covered by thisdecision.

The inevitable conclusion that must result from the reasoning included in this decision isthat the complainants had no merit in their contentions. Their requests for transfers arereally requests for promotion which obviously the Umpire could not possibly grant.However, in view of the reasoning here presented, the entire requests made by thecomplainants must be denied.

The Umpire notes that on August 19, 1943, the two parties reached an agreement to settlethe various issues concerning the employment of women at this Division. This agreementshould serve to eliminate many of the grievances which have been filed over the questionof the employment of women in specific jobs at this Division. It is hoped that the presentdecision will eliminate the remainder of such grievances.

Decision

1. No provisions of the October 19, 1942 Agreement, of the local seniorityagreement, or the local wage agreement limit Management in the hiring offemale employees for higher rated jobs. In the absence of such provisions, thehiring of the female employees protested in the instant grievances was entirelywithin the rights of Management.

2. Inasmuch as the female employees concerned in these cases were newemployees, it could not be said that their respective abilities, merits andcapacities should have been compared with those of the complainants todetermine who should have been given the available job openings. Paragraph63 of the October 19, 1942 Agreement was not applicable in such a situation.

3. The requests of the complainants for transfers, which really representrequests for promotion, must be denied. Such denial does not arise merelyfrom the fact that the requests are for promotions of a nature that cannotpossibly be granted by the Umpire. It is primarily based on the fact that norights of the complainants were violated when Management placed femaleemployees in the jobs to which the complainants were awaiting promotion.


UMPIRE

November 29, 1943.




No. C-144

November 30, 1943


GRIEVANCE:

Pontiac Motor—Case C-46

"Violation of Paragraph 63 of National Agreement. Ask back pay."


1. The grievance presented by Employee L. was not timely and must, therefore,be denied.

2. Even though L.’s grievance had been presented in a timely fashion, theredress he seeks could not have been granted inasmuch as the Umpire wouldhave had to substitute his jurisdiction for Management’s rights and havedetermined that the ability, merit and capacity of Employee L. warranted hispromotion regardless of the meaning of Paragraph 63 of the NationalAgreement.

3. A final reason that the specific redress sought by L. in this grievance couldnot be granted is that other unexpressed grievances may well have resulted.The disposition of one grievance is not proper when it creates meritoriousgrievances on the part of other employees. (Entire Decision should be read)

In the Matter of:

United Automobile Workers of America, C.I.O.—Local 653

and


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General Motors Corporation—Pontiac Motor Division—Case C-46

The employee grievance in this case, presented by L. in his own behalf on June 11, 1943,reads as follows: "Violation of Paragraph 63 of the National Agreement. Ask back pay."This grievance involves a contention by Employee L. that he should have been promotedto a higher paying job setter opening in place of another employee who was promoted fromanother classification. A hearing on this matter was held in Detroit on October 29, 1943.

Nature of Case

On May 3, 1943, Employee C. (seniority date 2-19-37) was advanced from theclassification of "Grinder—Rough and Finish" at $1.20 per hour, to the classification of "JobSetter" at $1.30 per hour. On June 11, 1943, almost six weeks later, Employee L. filed theinstant grievance protesting the advancement as a violation of Paragraph 63 of theNational Agreement. At the time of the promotion of Employee C., the complainant (L.) wasworking as a job setter in another department at the rate of $1.27 per hour. The Union asksthat L. be promoted to the higher paying job now held by C., and requests that he receiveback pay for the period during which C. held that job.

Union Position

The Union contends that Employee L.’s experience as a job setter caused him to be far inadvance of Employee C. with respect to ability, merit and capacity to fill the opening intowhich Employee C. was promoted. Though Employee L. may not have had as muchexperience as Employee C. in setting up some of the jobs in the department, the Union stillmaintains that L. had sufficient experience to have enabled him to fill the job without anyadditional training. Because of L.’s past experience as a job setter at $1.27 per hour, then,the Union reasons that he was fully capable of filling the job that carried a rate of $1.30 perhour, and possessed far greater ability, merit and capacity than C. for such a job.

The Union notes that Management has raised a question as to the timeliness of thepresent grievance. The Union denies this untimeliness with the following statement, "Thisgrievance was raised by L. and a promise was given that he would be given a $1.30 job.This promise was enough to delay the filing of this written grievance which was raisedagain verbally before being submitted in writing." When Employee L. was not given a job at$1.30 per hour, the Union reasons that he was correct in filing the instant grievancerequesting that he be given the job into which C. was promoted and receive back pay forthe period he was denied the promotion.


The Corporation presented particular details with respect to the various machines that hadto be set up in the department into which C. was promoted as a job setter. It contends thatthe experience he had gained in setting up these machines during the periods in which hesubstituted for, or assisted, the regular job setter, enabled him to perform the work when



the opening occurred. If Management had promoted Employee L. to the job, it is reasonedthat delays would have resulted while L. was being taught the setup of some of themachines on which he had no experience. In Management’s opinion, Employee C.possessed much greater ability than the complainant to set up the various machines thatwere involved in the department in which the opening occurred. Management claims,therefore, that the ability, merit and capacity of Employee C. was greater than EmployeeL., "especially since the employee who was advanced to the higher rated job possessedconsiderable knowledge about it, while the employee protesting the advancement had arather limited knowledge of only a phase of the work to be done".

The Corporation raises strenuous objection to what it contends is a lack of timeliness in thepresentation of the instant grievance. It maintains that the claim raised by the employee tothe effect that he was promised a set-up job at $1.30 per hour "resolves itself to astatement by supervision that if separate setup men were placed on the 1054 line (Mr. L.’sjob) to handle the mills and grinders, then the complainant would be given the set-up jobfor the grinders." The Corporation requests, therefore, that the Umpire find that Paragraph63 of the National Agreement has not been violated in the advancement of Employee C.,and further asks that the Umpire deny the request for back pay.


The present grievance lacks much that is necessary to obtain redress from the Umpire. Itslack of timeliness is of extreme importance in this connection, but it also fails to givecognizance to the principle enunciated in prior decisions to the effect that a decision in onecase should not result in the creation of grievances for other employees. These twoaspects of the present case are the only ones which the Umpire feels necessary tocomment upon at any length in this decision.

Apparently the real reason for the presentation of the instant grievance stemmed out ofEmployee L.’s failure to receive a promotion from his position as a job setter at $1.27 perhour to one at $1.30 per hour. While Employee L. was awaiting Management’s fulfillmentof its rather limited promise to make a specific job available if such a job should develop,he raised no formal objection to the promotion that had been granted to Employee C.However, when he did not receive the promised promotion in what he felt was a propertime, he presented a grievance and attempted to make it retroactive to a specific promotionthat had occurred approximately six weeks before that date. By that time the employeewho had received the promotion was firmly established in the job and Management hadnot received the slightest inkling that any disagreement had existed with respect to thatpromotion. Certainly under such circumstances, the Umpire can come to no otherconclusion than that Employee L.’s grievance was untimely.

The other aspect of this case which requires comment is in reference to the propriety ofEmployee L.’s claim to the exact job held by Employee C. This comment would benecessary even if Employee L.’s grievance had been timely. It should be noted thatEmployee L. filed a specific grievance asking that he be promoted to the job held byEmployee C., and that he be paid back pay for all of the time during which he did notreceive the higher rate of pay. If the Umpire should grant such a request, several improperresults would occur. First, and foremost, the Umpire would have to substitute his ownevaluation for that of Management in deciding who should be promoted to a specific job



opening. Obviously, the Umpire cannot assume a power of right that rests withManagement under the terms of Paragraph 63 of the National Agreement. All that theUmpire could have done under these circumstances would have been to declare the jobheld by C. vacant, and have directed Management to fill the opening with someone theyhad properly selected on the basis of Paragraph 63 of the National Agreement. TheUmpire would have acted far beyond the provisions of the National Agreement, andentirely without conformance to past decisions, if he had ordered the promotion ofEmployee L. or had directed back pay for any period of time.

The second basis on which Employee L.’s claim is questionable is that if it had beengranted, it is highly probable that grievances on the part of other persons would haveautomatically resulted. The mere fact that Employee L. presented a claim to the job held byC. did not permit his qualifications to be the only ones that could be considered to fill theopening that would have occurred had C.’s new job been declared vacant. The ability,merit and capacity of other employees may well have been such as to entitle them toconsideration in filling the job to which C. had been promoted. The Umpire could notdisregard such rights by ordering the promotion of Employee L. That very promotion maywell have given rise to the filing of grievances by other employees whose ability, merit andcapacity to fill the higher rated job setter opening may have been equal to, or havesurpassed, those of Employee L. (It should be noted in passing that the presentation of thegrievance by Employee L. did not cause him to be the spokesman of all employees whoserights may possibly have been violated by the promotion of C., unless they joined him insome concise manner in presenting the grievance.) It should be clear, then, that L.’spromotion to the specific job held by C. could not be ordered if for no other reason thansuch a procedure may have resulted in the motivation of other unexpressed claims bypersons with greater ability, merit and capacity than those possessed by Employee L.

It should be noted that the Umpire has given no consideration to the specific abilities, meritand capacities of Employee L. as compared to Employee C. Such treatment of this case isnot an oversight, but arises entirely out of the lack of timeliness and the improperpresentation of the grievance by Employee L. Any right which L. may have had to have hisqualifications compared with those of Employee C. were lost by the lack of timeliness ofthe presentation of his grievance. However, it should be noted that even if the grievancehad been presented in a timely manner, the actual redress sought by Employee L. couldnot have been granted because it would have resulted in the Umpire substituting himselffor Management and determining that a specific employee should be promoted regardlessof the requirements of Paragraph 63 of the National Agreement.

Decision

1. The grievance presented by Employee L. was not timely and must, therefore,be denied.

2. Even though L.’s grievance had been presented in a timely fashion, theredress he seeks could not have been granted inasmuch as the Umpire wouldhave had to substitute his jurisdiction for Management’s rights and havedetermined that the ability, merit and capacity of Employee L. warranted his



promotion regardless of the meaning of Paragraph 63 of the NationalAgreement.

3. A final reason that the specific redress sought by L. in this grievance couldnot be granted is that other unexpressed grievances may well have resulted.The disposition of one grievance is not proper when it creates meritoriousgrievances on the part of other employees.


UMPIRE

November 30, 1943.





No. C-152

December 28, 1943


GRIEVANCE:

Chevrolet Bay City—Case C-32

"According to Par. 63, I should have been advanced to a machine setter instead of ayounger man."


1. The grievance of Employee D.S. lacked timeliness with respect to thepromotions of Employees F.R. and E.W. No comparison of the abilities, meritsand capacities of these individuals can properly be made.

2. The ability, merit and capacity of Employee D.S. was not equal to that ofEmployees A.B. and A.S. Promotions of these latter two individuals were in fullcompliance with Paragraph 63 of the October 19, 1942 National Agreement. Allclaims by Employee D.S., therefore, are denied. (Entire Decision should beread)

In the Matter of:


and

General Motors Corporation—Chevrolet Bay City Division—Case C-32


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The employee grievance in this case, which was presented by D.S. on July 28, 1943,reads as follows: "According to Par. 63, I should have been advanced to a machine setterinstead of a younger man." A hearing on this matter was held in Saginaw, Michigan, onDecember 1, 1943.

Nature of Case

In the months of June and July, 1943, four employees were advanced to the position of jobsetter on a group of automatic screw machines at the Chevrolet Bay City Division. On July28, 1943 (from one month and two days to nine days after the above promotions),Employee D.S. filed a grievance that did not specifically refer to any of these particularpromotions. However, in subsequent steps of the grievance procedure, the ShopCommittee referred to the four individuals indicated below.

Initials Seniority Date Date of Promotion

F.R. 11-26-28 6-21-43

E.W. 12-27-29 7-12-43

A.B. 4-10-30 7-19-43

A.S. 6-21-33 7-19-43

It is the Union’s contention that Employee D.S. has ability, merit and capacity equal tothese four employees, and that he should have been promoted in the place of any one ofthem because of his greater seniority.

Union Claim

The Union notes that Employee D.S. had 16 years of service as an automatic machineoperator, and in this time produced a large number of parts. Consequently, the Union feelsthat Management’s action of promoting four other employees amounted to "passing over atop flight automatic operator with greater seniority". It holds that none of the four menpromoted "are particularly outstanding", and that Employee D.S. was their equal in ability,merit and capacity. It asks that he be promoted to the job of machine setter on automaticscrew machines, and that he be paid back pay retroactively to the date of his grievance tothe extent of the difference between the rate he received and the rate for the machinesetter classification.


Management asserts that several factors kept Employee D.S. out of the group ofemployees with whom he claims equality. It holds that the promotions of the fourindividuals cited by the Union were strictly on the basis of seniority within a group which



Management felt possessed approximately the same ability, merit and capacity to fill theposition of a job setter on automatic screw machines.

In support of the promotions of the four men here in question, Management has made aseries of statements. It observes that Employee F.R. had previous job setting experience,was an above-average operator on all jobs and frequently assisted in job set-up work overand above the requirements of an operator. It notes that Employee E.W. had provenhimself an all-around operator who could readily adapt himself to all of the machines in thedepartment, and who had made several outstanding machine improvements. EmployeeA.B., it asserts, had previous experience as a job setter at this plant and at the A.C. SparkPlug Division in Flint, Michigan. It concludes by stating that the fourth man, Employee A.S.,was included because of three months’ prior experience as a job setter, plus longexperience on New Britain machines. In addition, Management maintains that all four ofthese men have demonstrated their ability to diagnose operational troubles on machinesand remove the cause for such troubles. Finally it holds that all four of the promoted mengreatly excel Employee D.S. with respect to gaining the cooperation of their fellowworkmen.

While Management admits that Employee D.S. is "a capable automatic screw machineoperator on specific phases of the work", it contends that he has had considerable troublein getting new jobs started and lacks the necessary initiative to perform the job setter’swork. Specific instances are noted that have caused a rather negative reaction byManagement as to this individual’s potentialities as a job setter. It is pointed out that on aparticular nut job it was necessary to remove him because "he complained of too muchwork". On two screw and stud jobs, it is contended that he frequently burned the turningtool rollers by failing to watch the tool and to grind when necessary. On another screw andbolt job, it is said that he "could not get average production". On the job which he wasperforming just before the hearing on this matter, it is noted that his production was good,but that his percentage of scrap was very high.

For the reasons noted above, Management contends that Employee D.S. should not havebeen considered equal in ability, merit and capacity to the four men who were promoted toset-up work in June, and July, 1943.


At the hearing on this case, the Umpire indicated his feeling that there was a lack oftimeliness in the instant grievance at least with respect to the promotion of Employee F.R.The Umpire is convinced that the same conclusion is proper in the case of the promotion ofEmployee E.W. In both of these instances the employees had obtained such experience inthe machine set-up work by the time this grievance was filed that a consideration of theirqualifications could only have concluded that their existent abilities, merits and capacitiesto fill openings in the classification of machine setter on automatic screw machines werefar above those of Employee D.S.

The contentions which Employee D.S. has raised with respect to the promotions ofEmployees A.B. and A.S. do not find any real support. Both of these men had previous job



setting experience, and already had proven themselves as to their ability and capacity toperform the job setting tasks. While this proven ability may not have been on automaticscrew machines, it nevertheless indicated their capacity to perform all of the elements ofsuch work when a knowledge of the automatic screw machines was also available.

Of real importance are the negative aspects that must be considered in evaluating theability, merit and capacity of Employee D.S. with respect to the available set-up jobs. In theseveral ways cited by Management, Employee D.S. had proven himself considerablybelow the promoted employees with respect to ability, merit and capacity. Support cannotbe given to the Union’s position that Management’s failure to assess disciplinary action tocontrol the negative aspects of the employee’s work should eliminate such factors fromconsideration when potential promotion is involved. Even if disciplinary action had beentaken the factors would not have been removed from the man’s record. Management’sfailure to take disciplinary action does not excuse or remove these factors from the workrecord of the employee. It is proper, therefore, to consider such matters when a promotionto an available opening is contemplated.

For the reasons noted herein, the Umpire is convinced that Employee D.S. did not possessability, merit and capacity equivalent to Employees A.B. and A.S., who were promoted tothe job of set-up men on automatic screw machines on July 19, 1943. It must be held,therefore, that all promotions here involved were in compliance with Paragraph 63 of theNational Agreement. The claims of Employee D.S. are denied.

Decision

1. The grievance of Employee D.S. lacked timeliness with respect to thepromotions of Employees F.R. and E.W. No comparison of the abilities, meritsand capacities of these individuals can properly be made.

2. The ability, merit and capacity of Employee D.S. was not equal to that ofEmployees A.B. and A.S. Promotions of these latter two individuals were in fullcompliance with Paragraph 63 of the October 19, 1942 National Agreement. Allclaims by Employee D.S., therefore, are denied.


UMPIRE

December 28, 1943.





No. C-155

December 30, 1943


GRIEVANCE:

Buick Motor—Case C-69

"I request that I be placed and tried on 3664 classification. I feel that Management hasdiscriminated against me and violated the Agreement on Page 31, Paragraph 63."


While the complainant may well be able to perform the functions of a Utility Inspector ifgiven the opportunity to do so, it is quite evident that his ability, merit and capacity toperform that work was far less than that of Employee M. who was assigned the functions ofthat job in May, 1943. Since the choice of M. for promotion was in full compliance withParagraph 63 of the October 19, 1942 Agreement, Employee R.’s request must be denied.(Entire Decision should be read)

In the Matter of:


and

General Motors Corporation—Buick Motor Division—Case C-69

On May 22, 1943, Employee B. presented a grievance that read as follows: "I request that Ibe placed and tried on 3664 Classification. I feel that management has discriminated



against me and violated the Agreement on Page 31, Paragraph 63." A hearing on thismatter was held in Flint on December 2, 1943.


In November, 1942, Employee M. (seniority date, 6-12-29) was advanced from theclassification of "Inspector—Machining, Bench and Floor" to the classification of"Inspector—Utility". For a short time he did the work of the utility classification, but areduction in the utility work caused him to be returned to bench work without a change inclassification. In April, 1943, a new opening in utility work occurred and Employee M. wasgiven the job. It was determined at that time that he was still classified as "Inspector—Utility", and Management found it necessary only to increase his rate to the top rate of theclassification. In May, 1943, his duties were changed from bench work to utility work andother employees became aware of M.’s changed classification. Employee R. (senioritydate 11-13-11) filed a grievance protesting this promotion and requesting that he be"placed and tried" in the utility classification.

The Union contends that "R. is capable and in the past has been used by the Managementto break in new employees." It submitted two statements by men who have worked with R.and who consider him "capable of all white metal jobs in this group". Because R. has theability to do the job, and has much greater seniority than any other man in his department,the Union requests that R. be given the classification of "Inspector—Utility."

Management contends that the ability, merit and capacity of Employee M. to fill the job ofUtility Inspector is far greater than that of Employee R. It observes in particular that thephysical condition of employees is of considerable significance in determining theircapacity to fulfill the requirements of an available job. The considerable difference in theages of the two men, together with the greater physical stamina possessed by M., are citedby Management as important elements in support of the conclusion that Employee M.stood "head and shoulders" above R. to fill the job of Utility Inspector.


In effect, the Union’s request in R.’s behalf in this case is merely that he be given a chanceto be tried on the utility classification to see if he can perform the work. No such requestcan correctly come to the Umpire inasmuch as Management retains the right of promotionunder Paragraph 63 of the October 19, 1942 Agreement.

There is no doubt in the Umpire’s mind but that the ability, merit and capacity of EmployeeM. to fill the job of Utility Inspector in May, 1943, was far greater than that of Employee R.Since Management made its selection on such a basis, it correctly applied the principlesenunciated in Paragraph 63 of the National Agreement, and was in conformance with pastdecisions with respect to such promotions. Employee R.’s claim, therefore, is denied.



Decision

While the complainant may well be able to perform the functions of a Utility Inspector ifgiven the opportunity to do so, it is quite evident that his ability, merit and capacity toperform that work was far less than that of Employee M. who was assigned the functions ofthat job in May, 1943. Since the choice of M. for promotion was in full compliance withParagraph 63 of the October 19, 1942 Agreement, Employee R.’s request must be denied.


UMPIRE

December 30, 1943.





No. C-157

January 8, 1944


GRIEVANCE:


"Group—Violation Paragraph No. 63. Ask back pay. Other advancements out of line."


1. Employee J. H. was not a member of a group that had a joint grievance. Hisgrievance, therefore, could cover no one other than himself. The decision in thiscase, then, is confined solely to the claims of Employee J. H. with respect to thepromotion of L. C.

2. The ability, merit and capacity of Employee J. H. did not warrant his beinggrouped with Employee L. C. in a choice for promotion to the available job ofRelief Man. Consequently, it must be held that the promotion of Employee L. C.insofar as the particular complaint of J. H. is concerned, representedcompliance with Paragraph 63 of the October 19, 1942 Agreement. Therequest of Employee J. H. contained in the instant grievance is denied. (EntireDecision should be read)

In the Matter of:


and

General Motors Corporation—Pontiac Motor Division—Case C-35


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On April 26, 1943, Employee J.H. presented a grievance which purported to be a groupgrievance by a number of men protesting the promotion of Employee L.C. to theclassification of Relief Man in April, 1943. The grievance reads: "Group—ViolationParagraph No. 63. Ask back pay. Other advancements out of line." The first hearing on thismatter was held in Detroit on September 8, 1943. At that time the Umpire determined thatthe parties had largely confined themselves to a comparison of the ability, merit andcapacity of the signer of the grievance (J.H.) and the employee who had been promoted(L.C.) However, in view of certain inconsistencies as to facts, the grievance was returnedto the parties for their further consideration. A second hearing on the case was held onOctober 29, 1943, at which time the Umpire again found that the parties were not inagreement as to certain important facts in the case. Immediately after this second hearing,the Umpire returned the case to the parties with a request for specific information thatwould indicate the exact work record of Employees J.H. and L.C. in 1942 and 1943. Theparties accepted the second return of the case and prepared the necessary data whichthey mutually considered before presenting it to the Umpire. The third and last hearing onthis matter was held in the Office of the Umpire on December 9, 1943. The presentdecision is the final disposition of a case that has required a series of three hearings todevelop all pertinent material.

Nature of Case

In April, 1943, an opening occurred for a Relief Man on the Diesel Block line in Department681 of the Pontiac Motor Division. Employee L.C. (seniority date, March 10, 1936) wasadvanced from the classification of Swing Grinder to the classification of Relief Man withan increase of five cents per hour in his rate. Employee J.H. (seniority date, November 26,1935), who at the time had established his seniority in Department 683, filed the instantgrievance as a group grievance protesting the advancement of Employee L.C. While thegrievance was filed in the form of a group grievance, the Union has consistently stressedonly the claim of Employee J.H. to the job in question. In fact, it was for this reason that theUmpire directed the parties to present specific data with respect to these two men andconfined the final two hearings entirely to this aspect of the case. The present decision,therefore, concerns only the contention that Employee J.H. should have been given the jobto which Employee L.C. was promoted.

Union Claim

The Union’s original position was to the effect that Employee L.C. did not stand "head andshoulders" above the other employees in the group of available men who could have filledthe opening for a Relief Man. It presented the work experience of Employee J.H. as ameans of proving that the signer of the instant grievance was at least equal to thepromoted employee with respect to ability, merit and capacity, and that he should havebeen given the promotion because of his greater seniority.

Originally the Union presented material which contended that Employee J.H. hadexperience in the work of Department 681 that was equivalent to that of Employee L.C. In



the latter hearings on the matter, this contention was not particularly stressed, but it washeld that his work experience prior to the development of the Diesel work provedEmployee J.H. more versatile than Employee L.C. The Union has asked, therefore, thatEmployee J.H. be advanced to the job of Relief Man in place of Employee L.C., and thathe be paid back pay for all the time that the job has been held by Employee L.C.


In the three written statements presented by the Corporation in connection with this case, aseries of facts has been developed in detail to support its contention that the ability, meritand capacity of Employee L.C. was far greater than that of the complainant, Employee J.H.This material was particularly stressed in the written statement presented at the hearing ofDecember 9, 1943. In its final statement on the matter, Management contended that theability, merit and capacity of Employee L.C. for the opening on the Diesel Block line inDepartment 681 was far greater than was true in the case of Employee J.H. whoseexperience in this work had been rather meager.

A considerable part of the Corporation’s briefs concerned its contention that Employee J.H.was not properly one of a group who could present a group grievance. Inasmuch asEmployee J.H. was in Department 683 at the time of the promotion, and a considerablenumber of men with greater seniority than J.H. in Department 681 did not file a specificgrievance, Management reasons that Employee J.H. was not the proper person to file agroup grievance. Only if Employee J.H. had been a member of a group directly affected bythe promotion, Management reasons, could he have properly filed a group grievanceprotesting such a promotion.


During the several hearings on this case, the Umpire indicated clearly by his questioningthat he was concerned only with the claims of Employee J.H. A conclusion on this pointwas necessary because this employee was claiming that his ability, merit and capacityentitled him to a promotion to a job in another department. Different supervision headedthe two departments and there was nothing about the employees or their work that wouldpermit for any grouping of them. Employee J.H., therefore, could not bring any otheremployees under a group grievance simply by filing his own grievance and calling it agroup grievance that was applicable to any persons who might conceivably be aggrievedby the promotion. For these reasons, the Umpire is confining this decision to that part ofthe grievance that has status, namely, the contention of Employee J.H. that he shouldhave been promoted to the job given to Employee L.C.

The very detailed material presented to the Umpire, after several attempts to get theparties to develop such detail and to give their joint consideration to the pertinent material,convinces the Umpire that Employee J.H. should not have been grouped with EmployeeL.C. for promotion to the job of Relief Man. This is not to say that Employee L.C. stood"head and shoulders" above all other employees available for the job. The only conclusionthat has been reached in this instance is that the ability, merit and capacity of EmployeeJ.H. did not warrant the conclusion that he possessed approximately the same ability, merit



and capacity as Employee L.C. to permit him to be grouped with that employee before achoice was made for promotion. It must be concluded, therefore, that the promotion ofEmployee L.C., insofar as the complainant J.H. is concerned, represented conformancewith Paragraph 63 of the October 19, 1942 Agreement. The claim of Employee J.H. isdenied.

Decision

1. Employee J.H. was not a member of a group that had a joint grievance. Hisgrievance, therefore, could cover no one other than himself. The decision in thiscase, then, is confined solely to the claims of Employee J.H. with respect to thepromotion of L.C.

2. The ability, merit and capacity of Employee J.H. did not warrant his beinggrouped with Employee L.C. in a choice for promotion to the available job ofRelief Man. Consequently, it must be held that the promotion of Employee L.C.,insofar as the particular complaint of Employee J.H. is concerned, representedcompliance with Paragraph 63 of the October 19, 1942 Agreement. Therequest of Employee J.H. contained in the instant grievance is denied.

Signed G. Allan Dash, Jr.

UMPIRE

January 8, 1944.





No. C-160

JANUARY 11, 1944


GRIEVANCE:

Olds Forge Plant No. 1 -- Case C-12

"I request that back pay be given me from the time the line was changed over. This is aconveyor tending job and should be paid as such."


1. The extension of an automatic conveyor to the packing position on one of theshell lines has changed the packing task in a significant manner. The packernow must gear the tempo of his work directly to an automatic conveyor so thathe will not delay the work of the painters and inspectors who precede him onthe automatic conveyor line.

2. The work performed by the "Packers" is still substantially that of packing theshells into containers. For this reason it is not possible for the Umpire to holdthat the complainant should be reclassified as a "Conveyor Attendant."

3. Because of the change that has occurred in the packing task, the Umpirefinds that the classification and rate contained in the local wage agreementunder the heading of "Packer", is no longer applicable to the new job. Thequestion of the classification and rate for this job is returned to the parties sothat they may reconsider the matter in the light of the observations made in thisdecision. The parties are directed mutually to negotiate either a continuation ofthe present rate and classification, or to establish some other classificationand/or rate which they consider proper for the task as newly constituted. (EntireDecision should be read)



In the Matter of:


and

General Motors Corporation—General Motors Forge Plant No. 1 – Case C-12

On July 21, 1943, Employee R. presented a grievance which read as follows:

"I request that back pay be given me from the time the line was changed over. This is aconveyor tending job and should be paid as such". A hearing on this matter was held inLansing, on December 7, 1943.

Nature of Case

When the local wage agreement was negotiated at the General Motors Forge Plant No. 1on December 31, 1941, a conveyor carried 75 MM shells only as far as a paint machine.The shells were then painted, were taken out of the painting machine by an operator andwere placed on a bench for inspection. After inspection the shells were rolled to one end ofthe inspection bench to an employee whose duty it was to pack them into cartons. Theoperation of packing the shells in cartons was negotiated and classified as "Packer .95 --1.01". This rate has since been increased by a Directive of the War Labor Board to $.99 --1.05 per hour. It is contended by the Union that the aforesaid classification rightly shouldbe designated as "Conveyor Attendant—Loader or Unloader", and that Employee R.should be entitled to an increase in rate retroactively to the date of the instant grievance.

Union Claim

The Union contends that at the time of the original rate negotiations for the classification of"Packer", the job content required that the work be done by hand. It claims that severalmen were needed to set up cartons, put in shells, seal the cartons and mark the codeletters on the cartons. These men all worked in one group, the Union notes, and receivedthe "Packer’s" rate of pay. A change in this method was instituted by Management, theUnion holds, so that the men who were formerly classed as Packers experienced a largeincrease in the amount of shells handled and were required to be in constant attendanceon the conveyor line. To all intents and purposes, the Union maintains, the duties of thesemen became equivalent to those classed as Conveyor Attendants.

The Union further contends that at the time of the original signing of the local wageagreement, the job content of the "Packer" classification did not include any provision foran "automatic conveyor". The Union further maintains that changes in methods ofmanufacture or production make it mandatory upon Management to negotiate with theUnion and establish a new "meeting of the minds" as to proper wage rates and jobclassifications. To follow any other procedure, the Union concludes, would result in



unilateral setting of wage rates and job classifications.

The Union asks, therefore, that the job presently classified as "Packer" be reclassified tothat of "Conveyor Attendant—Loader or Unloader", and that the proper rate applicable tothis operation be paid Employee R. on a retroactive basis.


The Corporation maintains that the operation performed by Employee R. was recognizedby the parties to be a packing operation during the discussions leading up to the signing ofthe local wage agreement on December 31, 1941, and that a wage rate of thisclassification was negotiated and included in that wage agreement.

The Corporation states that the primary function of Employee R. is to pack the shells intocartons. The installation of a packing machine immediately behind his place of work in noway added to his responsibilities and did not necessitate any requirement of added skill orexperience on his part in the performance of his packing operation, the Corporation holds.The shells must be packed regardless of how they arrive at the packing station, theCorporation notes, and the addition of a mechanical means of conveying the shells to theoperator at the packing post did not necessarily result in an increase in the number ofshells to be packed. The Corporation reasons that constant improvements in methods ofoperation and the addition of new and better equipment all contribute toward theattainment of increased production in the manufacture of any article. The Corporationconcludes that the Union’s claim that the job has been changed in a manner sufficient towarrant a reclassification is not proper and is not based upon fact.


Because there was some difference of opinion as to the actual content of the packing jobinvolved in this case, the Umpire felt it necessary to have an inspection made of the job.The Assistant to the Umpire examined the job in question on January 5, 1944. Theinspection divulged the fact that where formerly the packer was merely required to slide theshells off a bench directly into a carton, he now is required to lift each one of the shells andpass it across his body in an arc of approximately 150 degrees. While the actual physicaleffort involved in the packing task has been greatly increased by the addition of theautomatic conveyor, there would not be sufficient reason in that fact alone to hold that anyreconsideration of the rate for the job was warranted. In fact, if the production of the jobhad been increased considerably because of the elimination of certain "kinks" in prior stepsof the productive process, there would still be no reason to hold that the rate was notapplicable.

However, the major point of significance in the change that has occurred in the packingtask is the addition of the automatic conveyor. The packer now must gear his work directlyto the tempo of a conveyor in a manner that was not present in any way at the time theoriginal rate was established for this job at this particular plant. The necessity to gearhimself directly to the work of the painters and examiners, and to keep the end of theconveyor clear of shells (the work of the whole line will stop if any shell touches the



automatic lever just beyond the packing position) has affected his task considerably. Whilethe job is still basically that of packing shells in cases, there has been such a significantchange in the task that a reconsideration of the classification and rate is necessary.

Inasmuch as the job in question is still so basically that of packing shells, the Umpirecannot hold that the job should be reclassified as "Conveyor Attendant". On the otherhand, he cannot support Management in its contention that the job should be continuedunder the existing "Packer" classification and rate. Therefore, neither party can besupported entirely in their position. It is necessary to return this matter to the parties fornegotiations so that they may mutually determine whether the present classification andrate should be continued for the job or whether some adjustment should be made therein.It should be understood by both parties that this finding applies only to the specific jobinvolved and only to that job in General Motors Forge Plant No. 1.

Decision

1. The extension of an automatic conveyor to the packing position on one of theshell lines has changed the packing task in a significant manner. The packernow must gear the tempo of his work directly to an automatic conveyor so thathe will not delay the work of the painters and inspectors who precede him onthe automatic conveyor line.

2. The work performed by the "Packers" is still substantially that of packing theshells into containers. For this reason it is not possible for the Umpire to holdthat the complainant should be reclassified as a "Conveyor Attendant".

3. Because of the change that has occurred in the packing task, the Umpirefinds that the classification and rate contained in the local wage agreementunder the heading of "Packer", is no longer applicable to the new job. Thequestion of the classification and rate for this job is returned to the parties sothat they may reconsider the matter in the light of the observations made in thisdecision. The parties are directed mutually to negotiate either a continuation ofthe present rate and classification, or to establish some other classificationand/or rate which they consider proper for the task as newly constituted.

Decision

Signed G. Allan Dash, Jr.

UMPIRE

January 11, 1944.




of 5UMPIRE DECISION C-160


Office of the Umpire

No. C-250

OCTOBER 3, 1944

Time Limit In Filing Grievances

GRIEVANCE:

Eastern Aircraft—Linden—Case C-737

"I have been discharged unjustly. I request to be reinstated and paid for all time lost."


The grievance is dismissed as not having been filed within the time limit specified inParagraph 77 of the Agreement. (Entire Decision should be read)

In the Matter of:


and

General Motors Corporation—Eastern Aircraft—Linden—Case C-737

The only issue presented to the Umpire in this case is whether or not the grievance wasfiled within the time limit set by Paragraph 77 of the Agreement.

Employee R. was discharged on June 30, 1944, for habitual absenteeism. On June 1,1944, Management sent a telegraphic notification of her discharge to the address listed forher on its records. The telegram was accepted by someone at that address on July 2,1944. On July 5, Employee R. reported for work and was orally notified of her discharge.


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The present grievance was filed on July 7.

Management claims that as the grievance was filed more than three working days after herdischarge, it is invalid within the meaning of Paragraph 77 of the Contract.

Employee R. states that from June 21 to June 25, and again from June 28 to June 30, shewas ill with appendicitis. Prior to her illness, she asserts, she had moved from her formerresidence with her parents and had notified a girl in the Personnel Office of her change ofaddress. She states further that as she had learned that on the first four days of July thePlant was going to be closed for the purposes of taking inventory she did not report forwork until July 5th. As she did not receive the telegram which was sent to her parents’home, the first notice she had of her discharge came when she reported to work on the 5th.Under these circumstances, therefore, she claims that by filing the grievance on July 7,she came within the three-day time limit established by Paragraph 77.

In support of her claim the Union originally argued that the oral notice of her change ofaddress which she claims to have given the Personnel Department should have beentreated as sufficient to place upon the Management the responsibility for the misdirectionof the telegram. It seems to have become clear during the discussions of the case in theearlier stages of the grievance machinery, however, that R. did not follow the regularprocedures established by the Management for the recording of a change of address, andthat she thereby failed to discharge the responsibility placed upon her by Paragraph 74 ofthe Agreement.

In its brief to the Umpire, therefore, the Union appears to have abandoned that point and torest its case upon the contention that since the Plant was closed for inventory purposesfrom July 1 to July 4, those days should not be counted as "working days" within themeaning of Paragraph 77. Management points out, however, that a large number ofemployees were scheduled to work on the days in question in the taking of the inventoryand that at this plant all days are considered regular working days, except Sundays andholidays. It concedes that Sunday, July 2, and Tuesday, July 4, were not regular workingdays and should not be counted. Had R. filed her grievance on July 5 when she receivedoral notification of her discharge, it might well have been honored as falling within thethree-day time limit. Employee R., however, delayed another two days before filing hergrievance and thereby exceeded the time limit.

This Plant has been operating on a regular 48-hour week for approximately two years. Alldays except Sundays or the holidays specified in the Agreement have been customarilyconsidered and treated as working days. Had the Plant shut down completely for a fewdays, of course, it might well be argued that the days on which it was closed were notworking days. It appears, however, that the taking of inventory did not mean a completeshutdown of the Plant. Some 900 employees were working in connection with theinventory, including a number of Union Committeemen and supervisory officials. Theinterruption of operations was not sufficiently complete to take these days out of thedefinition of "working days" in Paragraph 77 of the Agreement.

The Umpire has previously held that the contractual provisions with respect to thegrievance machinery must be construed in the light of the fundamental purposes of thegrievance machinery; i.e., to provide a means whereby grievances can be decided on their



merits. This principle cannot be carried, however, to the point at which the provisions of theAgreement are disregarded or their plain meaning ignored. The Umpire finds that July 1and July 3 were working days within the meaning of Paragraph 77 of the Agreement. Hefinds that Employee R. was herself responsible for the misdirection of the telegram and forthe two-day delay in filing the grievance which followed her oral notification on July 5.Whatever may be the merits of her grievance she has lost her right to bring it, and for thatloss she has only herself to blame.

The Umpire will dismiss the grievance as not filed within the time limit specified inParagraph 77 of the Agreement.

Decision

The grievance is dismissed as not having been filed within the time limit specified inParagraph 77 of the Agreement.

Signed, Ralph T. Seward

UMPIRE

October 3, 1944.





No. C-255

October 2, 1944

Alleged Violation Of Local Wage Agreement

GRIEVANCE:

Chevrolet Aviation Engine Plant No. 1 -- Case C-55

"Policy. Violation of Local Wage Agreement. Management setting up subclassification ofMount and Dismount at a lower rate. $1.09 an hour, when our Local Agreement has thisclassification as Test Operator, Mount and Dismount at $1.14. Request rate of $1.14 onthis classification as negotiated and back pay."


The Union’s request is denied. (Entire decision should be read)

In the Matter of:


and

General Motors Corporation—Chevrolet Aviation Engine Plant No. 1 -- Case C-55

Procedural Objections of the Corporation

The above grievance, which protests an alleged violation of the local wage agreement atChevrolet Aviation Engine Plant No. 1, was filed on June 6, 1944, by Committeeman W. Inits Notice of Unadjusted Grievance, Management observed that Committeeman W.’s own


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rate was not in question and would not be affected by this grievance. At the Umpirehearing, held in Buffalo on September 8, 1944, the Corporation raised this point as anobjection to the status of the grievance, arguing that under Paragraph 28 of the Contractgrievances could only be filed by an employee "having the grievance" or by a "designatedmember of a group having a grievance."

A similar objection has been interposed by the Corporation in respect to other grievanceswhich allege violations of local wage agreements and which are now pending before theUmpire. The Umpire has found that a decision on the point will require a somewhatextended survey of the past practice of the parties in dealing with so-called "policy"grievances. As the Umpire finds that in any case he must decide the instant case againstthe Union, he sees no reason for withholding his decision pending his determination of theCorporation’s procedural objection. He is, therefore, issuing this decision on the merits withthe express understanding that the decision is without prejudice to the position of eitherside upon the procedural issue.

The Union alleges that Management is violating the terms of the local wage agreemententered into August 24, 1943, by establishing a new classification designated "Mount andDismount" at the rate of $1.09 per hour. The original agreement provided for twoclassifications of employees working in the Engine Test Cells; i.e., Engine Test Operator,including Mount and Dismount -- $1.14, Engine Test Control Room Operator and/orRecorder -- $1.11. The Union argues that since the Mount and Dismount operations wereincluded among those rated at $1.14 an hour, it is a violation of the agreement to separatethem from these operations and assign to them a new and lower rate.

Management claims that the rate of $1.14 was established for employees whose dutiesincluded not only the mounting and dismounting of the engines but also the performing ofall the other operations involved in engine testing. It has not altered the duties of theseemployees. It has merely added a new booster crew of employees to aid in the physicallabor of mounting and dismounting the engines. The employees in this new crew performno testing operations whatsoever. Since they perform only one of the operations which the"test operators, including Mount and Dismount, perform," Management argues, it cannotbe reasonably claimed that they are entitled to be classified along with such test operatorsor receive the test operators’ rate.

The right of Management to set up new temporary classifications and rates for new jobswhich cannot be properly placed in existing classifications by mutual agreement is clearlyestablished by Paragraph 112 of the Agreement. The only question before the Umpire iswhether or not the activities of these new booster crews are covered by the existing localwage agreement or should properly be considered to be a new job. On that issue theUmpire finds for the Corporation. The local wage agreement established a rate of $1.14 anhour for employees who were both operating the engines during their test runs andmounting and dismounting these engines. The rate, in other words, was set with boththese responsibilities and skills in mind. The booster crews, on whose behalf this grievanceis brought, perform only one of these functions. They need have no skill or experience inoperating the engines during their test run. In the Umpire’s opinion, they are not properlycovered by the wage agreement of August 24, 1943, and have been properly consideredby Management as performing a new job within the meaning of Paragraph 112 of theAgreement.



It appears from the discussions at the hearing that the basic question which separated theparties in this case is not raised by this grievance at all, but concerns the proper rate forthe Engine Test Control Room Operators and/or Recorders. The employees in thisclassification are for the most part females who are physically unable to perform the workinvolving the mounting and dismounting of engines. For that reason, during thenegotiations on the local wage agreement, Management insisted that these employeesshould have a somewhat lower rate than the test operators who had not only to test theengines but mount and dismount them. The Union asserts that it agreed to the lower ratefor these operators at $1.11 with the reservation that if the functions of mount anddismount were ever separated from the Engine Test Operators, the Control RoomOperators and/or Recorders should be brought up to $1.14. The Union asserted that theaddition of booster crews has fulfilled the condition mentioned in its oral reservation, thatthe local wage agreement with respect to the Test Control Room Operators and/orRecorders is no longer binding and that their rates should now be raised by renegotiation.

The Umpire’s jurisdiction, however, is confined to the issues raised by the grievancepresented. The present grievance places at issue only the proper rate for the new boostercrews who are exclusively performing the task of mounting and dismounting the engines. Ifthe Union believes that the local wage agreement with respect to the Engine Test ControlRoom Operators and/or Recorders has been invalidated, and that their rates shouldproperly be thrown open to renegotiation, it may file a grievance which will place thiscontention in issue. In the present case, however, this matter is beyond the jurisdiction ofthe Umpire to consider.

For the reasons above set forth the Umpire finds that Management has not violated thelocal wage agreement by establishing a temporary rate of $1.09 for employees exclusivelyperforming the operations "Engine—Mount and Dismount." The Union’s request willaccordingly be denied.

Decision

The Union’s request is denied.


UMPIRE

October 2, 1944.





No. C-269

November 14, 1944

Protest Against Transfer Of Work

To Employees Outside Of Bargaining Unit

GRIEVANCE:

Chevrolet—Kansas City—Case C-4

"Violation of negotiated rate of stock room clerks as set forth in local wage agreementdated January 11, 1943. This violation has occurred by reason of the fact that theCorporation is having salaried employees do the handling and posting of shortage recordsand reports at a much lesser rate than the rate negotiated for this type of work. It isrequested that the handling and posting of shortage records and reports be immediatelytaken from salaried employees and given to warehouse hourly rated employees at theproper wage scale of $1.06 per hour, which is the negotiated rate. Back pay is asked forsuch employees from this date. Any additional stock room clerks necessary for handlingand posting of shortage records and reports to be chosen as prescribed by Paragraph 63of the Agreement, and not by the employment of salaried employees at a lesser wagescale that has been negotiated for this classification. Classification of stockroom clerksreads in part as follows: ‘Cover general warehouse clerical work such as posting andhandling of shortage records and reports.’"


The grievance is dismissed. (Entire Decision should be read)

In the Matter of:




and

General Motors Corporation—Chevrolet—Kansas City—Case C-4

In this grievance, the Union claims that Management has violated both the NationalAgreement and the local wage agreement by transferring the work of handling and postingshortage records from Stock Room clerks, who are included within the bargaining unit, tosalaried clerks in the Order Department who are outside of it. It asks a ruling from theUmpire establishing the right of the Stock Room clerks as a classification to this work onthe ground that it was theirs when the bargaining unit was defined and when the localwage agreement was executed. It asks further that they should receive back pay for thetime during which they have been denied work to which they were rightfully entitled.

Management declares that the transfer of the shortage operations from the Stock Roomclerks in the Warehouse to salaried clerks in the Order Department was made necessaryby the increase in the amount of back orders which followed the curtailment of partsmanufacture under wartime restrictions. A system of checking available stock againstshortage records, which was adequate when back orders were less than 5% of the totalsales volume, became impractical and inefficient when back orders increased to 60% ofsales volume. It points out, furthermore, that the work as transferred is entirely clerical innature, involves no manual handling of materials, and is therefore excluded from thebargaining unit by the established interpretation of Paragraph 3 of the Agreement.

The Union does not deny that the volume of back orders had increased and that somechanges in the system of keeping shortage records was necessary for efficiency. Itcontends, however, that Management should have solved the problem by hiring additionalStock Room clerks. To transfer the work to the clerks in the Order Department, whoseweekly salary is equivalent to an hourly rate lower than that of the Stock Room clerks, itstates, was a violation of the local wage agreement. Transferring it to salaried employeeseven at a higher rate, moreover, would violate the Union’s right to bargain for this work—aright which Management recognized when it included the Warehouse employees within thebargaining unit and negotiated with the local Union a rate for the Stock Room clerks.

Latent in the Union’s position there appears to be a contention that the employees in aclassification covered by a local wage agreement are entitled for the duration of thatagreement to all work which was theirs when the agreement was executed. This ideaseems to be the basis of the Union’s claim for back pay for the Stock Room clerks, none ofwhom have been laid off or had their wage rates reduced. Yet nowhere in the NationalAgreement or in any local wage agreement of which the Umpire has knowledge is thereany such guarantee. Many operations classified and rated in local wage agreements havebeen discontinued entirely while those agreements were still in force. Other operationshave frequently been so altered as to justify their reclassification and re-rating either byfitting the altered work into other existing classifications or by negotiating a new ratepursuant to Paragraph 112 of the Agreement. Management’s rights under Paragraph 8 todiscontinue or alter such operations can hardly be questioned. A local wage agreementdoes not guarantee work to an employee. It only determines what he shall be paid whenhe is assigned to that work. Nothing is clearer but that in removing from the Stock Room



clerks certain of the work which had formerly been theirs, Management was within its rightsand violated no agreement which it has with the Union.

Did it then violate the Agreement by transferring this work to salaried clerks in its OrderDepartment who are not included within the bargaining unit? The answer to this questiondepends upon whether or not the job of keeping and posting shortage records astransferred is clerical in nature. It has been well established by prior Umpire decisions that,in interpreting Paragraph 3 of the Agreement, the line between clerical and non-clericalwork must be drawn between those operations which include any degree of manualmaterial handling and those which involve no manual operations whatsoever. From theevidence presented it appears that when the work of keeping the shortage records wasperformed by the Stock Room clerks it involved a certain amount of manual materialhandling such as the unpacking of boxes, the counting of material in the bins, and thelifting and carrying of parts from place to place. It is admitted, however, that in transferringthe work to the Order Department Management has eliminated all of these manualoperations. The Umpire finds, therefore, that the work as now performed is strictly clericalin nature and that nothing in the Agreement prevents its assignment to salaried employeesoutside of the bargaining unit. It might well be pointed out, furthermore, that even if thiswere not the case the Union would have no grounds for asking that the work be returned tothe Stock Room clerks. Its only proper remedy would have been a request for the inclusionof the Order Department clerks within the bargaining unit.

The Union points out, nevertheless, that the salaries of the clerks in the Order Department,computed upon an hourly basis, are lower than is the negotiated wage rate of the StockRoom clerks. The paying of this lower rate for the work of keeping shortage records, itargues, is a violation of the local wage agreement. It should be clear, however, that thisclaim could only properly be advanced in behalf of the clerks in the Order Department, andthese the Union has no right to represent. The wages of the Stock Room clerks, whom theUnion does represent, have not been lowered.

The Umpire sees no grounds for the Union’s contention that this decision will establish aprecedent permitting the Corporation to destroy the Union by transferring any type of workwhich it chooses from employees in the bargaining unit to salaried and unrepresentedemployees outside of the bargaining unit. This decision covers only the question of theCorporation’s right to make such a transfer where the work is clerical in nature. Upon thecontractual consequences of other attempted types of transfer, it expressly does not pass.

Though the Umpire will dismiss this grievance upon its merits, he believes that he shouldcomment upon a final contention of Management that since the grievance was signed by aUnion Committeeman rather than by one of the Stock Room clerks, it should properly haveno status before him. This contention could only be sustained by a holding that Shop andDistrict Committeemen are not aggrieved by a violation of a local wage agreement withinthe meaning of Paragraphs 28 and 30 of the Agreement. In the Umpire’s view such aholding would be highly unrealistic. A local wage agreement is the product of negotiationsin which the local Union organization has frequently played a major part. Wage matters lieclose to the heart of every collective bargaining relationship, and local Unions often standor fall according to their success in negotiating and enforcing such agreements.Grievances of this type, moreover, cannot possibly be settled at the Foreman level. Theymust obviously be dealt with by top local Management and the Shop Committee. The



Umpire holds, therefore, that under Paragraphs 28 and 30 of the Agreement, grievanceswhich allege violations of a local wage agreement may properly be signed and filed byDistrict or Shop Committeemen and that such grievances have status before him.

In the past, "policy" grievances signed and filed by Union Committeemen have frequentlybeen vaguely worded. Sometimes they have been so indefinite that Management has beenunable to determine the specific nature of the Union’s claims and the identity and numberof the employees affected until the case has reached the Umpire. Nothing in the presentholding should be taken to indicate any acquiescence by the Umpire in such a practice. Agrievance which alleges a violation of a local wage agreement should clearly andaccurately describe the classifications involved, the nature of the violation alleged, and theremedy requested. It should give Management such information as will permit it from itsrecords to identify accurately the employees who would be affected if the request in thegrievance were granted. If adequate information is not contained in the grievance asoriginally filed, Management has every right to insist that the necessary additionalinformation be submitted to it before the close of the second step of the GrievanceProcedure. The grievance machinery is no place for fishing expeditions, and in the futurethe Umpire will give short shrift to vague grievances introduced in the hope that if the netthrown out is sufficiently broad some legitimately aggrieved fish will be caught.

Decision

The grievance is dismissed.


UMPIRE

November 14, 1944.





No. C-300

January 23, 1945

Appeal From A Disciplinary Layoff

GRIEVANCE:

Chevrolet-Flint—Case C-409

"Charge unjust penalty. Request back pay. Foreman’s order was unreasonable anddetrimental to my health."



In the Matter of:


and

General Motors Corporation—Chevrolet—Flint—Case C-409

On June 29, 1944, Employee P. was sent home for a week for refusing to work at his job ofpaint spraying in violation of Shop Rule 15: "Refusal to obey orders of Foreman or otherSupervision. (One day or more to discharge.)" In this grievance he claims that the penaltywas unjust and seeks back pay for the time lost.

This Office has uniformly recognized the principle that employees are required to obey theorders of Supervision and may normally protest the reasonableness of such orders only


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through the established channels of the grievance machinery. It is here argued, however,that where employees are ordered to take actions which would involve unreasonabledanger to life, limb or physical health, an exception to this rule should properly be made.The Umpire does not find it necessary to rule conclusively upon this contention in thepresent case. For it is clear that even were such an exception to be recognized, the burdenof proof would be on the Union and the Employee to prove the unreasonableness of theorder and the abnormal danger to the employee which compliance with it would entail.

No such satisfactory proof has been forthcoming in the instant case. There is, indeed,evidence that P. had sinus trouble, that he had visited the First Aid stations for treatmentslisted on the records as "gargle, aspirin, etc., miscellaneous," and that his private physicianbelieved that he might be allergic to the paint he was using. On the other hand, the recordshows that P. was twice examined at the Plant Medical Department and that following hiscomplaint his job was studied by the Plant Safety Director. Neither of these departmentsfound that there was any necessary connection between P.’s sinus trouble and hisoccupation of paint spraying.

As the Umpire has previously indicated in Decision C-276, the Umpire cannot properlyreview the findings of a Plant Medical Department on an issue of this sort. Such findingsare binding upon him unless they are shown by the Union to be arbitrary, capricious, orunsupported by reasonable evidence. The Umpire must therefore accept the findings ofthe Plant Medical Department in this case as justifying the Foreman in ordering P. tocontinue working on the paint spraying job.

The Umpire is confirmed in this conclusion by the presence in this record of strongevidence that P. had frequently feigned illness or injury in an effort to secure a transfer to abetter-paying or more agreeable job. Under the circumstances, his penalty was justifiedand his request for its rescission must be denied.

One aspect of this case, which the parties appear to have overlooked deserves somecomment. Even if P. had presented to the Umpire conclusive evidence that he was ill withsinus trouble on June 29th, 1944, the Umpire could not properly have awarded him backpay. Satisfactory evidence of illness, indeed, would have entitled P. to an automatic sickleave of absence under Paragraph 116 of the Agreement and would have justified theUmpire in directing that P.s’ employment record be corrected to show such a leave ofabsence rather than the disciplinary layoff which was in fact imposed. It must be clear,however, that a claim for a sick leave of absence is by its very nature inconsistent with aclaim for back pay. Management was under no contractual obligation to transfer P. toanother job even upon proof that he was allergic to paint spraying. P.’s claim for back paywould therefore have had to rest upon the contention that Management was responsiblefor his failure to earn money at paint spraying during the week of his layoff. The Umpirecould hardly have recognized that contention in the face of P.’s assertion that even hadManagement not laid him off he would have been physically unable to perform the paintspraying job.

Decision





UMPIRE

January 23, 1945.





No. C-305

January 26, 1945


GRIEVANCE:

Chevrolet-St. Louis—Case C-40

"Unjustly suspended for being absent. Request that I be paid for time lost."


The grievance is dismissed. (Entire decision should be read)

In the Matter of:


and

General Motors Corporation—Chevrolet—St. Louis—Case C-40

On June 6, 1944, Employee J. was absent from work. When he reported on the followingday he presented a letter from his dentist stating that he had undergone dental treatmentthe day before. Management alleges, however, that at about 9:30 A.M. on June 6, he hadbeen seen near the Plant in an intoxicated condition. As J.’s prior record of absenteeismwas extremely bad, he was suspended for one week for violation of Shop Rule 8: "Habitualabsence without reasonable cause. (One week to discharge.)"

In presenting this grievance to the Umpire the Union claimed that J. was not intoxicated onthe morning in question, that he visited his dentist during the day, and that his suspensionwas unjust. The Umpire finds from the evidence, however, that Employee J. had in fact



been drinking on the morning of June 6th and that he was in no condition to come to work.Doubt is cast upon the good faith of Employee J.’s excuse, moreover, by his extremelypoor attendance record and his consistent habit of offering dubious claims of illness inexplanation of his absence. It has not been shown, moreover, why a visit to a dentistshould have required his absence during an entire day. From the evidence in this case theUmpire must conclude that J.’s drunkenness was the basic reason for his absence on June6th and that his visit to the dentist on the same day was at best coincidental and at worst amanufactured excuse.

Decision



UMPIRE

January 26, 1945.





No. C-315

February 12, 1945

Propriety Of A Promotion Under Paragraph 63

GRIEVANCE:

Chevrolet—Bloomfield—Case C-73

"In accordance with Par. 63, one of us should have been made checker instead of F.C."



In the Matter of:


and

General Motors Corporation—Chevrolet—Bloomfield—Case C-73

This grievance raises the question as to whether Local Management properly applied theprovisions of Paragraph 63 of the National Agreement in promoting Employee C. to theposition of Checker in the Parts Warehouse in preference to either of the twocomplainants, F.T. and N.

There is little dispute over the essential facts in the case. In July, 1944, Managementdetermined that two additional Checkers were needed in the Warehouse. The following sixemployees from the Warehouse seniority list were found in line for consideration:


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Name Seniority Date

E. 8/29/28

R. 2/ 9/34

F.T. 3/12/34

N. 3/12/34

W.T. 3/12/34

C. 3/16/34

Management determined that Employee W.T. stood head and shoulders above the otherfive employees in ability, merit and capacity and promoted him to one of the two Checkervacancies. This promotion was not protested by any of the other employees.

Management alleges that it then reviewed the qualifications of the remaining fiveemployees and decided that Employees E. and C. were approximately equal in merit,ability and capacity, for promotion to the Checker job and that they were definitely superiorto the remaining three. As Employee E. had the highest seniority the vacancy was firstoffered to him. When he declined, the job was offered to C. who accepted.

As may be noted from the above table, Employee C. was junior in seniority to the other fiveemployees. The Union alleges that Employees F.T. and N. were at least the equal of C. inability, merit and capacity, and that in view of their greater seniority one of them shouldhave received the promotion. Because of their experience as Packers in the PartsWarehouse, the Union claims, both F.T. and N. are thoroughly conversant with the variousparts which the Checker must identify and with their locations. It is emphasized, moreover,that he is superior to C. in education, as he holds a degree in Engineering from the NewarkTechnical College.

In reply, Management points out that C. had experience as an Unloader in the ExportDepartment in 1928 and 1929; that he worked as an Export Material Handler in 1934 and1935; that he was a Material Handler in the Parts Warehouse from 1935 to 1940; and thathe served as a Stock Picker from 1940 to 1944. It emphasizes particularly this latterexperience, since a Stock Picker must work in all parts of the Warehouse, become familiarwith the wide variety of parts handled, and learn the procedure followed in filling orders.Though Employee E. had spent far more time as a Packer than as a Packer than as aStock Picker, it was felt that his general ability and intelligence coupled with his six years ofgreater experience made him approximately the equal of Employee C. Employees F. T.and N., on the other hand, had spent most of their time between 1934 and 1942 as PartsDippers in the Enamel Room. From May, 1942, until the present they were assigned to thepacking of parts for shipment. Management asserts, moreover, that even if the experiencefactor is discounted, F.T. and N. have shown a lack of initiative and of ability to carry outjob assignments without close supervision which would make it impossible to considerthem the equals of either E. or C.



On the record in this case the Umpire must hold that no violation of Paragraph 63 hasbeen established. In a case of this sort the burden of proof is upon the Union to show thatManagement’s judgment of the relative ability, merit and capacity of the employees wasfaulty. It has not sustained that burden here. The Umpire cannot discount the greaterexperience of both C. and E. in handling parts in the Warehouse, or hold that this factor isnecessarily overcome by the fact that F.T. holds a degree in an unrelated educational field,or by the alleged fact that both F.T. and N. have proven diligent workmen on the jobs theyhave been given to perform.

It is true, of course, that no two employees can be found who are the exact equal of eachother in all the elements of experience, skill, diligence, and intelligence, that are covered bythe contractual phrase "ability, merit and capacity." For that reason this Office has requiredthat when no employee stands "head and shoulders" above his fellows, "Management mayselect several employees whose ability, merit and capacity are adjudged by Managementto be approximately equal. The individual in the group with the greatest seniority may thenbe selected for promotion." By prescribing only approximate equality for the group underconsideration, prior Umpires clearly believed that Management should not be allowed todefeat the purposes of Paragraph 63 by relying on differences in skill and ability which areminor and unsubstantial. On the other hand, by leaving the selection of this group toManagement, the Umpires clearly indicated that the initial judgment of ability, merit andcapacity was a Management function and was not to be overturned save upon clear proofof error. In the instant case, the Union’s showing has not been sufficient to offset thepresumption in favor of Management’s judgment. The grievance must accordingly bedismissed.

Decision



UMPIRE

February 12, 1945.





No. C-319

February 16, 1945

Appeal From An Alleged Violation Of Paragraph 63

GRIEVANCE:

Chevrolet—Atlanta—Case C-23

"Charge Management with violation of Paragraph 63. Request that I be given job in paintroom as paint mixer since I have all due qualifications. Also seeking retroactive pay fromdate of this grievance."

"Charge Management with violation of Paragraph 63, by placing men on job in paint roomas paint mixer when I am qualified and also have more seniority. My request is that I begiven job as paint mixer."



In the Matter of:


and

General Motors Corporation—Chevrolet—Atlanta—Case C-23

During the month of October, 1944, a vacancy occurred in the classification of Paint Mixerin the Paint Department at the Chevrolet Plant at Atlanta. In filling this vacancy


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Management gave consideration to two employees who had a high school education andwhom it considered to be otherwise approximately equal in ability, merit and capacity. Onedid not desire the job; the other, Employee W., was thereupon given the promotion.

The three complainants in these grievances all have greater seniority than Employee W.,and all claim to be his equal in ability, merit and capacity. None of them, however, has ahigh school education, two of them having completed the eighth grade and one the ninth.

Management admits that it passed them over largely because of their lack of education. Itpoints out that it is now preparing its Paint Department for the resumption of commercialproduction and that under modern conditions it must meet the color requirements of itscustomers rather than set its own color standards. Paint mixing has therefore become a farmore complicated and specialized operation than it formerly was. A qualified Paint Controlman must be able to maintain records and perform detailed clerical work, and must havesufficient knowledge to read mathematical formulae for tinting colors and to compute thevarious mixes he requires. A minimum of a high school education is thus necessary forPaint Control work, Management argues, and since Paint Mixers may eventually graduateto Paint Control, it is proper to consider the educational qualifications of candidates for aPaint Mixing job.

The Union does not dispute Management’s claims with respect to the education necessaryfor successful Paint Control work. It insists, however, that paint mixing involves only simplemechanical operations and requires no mathematical or theoretical knowledge whatsoever.It notes that in rejecting a request for a wage increase for Paint Mixers at the time of thedistribution of the one and one-half cent allotment under the 1940 Agreement,Management itself pointed out that no skill was required for paint mixing. It asserts, finally,that Management should judge the qualifications of candidates for promotion solely withrelation to the job which is to be filled, and that their relative fitness for future promotions tostill a higher classification cannot properly be considered.

This latter contention by the Union has already been considered and rejected by theUmpire in Decision B-55. In filling a job which is considered to be a stepping stone to ahigher classification, Management may properly weigh not only the ability of candidatessuccessfully to perform all functions of the job which is vacant but also their potentialitiesfor later promotion. It is clear, of course, that if Management once adopts this principle itmust carry it out in good faith. It could not properly base its promotions to a lower paid jobupon a program of further intradepartmental promotions and then disregard this programwhen vacancies in the top jobs are eventually filled. Despite the Union’s suggestions to thecontrary, however, the Umpire must assume that Management’s assertion that PaintMixers are potential Paint Control men is made in good faith. Upon that assumptionManagement’s consideration of the educational qualifications of candidates for the PaintMixing job is reasonable and proper.

There is no necessary inconsistency between Management’s earlier position with respectto the proper wage rate for Paint Mixers and its present assertion that an employee’seducational background should be considered in weighing his relative fitness for the job.Management is not now saying that the Paint Mixers’ job is difficult or that these threecomplainants could not do it. It is saying only that an employee who can not only performthe job successfully but also be trained for future promotion is superior in ability, merit and



capacity to employees who lack the educational requirements for such training.

In the view of the Umpire, Management’s desire to staff its Paint Department with potentialPaint Control men is reasonable and its action in filling this vacancy involved no violation ofParagraph 63.

Decision



UMPIRE

February 16, 1945.





No. C-324

February 23, 1945

Alleged Violation Of Paragraph 63

GRIEVANCE:

Chevrolet-Atlanta—Case C-10

"Request that I be given utility job on trim line in accordance with Paragraph 63 of theNational Agreement."



In the Matter of:


and

General Motors Corporation—Chevrolet—Atlanta—Case C-10

The question raised in this case is whether or not Management violated Paragraph 63 ofthe Agreement by promoting Employee W., seniority date July 7, 1933, to the position ofUtility Man on the Trim Line in place of Employee C., seniority date April 12, 1928.

Upon the evidence in this case the Umpire can find no violation. It appears that prior toJanuary, 1944, when the promotion was made, W. had experienced upon almost all of theTrim Line operations and was able to take over the job with little or no training. C., on the


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other hand, had not been broken in on a number of Trim Line jobs. The Umpire concludesfrom the evidence, moreover, that C. is physically far less qualified than W. for many typesof Trim Line work, and particularly such jobs as require great rapidity and dexterity orwhich involve climbing in and out of cabs and working in cramped and difficult positions.

The Union is correct in arguing that greater age by itself should not be taken to indicatelesser ability, merit and capacity, and that any such principle would often rendermeaningless the seniority provisions of Paragraph 63. On the other hand, the Umpirecannot disregard proven physical incapacities merely because they result from age. In theview of the Umpire, Management has established that W. was unquestionably C.’ssuperior in ability, merit and capacity and that no violation of Paragraph 63 has beenshown.

Decision



UMPIRE

February 23, 1945.



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No. C-341

May 1, 1945

Discharge For Repeated Absenteeism

GRIEVANCE:

Eastern Aircraft—Linden—Case—C-763

"I am being released unjustly. Request back pay for all time lost. This release was givenbecause of Union activities."



In the Matter of:


and

General Motors Corporation—Eastern Aircraft—Linden—Case C-763

This grievance is brought to test the justice of the discharge of Employee L., on August 21,1944, for violation of Shop Rule 38: "Repeated violation of shop regulations or safetyrules."

Employee L. had originally been hired on May 11, 1937. During the first five years of hisemployment he received two warnings and a reprimand. (A discharge for the use ofabusive language to a Supervisor was rescinded by the Umpire and must be disregarded.)



This record, while not good, was certainly not exceptionally bad. Thereafter, however, hebegan to receive warnings, reprimands and penalties in increasing numbers forabsenteeism, leaving his job without permission, wasting time, and like offenses. Thisportion of his record, as set forth in Management’s brief is as follows:

November 4, 1942:

Reprimand for leaving his job before the end of the shift. (FiledGrievance No. 315360, appealed to second step on November 10,1942. Decision unchanged and appeal abandoned.)

January 19, 1943:

Reprimand for leaving his department without permission duringworking hours and remaining away excessive lengths of time andproducing unsatisfactory amount of work. (No record of grievance.)

February 11, 1943:

Reprimand for causing confusion in his department and using loudand abusive language to Supervision. (Filed Grievance No. 314955,appealed to third step as Appeal Case C-102. Penalty unchanged,appeal abandoned.)

May 20, 1943:

Disciplinary layoff of one week for habitually leaving his departmentduring working hours without permission, and constant abuse ofbargaining time, and leaving his department within the first hour ofthe shift. (Filed Grievance No. 318216, appealed to third step asAppeal Case C-235. Penalty unchanged, appeal abandoned.)

October 14, 1943:

Warned for leaving his department without permission, and failing tokeep a proper record of his time spent on grievance. (No grievancefiled.)

November 16, 1943:

Upon his assignment to a different shift, his foreman called hisattention to his attendance record for the months of September andOctober, 1943, which showed that out of 61 days, he was absent 28days, 12 of which were excuseable as he attended a UnionConvention. He was in the plant only 11 full days during the period,having reported late or left early on the remaining 22 days. He wasinformed that the quantity of his work and the time on the job wouldhave to improve. (No grievance filed.)



November 24, 1943:

Disciplinary layoff of two weeks for deliberately wasting three hoursof Company time in violation of Rule 18 of "Rules for PersonalConduct." This penalty was later reduced from two weeks to oneweek by the Umpire. (See Umpire Decision C-182.)

April 28, 1944:

Disciplinary layoff of six weeks ending June 9, 1944, for violation ofthe following Plant Rules for Personal Conduct:

Rule 1 -- "Falsification of personnel recordsor other records."

Rule 6 -- "Habitual absence withoutreasonable cause."

Rule 7 -- "Habitually reporting late for work."

(No grievance filed.)

On June 24, 1944, when L. returned after his six weeks’ layoff, the record of hisattendance since December 27, 1943, was reviewed with him. It was shown that duringthis period out of 911 available working hours, L. had worked only 622.9 hours or 63.37%and had lost 288.2 hours or 31.63%. He was told that his record would have to improve orhe would be discharged.

Despite this warning, the record of L.’s attendance during the next two months showed thatout of 408 available working hours, L. worked only 196.3 or 48.12%. During the entireweek of August 14th to 19th, L. was absent without permission. Management states thatthis absence finally convinced it that the possibility of improving L.’s attendance record bycorrective discipline had been exhausted and that his discharge was necessary.

The Union does not dispute the accuracy of Management’s figures or attempt to condoneL.’s record of irresponsibility. It offers by way of excuse only the fact that during the entireperiod of excessive absenteeism L. had been an official of the Local Union, and that duringthe final months preceding his discharge he had been the Local President. The burdens ofthis office, the Union says, have been greatly expanded and increased during the war andfrequently required L. to be away from the Plant and often from the locality. During the finalweek of absence, which precipitated his discharge, the Union says, L. was at the Union’sNew York Regional Office. On Monday of that week, L. talked on the phone with arepresentative of the Plant Labor Relations Department and informed him that he wasaway on Union business. On Thursday, a telegram was sent to Management notifyingthem that he was in Washington on Union business. Though Management may have beencorrect in considering that neither notice was timely or proper, the Union argues, they atleast indicate that L. was aware of his responsibility to the Plant and should therefore serveto mitigate his offense.



The Umpire can appreciate the heavy demands which the business of a local Union makeson its President. He cannot treat such demands, however, as an excuse for suchexcessive absenteeism as was here involved. Under Paragraph 119 of the Agreement, alocal Union President has the right, if he chooses, to apply for a year’s leave of absencefrom employment, which will set him free to devote his full time to Union business and stillprotect his seniority. If he chooses to remain on his job at the Plant, he must accept theresponsibilities which accompany that choice.

L.’s record of absenteeism was inexcusable. It indicated an indifference to his obligationsas an employee which did little credit to himself or to the Union which elected him to office.In view of the record of past warnings, reprimands and layoffs, there can be no questionbut that the possibilities of corrective discipline had been exhausted and that Managementcould not reasonably hope that further penalties would bring about an improvement. Thedischarge is upheld.

Decision



UMPIRE

May 1, 1945.





No. C-348

May 10, 1945

Discipline For Absenteeism

GRIEVANCE:

Chevrolet-St. Louis—Case C-59

"Protest being laid off when I had a reasonable excuse, asked foreman to be off Oct. 25 or26, request I be paid for time lost."


The two-week disciplinary layoff imposed on Employee B. shall be reduced to one weekand he shall receive pay for the remaining time lost. Back pay shall be computed inaccordance with Paragraph 50 of the National Agreement. (Entire Decision should beread)

In the Matter of:


and

General Motors Corporation—Chevrolet—St. Louis—Case C-59

This grievance concerns the justice of a two-week disciplinary layoff imposed on EmployeeB., for being absent from work on October 28th without permission and without areasonable excuse.


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B. desired to be absent on that day in order to cover an overdraft at his bank, located in atown some 125 miles from St. Louis. From his account of the circumstances, the Umpireconcludes that he was reasonable in wishing to be personally present at the bank and thathis excuse, had it been properly presented, should have been honored by his Foreman.

The Umpire finds from the evidence, however, that in asking his Foreman for permission tobe off, B. merely stated that he had to take care of "personal business" without explainingits nature. B.’s prior record of absenteeism was extremely bad, and the Foreman’sdisregard of such a vague and general excuse from an habitual absentee was natural. TheUmpire can understand B.’s hesitancy to publicize the condition of his bank account. Yetno employee can expect a Foreman to honor an excuse which is not stated, or tounderstand the urgency of private affairs whose existence and nature are not revealed.

As B. absented himself without permission he deserved a penalty. As he did in fact havereasonable grounds for his absence, however, the Umpire believes that the two-weekpenalty was too severe. He will accordingly direct that B.’s layoff shall be reduced to oneweek and that B. shall receive pay for the remainder of the time lost.

Decision

The two-week disciplinary layoff imposed on Employee B. shall be reduced to one weekand he shall receive pay for the remaining time lost. Back pay shall be computed inaccordance with Paragraph 50 of the National Agreement.


UMPIRE

May 10, 1945.



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No. C-358

May 24, 1945

Alleged Improper Transfer

GRIEVANCE:

Delco-Remy—Muncie—Case C-62

"They are transferring a man from 996 to 998 and putting him on a utility job when thereare men with more seniority that should have the right to that job."



In the Matter of:


and

General Motors Corporation Delco Remy—Muncie—Case C-62

On September 21st, 1944, Employee S. was transferred from the Record Clerkclassification in Department 996 to the Utility classification in Department 998. Thecomplainant, Employee H., protests this transfer on the ground that a number of otheremployees then working in Department 998 had greater seniority than S. and should havebeen considered for the job.

S.’s seniority date is November 16, 1939. He had originally been advanced to a Utility job



in Department 998 on October 4th, 1943. On February 21st, 1944, he had been transferredwithout change in rate to Department 996, to fill the vacancy left by E., a Record Clerk whohad entered military service. On September 18th, 1944, E. returned from the Army and wasgiven back his old job. Though in the meantime S.’s former Utility job had been filled,Management decided that another Utility Operator was needed in Department 998, inconnection with its rapidly developing overseas business. S. was therefore transferred tothat job, again with no change in rate.

The Union contends that S.’s original promotion to the Utility classification, in October,1943, was improper and disregarded the rights of other employees in the same departmentwho had greater seniority than S. and who were at the time his superiors in ability, meritand capacity. Its failure to protest the promotion at the time, it says, was due only to thefact that S. had injured his hand and that the Union believed he would have an easier timein the Utility job than in performing the regular routine work of the department. The Unionurges, however, that S. should not be allowed to profit indefinitely from the concessionthen made to him and that the earlier willingness of his fellows in view of his injury, tosubordinate their rights to his need, should not now react to their disadvantage.

Appealing as this position may be on its face, it cannot be sustained. S.’s status as a UtilityMan must be held to have been definitely established when he was advanced to the jobwithout protest in 1943. If a transfer or promotion is to be protested at all, proper claimmust be made within a reasonable time after it is effected. If none is made, the potentialclaimants must be held to have waived their rights in the matter. Employees who aredebating whether or not to present such claims, should understand that such a waiver ispermanent and cannot later be withdrawn.

Had S., then, remained continuously in Department 998 as a Utility Man, his assignment tothe new Utility job created to handle overseas shipping would clearly have beenunobjectionable. Is the case, then, altered in any way by his interim service as a RecordClerk in Department 996? The Umpire does not believe so. No change in pay was involvedin his transfers to and from the Record Clerk’s job. Neither of them involved a promotionand neither, therefore, can properly give rise to any claims based on Paragraph 63.

It appears that H., the complainant, is not himself a candidate for the Utility job and that atno time during the discussion of this case in the Grievance Procedure has the Uniondefinitely identified the employees whose seniority rights it claims should be considered.Under Paragraph 28 a designated member of a group having a grievance has every rightto file a grievance on their behalf. Since H. does not consider that his own rights wereinfringed, however, his right to be considered "a member of a group having a grievance" isdubious at best. Intelligent handling of cases of alleged improper promotion, moreover, iswell nigh impossible unless the aggrieved employees are sufficiently identified to permitconsideration of their abilities, merits and capacities. Even if this grievance were nototherwise lacking in merit, it would have to be dismissed for lack of such identification.

Decision





UMPIRE

May 24, 1945.





No. C-361

May 29, 1945

Alleged Improper Promotion

GRIEVANCE:

Buick Motor—Melrose Park—Case C-211

"I protest Management’s decision in making another employee, with less seniority than I, autility man. I claim that I should have the opportunity to prove my merit."

UMPIRE’S DECISION:


In the Matter of:


and

General Motors Corporation—Buick Motors—Melrose—Case C-211

Employee T. claims in this grievance that the promotion of Employee K. to the Utilityclassification on January 13, 1945, was in violation of Paragraph 63 of the NationalAgreement. The Union asks that K.’s Utility job be declared vacant and that in filling it dueconsideration be given to T.’s qualifications.

K. is junior in seniority to T., but has had thirteen months’ prior experience as a Utility Manin the same department, while T. has had no such experience. Management claims that


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this experience obviously made K. the superior in ability, merit and capacity. T. is claiming,it suggests, not that he is now K.’s equal, but that he could become so if given a chance to"prove his merit" on the job. Under Paragraph 63, Management states, men must beselected for promotion on the basis of their existing, rather than potential, worth.

On the evidence before him, the Umpire must agree with Management. The Union hasmade little or no effort to prove that T. is now K.’s equal in ability, merit and capacity. It hasbased its case largely upon the allegation that because K.’s father was barber to theAssistant General Superintendent, K.’s promotions were gained by favoritism, and thethirteen months’ experience in the Utility classification which resulted from the firstpromotion should accordingly be discounted. Aside from this experience, it claims, therecould be no possible basis for considering K.’s abilities superior to those of T.

Favoritism in promotions is contrary to both the spirit and the letter of Paragraph 63. Hadthe Union protested K.’s first promotion at the time it was made, proved that it wasmotivated by improper considerations, and shown that it infringed the rights of otheremployees, the Umpire would have been justified in rescinding it and declaring the jobvacant. Having failed to challenge it at that time, however, the Umpire cannot now beallowed to attack it indirectly by outlawing from consideration the experience and skill itgave him. Once a promotion has passed without timely protest, the status and experiencegained by the promoted employee must be accepted as valid and given properconsideration in Management’s further dealings with him.

In view of K.’s experience, Management had reasonable grounds for concluding that K.’srelative ability, merit and capacity warranted his promotion. In the absence of proof thatManagement erred in this conclusion, the Union’s unsupported allegations of favoritismwould not by themselves justify the Umpire in declaring the job vacant.

Decision:



UMPIRE

May 29, 1945.



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No. C-369

June 25, 1945


GRIEVANCE:

Saginaw Malleable Iron Division—Case C-8

"Ask everyone to work on December 17, 1944 but me. I am requesting pay for that day."

"Was laid off for failure to report on December 17, 1944."

"This man was penalized two days after calling committeeman on grievance. Chargediscrimination for Union activity and violation of Par. 6 of Agreement. Request pay for timelost."



In the Matter of:


and

General Motors Corporation—Saginaw Malleable Iron Division—Case C-8

In the first of these grievances, Employee C. claims that he was unfairly denied anopportunity to work on Sunday, December 17th, 1944, and asks pay for that day. In the


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second and third grievances he claims that he was not told to come to work on December17th and that a two-day penalty given him for failing to appear or call in on that day wasunjust. He asks back pay for the two days he was penalized.

The sole issue in this case is whether or not on Saturday, December 16th, C. wasinstructed to come to work on the following day. It is agreed that on Saturday afternoon,when Superintendent H. informed the other employees that they were to come to work onSunday, C. was absent in the men’s washroom. The Superintendent testifies, however,that he thereafter found C. in the aisle by the drinking fountain, and expressly told him tocome to work the next day, adding that he should make a point of being there because thepay for that Sunday’s work would be included in his Christmas pay check.

The Superintendent states further that at about 9:00 A.M. on Monday morning, December18th, he spoke to C. and asked him why he had not been to work on the previous day. C.replied that he had not been told to come to work. The Superintendent reminded him of theconversation by the drinking fountain and told him that he would probably receive a two-day penalty.

Because it was filed at 10:25 A.M., after this conversation, Management interprets C.’s firstgrievance as being merely a defensive move made in an effort to escape the two-daypenalty. Later in the day, after the Superintendent had checked the records to be sure thatC. had not called in on Sunday to explain his absence, C. was informed that his penaltywas in effect and that he should take the next two days off. The filing of the second andthird grievances followed.

For his part, C. denies having any conversation whatsoever with Superintendent H. onSaturday, December 16th. He likewise denies that he saw the Superintendent Mondaymorning before he filed his first grievance. According to C., the two-day penalty wasdecided on by the Superintendent only after he had "placed the Superintendent on thespot" by complaining about the Superintendent’s failure to tell him to come to work onSunday. It was, says the Union, a defensive move on the part of the Superintendent tocover up his own administrative lapse.

The case, therefore, comes down to a straight question of the Umpire’s judgment of thecomparative credibility of Employe C. and Superintendent H. He found little to choosebetween them as regards their attitude and demeanor while testifying. Each side wasequally vehement in asserting its confidence in the integrity of its own witness and itsdistrust of the opposing witness. The truth or falsity of their respective claims regarding thealleged conversation at the drinking fountain on Saturday, December 16th, can thereforebe judged only indirectly through testing the accuracy of their testimony on other matters.

So tested, the dispute must be resolved in favor of Management. An affidavit by ForemanM. definitely corroborates the Superintendent’s claim that he discussed the matter with C.on Monday morning before C. called his Committeeman and filed the first grievance. C.’sunsupported testimony to the contrary, therefore, must be rejected. C.’s claim, moreover,that he discussed the matter with the Chairman of the Shop Committee at 10:15 A.M. priorto the filing of his first grievance at 10:25 A.M. has also been shown to be untrue. Thediscussion, C. said, took place during the lunch period while the men were waiting in line in



the cafeteria. Management’s records, however, establish that the last tap out before lunchthat day was at 10:22 A.M. It takes a few minutes after the last tap out before the molteniron is completely poured and the men are ready to go to lunch. Unless both men left theirjobs early that day, they could hardly have had time to discuss the question before thegrievance was filed at 10:25 A.M.

These discrepancies may seem to have little relevance to the merits of the case. They are,however, of direct relevance to the question of credibility. Having found that C.’s testimonyon these minor matters was false, the Umpire must resolve the main issue of credibilityagainst him and conclude that he was in fact told to come to work on Sunday as theSuperintendent alleged. These grievances must accordingly be dismissed.

In fairness to the International Union and the Local Shop Committee, the Umpire muststate that he finds in the evidence no reason to believe that they were aware of theinaccuracies in C.’s story. Though the Umpire has decided the issue against them hebelieves that both the International and Local Union officials acted in this matter in entiregood faith.

Decision



UMPIRE

June 25, 1945.





No. C-373

July 9, 1945

Alleged Improper Classification

GRIEVANCE:

Oldsmobile—Lansing—Cases C-51, C-52

"We request the $1.11 rate for working on a motor driven conveyor. The rate for aconveyor attendant is no lower than $1.11. We, also, request back pay from the dateconveyor started."



In the Matter of:


and

General Motors Corporation—Oldsmobile—Lansing—Cases C-51, C-52

At the time these grievances were filed, the eight complainants were employed in the"Stores and Shipping—Cannon Parts" Department at the task of wrapping small parts foroverseas shipment. Prior to August, 1944, these parts were carried in wire baskets to andfrom the wrapping tables to the tanks where they were covered with sealing wax orcellulose solution. On August 1st, 1944, this phase of the operation was changed by theinstallation of a motor-driven conveyor. The employees responsible for the inner wrap


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would remove the part from a conveyor, wrap it and then replace it on the conveyor whereit was carried to the employees responsible for the outer wrap, and thence to the tanks ofsealing wax. In these grievances it is claimed that the addition of the motor conveyorshould have resulted in the reclassification of the complainants from "Stock Picker CounterBundler and Packer" ($.95 to $1.05) to "Conveyor Attendant" ($1.01 to $1.11).

The Umpire must deny the claim. It is apparent to him from his examination that theoperation is still essentially a wrapping operation and that the change in the manner inwhich the parts reach the wrappers has not substantially altered the job. The Unioncontends, it is true, that the employees are now forced to keep up with the conveyor andmust remain at all times at their stations unless relieved. In this argument, however, theUnion is confusing a question of proper classification with a question of fair productionstandards. It can hardly be argued that the classification of employees on an AssemblyLine should change with every variation in the speed of the conveyor. Nor can itreasonably be contended that freedom to abandon their work station at will during workinghours was a factor in the original classification and rating of the wrapping job.

The Union refers, however, to Umpire Decision C-160, in which the Umpire found that theintroduction of a conveyor had so altered a shell-packing job as to require the negotiationof a new classification and rate. Study of the evidence presented in that case, however,reveals that the introduction of the conveyor had substantially altered the manualoperations performed by the Shell Packer. It is to be noted, furthermore, that the Umpire inthat case declined to grant the Union’s request to place the job in the "Conveyor Attendant"classification but ruled only that the introduction of the conveyor had so changed itselements as to make it a new job within the meaning of Paragraph 112.

The "Conveyor Attendant" classification as used in this plant applies to employees whoseessential function is the loading or unloading of a conveyor. It cannot properly be applied tojobs such as those here in question in which the removal and replacement of material froma conveyor is merely incidental to the processing of the material itself.

When their jobs were first classified, the essential function of the complaining employeeswas the wrapping of parts. The introduction of the conveyor has not sufficiently changedthe nature of this operation to justify a holding that it is a new job under Paragraph 112.The grievance must accordingly be dismissed.

Decision:



UMPIRE

July 9, 1945.




No. C-378

July 23, 1945

Claim Of Improper Promotion

GRIEVANCE:

Oldsmobile-Lansing—Case C-67

"I request to be given set-up job in accordance to Paragraph 63 of the Agreement.Seniority of F.K. 3-9-28. Has 18 months of experience on set-up. L.S. seniority date of 4-20-34 was given this job with no previous experience."



In the Matter of:


and

General Motors Corporation—Oldsmobile—Lansing—Case C-67

On February 4th, 1945, Management promoted Employee S., seniority date 4-20-34, to thejob of setting up certain external grinders, engravers, and Cincinnati Mills in the 75 Mm.Cannon Department. In this grievance, Employee K., seniority date 3-9-28, claims that atthe time this promotion was made he was equal if not superior to S. in ability, merit andcapacity, and that under the terms of Paragraph 63 of the National Agreement he shouldhave received the promotion. The Union asks that the job be declared vacant and that the


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Umpire direct it be filled in accordance with the provisions of Paragraph 63, giving dueconsideration to the ability and experience of Employee K. and discounting the experiencewhich Employee S. gained while on the job.

Between March 28th, 1942, and November 8th, 1943, K. had worked as a Set-Up man inthe 37 Mm. Cannon Department. Prior to his promotion, on the other hand, S. had neverworked in the Job Setter classification. The Union contends that this fact alone proves thaton the basis of experience K. was more qualified for the job than was S. and that he shouldhave been placed on the job.

Management contends, however, that K.’s set-up work in the 37 Mm. Cannon Departmentwas very different from that which he would have been called upon to perform in the 75Mm. Cannon Department. It conceded that he would have been able without furthertraining to set up the engravers and the external grinders, but stated that without additionalinstruction and experience he would not have been able to perform difficult set-ups on theCincinnati Mills. S., on the other hand, had worked on every operation in the 75 Mm.Cannon Department. As a relief man he had had to fill in at one time or another on everyone of the machines. Though he had never been classified as a Job Setter, he had put inapproximately 176 hours of set-up work in the regular Job Setter’s absence. He wastherefore able to take over the job with no additional instruction or training.

As has frequently been explained in past Umpire Decisions, nothing in Paragraph 63requires Management to give employees an opportunity to try out in higher paid jobsbefore employees with lower seniority but greater experience are promoted to them. Anemployee’s rights under that Paragraph depend upon the ability, merit and capacity whichhe has at the time the promotion is made, not upon that which he might acquire if he weregiven a few weeks or months on the job. During the Umpire’s investigation of this case, thecomplainant frankly admitted that without further training he would not have been able toperform all of the set-up work on the Cincinnati Mills. As S. was able to perform that workimmediately upon his promotion, K.’s admission is decisive of this case. He is held not tohave been the equal of S. in ability, merit and capacity and, therefore, despite his greaterseniority he was not entitled to the job.

During the Umpire’s investigation, some suggestion was made that Management hadattempted, in this instance, to defeat the purposes of Paragraph 63 by taking a favored lowseniority employee and, with an eye to fitting him for his prospective promotion, giving himspecial advance training which was denied to other employees. If the Umpire foundevidence of any such deliberate attempt to "stack the deck" he would be quick to correct it.There is no showing, however, of any such effort in this case. The special opportunities fortraining which S. received while working as a relief man came to him only through thenormal routines of plant administration. There is evidence, indeed, that the otheremployees, including the complainant, were reluctant to take the relief assignments fromwhich S. eventually profited. Under the circumstances it must be held that no rights of thecomplainant have been infringed.

Decision:





UMPIRE

July 23, 1945.





C-385

August 10, 1945

Penalties For Failure To Meet Time Limitations

GRIEVANCE:

Pontiac Motor—Cases C-276, C-277, C-279, C-251, C-256 and C-257

"As these filters XH-30, XH-31, XH-35, are production machines, they should be cleanedby machine cleaners."

"Protest unjust penalty. Request back pay."

"I request that my rate be adjusted to $1.50 immediately, merit having been establishedand agreed to by both Foreman and General Foreman in the November 1944 discussion."

"Protest unjust and indiscriminate penalty. I was not and do not gamble. Ask pay for timepenalized and my record kept clear."


1. With regard to cases C-251, C-256 and C-257, it is held that the untimeliness ofManagement’s Third Step Answers did not result in the grievances being automaticallysettled upon the basis of the Union’s demands.

2. With regard to Cases C-276, C-277 and C-279, it is held that the untimeliness of theUnion’s presentation of its Statements of Unadjusted Grievance did not result in thesettlement of these cases upon the basis of Management’s Second Step Answers. Thesethree cases are accordingly returned to the parties for the exchange of Statements ofUnadjusted Grievance and for such other proceedings as they may desire to take in theGrievance Procedure. (Entire Decision should be read)



In the Matter of:


and

General Motors Corporation—Pontiac Motors—Cases C-276, C-277, C-279, C-251, C-256and C-257

The original grievances in Cases C-276, C-277 and C-279 were filed on February 19th,February 17th, and February 26th, 1945, respectively. After the usual First Stepproceedings, the cases were duly appealed to the Second Step and received considerationat a Management-Shop Committee meeting. Management’s Answers at the Second Stepwere given to the Union on March 8th, 1945. The Union’s Notices of Unadjusted Grievancewere filed on March 15th, 1945. The Union did not submit its Statements of UnadjustedGrievance for exchange with Management, however, until March 23rd, 1945. Managementthereupon contended that as the Union had failed to meet the time limit of five workingdays established by Paragraph 37 for the exchange of Statements of UnadjustedGrievance, the cases must be considered as settled on the basis of Management’s SecondStep Answer and as not being subject to further appeal. For that reason the merits of thesecases were not discussed at the Third Step or presented to the Umpire. The sole issuenow to be decided concerns the validity of Management’s procedural contention; whether,in other words, the cases should be considered as closed on the basis of localManagement’s Answer at the Second Step or referred back for an exchange of Statementsof Unadjusted Grievance and for such further proceedings as the parties may desire totake.

At the same time that these cases were heard by the Umpire, three other cases from thesame plant, C-251, C-256 and C-257 were presented. (The merits of these cases areconsidered in Umpire Decisions C-383, C-384, and C-382, respectively.) In the earlierproceedings on these cases, Management had failed to mail to the Union its Third StepAnswers within five working days after the Appeal Committee meeting as required byParagraph 42. The Union therefore took the position that if it was to be penalized for itsdelinquency in Cases C-276, C-277 and C-279 by the settlement of those cases on thebasis of Management’s Answer, Management should with equal justice be penalized for itsdelinquency in Cases C-251 C-256 and C-257 by the settlement of these grievances uponthe basis of the Union’s demands. In appealing the merits of the cases to the Umpire, theUnion expressly stated that it was not waiving this contention.

The National Agreement defines the consequences of a failure to meet the various timelimits of the Grievance Procedure only in the following instances:

1. With regard to procedures at the Second Step, Paragraph 34states that:

"Any grievance not appealed from a decision at one step of this



procedure in the plant to the next step within five working days ofsuch decision shall be considered settled on the basis of the lastdecision and not subject to further appeal."

2. With regard to procedures at the Third Step, Paragraph 38provides that:

"Any case not appealed within thirty days of the date of the writtendecision by the local Plant Management to the Shop Committeeshall be finally and automatically closed on the basis of that decisionand shall not be subject to further appeal."

3. With regard to procedures at the Fourth Step, Paragraph 43provides that: "Cases not appealed to the Umpire within twenty-onedays from the date of a final decision given after review in an AppealCommittee meeting shall be considered settled on the basis of thedecision so settled."

4. With regard to complaints of unjust or discriminatory layoffs ordischarges, Paragraph 77 provides that: "If a decision of the localPlant Management in such a case is not appealed by the ShopCommittee within five working days, the matter must be consideredclosed."

As to the specific situations covered by the above quoted language, there can be noargument. The time limitations to which they refer, however, are only a few of thoseestablished in the Grievance Procedure Section of the contract. Not covered, for example,are:

1. The obligation of highest local Management to give its finaldecision at the Second Step within fifteen working days from thedate of the first written filing of the grievance (unless a different timelimit is established by written local agreement) (Paragraph 34);

2. The requirement that Management and Union shall exchangeStatements of Unadjusted Grievance within five working days afterthe Shop Committee has given Management its Notice ofUnadjusted Grievance (unless the time limit is extended by writtenlocal agreement) (Paragraph 37);

3. The obligation placed upon both parties to hold an AppealCommittee meeting within seven days after a Notice of Appeal hasbeen received, if no meeting has been held within the two-weekperiod prior to such receipt (Paragraph 41);

4. Management’s obligation to furnish to the Union its Third Stepdecision and a summary of the minutes of the Appeal Committeemeeting within five working days after such meeting (unless a longerperiod is agreed to in writing) (Paragraph 42);



5. The obligation of both parties to file their briefs with the Umpirewithin twenty-one days of the receipt of a Notice of Appeal(Paragraph

43); and

6. The obligation of local Management to render a decision indiscipline and discharge cases within five working days after thegrievance is filed.

The issue in Cases C-276, C-277 and C-279, relates only to the time limitation on the filingof Statements of Unadjusted Grievance. The Corporation’s reasoning, however, is equallyapplicable to any of the other time limitations just listed. In essence, Management iscontending that the same penalty expressly established by the Agreement for the Union’sfailure to meet the time limit for an appeal should be applied to other proceduraldelinquencies of the Union, even though there is no express language in the Agreementproviding for such penalties. At the same time it opposes the Union’s claim in Cases C-251, C-256 and C-257 on the ground that no penalties for its own delinquencies areestablished by express language in the Agreement. It is asking the Umpire, in other words,to construe the Agreement strictly insofar as its own liabilities are concerned, but liberallyinsofar as concerns those of the Union.

The Umpire can accept no such dual standard of interpretation. The penalties for untimelyappeals expressly set forth in the Paragraphs noted above, must necessarily berecognized and applied. He cannot extend their scope, however, without adding to theterms of the Agreement. The impropriety of such action by the Umpire has beenemphasized by Management on numerous occasions and was urged most energetically inManagement’s reply to the Union’s claims in Cases C-251, C-256, and C-257. In allfairness, however, the restrictions on an Umpire’s power must apply with equal forceregardless of which party is asking for their relaxation. Management is correct in holdingthat the Umpire is without jurisdiction to penalize it for its delinquency in Cases C-251, C-256 and C-257. By the same token, however, it must recognize that he is also withoutjurisdiction to penalize the Union for its derelictions in Cases C-276, C-277 and C-279.

The Umpire recognizes that this decision construes the penalty provisions of theAgreement more narrowly than the parties themselves have done at many of the localplants. He recognizes the importance of expedition in the handling of grievances and theneed of ensuring such expedition by penalizing failures to meet the time limits specified foreach stage of the Procedure. Only the parties themselves, however, can properly broadenthe scope of the penalty provisions of the Agreement. Only the parties can properlyconsider the equities in the Union’s claim that there should be a mutuality of penalties andthat the Union should not be held to strict observance of the time limits while Managementis allowed to violate them with complete impunity. This decision reflects and applies thelanguage which the parties have themselves written into their Agreement. If the partiesconsider that further penalties are required, they must themselves provide for them.

Decision:



1. With regard to Cases C-251, C-256 and C-257, it is held that the untimeliness ofManagement’s Third Step Answers did not result in the grievances being automaticallysettled upon the basis of the Union’s demands.

2. With regard to Cases C-276, C-277 and C-279, it is held that the untimeliness of theUnion’s presentation of its Statements of Unadjusted Grievance did not result in thesettlement of these cases upon the basis of Management’s Second Step Answers. Thesethree cases are accordingly returned to the parties for the exchange of Statements ofUnadjusted Grievance and for such other proceedings as they may desire to take in theGrievance Procedure.


UMPIRE

August 10, 1945.





No. C-389

August 15, 1945

Discharge For Habitual Absence Without Reasonable Cause

GRIEVANCE:

Fisher Flint No. 1 -- Case C-111

"I protest discharge meted out by Labor Relations Department in view of the fact myabsence was due entirely to sickness, also request pay for all time lost."



In the Matter of:


and

General Motors Corporation—Fisher No. 1 -- Flint—Case C-111

On Monday, March 5th, 1945, the complainant, Employee F. complained that he was illand requested permission to leave the plant. At the Plant Medical Department he statedthat he was suffering from nausea and diarrhea and was allowed to go home. He did notreturn to the plant until March 14th, 1945. At that time he was interviewed in the LaborRelations Office and informed that on the evening of Tuesday, March 6th, he had beenobserved drinking in a bar directly across the street from the plant. Management also



pointed out that during the period of his absence he had visited the plant on threeoccasions, twice on Friday, March 9th, 1945, to get, his pay check and to report the loss ofsome keys, and once on Monday, March 12th, 1945, to inquire about a refund of his bonddeduction. On March 9th, moreover, Management had sent a Company representative tohis place of residence to determine why he had not reported for work and had found thathe was not home. In view of F.’s failure to give any satisfactory explanation which couldreconcile these facts with his claim of illness, and after considering his long prior record ofdiscipline for excessive absenteeism, Management discharged him for "Habitual absencewithout reasonable cause." In this grievance F. claims that his discharge was unjustifiedand asks reinstatement with back pay.

F.’s record of absenteeism is among the worst which has come to the Umpire’s attention.He was originally hired in 1930, was laid off early in 1942 at the termination of civilianproduction, and was rehired to work on war production on May 14th, 1942. During thefollowing six months he was absent from work on 30 occasions and as a result, onNovember 10th, 1942, received a one-week disciplinary layoff. During the next sevenmonths he was absent on 36 occasions and on June 3rd, 1943, received a writtenreprimand. During the next seven months he was absent on 34 occasions, and on January11th, 1944, received a verbal warning. During the next eight months he was absent on 32occasions and on September 9th, 1944, was given a two-week disciplinary layoff.

During the four months between the time of his return from this layoff and January 15th,1945, he was absent 12 times and on the latter date was given a four-week disciplinarylayoff. This four-week layoff was later reduced to two weeks with the understanding that ifhis attendance record failed to improve he would be discharged.

The number of absences revealed in this record is bad enough. Even more significant,however, is the fact that the majority of the absences which he attempted to excuse by aclaim of illness occurred on weekends. F. seems to have had the consistent habit ofbecoming ill on Friday and well again on Tuesday. So far as the Umpire knows, nothing inmedical science can account for such a remarkable correlation between the state of F.’shealth and the state of the calendar. His record is not such as to inspire confidence in hispresent good faith.

The Union makes no attempt to excuse or condone F.’s record. It contends only that in theinstant case his excuse was in fact bona fide; that though he was able to be "up andaround" from time to time during the nine days of his absence, he was nevertheless toosick to come to work. It first attempted to explain his presence in the bar on the eveningfollowing his initial claim of illness by the fact that he lived by himself in a nearby hotel andhad to take his meals in restaurants nearby. It developed at the hearing, however, that nofood is served in the bar in which he was observed. F. then attempted to explain hispresence by stating that he had gone to the bar to buy cigarettes. It seems, however, thatcigarettes are available only on Wednesday evenings at this bar and it is establishedbeyond question that he was seen there on Tuesday. It is evident from the testimony ofthese who observed him, moreover, that his conduct in the bar was not that of a sick man.

In view of his presence at the bar on March 6th and his visits to the plant on March 9th and



12th, it appears to the Umpire beyond question that F. was physically able to return to workmany days before he actually did. As Management had already exhausted the possibilitiesof improving his attendance by corrective discipline, his discharge was justified and isupheld.

Decision:



UMPIRE

August 15, 1945.





No. C-402

October 22, 1945

Loss of Seniority Under Paragraph 64(c).

GRIEVANCE:


"I request that my seniority be restored. My foreman was properly notified as per Pars. No.64-C of our Nat’l Agreement."


Employee T.’s seniority shall be restored and his employment record shall be alteredaccordingly. (Entire Decision should be read)

In the Matter of:


and

General Motors Corporation—Pontiac Motors—Case C-303

Employee T., the complainant in this grievance, was a crane operator in the Foundry,holding seniority back to May 13th, 1936. On November 18th, 1944, T. was arrested on acharge of murder in the second degree and confined in the county jail. On November 20th,1944, the General Foreman was informed by two of the complainant’s fellow employees asto the circumstances and reason for his absence.


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On December 22, 1944, T. was arraigned and released on bond. On December 27th,1944, he reported for work and was rehired at the same job and wage rate which he hadpreviously held. Some time later, however, he learned that during his detention in jail,Management has terminated his employment as a voluntary quit and that he had beenrehired as a new employee without seniority. He thereupon filed the instant grievance,claiming that in cancelling his seniority Management had misinterpreted and misappliedParagraph 64(c) of the National Agreement and asking that his seniority be restored. *

On May 11th, 1945, the charge against Employee T. was reduced to manslaughter, and heentered a plea of guilty to that charge. On May 28th, 1945, he was placed on three years’probation and was required to pay $100.00 costs.

Paragraph 64(c) of the National Agreement provides that an employee’s seniority shall bebroken "...if the employee is absent for three working days without properly notifying theManagement, unless a satisfactory reason is given." Management admits that within threedays of T.’s arrest it was notified as to the reason for his absence. It contends, however,that the reason given was not "satisfactory" and that it was therefore justified in breakingT.’s seniority and in terminating his employment as a voluntary quit.

The Union contends, on the other hand, that a "satisfactory reason" is required byParagraph 64(c) only for a failure to give Management proper notice of a contemplatedabsence. Since T., through his friends, gave such notice, the breaking of his seniority wasimproper. In taking this position the Union relies in part on the following language of theUmpire in Decision B-16.

"Under Part(c) of Paragraph 64, an employee’s seniority is broken if he is absent for threeworking days without properly notifying the Management. An exception to the requirementjust stated is provided by the same clause when it states ‘unless a satisfactory reason isgiven’. Under this paragraph, an employee who is absent for three working days or moreassures retention of his seniority by notifying Management on the third day of absence.The required ‘proper notification’ clearly includes a statement of the reason for the absenceand its likely duration. Both factors are important to Management in the conduct of thebusiness. In the absence o proper notification as outlined, an employee’s seniority isnevertheless not broken if he later advances a ‘satisfactory reason’ to explain his failure togive such notice. This is the clear meaning of the clause as it is written and it is not properto extend the coverage of that clause."

The present Umpire agrees with this construction. The general rule established byParagraph 64(c) is that an employee’s seniority is broken if he is absent for three workingdays without properly notifying the Management. Even if nothing whatever was said in theAgreement about the giving of "a satisfactory reason", proper notification would prevent thebreaking of seniority. The inclusion of an exception which prevents the breaking ofseniority, under certain circumstances, even when notification has not been given, canhardly be construed as furnishing grounds for the breaking of seniority when notificationhas been given.

Management argued at the hearing that it was unreasonable to expect it to retain anemployee indefinitely on its payrolls on the basis of his mere notification and regardless ofthe length of his absence or of the reason for it. Can an employee call up the Employment



Office, Management asks, and by saying "I’ll be off for a month, getting drunk," tieManagement’s hands and force his retention on the payroll? The answer is obviously no.That negative answer, however, is based upon the fact that Management’s disciplinarypowers in cases of that sort do not depend upon the absence of notice but dependsquarely upon the existence or non-existence of reasonable cause for absence. This is nota holding that such an employee could not be penalized or discharged. But it is a holdingthat since T. had properly notified Management of his absence, his seniority could not bebroken under Paragraph 64(c).

Decision:

Employe T.’s seniority shall be restored and his employment record shall be alteredaccordingly.


UMPIRE

October 22, 1945.





No. C-410

July 6, 1946

Claim Of Improper Wage Classification

GRIEVANCE:

Hyatt Bearings—Case C-83

"Charge Violation of Paragraph 112 of the National Agreement on New Job of ‘RotaryHead Miller’."



In the Matter of:


and

General Motors Corporation Hyatt Bearings Division—Case C-83

The only question at issue in this grievance is whether or not the operation of theMilwaukee Rotary Head Miller in the Tool Room at the Hyatt Bearings Division differs sosubstantially from the operation of the other milling machines as to justify its designation asa "new job" within the meaning of Paragraph 112 of the National Agreement.

The Umpire finds from his investigation of the job that a new classification is not justified. Itis true, as the Union points out, that among the jobs performed on this machine are a



number which had formerly been performed by the Jig Borer. Management hasestablished, however, that most of these jobs could be and often had been performed onthe regular milling machines and were assigned to the Jig Borer only in order to utilize allavailable machine capacity. Few of these jobs require the precision and close toleranceordinarily associated with a Jig Borer’s work. The regular Jig Borer jobs, which justify thespecial Jig Borer classification and rate, are not and can not be performed on the RotaryHead Miller.

It is also true, as the Union points out, that the rotary head attachment and the greatprecision of which the Rotary Head Miller is capable make it possible to perform manyoperations with this machine which could not be performed on a standard milling machine.By the same token, however, there are a number of difficult jobs, requiring great skill onthe part of the operator, which have been performed on the regular milling machines andnever on the Rotary Head Miller. It must be remembered, moreover, that we are concernedin this case with classifying not the machine itself, but rather the job of operating it. Thevery attachments which differentiate this machine from other types of milling machinesappear to the Umpire to reduce the amount of work and in some cases the degree of skillwhich is required of the operator. There seems, indeed, to be a rough balance between thehigher standards of precision and the closer tolerances which the operator of the RotaryHead Miller must sometimes meet and the special attachments on the machine whichsimplify the task of meeting them.

The Union claims in its brief that it takes six months to train a milling machine operator tooperate the Rotary Head Miller. The evidence does not support this claim. W.K., the firstoperator assigned to the machine, testified that he operated it "on his own" after only a fewdays of instruction and that it took him only a day or two to break in the present operator.

It appeared to the Umpire that throughout its argument the Union was concentrating on thetypes of precision jobs which the machine could turn out rather than on the part played bythe operator in achieving such precision. Even were this a proper basis upon which todecide a question of wage classification, the Union’s case would have grave weaknesses,since a majority of the jobs which have in fact been assigned to the Rotary Head Millercould have been turned out on other milling machines. It must be emphasized, however,that in applying a general wage classification, such as the "Milling Machine Operator"classification in the present local wage agreement, we are not so much concerned with themachine or with the products as with the demands which are made on the operator.Viewing the case in this light, the Umpire finds that the nature of this operator’s task andthe degree of skill which is required to perform it are not sufficiently different from those ofa regular milling machine operator to justify the establishment of a new classification.

Decision:



UMPIRE



July 6, 1946.





D-2

JULY 20, 1945

Claim Of Unjust Discharge By A Temporary Employee

GRIEVANCE:

Detroit Diesel Division—Case D-8

"I was unjustly discharged. Demand pay for all time lost."


As L.’s claim of unjust discharge was not "stated in detail in writing" at the time of the filingof the grievance, as required by Paragraph 56 of the National Agreement, it must bedismissed as having been improperly filed and hence without status in the grievanceprocedure. (Entire Decision should be read)

In the Matter of:


and

General Motors Corporation—Detroit Diesel Engine Division—Case D-8

Employee L., one of five blind men employed by the Detroit Diesel Engine Division at thehand lapping of injector bushings, was discharged on May 18th, 1945. On the following dayhe filed the instant grievance which reads: "I was unjustly discharged. Demand pay for alltime lost."

Page 1 of 5UMPIRE DECISION D-2

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The Foreman accepted the grievance and placed a disposition upon it stating: "Dischargejustified. Back pay denied." At the Second Step, however, Management refused toconsider the grievance on the ground that it had not been presented in accordance withthe requirements of Paragraph 56 of the National Agreement. It maintained this position atthe Third Step and at the Umpire hearing. The only question before the Umpire, therefore,is the correctness of Management’s technical position. The merits of L.’s discharge are nothere at issue and are not passed upon in this decision.

Paragraph 56 of the National Agreement of April 16th, 1945, reads as follows:

"Employees shall be regarded as temporary employees until theirnames have been placed on the seniority list. There shall be noresponsibility for the reemployment of temporary employees if theyare laid off or discharged during this period. However, any claim bya temporary employee made after 30 days of employment that hisdischarge is not for cause may be taken up as a grievance. Suchclaims must be stated in detail in writing at the time of the filing ofthe grievance."

Employee L. had been hired on March 26th, 1945. At the time of his discharge he was stilla temporary employee but had been employed for more than 30 days. In principle,therefore, he was clearly entitled to have his claim that his discharge was not for causetaken up as a grievance.

In objecting to the consideration of the merits of his case by the Umpire, Managementmakes two points: In the first place, it points out, L.’s grievance was not accompanied byany detailed written statement of the basis for his claim. The last sentence in Paragraph 56requires the submission of such a statement at the time of the filing of the grievance. As L.did not meet this requirement, Management argues, his grievance is without status.Management was not required to consider it and the Umpire is without jurisdiction todecide it.

In the second place, Management contends that even if his grievance had been properlyfiled and was supported by the weight of the evidence, his reinstatement could not properlybe required. Management here relies upon the statement in Paragraph 56 that: "Thereshall be no responsibility for the reemployment of temporary employees if they are laid offor discharged during this period." It seems to argue that the succeeding sentence, whichpermits temporary employees who have been employed for 30 days to have a claim ofunjust discharge taken up as a grievance, merely allows such employees to appealthrough the grievance machinery for the favorable exercise of Management’s discretion,but places Management under no obligation to reinstate them regardless of the merits oftheir case. It would presumably follow that the most the Umpire could do if this case werebefore him on the merits would be to make a finding as to the existence or non-existenceof good cause for L.’s discharge. Regardless of the nature of this finding, however, hecould not direct L.’s reinstatement.

With this latter contention of Management, the Umpire must flatly disagree. Any suchinterpretation would render the last two sentences of Paragraph 56 meaningless andsuperfluous. Temporary employees have always been able to ask Management, in its



discretion, to reinstate them following a layoff or discharge. They have always had the rightto file grievances protesting that a layoff or discharge was without cause and to ask thatManagement, in a spirit of equity and fairness, should voluntarily correct the injustice whichthey claimed to have suffered. Their rights in this respect, under the former NationalAgreement, differed from those of seniority employees only in that they could not demandreinstatement as a matter of right unless they claimed that their layoff or discharge hadbeen the result of personal prejudice or of discrimination for Union activity. TheCorporation is thus in effect contending that the new language in Paragraph 56 did nothingto improve their situation—that the rights of employees who have more than 30 days ofemployment are not substantially different from those who have less. Indeed, if itsargument is accepted and followed out logically, temporary employees are now worse offthan they were before Paragraph 56 was amended, for even their right to reinstatement incases of personal prejudice or anti-Union discrimination has been lost.

The Corporation argues, nevertheless, that its interpretation is necessary if the statementthat "There shall be no responsibility for the reemployment of temporary employees if theyare laid off or discharged during this period" is to retain any meaning and effect. No suchnecessity is apparent to the Umpire. The same language was contained in the earlierversions of Paragraph 56 and was never thought to be negated by the exception permittingclaims of personal prejudice or of discrimination for Union activity to be taken up as agrievance. The expansion of the exception to include claims that a layoff or discharge isnot for cause narrows the application of the general rule but does not render itmeaningless. There is an elementary distinction between layoffs and discharges which areoccasioned by an employee’s conduct in the plant and those which are the normal result ofchanges in operating schedules and manpower requirements. As to the latter, the rights oftemporary employees have not been altered. As to the former, temporary employees withmore than 30 days of employment now have the same right to have their claims taken upas a grievance that they previously had with respect to claims of personal prejudice or anti-Union discrimination. It has always been understood, moreover, that the right to havethese latter claims "taken up as a grievance" included the right of the Umpire to direct theirreinstatement if the claim was supported by the evidence.

Management’s first point, however, is well taken. The requirement of Paragraph 56, thatclaims of unjust layoff or discharge made by temporary employees "must be stated in detailin writing at the time of the filing of the grievance", is absolute. The provision seems tohave been included as a safeguard to prevent Management from being deluged withgrievances every time a reduction in force required the layoff or discharge of temporaryemployees. It is mandatory and permits of no exceptions. Unless it is complied with, thegrievance is not properly filed, and Management is under no more obligation to consider itthan if it had been filed after the expiration of the time limits of Paragraph 77.

The Union contends, it is true, that unless an employee has knowledge of the reason forhis layoff or discharge, a detailed explanation of his claim that it is without cause isimpossible to prepare. Suppose, it says, an employee was fired for no reason at all,through the mere whim or caprice of a Supervisor. What could he "state in detail"concerning his discharge beyond the bare allegation that so far as he knew it was withoutcause? In the instant case, it says, L. knew that he had been spoken to about hisproduction and told that he must improve it. But he also believed that he was producing asmuch and working as efficiently as any of the other employees in his group. Without



knowing in detail the basis of Management’s belief that he was an unsatisfactoryemployee, without knowing whether they thought that he was deliberately "peggingproduction" or considered that he had shown himself to be incompetent, how could hewrite a statement proving that they were wrong? Is not Management construing the lastsentence of Paragraph 56, in other words, as embodying the unreasonable requirement,unheard of in Anglo-Saxon law, that a man shall state his defense before he is made fullyaware of the charges against him?

In the view of the Umpire, this contention has more weight in theory than in fact. Obviously,Paragraph 56 does not require a temporary employee to state his full defense if hisignorance of the facts or of the reason for his discharge renders this impossible. Obviously,it does not bar the Union from amending its contentions in respect to his grievance at theSecond Step if facts come to light which were not known before. But, quite as obviously, itdoes require the employee to state what he does know of the facts—to make a bona fideeffort to comply with the requirements within the limits of his knowledge even if he can onlyexplain the reasons for his bewilderment at his penalty. The sufficiency of such statementsin the circumstances of each case must be for the Umpire to determine. He mustnecessarily be governed by the rule of reason in his determinations. But he cannot holdthat L.’s mere statement that his discharge was unjust, supported by no facts whatsoever,complies with the requirements of Paragraph 56.

L. can hardly claim, moreover, that he was unaware of the reasons for his discharge. Hehad had a number of conversations with his Supervisors concerning his production. Hehad been specifically warned that his failure to improve would bring about his release. Ifdoubt remained, he had the opportunity at the time of his discharge to inquire further as tothe reason for it. Before leaving the plant he talked with his Committeeman, who shouldcertainly have been familiar with the language of Paragraph 56 and have advised L. as tohow to comply with it. And though L. might not have been able to give accurate figures onhis production, he was clearly in a position to state in his grievance what he believed it tohave been, how he believed it to compare with that of his fellows, what efforts he hadmade to improve, and what justifiable excuse there may have been for his failure.

It is always unfortunate when a case must be dismissed for technical reasons. The Umpirewould prefer to consider every case upon its merits and to ensure—to his own satisfactionat least—that justice is done. His primary duty, however, is to apply the NationalAgreement as it is written, and that duty extends to the procedural requirements of theAgreement as clearly as to its substantive provisions. In no way could he honor the presentgrievance without nullifying the stated requirements of Paragraph 56. The grievance mustbe held to have been improperly filed and therefore beyond the jurisdiction of the Umpire toconsider on its merits.

Decision:

As L.’s claim of unjust discharge was not "stated in detail in writing" at the time of the filingof the grievance, as required by Paragraph 56 of the National Agreement, it must bedismissed as having been improperly filed and hence without status in the grievanceprocedure.




UMPIRE

July 20, 1945.





No. D-6

August 30, 1945

Request Of Journeymen Machine Repair Machinists

To Be Classified As "Leaders"

GRIEVANCE:

Hyatt Bearings—Case D-1

"Charge violation of Paragraph 112. Demand management proceed to negotiate a LeaderClassification for Machine Repair Machinist classification."


1. It is found that Employees R., B., M. and P. have been functioning as"Leaders" in the Machine Overhaul Department, and that they have done so atthe direction and with the knowledge and consent of the departmentalForeman.

2. As no "Leader" classification for Machine Repair Machinists exists in thelocal wage agreement they are held to have been working at a "new job" withinthe meaning of Paragraph 112.

3. Management is directed to establish a temporary classification and ratecovering their jobs, to negotiate a permanent classification and rate, and toclassify and pay the four journeymen upon the basis of these temporary andpermanent classifications so long as it requires them to perform a Leader’sfunctions. (Entire Decision should be read)

In the Matter of:


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and

General Motors Corporation—Hyatt Bearings Division—Case D-1

The sole issue presented by this grievance is whether or not since August, 1944,Employees R., B., M. and P., now classified as Machine Repair Machinists, have beenfunctioning as Leaders, and whether or not Management, in recognition of that fact, shouldnegotiate a new "Leader" classification and rate for them in accordance with the provisionsof Paragraph 112.

The parties do not differ widely over the basic facts in this grievance, but are completely atodds as to their interpretation. Prior to August, 1944, machine overhaul at this plant wasperformed for the most part by upgraders and trainees under the immediate direction of aForeman. It is clear from the evidence that Foreman F., who was in charge of machineoverhaul on the day shift, actively directed the work of these upgraders and trainees,assigned them to specific jobs, gave them instruction and checked their work upon itscompletion. Though no detailed evidence was presented concerning the activities ofForeman E. on the second shift, he seems to have functioned in essentially the samemanner as Foreman F.

It appears that Management became dissatisfied with the results which were beingobtained in the Machine Overhaul Department. In August, 1944, therefore, it combined theday and the night shift into one, removed the two Foremen who had previously supervisedthe work on these shifts, and placed the department in the charge of Foreman R. ForemanR. decided that the work of the department would be improved if he secured threejourneymen Machine Repair Machinists and assigned them to work with the upgraders andtrainees on the three main types of machines being overhauled. Employees R., B., and M.were therefore taken from the repair work which they had been doing on the floor of theplant and assigned to overhaul work on the 81 Heald Grinders, the 72 Heald Grinders, andthe Cincinnati Grinders, respectively.

The Union alleges that when the men were brought into the Overhaul Department theywere told by Foreman R. that they were to be in charge of the work on the respective typesof machines assigned to them, that they should assign work to the upgraders and trainees,give them instruction when needed, check their work as it progressed, and give it their finalo.k. The Union claims further that they have ever since performed these functions, thateach has had anywhere from two to nine upgraders and trainees working not only withthem but under their immediate direction, and that they gave these men their assignments,answered their questions, inspected their work and gave it final approval when they sawthat it had been satisfactorily completed. Several of the upgraders and trainees in questionappeared at the hearing and testified to the same effect, indicating that their relation to thejourneyman with whom they worked was substantially the same as that which theypreviously had had to Foreman F. before the department was reorganized. For example,Employee L., a machine repair trainee assigned to 81 Heald Grinders, testified that for amonth or two after Foreman R. took charge of the department he used to go to him for his



assignments, but that early in the Fall, the Foreman told him that he should check withEmployee R. and that if his work "was o.k. with R. it is o.k. with me". Ever since, EmployeeL. has taken his job assignments from Employee R., going to the Foreman only ifEmployee R. was out of the department.

Employee P., a machine repair trainee assigned to 72 Heald Grinders, gave similartestimony as to his relation to Employee B. Foreman R. told him, he said, that when he ranout of work he should go to B. to see if B. had anything for him to do, that B. would o.k. hiswork, and that he should follow B.’s instructions. This was the situation, P. said, wheneverhe was working on 72 Healds. Only when he was occasionally assigned to other types ofmachines did Foreman R. give him instructions. The evidence given as to the functioningof Employee M. on the Cincinnati Grinders was to the same effect.

In addition to the three journeymen discussed above, the Union claimed that Employee P.,a Machine Repair Machinist assigned to overhauling Cone Automatics, was alsofunctioning as a Leader, Employee K., a machine repair upgrader, had been working onthe Cone Automatics for some time prior to the departmental reorganization. WhenForeman F. was in charge, he said, F. assigned him to his work, gave him instruction andchecked his results. When F. left, however, K. was told to work with P. and has ever sincetaken P.’s instructions and had P. inspect and approve his work. To quote K.’s directlanguage at the hearing "P. is my boss just the same as F. was before."

Management denies that any of the four journeymen involved were ever given anysupervisory authority over the upgraders and trainees with whom they worked. Thejourneymen, it says, are excellent workmen with long experience, great skill, and thoroughknowledge of the machines on which they have specialized. It is altogether natural,Management says, for the other employees to come to these old hands for advice on theproblems they encounter, and it is part of a journeyman’s normal job to inspect and checkthoroughly all work done on the machine he is repairing before giving that machine his finalo.k. It is understandable, moreover, that the upgraders and trainees should not come to theForeman for daily work assignments. They are men with some years’ experience and knowfrom past practice the manner in which one job follows another on a particular machineand that when one machine is finished they are normally expected to go to the next. Noneof the facts developed, Management believes, indicate that journeymen are acting asLeaders or are doing anything beyond the normal scope of their job. In Management’sopinion, therefore, the grievance should be regarded as merely a request for more money,justified by no real change in the employees’ functions or responsibilities, and on that basisdenied.

The line which separates a Leader from a mere skilled employee is often difficult to draw.As Management points out, it is normal for employees of lesser experience and skill toseek the advice and instruction of the old hands that may be working with them. It isexpected, moreover, that highly skilled employees will check the work which they are doingand that such a final check will involve inspection of the work which other employees mayhave done on the same job. On the evidence in this case, however, the Umpire believesthat Management has allowed the boundary line to be crossed. These four journeymen didfar more than give advice. They gave instruction, direction, and in a real sense,supervision. Though job assignments were not frequently necessary, when assignmentswere made they made them. The checking and inspection which they did of others’ work



seems not to have been merely incidental to the giving of their final "o.k." to the machineoverhauled, but rather to have been a special responsibility which the departmentalForeman himself had previously exercised.

It is true that when the classification of these employees was first informally discussed inthe Fall of 1944, a Management representative informed the Union that they were not to beLeaders. It is likewise true, however, that they assumed their special responsibilities at theexpress direction of the departmental Foreman and continued them with his knowledgeand tacit consent. And in matters of classification it is the assigned function and notManagement’s opinion with respect to classification titles which the Umpire must consideras decisive. As the Umpire said in Decision C-292:

"It is true, of course, that supervisory authority—even of the limitedsort which a Leader exercises—must be conferred upon anemployee from above and that no employee can properly assume iton his own initiative. But that does not mean that if an employee isdirected to perform functions which are recognized as those of aLeader, his right to payment as a Leader is in any way conditionedupon the title by which Management designates his job."

Since no "Leader" classification for Machine Repair Machinists exists in the local wageagreement it must be held that the four journeymen, R., B., M. and P., have been workingat a new job within the meaning of Paragraph 112. Management must therefore bedirected to establish a temporary classification and rate covering the job, to negotiate apermanent classification and rate, and to classify and pay the four journeymen upon thebasis of these temporary and permanent classifications and rates as long as it requiresthem to perform a Leader’s functions.

Decision:

1. It is found that Employees R., B., M. and P. have been functioning as"Leaders" in the Machine Overhaul Department, and that they have done so atthe direction and with the knowledge and consent of the departmentalForeman.

2. As no "Leader" classification for Machine Repair Machinists exists in thelocal wage agreement they are held to have been working at a "new job" withinthe meaning of Paragraph 112.

3. Management is directed to establish a temporary classification and ratecovering their jobs, to negotiate a permanent classification and rate, and toclassify and pay the four journeymen upon the basis of these temporary andpermanent classifications so long as it requires them to perform a Leader’sfunctions.




UMPIRE

August 30, 1945.





No. D-11

October 16, 1945

Discharge For Refusal To Work Saturdays Because Of Religious Beliefs

GRIEVANCE:

Buick-Flint—Case D-1

"Protest against Buick Management’s vicious anti-religious policy. This policy deprived meof my livelihood for worshipping on Saturday. Request back pay for all time lost."



In the Matter of:


and

General Motors Corporation—Buick Motor—Flint—Case D-1

The complainant, Employee H., has been an employee of the Buick Motor Division in Flintsince 1921. For 16 years he has been a Seventh Day Adventist and in accordance with thetenets of that faith has refused to work on Saturdays. During the days of commercialproduction, when the plant was on a 40-hour week, there seems to have been littledifficulty over his refusal. Even when overtime work was required on Saturdays,Management allowed the complainant to remain away and to make up the time on otherdays.

In 1942, when the war program required Management to establish a 48-hour week,


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Management felt it necessary to alter its policy in such cases and to require that allemployees work their regularly scheduled hours unless they had reasonable cause forabsence. A religious belief which acted as a continuous bar to an employee’s working onone particular day of the week was not considered by Management to be such a"reasonable cause". On this basis a number of employees who subscribe to Seventh DayAdventist beliefs were discharged for "habitual absence without reasonable cause",Management indicating in each case that the employee would be allowed to return to workand have his seniority restored provided that he would agree to work on Saturdays.

For some reason unexplained at the hearing, however, Employee H. was not penalized forhis Saturday absences until his discharge on May 7th, 1945. It would appear that he wasdischarged at that time only because of the complaints of another employee thatManagement was discriminating in H.’s favor by not holding him to the same requirementsto which it held other employees.

Two issues are therefore present in this case. The first presents the question ofManagement’s right as a matter of principle to require Seventh Day Adventists to work onSaturdays as a condition of employment, and the second, the question of whether by itsprior leniency toward H. Management deprived itself of the right to enforce its rule againsthim.

With regard to the first issue, the decision must clearly be for Management. It must at oncebe made clear that no question of religious freedom is involved in this case. H. has everyright to believe as he chooses and to act in accordance with his beliefs. His beliefs cannotentitle him, however, to special privileges which are denied to other employees.Management has the basic right to employ and retain in employment only such employeesas are able and willing in the long run to perform the work required of them on the workdays regularly scheduled. It has always been recognized that the Corporation need notretain indefinitely on its payrolls an employee who through illness or accident is renderedpermanently incapable of performing work in the Corporation’s plant. In the same manner,it must be held that the Corporation need not keep in its employ an individual whosereligious beliefs are a permanent bar to his observance of regular shift schedules.Management has no right, of course, to concern itself with the beliefs themselves, but ithas every right to insist that in the long run its work schedules shall be fulfilled and its ShopRules uniformly applied.

The Union argues that if any one thing could ever be considered a reasonable cause forabsence that thing should be the religious tenets of a sincere and devout believer such asH. There is an obvious distinction, however, between causes for absence which operateonly occasionally, such as illness in the family, a need to take care of special and pressingbusiness or a desire to observe occasional religious holidays, and causes which operatepermanently and result in regularly recurring absences on specified days during the week.The standards of reasonableness which might have applied had H.’s absences beenexceptional could not apply when those absences became the permanent and unvaryingrule.

On the second issue, likewise, Management is in principle correct. The Umpire haspreviously indicated that by being lenient with an employee over a short or long period oftime Management does not lose its right in its discretion to become strict. Management’s



wisdom in suddenly imposing its rules against H. when the end of the war wasapproaching and return to a 40-hour week could be readily envisioned, may seemquestionable. There can be no doubt, however, of its right to do so. The evidence is clearthat with regard to other employees of the Seventh Day Adventist faith Management haduniformly imposed its attendance rule. In all fairness the Umpire cannot hold that it shouldhave discriminated in favor of H.

It is admitted by Management that H. is a good workman and a valued employee. It is to behoped that with the return of these plants to a 40-hour week some means may be found ofreemploying him on some basis similar to that on which he worked during the years prior tothe war. From Management’s attitude and expressions at the hearing the Umpire isconfident that if that can be done his long seniority can also be restored. For the reasonsstated above, however, the Umpire cannot find that Management exceeded its rights indischarging him and must accordingly dismiss his grievance.

Decision:



UMPIRE

October 16, 1945.





No. D-14

December 4, 1945

Alleged Violation Of Paragraph 63

GRIEVANCE:

GMC Truck & Coach—Case D-13

"I request a Group Leader classification in line with my seniority. Claiming I have the merit,ability and capacity to fill such a position."



In the Matter of:


and

General Motors Corporation GMC Truck and Coach Division—Case D-13

On June 11th, 1945, Management promoted Employee C., seniority date June 5, 1941,from his job as relief man on the boxing line in Department 1030 to a position as groupleader on the same line. In this grievance, Employee O., who was also a relief man andwhose seniority date is June 7, 1928, claims that he is at least the equal of Employee C. inability, merit and capacity and that in view of his greater seniority he should have receivedthe promotion. The Union asks that the job be declared vacant and that Management bedirected to fill it in accordance with the requirements of Paragraph 63 of the National


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Agreement, giving due consideration to the qualifications of the complainant.

Because of the cancellation of war contracts, the group leader job was discontinued onNovember 5, 1945, and Employee C. was demoted in line with his seniority to theassembler classification. The case has, therefore, in many respects become moot. In viewof the possibility that new leader jobs may be created in the future for which the two will beconsidered, however, certain comments seem appropriate.

The Union’s principal contention was that O. was denied promotion solely because of hisadvanced age. O. had more experience as a relief man than C. His efficiency ratings havebeen consistently either good or excellent. Since as a relief man O. performed more actualphysical labor than he would as a group leader, his physical stamina was clearly adequatefor the job. Since he was the equal or superior of C. in experience and knowledge, andsince his efficiency ratings were good, the Union argues, he should have been given thejob. Any other holding, it urges, would allow Management to discriminate betweencandidates for promotion upon the basis of their age alone, and age is not necessarily anindication of an employee’s ability, merit or capacity.

With the Union’s general thesis that age, taken by itself, has no necessary relevance to thequestion of ability, merit and capacity, the Umpire is in full accord. He does not agree,however, that age was the only or even the principal factor which distinguished the twocandidates from each other. The qualities which seem to have been most important infilling this group leader job were those of initiative, alertness and flexibility. Managementwas looking for a "self starter" as opposed to an employee who merely did well what hewas told to do. In view of the varied nature of the boxing operation in this department,frequent changes in speed and the constant necessity of shifting employees from oneoperation to another, the importance of these qualities in the man immediately in charge ofthe line is self evident. The evidence leaves little question but that in these qualities C. wasdefinitely the superior of the two. The Umpire finds that the Union has not established thatO. was the equal of C. in the ability, merit and capacity necessary for this group leader job.The grievance must accordingly be dismissed.

Decision



UMPIRE

December 4, 1945.



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No. D-19

April 29, 1946

Appeal From An Alleged Violation Of A Local Wage Agreement

GRIEVANCE:

Delco-Remy—Case D-4

"The Bargaining Committee of Local 662 charges Management with violation ofParagraphs 112, 112a and 112b of the April 16, 1945 Agreement when the moldingoperation on the new Jet Propulsion job in Plant 7 was arbitrarily placed in the Coremakerclassification without mutual agreement."



In the Matter of:


and

General Motors Corporation—Delco-Remy Division—Case D-4

The Union charges in this grievance that the Management of the Delco-Remy Divisionviolated Paragraphs 112, 112 (a) and 112 (b) of the National Agreement by placing themanufacture of forms for the casting of bearing supports for jet propulsion aircraft enginesin the "Core Maker" classification at a rate of $1.16 per hour instead of in the "Molder"classification at a rate of $1.18 per hour.


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The forms in question are used to shape the outside of the bearing support. The Unionclaims that by definition and by common foundry usage such an "outside" form is a "mold"and the job of making one is that of a "Molder." Similarly, the form which is placed insidethe "mold" to shape the inside of the piece to be cast is a "core", and only the making ofsuch "inside" forms can be called "Core Maker’s" work. To classify the present operationas "core making", therefore, is contrary to the customary meaning of the term and a clearviolation of the local wage agreement.

Management does not deny that elsewhere in industry the terms "core" and "mold" arefrequently used to designate inside and outside forms, respectively. It contends, however,that it is not common usage but its own established plant practice that should govern theinterpretation of this wage agreement. For many years at Delco-Remy, both before andafter the wage agreement was negotiated, "Core Makers" were distinguished from"Molders" solely by the type of sand used in making the form. If "Dry Sand" was used, theform was a "core", and if "Green Sand" was used, the form was a "mold", and these termsapplied regardless of the function of the form in the casting process. Thus on certain gearand crank cases, the "core", made of dry sand, forms a considerable portion of the outsidesurface. In the Crank Housing job, a green sand "mold" forms the inside and a dry sand"core" forms the outside. In the casting of a certain cover green sand is used to make boththe inside and outside forms, and both are referred to and classified as "molds". It isbecause of the somewhat greater care and skill required in the handling of "green" ascompared to "dry" sand that the "Molder’s" rate is two cents above the "Core Maker’s" rate.

In view of this undisputed evidence regarding the established practice at Delco-Remy, theUmpire must dismiss the instant grievance. Where local practice is in doubt, commonindustrial usage is often helpful in the interpretation of a local wage agreement. The issue,however, is never "What is proper dictionary usage?" or "How are these terms usedelsewhere?", but always "What did this Management and this local Union mean by theterms when they placed them in their agreement?". In this case the answer to that questionis clear beyond dispute. At Delco-Remy, the term "core" has always been applied to a formmade of dry sand and the term "mold" has always been applied to a form made of greensand As the form in question was of "dry sand" it was properly classified as a "core" andpaid for at the "Core Maker’s" rate.

The Union argued at the hearing, nevertheless, that as the bearing support was a newproduct, placed in production only a few weeks before the grievance was filed, the work ofmaking the forms should have been considered a "new job" within the meaning ofParagraph 112. Since it could not be placed in an existing classification by mutualagreement, the Union urged, Management should have established a temporary rate for itand negotiated a permanent rate with the Bargaining Committee.

After almost six years of Umpire proceedings the fallacy in this argument should beapparent. Work of the type involved in this case has been covered by the "Core Maker"classification for years. That a product is new does not necessarily mean that the task ofmaking it is a "new job". Tool Rooms are not reclassified every time new tools aremanufactured; nor has it in the past been found necessary to negotiate new "Molder" and"Core Maker" rates every time model changes required the casting of new parts.



Decision:



UMPIRE

April 29, 1946.





No. D-27

May 2, 1946

Penalty Layoff For Absenteeism

GRIEVANCE:

Chevrolet-St. Louis—Case D-30

"Unjustly suspended. Request pay for all time lost."



In the Matter of:


and

General Motors Corporation—Chevrolet-St.Louis—Case D-30

In view of the complainant’s prior record of absenteeism and of his previously announcedintention of becoming liable to a week’s penalty if he were not granted a week’s vacation,the Umpire concludes that he was absent from work without excuse on August 31st, 1945,and that the one week layoff imposed upon him was justified.

Decision:





UMPIRE

May 2, 1946.





No. L-12

NOVEMBER 10, 1965

Paragraph 153

Transfer to Skilled Trades (E.I.T.)

GRIEVANCE:

"I charge Management with vio. of Par (153) of N.A. I request this man be put on job, andall back pay be given." S/JMD

"I charge Management in vio. of Par. 153 of the N.A. as I have more seniority and morequalifications than employee selected for employee in training in W.E.M.R. classification.Req. pay I lost and this job at once." S/REF


The grievances are dismissed. (Entire decision should be read)

In the Matter of:

United Automobile Workers of America, AFL-CIO, Local Union No. 645

and

General Motors Corporation Fisher Body—Los Angeles Division -- Appeal Cases L-101and L-102

The grievant, J.M.D., seniority date 10-14-57, classified "Assembler - General," and R.E.F.,seniority date 11-28-59, classified "Spot Weld-Major and Line," protest Management’s

Page 1 of 4UMPIRE DECISION L-12

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action, on May 7, 1965, in transferring employee M.L.K., seniority date 9-17-62, alsoclassified "Spot Weld - Major and Line" to the Welding Equipment - Maintenance andRepair - In Training (WEMR-EIT) classification in the Maintenance Department. Eachgrievant claims that at the time he applied for the transfer, his qualifications were at leastequal to K.’s, therefore, the transfer of K. violated Paragraph 153 of the NationalAgreement, which reads as follows:

"Notwithstanding other provisions of this Agreement, Managementmay select non-journeymen employees who have previously filed anapplication as provided above for transfer to the skilled tradesclassifications for training and to perform the work in suchclassifications. Employees transferred to skilled tradesclassifications shall be selected on the basis of their qualifications,and when their qualifications are equal, employees with the longestseniority will be given preference." (Emphasis added)

The union witnesses were Employee O. and the two grievants. O., formerly a non-skilledproduction Gas & Arc Welder, who has worked for the past six years in the WEMR-EITclassification, testified as to the duties of that classification, the training or experiencerequired, and the qualifications of employees previously transferred to that classification.O. described those duties as including maintenance and repair of welding equipment andestimated the job content as 75% mechanical and 25% electrical. According to O., of thedozen or so WEMR-EIT employees whom he knows, 9 or 10, at the time of transfer, hadno previous experience or training in electrical work but, like himself, have been learningthat work on the job. Finally, O. testified that even though, at the time of transfer, he hadpossessed his present qualifications, he would still need a total of ten years of service inWEMR-EIT for promotion to journeyman status.

Grievant D. testified that at the time of his application he had 13 years’ experience inrepairing and rebuilding electrical tools and motors, including work with blueprints andcontrol panels, as well as 3 years’ vocational school training in electricity for about sixhours weekly. Grievant F. testified that he had several years’ experience as a spot welderin the aircraft industry; that he had attended night classes in mathematics and electronics;and that he had learned how to read and work with electrical diagrams and electronicinstruments and how to build amplifiers and rectifiers, though he had applied this trainingonly in doing odd jobs "on his own, not for pay."

Management’s witnesses were General Foreman T., one of the supervisors who selectedemployees for the WEMR-EIT classification, and K., the employee transferred. T. testifiedas follows: Work in the WEMR classification includes installation, maintenance and repairof welding and associated electrical, electronic and mechanical equipment. Performance ofthe work requires knowledge of an experience in electricity. After evaluating theapplications for transfer in this case, it was clear to him that, by virtue of K.’s three years oftraining and experience, his qualifications were far superior to all other applicants’.Specifically, during K.’s three years in the Navy, where T. had also served as anelectrician, K. had attended electrician training schools and served as an electrician on aship, rising to Electrician’s Mate, Second Class. Also, K. had attended an electronicsschool after his Navy service. T. considered that K.’s duties on board ship were similar inmany respects to those in the WEMR-EIT classification and that his experience in the



"practical factors" of operating, maintaining and repairing electrical equipment, wasrelevant. His conclusion was that K. was able to perform the WEMR-EIT duties withconsiderably less training than other applicants. In comparison, the experience shown onD.’s application was principally on bench jobs, not in "trouble-shooting" with power on, asin the WEMR-EIT classification. Finally, as to F., T., on the basis of having worked as anelectrician in spot welding, knew that F.’s experience was not really relevant; also, F. hadless electronics school training than K. Finally, T. pointed out that Management always hassought employees qualified to perform as much of the WEMR-EIT work as possible,without further training. True, Management has, at times, selected employees withminimum qualifications, but only because no better qualified employees had applied.

OPINION

Transfers under Paragraph 153 are governed by relative and not minimum qualifications,to be determined as of the time of the application. As a practical proposition it would not beunreasonable, in a Paragraph 153 case, to expect either or both of the parties,Management and the Union, in shaping their contentions as to the relative qualifications oftwo or more competing applicants, to attempt to predict how such applicants might "stackup" in the immediate or foreseeable future. But it is not to be assumed that the parties, innegotiating Paragraph 153, meant that in a particular case, either party, as part of itscontentions or arguments, would be permitted to speculate as to how the competingapplicants would "stack up" ten years later, on the verge of promotion to Journeymanstatus, under the Agreement. Next, the words "transfer... for training and to perform thework" indicate that a relevant consideration is whether an applicant may already be trainedor experienced in some aspects or parts of the job to such an extent that he can "performthe work" with relatively little or no additional training.

The work of the WEMR-EIT classification involves both mechanical and electrical duties.The evidence indicates (1) that in terms of skill and related requirements, the electricalduties, while they may be less in volume, are more important than the mechanical and (2)that by virtue of his prior experience in the Navy, employee K. was considerably ahead ofthe two grievants in the performance of the electrical work when he applied for transfer.This finding does not, of course, put a premium on naval or any other particular brand oftraining. Finally, while it might be contended that either grievant might be so apt as to beable to "catch up" to employee K. after a period of training on the job, no such contentionhas been advanced, or if advanced, has a foundation in the record of this case.

On the basis of the foregoing analysis, the Umpire must find that Management did notviolate Paragraph 153 in concluding that K.’s qualifications were clearly superior to thegrievants’ and in transferring him to the classification in question.

DECISION

The grievances are dismissed.



November 10, 1965

S/Nathan P. Feinsinger

Umpire





No. L-16

DECEMBER 1, 1965

Discharge:

Assault on Supervision

Paragraph 76:

Notice of Discipline

GRIEVANCE:

CHEVROLET DIVISION, TONAWANDA FOUNDRY PLANT, TONAWANDA, NEWYORK—APPEAL CASE L-38

"Protest unwarranted discharge demand discharge be rescinded and I receive alleconomic benefits lost and reinstated at once" S/LF

"Policy The Union is charging mgt with violation of para 76 NA. demand modification ofpenalty assessed emp L F on 4/10/65 without prejudice to the merits of grievance#639663" S/PHW

UMPIRE’S DECISION

The grievances are dismissed. (Entire decision should be read)

In the Matter of:

United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIOLocal 1173

and


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General Motors Corporation, Chevrolet Division, Tonawanda Foundry Plant, Tonawanda,New York -- Appeal Case L-38

The Union protests the discharge on 4-10-65 of the grievant, F., seniority date 2-21-55,classified as "Core - Load and/or Unload", for an alleged assault on Foreman R. W., inviolation of Shop Rule No. 22, "Threatening, intimidating, coercing or interfering withemployees or supervision at any time."

The Union also charges that Management violated Paragraph 76 of the NationalAgreement by failing to advise the grievant as to the grounds, other than the allegedassault, which the Union claims that Management considered in arriving at the penalty ofdischarge. Paragraph 76 reads:

"Any employee who has been disciplined by a suspension, layoff ordischarge will be advised in writing of the reason therefore...."

Foreman R. W., a supervisor for only two weeks at the time of the events below, testifiedas follows: On 4-10-65, he came into the grievant’s work area and instructed the grievantto move some #896 cores from the end to the center of the core rack, so as to get themthrough the production line before a change to a different type of core. The grievant wasthen sitting on a barrel opposite the south end of the core oven waiting for the cores in theoven to reach a certain point when he would move them to a rack located across the 3-footwide aisle, in which the events below took place. The grievant refused to comply, sayingthat he had to take out the cores then in the oven as they came along, and moved acrossthe aisle, next to the oven. Foreman R. W. told him he could let some cores go by ifnecessary, while he moved the #896 cores. F. again refused, called R.W, a vile name, toldhim to "get the hell away," and pushed him on the chest. R. W. said, "We’ll see about that,"and started for the office to get advice. As he moved sidewise past the grievant, he heldhis hand about waist high in front of him, to avoid a collision. There was no physicalcontact, except perhaps as the grievant turned toward him. At that point, the grievantstruck him on the left side of the nose. The blow split W.’s lip, knocked his glasses to thefloor and his hard hat to the top of the core rack, and caused his nose to bleed profusely.Foreman R. W. did not see the blow coming, or note with which hand the grievant hit him.Foreman R. W. picked up his glasses and hat and went to the First Aid Office.Superintendent H. went there to get Foreman R. W.’s story. Later, Foreman R. W. learnedthat following a disciplinary interview, the grievant had been discharged.

Superintendent H. testified as follows: After talking to Foreman R. W., he called thegrievant to his office for a disciplinary interview which was attended by the grievant,General Foreman P. and Committeeman P.H.W. The grievant’s first story was that nothinghad happened; his second story was that he might have hit Foreman R. W. accidentallywith a pallet of cores as he turned from the oven to the rack. Knowing that the pallet washeld about waist high, and that, therefore, Foreman R. W.’s injuries could not have beencaused that way, H. again asked the grievant what had happened. His third story was: "Ipushed him as hard as he pushed me." In view of these different stories, H. concluded thatno further investigation was necessary, and discharged the grievant. As to the allegedviolation of Paragraph 76, the discharge was based only on the striking of the foreman



and, while supervision was aware of prior disciplinary infractions and of the abusivelanguage and insubordination on the occasion in question, they played no part in thedecision. Therefore, there was no violation of Paragraph 76.

General Foreman P. testified as follows: To determine whether there was any basis tosuggest that the grievant’s discharge be rescinded, he interviewed several employees.One employee, E. S., said that he saw the grievant strike Foreman R. W.; another said thathe saw the foreman leaving with blood on his face; the others said that they saw nothing.

The grievant and employees E.S., B., and H.S., and Committeeman P.H.W. testified forthe Union. The grievant testified as follows: Foreman R. W. told him twice to move the#896 cores, on the second occasion poking him in the chest. As Foreman R. W. startedtoward the office, he pushed the grievant on the back, throwing him slightly off balance.Reacting against the push, the grievant swung his arms together in an upward andsideward motion, his elbow striking Foreman R. W. The grievant did not notice thatForeman R. W.’s hat and glasses had come off. Foreman R. W. left and the grievantcontinued to work at the oven. At no time did the grievant claim that he might have struckForeman R. W. with a pallet; that suggestion came from Management, not from him. Inshort, at no time did the grievant take any aggressive action toward the foremanaccounting for his injuries.

The net of the testimony of employees E.S., B., and H.S., was that Foreman R. W. hadpushed the grievant. E.S. said that all he saw was the grievant’s arms swing up. He deniedthat he told General Foreman P. that the grievant hit Foreman R. W. Neither B. or H.S.saw the grievant’s reaction.

Committeeman P.H.W. testified as follows: Although the grievant had requested hispresence, he knew nothing about the matter until he learned from another employee that adisciplinary meeting was taking place in the superintendent’s office. He joined the meetingwhich was already well in progress. When he arrived, the grievant was describing howForeman R. W. pushed him and his reaction to the push. Before the interview wasconcluded, Foreman R. W. arrived and gave his version of what had occurred. Later, whenCommitteeman P.H.W. talked with Foreman R. W. alone, the latter said that he might haveinadvertently pushed the grievant slightly when he put out his hand to avoid a collision.Finally, the grievant’s prior record, and his insubordination on the occasion in question,were part of the discussion, from which it follows that, failing written notice thereof,Management violated Paragraph 76.

The Corporation contends that the evidence supports its position that the grievantknowingly struck Foreman R. W. and that he was discharged solely for that reason;therefore, (1) the grievant was properly discharged and (2) Paragraph 76 was not violated.

The Union’s principal contentions may be summarized as follows: (1) Granted there was aphysical contact of some sort between the grievant and Foreman R. W., at no time did thegrievant intentionally injure the foreman by striking him or otherwise. (2) Management wasderelict in not making a thorough investigation before the discharge. (3) The evidenceshows that Management, despite its denial, gave consideration to factors outside thealleged assault, without advising the grievant in writing as required by Paragraph 76. Thatviolation should be considered, at least in mitigation of the penalty assessed the grievant.



OPINION

The Corporation has the burden of proof in a discipline case. The evidence in this caseestablishes that a physical encounter occurred in a confined area, involving the grievantand Foreman R. W., during which the latter suffered a bloody nose and had his glassesand hat knocked off. The key question is whether, as the Foreman claims, those resultsfollowed from a blow struck by the grievant, without extenuating circumstances. Thephysical circumstances, the lack of any acceptable explanation as to how else the injuriesmight have happened, and the inconsistent and, in some instances, unsupportableversions offered by the grievant, all lead to the conclusion that the grievant struck ForemanR. W., and that the blow was intentional.

The Umpire agrees with the Union that it would have been more in keeping withestablished principles in disciplinary situations had supervision interviewed otheremployees in the area of the incident before, rather than after, the decision to dischargethe grievant. Under other circumstances, the Umpire might feel impelled to take account ofthat fact in determining the extent of penalty. In this case, however, he does not deem thatfact sufficient, on balance, to warrant returning the grievant to his job.

On the basis of the foregoing, the Umpire must conclude (1) that the Union has not provedits charge that Management violated Paragraph 76; and (2) that the Corporation hassustained its burden of proof that the grievant violated Shop Rule 22 by assaultingForeman R. W. Therefore, the grievances must be dismissed.

DECISION

The grievances are dismissed.

December 1, 1965

/S/Nathan P. Feinsinger

Umpire





No. L-30

MAY 11, 1966

Discipline:

Discharge for Loitering

Extent of Penalty

GRIEVANCE:

GM ASSEMBLY DIVISION, SOUTH GATE PLANT, SOUTH GATE, CALIFORNIA—APPEAL

CASE L-752

"I charge Mgt with giving me an unjust discharge on 10-14-65 for alleged violation of SR-10-40. I request reinstatement immediately pay for all time lost due to Mgts error and allbenefits due." S/EWA


Grievance dismissed. (Entire decision should be read)

In the Matter of:

United Automobile-Aerospace-Agricultural Implement Workers of America, UAW-AFL-CIOLocal 216

and

General Motors Corporation, GM Assembly Division, South Gate Plant -- Appeal Case L-752



The Union protests the discharge on 10-14-65 of the grievant, A., seniority date 9-24-60, a"Caustic Tank Attendant," for alleged violation of Shop Rule 10, "Wasting time or loiteringin toilets or on any Company property during working hours," and Shop Rule 40,"Repeated violations of Shop or Safety Rules." The protest includes a charge thatManagement failed to comply with Paragraph 76 of the National Agreement which reads:

"Any employee who has been disciplined by a suspension, layoff, ordischarge will be advised in writing of the reasontherefore...." (Emphasis supplied)

The grievant’s prior disciplinary record is as follows:

Date Action Violation

May 23, 1961 Reprimand Shop Rule #6, "Absence withoutreasonable cause."

May 24, 1961 Disciplinary Layoff –Balance of Shift andone day

Shop Rule #4, "Using another’s badgeor pass, or permitting another to useyour badge or pass to enter theproperty.

May 24, 1961 Disciplinary Layoff –Balance of Shift andone day

"Failure to wear badge in plain sightwhile on Company property."

June 13, 1961 Disciplinary Layoff –Balance of Shift andtwo days

Shop Rule #35, "Disregard of safetyrules or common safety practices."

June 23, 1961 Disciplinary Layoff –Balance of Shift andone week

Shop Rule #15, "Refusal or failure to dojob assignment. (Do the work assignedto you and follow instructions; anycomplaint may be taken up later throughthe regular channels.)"

October 5, 1961 Disciplinary Layoff –Balance of Shift andone & ½ weeks

Shop Rule #36, "Assignment of wagesor frequent garnishments."

November 10,1961

Disciplinary Layoff –Balance of Shift andtwo weeks

Shop Rule #36

April 11, 1963 Disciplinary Layoff –Balance of Shift andthirty days

Shop Rule #23, "Unauthorizeddistribution of literature, written orprinted matter of any description inworking areas on Company premisesduring working time."

June 3, 1963 Disciplinary Layoff –Balance of Shift and

Shop Rule #7, "Reporting late



Maintenance Foreman G., the sole witness for the Corporation, testified in substance asfollows: On 10-14-65, at about 8:45 a.m., as he started down a ramp from the main plantbuilding, he observed A. in the Caustic Tank area, some 220 feet away, bent over anobject which, at that point, G. could not identify. He continued on towards A. As he reacheda point some 75-100 feet from A., he could see that the object was a newspaper and thatA. was reading it. The paper lay on a box in that part of the Caustic Tank area called the"pit," below the level of a grating or platform bearing the caustic tank, which it was A.’s jobto tend. A. did not raise his eyes until G. reached him. G. asked A. whether he was onrelief. A. replied, "You are not my foreman. I don’t have to do what you say." G. directedhim to put the paper away and go to work. A. answered, "Go to hell. You are ignorant." G.again told A. to put the paper away. A. replied: "Go away, you bother me." G. thereupondirected A. to go with him to Labor Relations for a disciplinary interview. Thereafter, G. andLabor Relations Representative F. reviewed the grievant’s record which at that timeincluded a 30-day disciplinary layoff, assessed on 5-3-65. This penalty was removed fromA.’s record on or about 3-21-66. But even if the penalty of 5-3-65 had not been considered,the grievant would have been discharged. The notice given A. stated: "Shop Rules 10 and40. You are being discharged for loitering and repeated violations of Shop... Rules."

The Union’s witnesses were grievant A. and Committeeman K. A. testified, in substance,as follows: He saw G. coming down the ramp. At that point he was on the grating, tendingthe caustic tank, watching it to see that it did not boil over, and keeping an eye out for thelifttruck driver to move some more metal into the area. When G. asked him whether he wason his break, A. told him "No." G. asked how come, then, he was on the grating. A’s replywas that G. was trying to "antagonize" him. The reason for this reply was that G., onanother occasion, had told A. he was going to fire him. There was a box with a newspaperlying on it about two feet away from where A. was standing, but they were there when A.came to work, and he had not read the paper. Without questioning A., G. jumped up on thegrating, took the paper from the box, and accused A. of having just been reading it, whichA. denied. A. did not make any of the remarks attributed to him by G., except to say that G.was not his foreman, and that G. was trying to "antagonize" him. The substance ofCommitteeman K.’s testimony was that G. was prone to go to extremes in imposingdisciplinary penalties.

The Union’s principal contentions may be summarized as follows: (1) G.’s testimony was

three weeks for work."

April 20, 1965 Disciplinary Layoff –Balance of Shift andthree weeks

Shop Rule #36

May 3, 1965 Disciplinary Layoff –Balance of Shift andthirty days

Shop Rule #36. (This penalty wasremoved from the grievant’s recordduring the week of 3-21-66.)

August 17, 1965 Disciplinary Layoff –Balance of Shift andthirty days

Shop Rule #10, "Wasting time orloitering in toilets or on any Companyproperty during working hours."



not credible. For example, at the Umpire Hearing, on direct examination, G. testified that A.said, "Go to hell"; on cross-examination, when reminded of a statement made prior to theUmpire Hearing, in which he said A. used the words, "Get the hell away," G. changed histestimony accordingly. (2) As to the extent of penalty, the decision to discharge thegrievant was admittedly based, in part at least, on the grievant’s entire disciplinary record,which then included a 30-day penalty, later removed. (3) Management violated Paragraph76 of the National Agreement in not advising A., in the written notice of discipline, that indeciding the extent of penalty, G. had taken into consideration not only the currentoccasion of loitering but A.’s alleged "insubordinate remarks" on that occasion as well.Further, the failure to refer to such remarks in the notice of discipline is evidence that thegrievant did not make them, and affects G.’s credibility. The discharge should be modifiedbecause one of the items taken into consideration by Management in deciding ondischarge was the penalty of May 3, 1965, balance of shift and 30 days, which was laterremoved from the grievant’s record. (4) In any event, the penalty should be modifiedbecause the shop rule infraction of 10-14-65, which triggered the discharge, was a minorone.

The Corporation’s principal contentions may be summarized as follows:

(1) Inconsistencies between his testimony before the Umpire and his statements in theprior record impair. A.’s credibility. (2) Even if A.’s past record had not included the penaltyof May 3, 1965, which was later withdrawn, with a record such as his, including a 30-daypenalty, he would have been discharged as incorrigible. (3) The Union’s contention thatManagement failed to comply with Paragraph 76 is "new" and should not be considered bythe Umpire. (4) An employee may be found to be "incorrigible" even though his latestoffense is a minor one.

OPINION

The only claimed deficiency in the foreman’s testimony warranting consideration is thedifference as to the exact language surrounding the word "hell," which G. attributed to thegrievant. This difference, in the Umpire’s judgment, is not significant. The grievant’s story,on the other hand, raises a serious question of credibility. For example, when his foremanindicated that he thought the grievant was loitering, the grievant had only to point out thathe was tending the tank, as part of his job duties. Instead, he accused the foreman vaguelyof trying to "antagonize" him. Under these circumstances, the Umpire must conclude thatwith respect to the charge of loitering, the Corporation has sustained its burden of proof.

The second question involves the extent of penalty. On the side of the Corporation, it maybe argued that with or without the 30-day penalty layoff of 5-3-65, subsequently withdrawn,Management’s action met the established criterion of progressive, corrective discipline andthe discharge should therefore be sustained. On the side of the Union, it may be arguedthat since Management considered every penalty in the record at that time, including thepenalty of 5-3-65, it must have been influenced to some extent by that penalty so that, onits later removal from the record, the discharge should have been modified accordingly.There may be cases in which the kind of contention that Management has advanced in thiscase, - that discharge would have followed with or without the penalty of 5-3-65 in the



record, - might be challenged as "hindsight" or "speculation." This is not such a case. Thegrievant’s record, beginning with the 30-day penalty on April 11, 1963, shows the followingpenalties: June 3, 1963, three weeks; April 20, 1965, three weeks; August 17, 1965, thirtydays; October 14, 1965 (the current violation), discharge. Taken by itself, this is hardly arecord on which to base an appeal to the Umpire’s discretion. The only specialcircumstances which might be considered to warrant a reduction of the penalty in this caseare (1) two long periods of "good behavior", and (2) the minor character of the currentoffense. The first period of good behavior began after the grievant’s return from the penaltylayoff of 11-10-61 and ended 4-11-63, a total of about 17 months. The second such periodbegan after the end of the penalty layoff of 6-3-63 and ended 4-20-65, a total of about 22months. On the latter date, the grievant incurred a penalty of three weeks; on 8-17-65, a30-day penalty; and on 10-14-65, the current offense, discharge. Next, it is well establishedthat on the question of incorrigibility, even a minor offense may warrant a review of thegrievant’s entire record in order to determine whether he is "incorrigible." In that narrowsense, the minor offense may be said to have triggered the discharge, but the dischargeitself is based not on the current offense alone but on the whole record.

This leaves only the Paragraph 76 issue for consideration. That issue was injected into thecase by the Union for the first time at the Umpire Hearing and was strenuously objected toby the Corporation as a "new contention." The Umpire is reluctant to pass on an issue asimportant and controversial as the interpretation of Paragraph 76, in a case in which therewas no advance notice and opportunity to the opposite party to prepare for a full dressargument. On the whole record, the Umpire is of the opinion that the grievance should bedismissed.

DECISION

Grievance dismissed.

May 11, 1966

/S/Nathan P. Feinsinger,

Umpire





No. L-46

December 22, 1966

Discipline:

Absence Without Reasonable Cause

GRIEVANCE:

GM ASSEMBLY DIVISION, DORAVILLE PLANT, DORAVILLE, GEORGIA—APPEALCASE L-68

"Protest mgmt giving me unjust D.L.O. request this D.L.O. be remove from my record andbe Paid for all benefit deprive of" S/H.E.S.


The grievance is sustained, with back pay. (Entire decision should be read.)

In the Matter of:

United Automobile Workers of America Local #10

and

General Motors Corporation, GM Assembly Division, Doraville, Georgia -- Appeal Case L-68

The Union protests a penalty of balance of shift plus thirty days against the grievant, S., an"Assembler," whose seniority date is March 20, 1953, for the alleged violation of Shop RuleNo. 6, "Absence without reasonable cause." The grievant’s disciplinary record is as


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follows:

2-23-62 Reprimand Shop Rule #7 "Reporting late for work."

2-25-63 Reprimand Shop Rule #6 "Absence without reasonablecause."

5-10-63 Reprimand Shop Rule #6 "Absence without reasonablecause."

6-25-63 Bal & 1 day Shop Rule #6 "Absence without reasonablecause."

12-12-63 Bal & 2 days Shop Rule #6 "Absence without reasonablecause."

5-18-64 Bal & 1 week Paragraph 117 of National Agreement.

12- 7-64 Bal & 2 weeks Shop Rule #7 "Reporting late for work."

(5- 4-65 The present case.)

On Monday, May 3, 1965, the grievant called the plant before his shift started at 7 a.m. togive notice that he would not be at work that day because he had to take his wife to adentist and go to police headquarters for a report of an automobile accident involving hisson. Later in the morning a Labor Relations Representative telephoned to the grievant andasked him to try to come in. The grievant, however, did not go to work that day. When hereturned to work on Tuesday, Foreman C., his supervisor, was not satisfied with hisexcuse and imposed the disciplinary penalty at issue.

Foreman C., who was the Corporation’s sole witness, testified that the grievant told himthat on the way to police headquarters Monday morning he stopped to telephone the policeand being told that the report he wanted was not ready, returned home, called a dentist forhis wife and made an appointment for 2:30, and then stayed home until it was time to takeher to the dentist. According to C., the grievant said nothing to indicate that his wife’scondition was serious and admitted that she could have gone to the dentist in a taxi orbeen driven there by his father who took her on Tuesday to get the accident report, but didnot explain why he made no such arrangements.

The grievant and his wife were witnesses for the Union. The grievant did not agree that hetold C. his wife could have taken a taxi to the dentist. He did admit saying that his fathermight possibly have taken her, but explained that he did not ask him to do so because hismother’s health was poor and she needed his father with her. The grievant claimed that hetold C. about his wife’s condition and that the dentist had extracted three of her teeth. Hisversion of what happened Monday was as follows: His wife had suffered all day Sundayfrom a severe toothache and asked him to stay home Monday and take her to a dentist. Hecalled the dentist about 9 a.m., when the office opened, and the 2:30 appointment was theearliest available. He started for police headquarters after he called the dentist, not before,but then stopped and telephoned about the accident report because he felt that he should



not be away from his wife. He was away from home only about 20 minutes. When theLabor Relations Representative telephoned him, about 10 a.m., he agreed to go to work, ifpossible, but meant only after he brought his wife home from the dentist. By that time,however, it was too late. While he was at home he took care of his small child, but wouldhave stayed home with his wife in any case. The grievant conceded that he told the LaborRelations Representative, when he telephoned, that getting the accident report was onereason for his absence, although he knew then that it was not available.

The grievant’s wife testified that her face and gums were so swollen that she could hardlytalk and she insisted upon her husband’s making an appointment and taking her to thedentist, that she would not have considered going without him in a taxi because she wasafraid to be alone and was also concerned about their small child, whom they took withthem.

The Union contended that the issue is whether the grievant had a reasonable cause to beabsent, not whether he used poor judgment in failing to make other arrangements; and thatthe obligation to care for his wife was a reasonable cause for his absence.

The Corporation contended that inconsistencies in the grievant’s testimony and his failureto mention earlier that his wife’s condition was serious or that he had to care for their smallchild, reflected a lack of credibility, also that the grievant had an obligation to endeavor tomake other reasonable arrangements for his wife, and that his absence was withoutreasonable cause.

OPINION

Umpire Decision G-156 states the principle which applies to this case, as follows:

"Where as here an employee is absent without permission, it isincumbent upon him to show that such absence was necessitatedby personal considerations which by accepted standardsoutweighed his duty to his employer to be present during workinghours."

The question is whether the state of health of the grievant’s wife was such a personalconsideration; his desire to get a copy of the police report of his son’s accident did notwarrant absence in this case. While some doubt is cast on the grievant’s credibility, there isno evidence that the grievant’s wife was not in severe pain and in urgent need of dentaltreatment. Hence, it was not unreasonable for the grievant to consider that it wasnecessary for him to take care of her. Arguments to the contrary rest largely on thegrievant’s leaving his wife to go to police headquarters. But as to this he had secondthoughts, and returned home. What would have happened, or how long he would havebeen gone had the accident report been available is a matter about which one can onlyspeculate.

The question remaining is whether it was unreasonable for the grievant not to try to makeother arrangements. If the grievant’s wife feared to go to the dentist alone, a taxi was ruled



out. While the grievant’s father might possibly have stayed with her, taken her to thedentist at the appointed time, waited to drive her home, and remained until the grievantreturned from work, the condition of the grievant’s mother made it reasonable for thegrievant not to ask his father to give up the better part of the day to this. That the grievant’sfather drove his daughter-in-law to police headquarters on Tuesday does not prove that hecould have devoted all the time to her on Monday necessary to replace the grievant. Onthe whole record, therefore, the Umpire concludes that the grievant had reasonable causeto be absent Monday, May 3, 1965, and that his grievance should be sustained.

DECISION

The grievance is sustained, with back pay.

December 22, 1966

/S/Abner Brodie,

Umpire





No. L-47

DECEMBER 22, 1966

Discipline:

Careless Workmanship:

Paragraph 76b:

Extent Of Penalty

GRIEVANCE:

GM ASSEMBLY DIVISION, DORAVILLE PLANT, DORAVILLE, GEORGIA—APPEALCASE

L-195

"Protest unjust Discharge. Request I be reinstated with all moneys and other Benefitsdeprived of and my record be cleared." S/R.S.B.


The grievant’s discharge shall be rescinded and the grievant reinstated with back pay forthe 60 days preceding the date hereof. (Entire decision should be read.)

In the Matter of:

United Automobile-Aerospace-Agricultural Workers of America, UAW-AFL-CIO, Local #10

and

General Motors Corporation, GM Assembly Division, Doraville Plant -- Appeal Case L-195


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The Union protests the discharge on April 26, 1966, of the grievant, B., an "Assembler,"seniority date April 8, 1963, for the alleged violation of Shop Rule 17, "Making scrapunnecessarily, or careless workmanship," and Shop Rule 41, "Repeated violations of Shopor Safety Rules." The protest includes a charge that Management did not comply withParagraph 76b of the National Agreement which reads, in part, as follows:

"The employee will be tendered a copy of any warning, reprimand,suspension or disciplinary layoff entered on his personnel recordwithin three days of the action taken...."

The grievant’s disciplinary record is as follows:

11-27-63 Written reprimand forcareless workmanship

12-11-63 Written reprimand forabsenteeism

5-18-64 Disciplinary layoff,balance of shift and 1 day forviolation of Paragraph 117 of theNational Agreement

5-12-65 Disciplinary layoff,balance of shift and 2 days forabsenteeism

5-18-65 Disciplinary layoff,balance of shift and one week forgarnishment of wages

6- 3-65 Disciplinary layoff,balance of shift and two weeks forcareless workmanship

10-26-65 Disciplinary layoff,balance of shift and 30 days forabsenteeism

(4-26-66 The present case.)

The grievant, who had been discharged on January 12, 1966, was reinstated without backpay and returned to work on April 18, 1966. He was assigned to the "Rear BumperSchedule" operation, the first on the bumper subassembly line. His duty was to check awritten manifest for each job and put on a conveyor line carriage the parts required toassembly the type of bumper identified by a code number on the manifest, along with anyaccessories the manifest described and certain parts which were standard for every



bumper. According to Foreman N., the grievant’s supervisor, who was the Corporation’ssole witness, the job was relatively simple and average employees learned it in a fewhours. The grievant began work about 8:15 a.m., and was instructed until about 1 p.m.,when he said that he could do the job himself but asked that the trainer watch him for therest of the day. Thereafter the grievant did the job without help. During the next severaldays he made mistakes on twenty-three jobs, either omitting necessary parts andaccessories or putting on wrong or defective parts. The grievant did not explain hismistakes, but assured N. that he knew the job and how to read a manifest. N. noted theerrors and his contacts with the grievant about them in his log. N. claimed that this was hisusual practice when occasions arose to speak to employees about their work. Nothing wasentered on the grievant’s personnel record. On April 26, the grievant again put the wrongparts for a job on the conveyor carriage and did not explain the error. N. discharged thegrievant for this after an interview with the grievant and his committeeman and a review ofthe grievant’s prior disciplinary record. N. insisted that neither the decision to discipline northe penalty was grounded on the grievant’s earlier errors.

The grievant was the Union’s sole witness. He denied that he was careless, claimed thathe did his best, and asserted that his errors were due to lack of experience and inadequatetraining.

The Union contended that there is no evidence of careless workmanship, that evidence ofthe unrecorded events and contacts of N. with the grievant violated Paragraph 76b of theNational Agreement, and that the penalty against the grievant was excessive.

The Corporation denied violation of Paragraph 76b, which it contended does not barconsideration of the earlier events as background and evidence that the grievant wascareless on the occasion in question. It maintained that the grievant was shown to beincorrigible and was properly discharged.

OPINION

The evidence is that the grounds for the grievant’s discharge were his mistake of April 26,which the Corporation claimed was due to carelessness, and his prior disciplinary record.There is insufficient evidence to support the Union’s position that Management used theunrecorded events preceding the incident in issue as a basis for disciplining the grievant orto determine the penalty to be assessed. Accordingly, there is no ground for concludingthat Management violated Paragraph 76b of the National Agreement. See UmpireDecisions J-10, J-13, K-11.

The next question is whether proof of the grievant’s mistake is sufficient evidence tosupport the charge of careless workmanship. Whether proof of a mistake is evidence of



careless workmanship depends upon the circumstances of the case. On the record in thiscase, including the grievant’s assurances to his foreman that he knew how to do the job,the lack of any explanation for the error, and the fact that he had been on the job severaldays and performed the operation in question hundreds of times, the Umpire concludesthat the error was caused by the grievant’s lack of proper care.

There remains the issue of the penalty. The infraction which led to the grievant’s dischargecan be considered minor. But even a minor infraction may warrant a review of theemployee’s prior disciplinary record leading to a conclusion that the possibilities ofcorrective discipline have been exhausted. In this case, however, a consideration of thewhole record, including the fact that the grievant’s minor infraction was not intentional,leads the Umpire to conclude that in the interest of essential justice the grievant should bereinstated with back pay for 60 days prior to the date hereof.

DECISION

The grievant’s discharge shall be rescinded and the grievant reinstated with back pay forthe 60 days preceding the date hereof.

December 22, 1966

/S/Abner Brodie,

Umpire





No. L-51

January 21, 1967

Leave of Absence:

Paragraph 104 of the National Agreement

GRIEVANCE:

GM ASSEMBLY DIVISION, SOUTH GATE PLANT, SOUTH GATE, CALIFORNIA—APPEAL

CASE L-1242

"I charge Mgt with giving me an unjust discharge for alleged viol of S.R. #6 & #40 on 2-16-66. I request re-instatement with all benefits due me and discharge be removed from myrecords." S/JLE


The discharge of the grievant shall be rescinded, and he shall be reinstated, with back payin accordance with this opinion. (Entire decision should be read)

In the Matter of:

United Automobile-Aerospace and Agricultural Implement Workers of America, AFL-CIO,Local #216

and

General Motors Corporation, GM Assembly Division, South Gate, California -- AppealCase L-1242



The Union protests the discharge on February 16, 1966, of the grievant, a "Hi-LoOperator," seniority date November 18, 1954, for the alleged violation of Shop Rule No. 6,"Absence without reasonable cause," and Shop Rule No. 40, "Repeated violations of Shopor Safety Rules."

The grievant was to be tried on February 16, 1966, on a charge of driving under theinfluence of liquor. He expected to be convicted and sentenced to jail for 60 to 90 days. Toprotect his job he applied in writing on February 9 for 90 days’ leave of absence for"personal reasons." Management denied the request on the ground that it would be"contrary to a long established Company policy" to grant a leave of absence to anemployee to serve a jail sentence. The grievant was convicted and sentenced to jail for 85days. He did not report to work February 16; and Management discharged him that daywhen it learned of his sentence. On April 19 the grievant was released and reported to theplant, but was not permitted to return to his job. On April 26 he reported for work to thePersonnel Office. He was denied work and told there was no chance of a job as a newemployee.

The Union contends that Management violated Paragraph 104 of the National Agreementwhen it denied the grievant’s request for a leave of absence, hence, he was not absentwithout reasonable cause. Paragraph 104 provides as follows:

FORMAL LEAVE OF ABSENCE FOR PERSONAL REASONS.

(104) Employees requesting formal leave of absence shall firstmake application in writing to the Personnel Department on the formprovided. Such leave of absence will be granted to an employee fornot more than ninety days on approval of the Local Managementwhen the services of the employee are not immediately requiredand there are employees available in the plant capable of doing hiswork.

The Corporation does not deny that the grievant applied in writing for 90 days’ leave forpersonal reasons, that his services "were not immediately required," or that there were"employees available in the plant capable of doing his work." Its position is that provisionfor "approval" in Paragraph 104 necessarily implies that Local Management had discretionto disapprove the leave of absence the grievant sought, which was without reasonablecause. Otherwise, it argues, Management could not deny a leave of absence, for example,to an employee to work for a competitor, yet he would accumulate seniority underParagraph 105. It asserts that denying Management discretion under Paragraph 104makes for inconsistency with Paragraph 103, giving a foreman discretion to deny a leavefor 30 days or less, especially as Paragraph 111 permits a return to work before leaveexpires. Finally, it points out that jailed employees have been disciplined for absencewithout reasonable cause, yet it does not appear that any had ever before sought orobtained a leave of absence, or that the denial of leave under Paragraph 104 has everbeen appealed to the Umpire in any case.

The Union’s position is that when the conditions prescribed by Paragraph 104 are met



leave must be approved, that the provision that "leave of absence will be granted" ismandatory in such a case and denies Management discretion to disapprove. It contendsthat the phrase, "on approval of the Local Management," does not mean that leave ofabsence is "subject to" Local Management’s approval, but merely designates the authoritywithin the Corporation to approve it, under Paragraph 114. The Union also introducedevidence of employees who were discharged when sentenced to jail and then reinstatedand returned to work at the local plant without loss of seniority after serving theirsentences.

In the Umpire’s opinion, the terms of Paragraph 104 providing for "approval of the LocalManagement" do not give Local Management discretion to deny an employee a leave ofabsence for personal reasons when his services "are not immediately required and thereare employees available in the plant capable of doing his work." Otherwise, it would bepointless to prescribe the conditions under which a leave of absence "will be granted", or toprovide, as the National Agreement does, (Paragraphs 103-110, 112-113a) that someleaves of absence "will (or shall) be granted" and others "may be granted". Thus,Paragraph 104 provides that leaves of absence "will be granted", while Paragraph 105provides that such leaves "may be extended" but extension requires approval of the PlantManager. (Emphasis supplied.) Elsewhere in the Agreement are provisions that certainmatters are "subject to approval." (Paragraphs 59, 63b and 75.) Lacking evidence that theparties intended otherwise the Umpire must conclude that they employed different terms toexpress differences in meaning and that the provision in Paragraph 104 that "leave ofabsence will be granted", given compliance with the conditions stated, was intended to bemandatory. This is not to say that such a leave is automatic; Local Management mayquestion whether the prescribed conditions exist, but if they do "approval of the LocalManagement" must follow. This Interpretation accords with the language of Paragraph 104and gives effect to all its terms. It is consistent, not inconsistent, with Paragraph 103, whichprovides for informal leave of absence up to 30 days "upon application of the employee toand approval by his foreman." Paragraph 103 does not require the employee seekingleave to show compliance with any conditions.

There is precedent for an interpretation that provisions for Management’s approval do notnecessarily imply discretion to disapprove. Umpire Decision C-295 held that provisions forposting "notices approved by the Local Managements" required Management to approveposting where the notice was of a type listed in the Agreement and its language wasunobjectionable.

The Corporation’s argument that it is "inconsistent" to deny Management discretion todisapprove a leave of absence when such absence without leave would not be withreasonable cause is not persuasive. There is nothing to indicate that when the partiesreferred to "personal reasons" they intended "reasonable cause." Again, that seniorityaccumulates during leave of absence is no reason to disregard what appears to be theplain meaning of Paragraph 104. Before the 1961 Agreement seniority did "not accumulateduring the period of formal leave of absence for personal reasons." There is no suggestionthat the 1961 change was intended to affect the granting of leaves. Whether, as theCorporation contends, a decision that it lacks discretion under Paragraph 104 to deny aleave of absence when the prescribed conditions exist would require it to grant a leave toan employee to work elsewhere is not in issue in this case. There is, likewise, no occasionto express an opinion on the Union’s assertion that what is a personal reason is for the



employee concerned to decide. In this case, it is not denied that the leave of absence thegrievant applied for was for personal reasons.

The fact that there have been no previous cases before the Umpire under Paragraph 104is not irrelevant. But there is no evidence of any practice in which the Union hasacquiesced or sufficient to support a view that the parties have interpreted Paragraph 104to accord with the Corporation’s position.

For the reasons stated, the Umpire concludes that the grievance should be sustained andthe discharge of the grievant set aside. Under Paragraph 111a an "employee on leave mayreturn to work in line with his seniority before the expiration of his leave," on not less than 7days’ notice to Management. The union asserts, and it is not disputed, that the grievantreported for work on April 19 and that on April 26 he again reported ready to work. Backpay should be paid from April 26, or such later date as would be "in line" with his"seniority".

DECISION

The discharge of the grievant shall be rescinded, and he shall be reinstated, with back payin accordance with this opinion.

January 21, 1967

/S/Abner Brodie

Umpire





No. L-53

February 13, 1967

Paragraph 102:

"New Job"

GRIEVANCE:

CHEVROLET MOTOR DIVISION, FLINT ASSEMBLY PLANT, FLINT, MICHIGAN—APPEAL

CASE L-180

"I charge Management of violating Par #102 N.A. and/or L.W.A. Demand new rate andclassification be established for the camber and caster operation. Demand the aboveviolation be corrected at once." S/DO

NOTE: At the Shop Committee Meeting held on April 22, 1965 the Union amended thegrievance to read:

"Further demand that all employees involved be made whole for all losses and/or benefits."



In the Matter of:

United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO,Local #659

and



General Motors Corporation, Chevrolet-Flint Assembly -- Appeal Case L-180

The Union seeks a new classification and to negotiate a rate for the caster and camberoperation, performed on the final assembly line by employees classified as "Assemblers".The issue is whether changes in that operation for the 1965 model created a "new job"within the meaning of Paragraph 102 of the National Agreement.

On earlier models caster and camber were set on a geometric machine on the frame line.The operator punched a combination of buttons on the control panel, as indicated on amanifest accompanying the chassis, referring by code number to the body and othercomponents to be assembled down the line. The machine, thus activated, came down onthe chassis and exerted pressure on the frame, simulating the weight of thosecomponents. This opened a gap between the upper control arm of each front wheel andthe frame into which the operator bolted shims and fixed the caster and camber so set. Aninspector spot checked following the setting of the caster and camber.

The 1965 and later models carried a new front end suspension. The geometric machine isno longer used to set caster and camber; they are now set during the initial assembly ofthe front end suspension. Assemblers now check and, if necessary, adjust caster andcamber on the completed car on the final assembly line. There, two operators, working asa team and using bubble gauges, check the caster and camber on each front wheel. If thebubble is not centered between two points marked on the caster gauge the lower controlarm is moved by turning a nut on the strut rod until the bubble is centered. The otheroperator then locks the setting by tightening a bolt with an air driven wrench. Camber issimilarly checked and adjusted. If the operators cannot make the proper adjustments theyreject the vehicle and it is taken to the final repair area. Following the caster and camberoperation is a spot check by an Inspector.

The Union contends that the caster and camber operation since 1965 entails more skill,effort and responsibility than formerly. It maintains that the present operation merges theinspection functions of reading and interpreting gauges with the assembly functions ofmaking adjustments, that the duties of the employees go beyond the Assemblerclassification and merge the skills and the responsibilities of the Assembler and Inspectionclassifications and constitute a "new job" within the principles announced in UmpireDecision J-102.

The Corporation contends that the functions of the operators in adjusting and tighteningare traditional duties of the Assembler classification, performed with Assemblers’ tools; andthat merely determining whether a bubble on a gauge is within limits which are plainlymarked requires no special skill or training and involves no significant elements of theInspection classification but is within the scope of the Assembler classification whichinvolves the use of gauges on other jobs.

OPINION



The Union has the burden of establishing that the operations in question requiresubstantially greater or different skill or effort, or impose substantially greater responsibilitythan the former caster and camber operation and involve characteristic elements ofinspection. New tools or machinery, alone, do not require the establishing of a new job.

Umpire Decision J-102, which the Union cites to support its claim, concerned employeesclassified as Assemblers who had taken over functions formerly performed by Inspectors -Final Car. The Umpire decided that their jobs merged functions of the Assembler andInspector - Final Car classifications. Here, the rotating and tightening of nuts and washersto make adjustments is Assemblers’ work. The claim that inspection functions areperformed rests only upon the fact that the employees look at bubble gauges to determinewhether adjustments should be made and whether they have been completed. On thebasis of the evidence, including his examination of a model of the front end suspensionand the bubble gauges, the Umpire is of the opinion that the Union has not established thatthe present caster and camber operation and, particularly, determining whether a bubbleon a gauge is between two points marked, entail substantially greater or different skill,effort or responsibility than was formerly required of the employees in deciding upon theshims to fix the caster and camber. Accordingly, the grievance must be dismissed.

DECISION


February 13, 1965

/S/Abner Brodie

Umpire





No. L-54

MARCH 4, 1967

Paragraph 102:

"New Job":

Alleged Violation Local Wage Agreement

GRIEVANCE:

FISHER BODY DIVISION, GRAND BLANC PLANT, GRAND BLANC, MICHIGAN—APPEAL

CASE L-3

"M/R emp. protests Mgt. right to reclassify Plant 40 repair work without negociating withShop Comm. This work is sk. trades oper. and belongs to Maint trade. Demand thispractice be stopped immediately." S/MC

"Chg. Mgt. with viol of Local Wage Agreement. demand Mgt. assigne proper employes andpay proper wage rate for jobs in Plt 40, also demand employes presentley employed bepaid proper rate for all time invold."

"Chg. Mgt. eliminating my job classif. in Plt. #40 Repair, which to my knowledge has beena skilled classif. for last 8 yrs. Demand Mgt. restore Millwright classif, as per past practice& M/W do own work as before." S/VE, ME, and LS

"Chg. Mgt. is intentionally eliminating M/W from part of their rightful duties in Plt. #40,useing prod. emps to heat & straighten A-Frames with tools (torches) formally used byM/W’s classif. when repairing rolling stock for Fisher Plts. Demand Millwrights be returned& proform their former duties as before." S/LS

"Chg. Mgt. with violation of Local Wage Agreement. Demand Mgt. assign skilled emp’s, &pay proper wage rate for jobs in Plt. #40 also present emp’s assigned be paid proper ratefor all time on this job."


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Grievances dismissed. (Entire decision should be read)

In the matter of:


and

General Motors Corporation, Fisher Body Division Grand Blanc Plant -- Appeal Case L-3

The issue in this case is whether Management violated the Local Wage Agreement byassigning the repair of certain 9-foot racks and "A" frames to employees in a new "RackRepair" classification, established under Paragraph 102 of the National Agreement, insteadof to employees in the "Millwright" classification.

Between 1956 and September, 1964, each Fisher Body fabrication plant maintained andrepaired its own steel "A" frames and 9-foot racks, used in shipping sheet metal parts toassembly plants. At the local plant this work was done at what is now known as Table #1by employees in the skilled trades classification of "Millwright." They used "C" clamps,grinders, shims, portable hydraulic jacks, cutting torches, pry bars, mandrils, hoists,brackets and other tools and equipment to straighten and align frame members and racks,cut off and replace damaged components, etc. Their job was to make racks serviceable;and they decided what to do, how to do it, and what set-ups and methods to use.

In September, 1964, the Fisher Body Division centralized repair and maintenance of "A"frames and 9-foot racks for the entire division at the local plant. As a result, the weeklyvolume of work there increased from the repair of about 50 racks and 75 "A" frames to therepair of 1200 racks and 1900 "A" frames. Management classified repairs as "Major" and"minor," added new tables and transferred certain material handling employees to apreviously dormant "Salvage Mechanic" classification to work at the new tables on minorrepairs. Millwrights have continued to work at Table #1 on major repairs; they also makeneeded minor repairs on frames and racks coming to them for major repairs. After thesegrievances were appealed to the Umpire and then returned to the Second Step,Management established the "Rack Repair" classification, to which it transferred theemployees working on minor repairs.

The Union has never agreed to the Rack Repair classification. It maintains that all 9-footrack and A-frame repairs, whether called "minor" or "major," are Millwrights’ work. Theunion’s position is that there was no significant change in the nature of the repair work onracks and frames in September, 1964, or thereafter; there was merely an increase in the



volume of work. Testimony for the Union was that the same tools, fixtures and methods areused for minor repairs as for major, except that on Table #1 portable hydraulic jacks areused while on the other tables the jacks are in fixed, but adjustable, positions; that majorand minor repair work are of the same type, major repairs merely requiring more work,such as the cutting off and replacing of damaged components, while minor repairs "justneed to be squared up." There was also evidence that on occasion a Rack Repairemployee has worked on Table #1, and that Millwrights on the second shift have workedon minor repairs on the new tables.

The Union acknowledges that Millwrights perform a variety of maintenance and repair workin the plant, involving the reading of blueprints, the use of precision instruments, aknowledge of stresses and strains, some mathematical calculations, work on machinelayouts, etc., and that Rack Repair employees lack the qualifications of Millwrights. Itcontends, however, that at the local plant the Millwright classification has a broad scope,encompassing a wide variety of work at various levels of skill; and that work at the lowerlevels of a skill is not outside or removed from the scope of a skilled trades classificationmerely because unskilled employees, not qualified to be journeymen, may be able to do it.It points out that it is work which is classified and not the level of skill and ability with whichit is performed.

The Corporation’s claim that minor repairs are a "new job" under Paragraph 102 rests ontestimony that Management mechanized and reduced minor repairs to routine andrepetitive work by equipping the new repair tables with fixed hydraulic jacks operated byhand and foot controls, stationary stop block and fixtures, table tops scribed with the formof properly aligned "A" frames, etc., so that the operator need merely place out-of-line andout-of-square frames and racks in position in fixtures on the table, activate the controls andthe fixed jacks do the rest, squaring the racks and forcing the frames into alignmentagainst the stationary stop blocks. Occasionally, it was testified, a heating torch is appliedto the metal to make it easier to bend; and when tubular frame ends are deformed they areeasily reshaped by hammering in a mandril or wedge. As the Corporation describes thepresent practice, a Salvage Mechanic employee sorts racks sent to the plant for repair,routing major repair jobs to Millwrights at Table #1 and minor repair jobs, which include all"A" frames, to Rack Repair employees at the other tables.

The Corporation contends that the minor repairs do not call for special skill or training, andare significantly different from the Millwrights’ work on Table #1 which involves skill,judgment and responsibility not only in doing the work but in deciding what and how to do itand improvising methods and set-ups for the particular jobs. It argues that the fact thatMillwrights have repaired racks and "A" frames for a number of years does not precludeManagement’s changing the nature of the job by introducing mechanical devices andimprovements, removing from the work elements requiring Millwrights’ skill and training,and assigning the changed job to unskilled employees.

OPINION

The Union has the burden of proof. It relies principally on the past practice at the localplant for Millwrights to do all repair work on 9-foot racks and "A" frames to support its claim



that Management violated the Local Wage Agreement when it assigned the disputed workto unskilled employees. It appears, however, that that practice was under differentconditions from those existing since September, 1964. In the Umpire’s view, thesegregation then of minor repairs from major, and the mechanization of the work on theminor repairs through the introduction of new procedures and equipment resulted insignificant changes in the nature of that work. These changes were sufficient todifferentiate the work on minor repairs from the work on major on the basis of the skill,effort and responsibility entailed, and not, as the Union argued, merely on the basis of theamount of work involved or the level of skill and ability with which the work is done.

Under Paragraph 8 of the National Agreement, Management may change "the methods,processes and means of manufacturing." It is work which is classified, not the employeewho performs it, the product or equipment worked on, or the skill and ability with which it isperformed. Hence, a significant change in the "methods, processes and means" ofperforming work may justify Management in establishing a new job under Paragraph 102and "a new classification and a rate covering" it. This applies to work which has historicallybeen performed by skilled employees as well as to any other. Such work may be assignedto unskilled employees if changed so that it no longer entails the skill, effort andresponsibility characteristic of the skilled classification.

Evidence that Millwrights have performed the disputed work from time to time on thesecond shift does not require a different result in this case. There is no claim thatMillwrights did not receive their regular wage rates. And that a Rack Repair employee may,on occasion, have worked on Table #1 does not entitle him to the Millwrights’ classificationnor establish that work on the other tables was Millwrights’ work. Whether that Rack Repairemployee was properly paid and, if not, the amount of back wages due, if any, are mattersas to which evidence was not submitted.

On the whole record the Union has not sustained the burden of proof and the grievancesmust be dismissed.

DECISION

Grievances dismissed.

March 4, 1967

/S/Abner Brodie

Umpire





No. L-72

July 31, 1967

Discipline:

Assault on Supervisor

Procedure:

Effect of Irregularities

GRIEVANCE:

CHEVROLET MOTOR DIVISION, WARREN PLANT, WARREN, MICHIGAN—APPEALCASE

L-483

"The union charges mgt. with a unjust suspension of this employee union demandsemployee brought back to work his record cleared an paid for all time lost." S/M.N. 4-5-67

NOTE: This grievance was amended on April 6, 1967 to delete:

"Suspension." to add: "Discharge to make emp. whole for allBenefits. The Union also charges Mgnt. with a Direct violation ofPar. #29 of N.A. by taking emp. to personal office and interrogatinghim, prior to getting him a committeeman."


The grievant shall be reinstated, with back pay, until May 24, 1967, and discharged as ofthat date. (Entire decision should be read.)



In the Matter of:


and

General Motors Corporation, Chevrolet Motor Division, Chevrolet-Warren Plant, Warren,Michigan -- Appeal Case L-483

The Union protests the discharge on April 6, 1967, of the grievant N., seniority dateNovember 3, 1965, classified as an "Assembler-Other than Car or Body", for an allegedassault on April 5 on a member of supervision, Foreman S.

According to Foreman S., to whose testimony the Union objected, as discussed below, thegrievant, assigned to the assembly of mortar shells, objected to the work gloves issued tohim and insisted on a type no longer available, refused to work when ordered, andknocked S. down and repeatedly kicked, stomped, and struck him, inflicting lacerations,bruises, abrasions, a fractured rib and other injuries, for which he was hospitalized. S.denied calling the grievant, a Negro, "nigger". Employee S.D. testified that he heard thatthe grievant was "killing" the foreman, rushed to the area to find the foreman on the floorand the grievant "raining blows on" him, and that as he tried to pull the grievant away andhelp the foreman to his feet, the grievant kicked the foreman in the ribs and back, andgrabbed a mortar shell as if to throw it at S.D. General Foreman H.M. said that he came tothe area after Foreman S. left, and that the grievant told him that S. had called him"nigger", so he "shoved him around a bit and pushed him down on the floor". The grievantstands over 6 feet and weighs more than 215 pounds; S. is 5 feet 9 inches tall, and weighsless than 150 pounds.

The substance of the grievant’s version is that Foreman S. called him "nigger" when heasked for new gloves, snatched away from him a pair he got himself, and that as he triedto leave the foreman to avoid trouble, the foreman charged at him, knocked him to hisknees, tried to kick him, and fell on top of him. The grievant claimed that as he again triedto get away the foreman threatened him with a mortar shell, and that he struck the foremanon the side of the head to make him drop the shell because he could not get it away fromhim. According to employee T., the foreman called the grievant "nigger" and was theaggressor in a fight; that as the foreman grabbed a shell to hit the grievant, the grievantknocked him down "with a hard right" to the head, "gave him a good kick" when he startedto get up, got on top of him, and shook the shell away. T.’s statement was joined by threeother employees.

General Foreman H.M. gave the grievant notice of possible discipline for assault and sentfor his committeeman, as requested. As the grievant waited in the Plant Protection Officefor the committeeman, Labor Relations Supervisor K.M. asked for and obtained astatement from him about the encounter with S. K.M. claimed that he merely asked for thegrievant’s version, which the grievant voluntarily gave; and that had he known that thegrievant was waiting for his committeeman, he would not have spoken to him. K.M. gave a



copy of the grievant’s statement to the committeeman, who made no objection to it.

Committeeman W., who investigated this case under Paragraph 33 of the NationalAgreement, tried to get from Foreman S. his version of the events, but S., backed byGeneral Foreman H.M., would say only that he had been assaulted, bruised, otherwiseinjured, and hospitalized; and refused to give any details.

The Union’s principal contentions may be summarized as follows: (1) Foreman S.’s refusalto tell Committeeman W. his version violated Paragraph 33 of the National Agreement;under Decision G-12, the Umpire should exclude S.’s testimony. (2) Labor RelationsSupervisor K.M.’s interview with the grievant violated Paragraphs 29 and 76a of theNational Agreement. (3) The grievant did not assault the foreman; there was a fight inwhich the foreman was the aggressor. While the grievant deserves some penalty,discharge is excessive. A decision as to the appropriate penalty should take account ofManagement’s procedural violations, including the withholding of evidence.


(1) The Umpire should consider Foreman S.’s testimony. The Union received all theevidence on which Management relied, including the substance of S.’s version of theevents in issue. (2) Paragraph 29 was not violated. K.M. did not know of the grievant’srequest for a committeeman; and the Union relied on the statement K.M. obtained and wasnot prejudiced thereby. The Union’s claim that Management violated Paragraph 76a isnew. (3) The evidence establishes an assault; there are no mitigating factors, and thedischarge should be upheld.

OPINION

The issues before the Umpire concern (1) the exclusion of Foreman S.’s testimony; (2) thegrievant’s guilt of the assault charged; and (3) the effect of procedural irregularities, if any,should the grievant’s guilt be established.

1. Umpire Decision G-12, upon which the Union relies in objecting to Foreman S.’stestimony, relates to evidence of facts withheld by a party, or otherwise not disclosed, untilthe Umpire Hearing. It is well settled that the Umpire should not consider such evidence. Inthe present case, however, the issue does not concern evidence not previously disclosedwhich the Corporation seeks to introduce at the Umpire Hearing. Here, the Union receivedthe version of the relevant facts, to which S. testified, before the Third Step. The Umpire,therefore, has no basis to exclude or suppress Foreman S.’s testimony as evidence offacts not previously disclosed, even if Management violated Paragraph 33 when ForemanS., seconded by General Foreman H.M., refused to tell Committeeman W. his version ofthe events in issue. The remedy for that will be discussed below.

2. On the question whether the grievant was guilty of the assault charged, the physicaldifferences, alone, between the relatively small and slender foreman and the large, strong,well-built, and muscular grievant, tend to negative the grievant’s version of the foreman asan aggressor and his claim that he was merely defending himself and that a fight ensued.Even if the foreman did attack the grievant, which, in the Umpire’s view of the evidence, isimprobable, the grievant employed far more force than was reasonably necessary to repel



him. The evidence indicates that the grievant continued to beat the foreman despiteopportunities to disengage himself and leave, and that only the intervention of othersbrought the beating to a stop. A careful review of the record leaves the Umpire with theconviction that the foreman employed an offensive racial epithet which "triggered" anattack upon him by the grievant. Even a racial epithet as offensive as the one charged,however, cannot justify the assault, not because a supervisor’s abusive epithets arecondoned, which, of course, is not so, but because order and discipline must be preservedin the plant. The grievance procedure is the channel for redress of abuse of an employeeby a supervisor, not physical violence. On the whole record, the Umpire finds that theCorporation has sustained its burden of proof that the grievant committed the assaultcharged.

3. The remaining questions concern procedural irregularities, if any, and their redress. Inthe Umpire’s opinion, the evidence establishes the violation of Paragraph 29 charged inthe grievance. Whether or not Labor Relations Supervisor K.M. knew that the grievant hadasked for and was awaiting his committeeman is not material; under the circumstances ofthis case the grievant’s presence in the Plant Protection Office should have alerted K.M. tothe possibility and he had a responsibility to ascertain the facts. The Umpire is also of theopinion that the refusal of Foreman S. and General Foreman H.M. to give S.’s version ofthe events in question to Committeeman W. violated Paragraph 33. Under that section ofthe National Agreement the Union has a right to investigate a grievance appealed to theShop Committee so that it may be discussed properly when the Shop Committee takes itup with Management. But when access to the facts is denied, as it was in this case, thenthe purpose of Paragraph 33 is frustrated. It is not now necessary to decide what that rightto investigate includes and how far it extends; here it is clear that the refusal to give thecommitteeman no more than a repetition of Management’s charge against the grievanteffectively denied the Union the right provided by the Agreement to obtain information. Andwhile the grievant’s offense was serious, that neither obscures nor excuses Management’sviolation of agreed procedure. See Umpire Decisions G-12 and K-93.

Finally, there is the problem of an appropriate remedy for the procedural irregularities. InUmpire Decisions G-12 and K-93 discharges were reduced to reprimands. In the presentcase, however, because of the aggravated character of the grievant’s offense, theCorporation should not be required to continue to employ the grievant. A fair balancebetween the grievant’s offense and Management’s irregularities will be struck byreinstating the grievant to May 24, 1967, the date of the hearing in this case, and upholdingthe discharge as of that date.

DECISION

The grievant shall be reinstated, with back pay, until May 24, 1967, and discharged as ofthat date.

July 31, 1967



/S/ Abner Brodie

Umpire





No. L-75

September 3, 1967

Discipline:

Insubordination:

Incorrigibility

GRIEVANCE:

CHEVROLET MOTOR DIVISION, FLINT ASSEMBLY PLANT, FLINT, MICHIGAN—APPEAL

CASE L-108

"I charge Management with an unjust penalty. I demand that I be returned to work at onceand paid all monies due me and be given all benefits due me." S/A.R.


The grievant’s discharge shall be set aside and he shall be reinstated, but without backpay, until August 18, 1966. (Entire decision should be read.)

In the Matter of:


and

General Motors Corporation, Chevrolet Division, Flint Assembly Plant, Flint, Michigan --Appeal Case L-108


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The Union protests the discharge on December 23, 1964, of the grievant R., seniority dateNovember 18, 1954, classified as "Polisher Lacquer-Sheet Metal" for violation of ShopRule 15, "Refusal to obey orders of Foreman or other Supervision."


May 15, 1964Reprimand Shop Rule#1 - ("Failure to be inplace ready to beginwork when signal issounded.")

May 15, 1964 Balanceof Shift Shop Rule #22- ("Threatening,intimidating, coercingor interfering withemployees orsupervision at anytime.")

July 20, 1964Disciplinary Layoff -One Day Shop Rule#16 - ("Refusal orfailure to do jobassignment.")

November 11, 1964Balance of Shift PlusThree Days Shop Rule#16 - ("Refusal orfailure to do jobassignment.")

November 11, 1964 Thirty Days - ("Assault on supervision.")

(This penalty was originally assessed as a discharge and was subsequently settled withthe grievant’s reinstatement on a "last chance" basis on December 14, 1964.)

(December 22, 1964 The present case.)

On December 22, 1964, the grievant, an experienced polisher, was not performing his jobproperly and his foreman reinstructed him and directed him to observe a demonstration bya utilityman, who relieved the grievant for that purpose. Before the demonstration wasfinished, however, the grievant started back to work. The foreman again told him to watch



the utilityman’s demonstration, but he turned his back to it. When the grievant resumedwork his foreman ordered him to do the job in the same way as the utilityman, but he didnot and fell behind the line. He was then suspended, and discharged the following day. Onthat day, December 23, the grievant was admitted to a hospital where he remained untilDecember 29, 1964. Effective December 23, 1964, he was granted benefits undersickness and accident insurance for disability for the maximum insured period of 52 weeks,and has been totally disabled ever since. His ailments included a kidney disorder, arteriosclerotic heart disease, myocardial ischemia, and angina pectoris.

According to the grievant he felt well on some days, but on December 22 was sufferingfrom chest pains and felt ill. He considered that his illness may have impaired his mentalfaculties and caused him to behave as he did. He acknowledged, however, that he did notexplain to his foreman that he was ill and could not perform his job properly; and he neitherwent nor sought permission to go to the plant Medical Department. The first claim that thegrievant’s illness caused him to act as he did on December 22 appears in the Union’sStatement of Unadjusted Grievance, February 25, 1965. There, the Union, after noting thatthe "grievant was a patient in the hospital where he was being treated for a coronarycondition" when notified of his discharge on December 23, stated that the "Union does notpretend to be a medical authority, but would point out the fact that on the day ofsuspension the grievant was not entirely rational."

On December 29, 1964, the grievant claimed workmen’s compensation for injury to hisheart and nervous and circulatory systems from excessively heavy work at the local plant.This claim, which the Corporation denied, was settled on August 18, 1966, by a lump sumpayment of $12,000, in exchange for which the grievant agreed to give up all claimsagainst the Corporation for workmen’s compensation, pensions, insurance and any otherbenefits which might accrue if his discharge were set aside, and, in writing, quit hisemployment and agreed that pending grievances should be dismissed.

After the case was first appealed to the Umpire, by agreement of the parties, it wasreferred back to the Third Step for Management to include its evidence and contention thatthe grievant had quit his employment.

The Union does not deny that the grievant violated Shop Rule No. 15, but it contends that,despite the grievant’s "last chance" status, he was not incorrigible, that the penalty was toosevere for an offense which it characterizes as "minor," and that the grievant’s illness andpain he was suffering caused him to act as he did. It maintains that the sole issue beforethe Umpire is the propriety of the grievant’s discharge, that the Union did not consent tothe withdrawal of the grievance, and that the Umpire should not rule on the issue of thegrievant’s alleged quit.

The Corporation contends that in view of the grievant’s prior disciplinary record and,especially, the "last chance" basis on which he was reinstated, the undisputed evidencethat he violated Shop Rule No. 15 establishes that he was incorrigible. It maintains, further,that the grievant’s quit is an issue in this case, having been raised by Management in theprior record, and that even if it should be found that the grievant’s discharge was improperthe Umpire cannot order his reinstatement since the grievant voluntarily quit hisemployment on August 18, 1966.



OPINION

The first question is whether the evidence establishes that the grievant is incorrigible. Onthis question the Corporation has the burden of proof. The grievant’s entire disciplinaryrecord was accumulated in the last seven months of his employment; before that hisrecord was unblemished. Before the 30-day layoff assessed November 11, 1964, inconnection with the grievant’s reinstatement on a "last chance" basis, the most severepenalty against him was a three-day layoff. As of the day following his suspension, the dayon which he was discharged, the grievant was found totally disabled, suffering from seriouscardiac, circulatory and other ailments. These must have developed some time before thegrievant was discharged, and progressed to the stage at which they totally disabled thegrievant during the period in which he accumulated his disciplinary record. While there wasno medical corroboration of the grievant’s claim that his ill health was responsible for hisbehavior on the day in question, it is not unreasonable to conclude that the state of hishealth had some effect upon him and his work. His failure to tell his foreman that he wassick and in pain was not inconsistent with the physical and mental state in which heclaimed he was on the day he was suspended. On the entire record the Umpire is notconvinced that the grievant was incorrigible and could not adapt to industrial employment.The grievant’s "last chance" status does not change the situation; discharge of anemployee in that status does not automatically follow another infraction. The question isstill whether a review of the employee’s entire record warrants a conclusion that he isincorrigible.

The next question is the effect of Management’s settlement with the grievant of hisworkmen’s compensation claim and his quit and withdrawal of his grievance as part of thatcompromise. There is no evidence that the Union participated in or agreed to thesettlement and withdrawal of the grievance; and the Corporation does not claim that agrievance, at least one which has passed the first step, may be settled directly with agrievant and withdrawn or dismissed without the Union’s consent. Had the grievant notquit, therefore, he would have been entitled to reinstatement. He did quit, however, but notuntil August 18, 1966. He is entitled, therefore, to reinstatement until that date. Since thegrievant has been totally disabled since the date of his discharge, he is not entitled to backpay. The Umpire has no jurisdiction to consider questions concerning the grievant’s right topension, insurance, disability, or other benefits which may arise as a result of this decision.

DECISION

The grievant’s discharge shall be set aside and he shall be reinstated, but without backpay, until August 18, 1966.

September 3, 1967

/S/ Abner Brodie

Umpire




No. L-77

September 24, 1967

Paragraph 72:

Incapacity:

Availability for Work

GRIEVANCE:

FISHER BODY DIVISION, FLINT PLANT NO. 1, FLINT, MICHIGAN—APPEAL CASE L-40

"Charge Mgt. with violation of Local Seniority Agreement. Request I be returned to workand paid for all time lost."

AMENDED - Management-Shop Committee Meeting of June 14, 1966 as follows:

"Charge Management with a violation of Paragraph 72 of the National Agreement. Ask thatI be returned to work and paid for time lost plus all other benefits due me."


The grievance is dismissed. (Entire decision should be read.)

In the Matter of:


and

General Motors Corporation, Fisher Body Division, Flint Plant No. 1 -- Appeal Case L-40


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The Union protests the layoff on July 16, 1965, of the grievant L., seniority date October19, 1950, classified as "Double Crank Press Operator," claiming a violation of Paragraph72 of the National Agreement, which provides:

"Any employee who has been incapacitated at his regular work byinjury or compensable occupational disease while employed by theCorporation, will be employed in other work on a job that isoperating in the plant which he can do without regard to anyseniority provisions of this Agreement, except that such employeemay not replace an employee with longer seniority, provided,however, that by written agreement between local Management andthe Shop Committee, any such employee may be placed or retainedon a job he can do without regard to seniority rules."

On April 12, 1962, the grievant had a surgical operation for a hernia caused by an injury atwork. He returned to work June 11, 1962, and was on light jobs for several weeks. He wasthen returned to his regular job on a double crank press, but complained that this causedhim pain in the area of the surgery and was laid off. He was awarded workmen’scompensation from August 29, 1962, until June 2, 1965, excepting some short periods ofwork, including one from March 23, 1962, to April 3, 1964, when he worked as a sweeperuntil he complained of pain when lifting trash barrels. Workmen’s compensation wasterminated June 2, 1965. He was again assigned to work on a double crank press on July13, 1965, after a physical examination. For a few days he kept up with his work, then fellbehind. When he complained that the work caused him pain, he was laid off on July 16,1965, as "unable to perform available work." According to the Union, the grievant can workas outside truck driver; inside truck driver; sweeper (excepting the lifting of trash barrels);cleaner; small press operator; and large press operator, his regular job, if that does notrequire left side movement. In all these jobs employees with less seniority are employed.The large press operation is higher-rated than some, if not all, the other jobs.

According to the Corporation, the double crank press operation requires no greaterexertion than work on the small press and possibly less bending and twisting; and theother jobs the grievant claims he can do may require as much or more bending, twisting,turning, pushing and reaching, as well as strenuous lifting. Since his layoff on July 16,1965, the grievant has done a variety of work without ill effects, including car washing andpolishing for automobile dealers, scrubbing and waxing floors in a supermarket withmanually guided power equipment, installing hot water heaters and eaves troughs for anappliance dealer, and remodeling, roofing and repairing on his own house.

Between June 27, 1962, and July 12, 1965, Dr. J., the Plant Medical Director, made 12examinations of the grievant, of which at least 4 were complete physical examinations. Healso had reports from other physicians who examined the grievant, two of which impliedthat the grievant’s difficulty, if any, might be psychological. According to Dr. J., neither henor any other physician who examined the grievant found any objective, physical basis forthe work on the large or double crank press to cause the grievant pain; but heacknowledged that pain is a subjective symptom. In April 1965, when a physicalexamination at the University of Michigan Hospital, which Dr. J. arranged for the grievant,



revealed no objective symptoms, the Neurosurgery Department there suggested to thegrievant that local anesthesia might relieve the pain he complained about, but the grievantrejected the suggestion. On July 12, 1965, Dr. J. made a complete physical examination ofthe grievant and found him physically fit for work on the double crank press. In March1967, Dr. J. again sent the grievant to the University of Michigan hospital. On the basis ofthe grievant’s description of his symptoms it was concluded that the grievant had aneuralgia, but the examining physician could not "give any sort of authoritative opinion asto whether or not this has been caused by the previously described operation" for hernia.The grievant refused nerve surgery which, it was reported, might provide relief.

OPINION

The question presented in this case, on which the Union has the burden of proof, iswhether the grievant, by reason of his injury, "has been incapacitated at his regular work"and, in violation of Paragraph 72, is denied "other work on a job... he can do" whichemployees with shorter seniority are doing. The only evidence that the grievant is soincapacitated is his own statement; and that is the only basis for any physician’s report onwhich his claim can rest. The diagnosis in the report of March 6, 1967, from the Universityof Michigan Hospital, which the Union, as well as the Corporation, offered, does notsupport the Union’s claim. Even assuming that the neuralgia incapacitates the grievantonly for work on the double crank press, the physician’s report cannot attribute it to thegrievant’s injury and operation. Since his layoff, the grievant has performed various jobselsewhere without pain; his regular job seems to be the only one which causes him anydifficulty. The grievant’s testimony as to what there was about the double crank press jobto cause him pain, was confusing and somewhat evasive, but seemed to come down to thetwisting and turning involved. His demonstration, however, of the movements which, heasserted, caused him pain seemed to involve only minimal twisting and turning. And on aplant visit to observe the jobs in the press area, it did not appear to the Umpire that someof the other jobs on the small or single crank presses which the grievant claims he canperform involved substantially different movements or exertion. Before the amendment ofthe grievance on June 14, 1966, it was not asserted that the grievant was incapacitatedfrom doing his regular job. While the grievant’s willingness to accept a lower-rated job issome evidence supporting his claim, it cannot take the place of the objective medicalevidence needed to satisfy the Union’s burden of proof and overcome the findings ofManagement’s doctors. See Umpire Decisions C-276, G-18, J-9 and K-85. On the recordpresented, the Umpire cannot find that the Union has sustained its burden of proof thatManagement has violated Paragraph 72. Accordingly, the grievance should be dismissed.

DECISION


September 24, 1967

/S/Abner Brodie



Umpire




UMPIRE DECISION

No. L-80

October 6, 1967

Paragraph 64(d):

Termination of Seniority:

Notice to Return to Work

GRIEVANCE:

CHEVROLET MOTOR DIVISION, WILLOW RUN PLANT, YPSILANTI, MICHIGAN—APPEAL

CASE L-254

"I, charge Management with violation of Par. 64 of the National Agreement, Demand alllost pay and my seniority re-instated." S/E.B.


The grievance is sustained. The grievant’s seniority shall be reinstated with back pay.(Entire decision should be read.)

In the Matter of:


and

General Motors Corporation, Chevrolet Motor Division, Willow Run Plant, Ypsilanti,Michigan -- Appeal Case L-254


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The issue in this case is the propriety of the termination, under Paragraph 64(d) of theNational Agreement, of the employment of the grievant B., seniority date December 13,1955, classified as a "Stock Chaser," and assigned to work in the material department onthe first shift with hours from 7 a.m. to 3:30 p.m. Paragraph 64(d) reads:

"Seniority shall be broken for the following reasons:

(d) If the employee fails to return to work within three working daysafter being notified to report for work, and does not give asatisfactory reason."

The grievant was laid off on July 1, 1966, and instructed then to return to work on Monday,August 15. On Wednesday, August 10, he received the following letter from Management:

"Production Operations have been rescheduled to begin on August29, 1966.

In accordance with this change, you are hereby notified to report forwork at 7 A.M. on AUG 15 1966.

We are sincerely looking forward to seeing you on the above date. Iffor some reason you will not return on the above date, please notifythe Personnel Department."

The last paragraph of the letter was included, according to the Corporation, becauseManagement was doubtful about the return of many employees and was trying to ascertainfor whom it would have to hire replacements.

The grievant was not at work on Monday, August 15, but at 4:18 p.m. appeared at thePlant Security Office, to which employees report absences, to say that he was on his wayto Milwaukee to get his sick wife and bring her to Detroit, and would try to be at work onWednesday, August 17. He next appeared at the plant at about 3:34 a.m., Thursday,August 18. According to the grievant, he was on his way back from Milwaukee, andstopped at the plant to say that his return had been delayed, that he could not work theshift beginning at 7 a.m. that morning, but would be at work Friday, August 19. When thegrievant came to work on August 19, and explained to his foreman that he had not come inearlier because he had had to rest on Tuesday after his trip to Milwaukee on Monday, thatit was too hot Wednesday to drive back to Detroit until the evening and that he could notwork the Thursday shift because he had to get his wife and six children settled at home,Management terminated his seniority on the ground that he had not returned "to workwithin three working days after being notified to report for work and... (did) not give asatisfactory reason."

The principal question is whether the letter to the grievant triggered an automatictermination of his seniority under Paragraph 64(d) because he was not present at the plantready, willing and able to work, "within three working days" of its effective date, August 15.The letter told all laid-off employees to whom it was sent, and not only those who did not



expect to return to work at all and for whom replacements would be needed, that, as analternative to reporting for work, they should notify Management if "for some reason" theywould "not return on the" date given. It would seem to follow, then, that a laid-off employeecould notify Management that he expected to report for work on some other date than thatstated, especially as there was no reference to the consequences of a failure to be presentin the plant for work within the time stated in Paragraph 64(d). And this was consistent withManagement’s purpose to ascertain who would be in its work force.

It is not necessary to consider whether a simple, unqualified notice under Paragraph 64(d)to report for work on a given date must state the consequences of a failure "to return towork within three working days"; it may be assumed in this case that it need not. But theletter in the present case was not such a simple, unqualified notice. It included analternative to reporting for work which qualified it and made it ambiguous, at best. It wasnot "unmistakable in directness and clear in purpose" (see Umpire Decision E-284).Rather, it cast on the employee a burden of interpreting it at the risk, if his interpretationwas not Management’s, of enabling Management to take a "step equivalent in some of itseffect... to a discharge." See Umpire Decision D-28.

This is not to say that the grievant, with impunity, could have postponed indefinitelynotifying Management of his intention to return to work. But in the present case thegrievant told Management, within three working days after the effective date of the noticeto him, that he intended to work. And whether the three days be computed as three 24-hour periods, as in Umpire Decision E-241, or by excluding the day upon which the periodbegins and allowing all of the last day to comply, as in Umpire Decisions F-8 and G-97,within that period the grievant told Management when he would be at work which, underthe computation rule of Decisions F-8 and G-97, was the next shift beginning after the endof the three-day period. Umpire Decisions E-241 and F-8 point out that a report bytelephone before the end of three working days after the effective date of notice underParagraph 64(d) will preserve the seniority of an employee who does not appear at theplant for work within the three-day period. In Decision F-8 the employee reported bytelephone on Wednesday, August 4, but did not appear at the plant. The Umpire noted that"Management does not contend that such a report was defective" and pointed out that "areport on Wednesday would have satisfied the requirements of the National Agreement"had the effective date of the notice been Friday, July 30, as contended by the Union.Since, however, he found the notice date to have been Thursday, July 29, the report onWednesday was too late. Umpire Decision E-241 held that by a telephone call just beforethe end of three working days, the employee "reported his availability for work" andpreserved his seniority. Although holding that under the circumstances of the present casethe grievant preserved his seniority, this decision is not a holding that the grievant wouldhave been free to put off reporting for work until it suited him to do so. Management’spower to discharge or otherwise penalize for absence without reasonable cause is notimpaired by anything decided here.

Management’s use in the past, without protest from the Union, of letters similar to the onein issue here, does not foreclose the Union in the present case without evidence that in likesituations the Union has accepted the position the Corporation now takes.

To summarize, while an unequivocal notice from Management or one stating theconsequences of not being present at work within three working days would probably have



supported the Corporation’s position, in view of the ambiguous notice from Managementand the grievant’s reports of his intentions, and for the reasons stated, the Umpire findsthat the grievant’s seniority was improperly terminated and should be reinstated with backpay.

DECISION

The grievance is sustained. The grievant’s seniority shall be reinstated with backpay.

/S/Abner Brodie

Umpire

October 6, 1967





No. L-102

November 19, 1968

Probationary Employee:

Separation from Employment:

Paragraph 108

GRIEVANCE:

CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION, LOS ANGELESPLANT, VAN NUYS, CALIFORNIA—APPEAL CASE L-359

"I charge J. K. in violation Para 72 N.A., Para 76 N.A. I was injured (right upper arm &elbow) on job (hood assembly) 11/26/66.

"On 12-5-66 K. gave me 24 hr. notice of employment termination on following counts (1)unsat. employee (2) inability to function on job assignments. Demand compliance Para 72N.A. to resolve grievances."

S/D.R.C.



In the Matter of:

United Automobile, Aerospace and Agricultural Implement Workers of America (UAW)

and


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General Motors Corporation, Chevrolet Motor Division, Los Angeles Plant, Van Nuys,California -- Appeal Case L-359

The Union claims that the complainant, C., date of hire October 20, 1966, was denied sickleave to which he was entitled under Paragraph 108 of the National Agreement, also thatC.’s separation from employment on December 6, 1966 violated Paragraph 56. Byamendment at the Second Step of the grievance procedure the Union substituted theParagraph 108 claim for one under Paragraph 72, which provides that an employeeincapacitated at his regular work "by injury or compensable occupational disease... will beemployed in other work on a job that is operating in the plant which he can do..." Later, theUnion withdrew its charge of a violation of Paragraph 76, reserving the right to raise thatquestion in other temporary employees’ cases.

Paragraph 56 provides:

"Employees shall be regarded as temporary employees until theirnames have been placed on the seniority list. There shall be noresponsibility for the reemployment of temporary employees if theyare laid off or discharged during this period. However, any claim bya temporary employee made after 30 days of employment that hislayoff or discharge is not for cause may be taken up as a grievance.Such claims must be stated in detail in writing at the time of the filingof the grievance and must be handled in accordance with theprovisions of Paragraph (77)."

Paragraph 108 provides:

"In compensable injury... cases, sick leave will be grantedautomatically and seniority will accumulate for the full period of legaltemporary disability. Temporary employees disabled bycompensable injury... shall be given credit for the period of suchdisability toward acquiring seniority."

The complainant was hired into the surplus labor pool. On November 8 he was assigned tothe console cluster installation on the Trim Line, and started working there November 9.Between November 9 and December 6, 1966, the complainant had several jobassignments. According to Management, he was not a satisfactory employee in any; hecomplained that work on a console cluster operation hurt his hand, that bending into carson an air conditioner assembly job hurt his side, and that he could not do a rear springshackle job because it hurt his shoulder; and on a subassembly operation, on which heworked between the console cluster and air conditioner assembly jobs, he failed to followinstructions to provide banks of subassemblies and fell behind production needs. OnNovember 23, Management told him that he had not been satisfactory and would be givena last chance on a hood hanging job and laid off if not satisfactory there. But, according toManagement, he did not follow instructions as to the manner of performing the hoodhanging job and injured his arm November 26, was on restricted duty and returned to thehood hanging job November 30, but continued to work in the same way and again



complained about his arm. On December 1 Management decided to release him. He wasabsent on December 2, returned to work on December 5 and worked a full shift on that dayand on December 6 and was released. He received disability compensation benefits untilJanuary 11, 1967.

The complainant claimed that on his second day on the console cluster job he cut hisfinger and it became infected, hence, he could not continue on that job and was assignedto the subassembly operations where, he said, he maintained production and no onecomplained about his work, but on the air conditioner job his infected finger caused himpain in his arm and side, he was too tall for the rear spring shackle job and it hurt hisshoulder, and on the hood hanging operation he had to favor his infected hand and couldnot do the job as he had been instructed.

According to the employee who broke him in on the console cluster operation, thecomplainant’s work was good, but he cut his finger on the first day on that job and couldnot continue it.

Medical Department records indicated that the complainant cut his finger on October 29and that it had healed before he started the console cluster job on November 9; and heacknowledged that this was what may have happened but that he may have reopened thecut on the console cluster. There was, however, no record of further treatment of his fingeror anything else between November 9 and 26; treatment of his arm followed the injury onNovember 26.


(1) The Union made no claim under Paragraph 56 until the Umpire Hearing. Furthermore, itdid not comply with the requirement of a detailed statement of its claim in writing. (2) Thecomplainant was not totally disabled, hence not entitled to sick leave under Paragraph 108.(3) Paragraph 108 does not bar Management from releasing an unsatisfactory employee.

The Union’s principal contentions may be summarized as follows: (1) Although questioningwhether Paragraph 56 applies to a case like the present and reserving the right to urge in aproper case that Paragraph 56 is inapplicable, it maintains that the grievance in thepresent case was treated in the earlier steps of the grievance procedure as a Paragraph56 claim and complied with requirements of Paragraph 56; the reference to Paragraph 72,and later to Paragraph 108, indicated that the complainant had suffered a compensableinjury. (2) The complainant was entitled to sick leave under Paragraph 108, henceManagement could not separate him from employment because of the injury that entitledhim to sick leave.

OPINION

It is not necessary to decide whether this case is properly before the Umpire underParagraph 56 as well as Paragraph 108. The evidence supports a finding that thecomplainant, whom Management reassigned several times because he complained that hewas unable to perform the job assigned without pain, and did not keep up with the job, and



who could or would not follow instructions so that he would not be injured, was anunsatisfactory employee, and that this was not due to any injury suffered before November26. As to the complainant’s injury of November 26, the evidence warrants a conclusion thatit was the consequence of the complainant’s not following instructions about the manner inwhich to perform the job.

The question is whether the complainant’s injury of November 26 and Paragraph 108exempt him from separation from employment as an unsatisfactory employee, assumingfor this discussion that an injury causing partial disability may entitle an employee to sickleave under Paragraph 108, a question which it is not now necessary to decide. This is nota case in which an employee, separated as unsatisfactory, became such as aconsequence of compensable injury. In the present case the complainant was anunsatisfactory employee before he suffered the injury which, the Union asserts, protectshim under Paragraph 108 against separation; and his not following instructions caused thatinjury.

Paragraph 108 must be read and interpreted with other terms of the National Agreement ofwhich it is a part. Whatever the decision might be in a case in which it is established thatan employee’s compensable injury caused the unsatisfactory performance for which hewas separated, in the present case Paragraph 108, when read with other provisions of theAgreement, particularly Paragraphs 56 and 8, does not exempt the complainant from theconsequences of the fact that he was an unsatisfactory employee. His troubles on his jobdid not flow from, but were rather responsible for his compensable injury. The grievancemust be dismissed.

DECISION


November 19, 1968

/S/Abner Brodie

Umpire





No. L-103

November 18, 1968

Discipline:

Absence Without Reasonable Cause:

Extent of Penalty

GRIEVANCE:

GENERAL MOTORS ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION,SOUTH GATE PLANT, SOUTH GATE, CALIFORNIA—APPEAL CASE L-1672

"I protest Management’s unjustly discharging me for the alleged violation of S/R #6 and#40. Request my record be cleared and I receive all monies and benefits due me, due toManagement’s error."

S/L.S.


The complainant shall be reinstated without back pay except for a period of 60 days priorto the date of this award. (Entire decision should be read)

In the Matter of:

United Automobile, Aerospace and Agricultural Implement Workers of America

and

General Motors Corporation, General Motors Assembly Division South Gate Plant, SouthGate, California -- Appeal Case L-1672



The Union protests the discharge of the complainant S., seniority date August 13, 1956, forthe alleged violation of Shop Rules No. 6, "Absence without reasonable cause," and No.40, "Repeated violations of shop or safety rules." The Union contended, and theCorporation denied, that the complainant had reason to believe he had permission to beabsent, hence was absent with reasonable cause, and that, in any event, discharge wasan excessive penalty.

The complainant’s disciplinary record is as follows:

August 8, 1962 DLO Shop Rule #7 "Reporting late for work."Balance of shift and two weeks.

February 13, 1963 DLO Shop Rule #6 "Absence without reasonablecause." Balance of shift and 30 days.

July 8, 1963 DLO Shop Rule #10 "Wasting time or loitering in toiletsor on any Company property during working hours." Balance of shiftand 30 days.

October 21, 1965 DLO Shop Rule #36 "Assignment of wages orfrequent garnishments." Balance of shift and 2 weeks.

March 23, 1966 DLO Shop Rule #36 Balance of shift and 30 days.(August 23, 1966 The present case)

The complainant was laid off August 1, 1966, with instructions to report to work August 22,1966. Later, Management changed the callback date and sent the complainant a telegramon August 16 to report that day for work on the second shift. The complainant did notreport for work but telephoned the plant on the morning of August 17. Personnel Clerk C.,testifying for the Corporation, said that he took the call and the complainant told him thatfor personal reasons, which the complainant did not specify, he would not return untilAugust 22. The complainant was absent August 17, 18 and 19 and reported for workMonday, August 22. According to Labor Relations Representative M. and Foreman V., thecomplainant’s supervisor, the complainant was then called for a disciplinary interview withthem and did not claim that he had permission to be absent, but merely said that he waspainting his house and considered that a sufficient reason for his absence. The decision todischarge him was based on his absence and on his record.

The complainant was the Union’s sole witness. He testified that he told the clerk whoanswered the telephone on August 17 that he could return to work that day but waspainting his house and preferred not to return until August 22, that the clerk told him toreturn on the 22nd if he could not on the 17th, that he believed he had permission to beabsent until the 22nd, and that at the disciplinary interview he told this to Labor RelationsRepresentative M. and another member of Management whom he did not know. He deniedthat Foreman V. was at the interview.



OPINION

On the record as a whole the Umpire finds that the complainant had neither permission tobe absent nor reasonable grounds to believe he had permission. Therefore, it was up tothe complainant to show that personal considerations, which by accepted standardsoutweighed his duty to his employer to be present during working hours, necessitated hisabsence. Umpire Decision G-156. In the opinion of the Umpire he has not shown this andhis absence was without reasonable cause.

The remaining question concerns the extent of the penalty. Considering the complainant’sdisciplinary record as a whole, including a 27-month period free of disciplinary penalties,the Umpire is of the opinion that the grievant has not been shown to be incorrigible. But asevere penalty is warranted. It is the Umpire’s judgment that essential justice will beaccomplished by reinstatement of the complainant without back pay except for a period of60 days prior to the date of this award.

DECISION

The complainant shall be reinstated without back pay except for a period of 60 days priorto the date of this award.

November 18, 1968

/S/Abner Brodie

Umpire





No. L-104

January 20, 1969

Discharge:

Alleged Absence Without Reasonable Cause

GRIEVANCE:

HYDRA-MATIC DIVISION, GENERAL MOTORS CORPORATION, YPSILANTI PLANT—APPEAL -- CASE NO. L-449

"I protest discharge. I demand all money lost & my record cleared. I also protest Mr E newrule of using a phone for this matter. This is not a practice of G.M. or Local 735. Uniondemands same of N.A." S/A.V.


The grievant’s discharge shall be set aside and the penalty reduced to a 30-daydisciplinary layoff, with back pay for the balance.

In the Matter of:

General Motors Corporation, Hydra-matic Division, Ypsilanti, Michigan

and

United Automobile, Aerospace and Agricultural Implement Workers of America -- AppealCase No. L-449

At issue in this case is the propriety of the discharge on March 23, 1967, of the grievant, V,


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seniority date, May 15, 1952, for the alleged violation of Shop Rule No. 6, "Absencewithout reasonable cause," on March 17, 1967. V’s disciplinary record is as follows:

December 27, 1963 Shop Rule 6 Written Reprimand

February 18, 1964 Shop Rule 6 One day disciplinary layoff

May 1, 1964 Shop Rule 6 Three days disciplinary layoff

November 27, 1964 Shop Rule 35 Verbal Reprimand

September 14, 1965 Shop Rule 6 One week disciplinary layoff

October 7, 1965 Shop Rule 6 Thirty days disciplinary layoff

January 20, 1966 Shop Rule 6 Thirty days disciplinary layoff(Reduced from Discharge)

(March 23, 1967 The present case.)

The Corporation’s evidence was, in substance, as follows: On Friday, March 17, 1967, twomembers of Management visited Dr. L, the grievant’s physician, to discuss the grievant’sabsenteeism. Dr. L told them that the grievant had been there that morning complainingthat his arms and legs were numb, that he had not examined the grievant but accepted hisdescription of his symptoms and had given him a "shot" of vitamin B which would notinterfere with his working, and that he gave him a statement that he could not workwhenever he said he could not. Dr. L did not tell them whether the grievant could work ornot that day. The grievant, whose shift began at 3:30 p.m., did not report to work on March17; and some members of Management went to his apartment several times that afternoonand evening but no one came to the door when they knocked. They went again onMonday. The grievant was at home then, and said that his doctor had not released him forwork. The grievant returned to work on Wednesday, March 22 with a note from Dr. L thathe could not work from March 17 through 21 because of neuritis. At a disciplinary interviewhe refused to answer Management’s questions about his whereabouts on March 17, butsimply referred to Dr. L’s statement. He was discharged on March 23 for absence withoutreasonable cause on March 17.

The Union rested on Dr. L’s written statements. These included the one givenManagement on March 22, another to the same effect to the Union on March 27, 1967,and a third, dated April 6, 1967, stating that he had been treating the grievant since April,1965, "for neuritis (numbness) in the hands, left arm and leg, also dizziness andnervousness." The Union represented that the grievant had been totally and permanentlydisabled by an injury suffered after his discharge, and was unable to be at the UmpireHearing.

The Corporation contended that the grievant’s absence on March 17 which he refused toexplain, was without reasonable cause, that Dr. L’s statements cannot be accepted at facevalue because they were based on the grievant’s representations and not on anexamination and objective determination, and were merely to accommodate the grievant.



The Union contended that there is no evidence that the grievant was able to work onMarch 17, that Dr. L’s written statements must be accepted at face value and conclusivelyestablish reasonable cause for the grievant’s absence. Finally, the Union urged that, in anyevent, discharge is an excessive penalty in this case.

OPINION

The grievant had the burden of establishing that he had reasonable cause to be absentMarch 17. His refusal to answer questions regarding his condition and whereabouts on thatday negated his claim of reasonable cause. His absence from home that day, which is notdenied and of which there is prima facie evidence, was not necessarily inconsistent withhis claim and his physician’s statements that he was unable to work, but Management wasentitled to an explanation, and the grievant refused to provide one. Although writtenstatements of Dr. L that the grievant was unable to work on March 17, 1967, on their faceprovided an excuse for the grievant’s absence, they are not conclusive and wereoverborne by other evidence. It cannot be found, therefore, that there was reasonablecause for his absence. And it is not necessary to decide the effect of the evidence of Dr.L’s oral explanation to the members of Management who visited him on March 17, orwhether his statements were merely to accommodate the grievant.

The question of penalty remains. The grievant was an employee with 15 years’ seniority.His record of 7 penalties in 25 months, 6 for absence without reasonable cause, was bad.But it was followed by a 14-month penalty-free period before the present infraction. Thesefactors, as well as the nature of the offense, are relevant in considering whether dischargewas warranted. On the whole record the Umpire is of the opinion that essential justice willbe achieved by reducing the penalty to a 30-day layoff, with back pay for the balance.

DECISION

The grievant’s discharge shall be set aside and the penalty reduced to a 30-daydisciplinary layoff, with back pay for the balance.

January 20, 1969

/S/Abner Brodie

Umpire





No. L-107

February 22, 1969

Discipline Extent of Penalty:

Effect of Paragraph 76b

GRIEVANCE:

GENERAL MOTORS ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION,LINDEN, NEW JERSEY—APPEAL CASE L-405

"I charge Mgt. with suspending me unjustly. Request that I be returned to work, my recordcleared, and I be paid all monies and benefits due me." S/J.D.

AMENDED: By changing "suspending" to "discharging."


The penalty against the grievant shall be reduced to a 90-day disciplinary layoff, and heshall be reinstated with back pay for time off in excess of that. (Entire decision should beread.)

In the Matter of:


and

General Motors Corporation, General Motors Assembly Division, Linden, New Jersey --Appeal Case L-405


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\l-107_13A5AA78.htm

At issue is the propriety of the discharge of the grievant, seniority date January 8, 1954, forthe violation of Shop Rule No. 26: "Gambling, lottery or any other game of chance onCompany premises at any time," and Shop Rule No. 40: "Repeated violations of Shop orSafety rules."


4/8/63 Written reprimand for beingabsent without reasonable cause.

5/1/63 D.L.O. (balance of shift) forbeing absent without reasonablecause.

6/10/64 D.L.O. (balance of shift)for reporting late for work.

9/23/65 D.L.O. (1 week) forreporting for work under theinfluence of alcohol.

12/8/65 D.L.O. (balance of shift &2 weeks) for reporting for workunder the influence of alcohol.

5/6/66 D.L.O. (30 days) (longterm) for reporting for work underthe influence of alcohol.

(2/10/67 The present case.)

The Union admits that the grievant violated Shop Rule No. 26 but claims that dischargewas an excessive penalty in view of his long seniority and the period of good behaviorsince his last previous penalty. The Union also claims that Management’s decision todischarge the grievant took into consideration items in his personnel record, includingwarnings, copies of which were not given to him, contrary to the requirements ofParagraph 76b of the National Agreement, reading: "The employee will be tendered a copyof any warning, reprimand, suspension, or disciplinary layoff entered on his personnelrecord within three days of the action taken...."

Eight such items or "incidents" were described in Management’s Statement of UnadjustedGrievance. Management disclaimed considering them "in establishing the extent of penaltyor in any other way in this case," but claimed that they "bear examination, as illustrations ofthe grievant’s total lack of concern regarding Plant Rules and Regulations," and his"unsatisfactory attitude," and that in view of that "background information... it is evidentthat... D. was not amenable to corrective discipline." For some of these incidentsManagement assessed discipline which it either rescinded entirely or agreed to removefrom the grievant’s record without back pay. In connection with other incidentsManagement cautioned the grievant "concerning any recurrence of the misconduct," that



he must "improve his conduct or... discipline would follow," that it "would not tolerate anyfurther abuses of Shop Rules and Regulations by him in the future, and (that) anyviolations would be dealt with severely."

The Corporation contends that Paragraph 76b does not apply to these items or incidents,that they are merely background matters revealing Management’s view of the grievant’sconduct which Management was free to caution and talk to the grievant about unless suchdiscussions were considered in the penalty, and they were not so considered, as isindicated by the progression of the penalties assessed. The Corporation also maintainsthat the period of good behavior since the grievant’s last previous penalty does not justifymodification of the discharge in this case, that Management’s treatment of the grievant andits discussions of the incidents mentioned reflected recognition of his seniority, and that theParagraph 76b issue was a "new" contention.

OPINION

In commenting on Paragraph 76b, the Umpire in Decision J-10 pointed out "that thisprovision precludes the use of information not... recorded or of which copies have not beentendered, as a basis for discipline..." Umpire Decision J-13 held that it was error forManagement to consider "warnings or instructions given to the grievant... not simply asbackground but in determining the penalty,... (when) no copies were tendered to thegrievant as required by Paragraph 76(b) of the National Agreement." In the present caseManagement’s claim that "the incidents bear examination, as illustrations of the grievant’stotal lack of concern regarding Plant Rules and Regulations" and that review of them made"it evident that... (the grievant) was not amenable to corrective discipline," compels aninference that Management did consider the items in question in deciding that the grievantwas incorrigible and should be discharged. Whether or not Management would havedischarged the grievant without considering these other items, or was warranted in doingso, is not the issue. On the whole record, the Umpire is of the opinion that essential justicewill be accomplished by reducing the grievant’s discharge to a 90-day disciplinary layoff,with back pay for time off in excess of that.

DECISION

The penalty against the grievant shall be reduced to a 90-day disciplinary layoff, and heshall be reinstated with back pay for time off in excess of that.

February 22, 1969

/S/Abner Brodie

Umpire




of 4UMPIRE DECISION L-107



No. L-108

April 18, 1969

Discipline:


GRIEVANCE:

HARRISON RADIATOR DIVISION, GENERAL MOTORS CORPORATION, LOCKPORTPLANT, LOCKPORT, NEW YORK—APPEAL CASE L-116

"I protest my being discharged as being unfair unjust, under the circumstances involved.Demand that I be re-instated, memo removed from my records & that I be compensated forall monies & benefits lost." S/B.R.


The grievant’s discharge shall be set aside. He shall be reinstated, but without back pay,except for a period of six months immediately prior to the date of this award. For thebalance of the time off he shall be considered as on disciplinary layoff. (Entire decisionshould be read.)

In the Matter of:


and

General Motors Corporation, Harrison Radiator Division, Lockport, New York -- AppealCase L-116

At issue in this case is the discharge of the grievant, R., seniority date January 11, 1965,


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\l-108_13A5B419.htm

for the alleged violation on November 13, 1967 of Shop Rule No. 6, "Absence withoutreasonable cause - or failure to notify your Foreman, the Personnel Department or PlantPolice as to the reason you are unable to report to work, unless satisfactory reason forfailure is given." The grievant’s disciplinary record is as follows:

3/23/66 Absence without reasonable cause –First Offense

Memo of warning

5/3/66 Absence without reasonable cause –Second Offense

Memo of warning

5/24/66 Absence without reasonable cause –Third Offense

Memo of warning

5/31/66 Reporting late for work. Memo of warning

6/22/66 Leaving department or plant duringworking hours without permission

Memo of warning

11/16/66 Leaving department or plant duringworking hours without permission

Memo of warning

3/7/67 Wasting time or loitering in toilets orany Company property duringworking hours.

Memo of warning

4/5/67 Absence without reasonable cause –First and Second Offense

Memo of warning

4/19/67 Absence without reasonable cause –Third Offense

Balance of shift andfive working days.

5/12/67 Wasting time or loitering in toilets orany Company property duringworking hours.

Memo of warning

5/29/67 Absence without reasonable cause Balance of shift andten working days.

8/11/67 Absence without reasonable cause Balance of shift andfifteen workingdays.

10/9/67 Absence without reasonable cause Balance of shift andtwenty workingdays.



On Sunday evening, November 12, 1967, the grievant telephoned his foreman, W., athome, asking to be excused from work the next day to attend the funeral of a friend inBuffalo, which is about 20 miles away. Because of the grievant’s disciplinary record, W.told him to report for work Monday at 6:30 a.m., the start of the shift, to discuss his request,and that he would excuse him in time to go to the funeral, if satisfied. The grievant said hewould report, but did not. According to the grievant, he had intended to report Monday butwhen he went to Buffalo Sunday evening to see his friend’s mother she asked him and afew other friends to stay and he was with her until about 10, then spent the night in Buffalo.He stayed at a club-house, rose next morning at 8 a.m., and, after breakfast, went to thefuneral parlor and later to the cemetery. He was discharged on Tuesday, November 14, fornot reporting at the start of Monday’s shift, as he said he would.

OPINION

That Foreman W. considered attendance at a funeral a reasonable cause for absence wasevidenced by his expressed intention to excuse the grievant in time to attend the funeral,and his explanation that the penalty was assessed only because the grievant did not reportat the beginning of the shift, as he said he would. It is reasonable to infer that Foreman W.would have excused him on Sunday night had it not been for the grievant’s past record.But whether an employee’s absence is to be excused depends upon the reason for theparticular absence, and not the employee’s past record. See Umpire Decision F-4. Thegrievant, however, when he assured Foreman W. that he would report for work at thebeginning of Monday’s shift before being excused, was obligated to do so. He could havereported at the beginning of the shift and still gone to the funeral; his intention to reportcorroborates this. He changed his mind and decided not to report, but it is doubtful that thatwas for reasons other than his own convenience.

Accordingly, a disciplinary penalty against the grievant is in order, but on the whole recordthe Umpire is of the opinion that discharge is not warranted, and that reinstatement of thegrievant without back pay, except for a period of six months immediately prior to the dateof this award, will accord with essential justice.

DECISION

The grievant’s discharge shall be set aside. He shall be reinstated, but without back pay,except for a period of six months immediately prior to the date of this award. For thebalance of the time off he shall be considered as on disciplinary layoff.

April 18, 1967

11/14/67 The present case



/S/Abner Brodie

Umpire





No. M-17

May 5, 1969

Absence Without Reasonable Cause.

Paragraph 6a:

Racial Discrimination

GRIEVANCE:

GENERAL MOTORS ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION,FREMONT PLANT, FREMONT, CALIFORNIA—APPEAL CASE M-319

"I protest the unjust suspension for the alleged viol. of S.R. #6 Demand I be reinstated withfull seniority and that I be made whole for all monies and benefits lost, and my record becleared, also charge Manag. with viol. of Para #6a N.A. Demand corrections at once."S/T.B.


"Grievance dismissed." (Entire decision should be read.)

In the Matter of:


and

General Motors Corporation, General Motors Assembly Division, Fremont, California --Appeal Case M-319

Page 1 of 4UMPIRE DECISION M-17

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The Union protests the discharge of the grievant, Bu., seniority date, June 6, 1964, for thealleged violation of Shop Rule No. 6, "Absence without reasonable cause, and/or habitualabsenteeism," and Shop Rule No. 42, "Repeated violations of Shop or Safety Rules." Italso claims that Management discriminated against the grievant, a Negro, on racialgrounds, in violation of Paragraph 6a of the National Agreement.


(10-5-68 The present case)

The Corporation’s evidence was the following: About 4:45 p.m., Friday, October 4, 1968,

3/13/65 Written Reprimand Shop Rule 19 "Wasting time orloitering in toilets or on anyCompany property during workinghours."

4/30/65 Balance of Shift Shop Rule 19 "Wasting time orloitering in toilets or on anyCompany property during workinghours."

11/3/65 Balance of Shift PlusOne (1) Day

Shop Rule 6 "Absence WithoutReasonable Cause and/or habitualabsenteeism."

2/24/66 Balance of Shift PlusThree (3) Days

Shop Rule 39 "Stopping work ormaking preparations to leave work(such as washing up or changingclothes) before the signal soundsfor lunch period or before thespecified quitting time."

7/7/67 Balance of Shift PlusThree (3) Days


12/19/67 Balance of Shift PlusTwo (2) Weeks


5/14/68 Balance of Shift PlusTwo (2) Weeks


9/20/68 Balance of Shift PlusThirty (30) Days

Shop Rule 7 "Reporting late forwork and/or habitual lateness."



Labor Relations Representative Ba. told the grievant, who had been excused from workthat day but was at the plant for his pay, that he was to report to work the next day, andthat a telegram to that effect had been sent to him. The grievant was absent Saturday. At adisciplinary interview on Monday, October 7, the grievant said that he did not get atelegram or telephone message to report to work. Ba. asked him whether he rememberedbeing told on Friday that he was to report to work Saturday. The grievant said that he did.At that point Committeeman N. interjected that the grievant meant that Ba. told him that hemight get a telegram to report. Foreman Bo., the grievant’s supervisor, supported Ba.’saccount of what happened at the disciplinary meeting. Contrary to the Union’s claim, thedischarge of the grievant did not reflect racial discrimination. Management excused theabsence of R., a white employee, because a telegram to report sent to him was notdelivered; he had moved and Management did not have his new address. Unlike thegrievant, R. was given no other notice. And Management had excused R. for reporting lateon other occasions because he had presented good reasons for his tardiness.Management did not excuse the grievant’s tardiness on September 20, 1968, because hedid not offer a satisfactory reason for it.

According to the Union, Ba. did not tell the grievant to report for work; he only said that thegrievant might get a telegram to report. The grievant, however, was not at home and didnot receive a telegram. The Union also asserted that Management violated Paragraph 6ain excusing R.’s absence, and not the grievant’s, R. having failed to comply with Paragraph74 of the National Agreement by not giving Management his latest address. Also the Unionmaintained that Management did not penalize R for tardiness when he overslept, but it didpenalize the grievant when he was late for the same reason on September 20, 1968.

OPINION

The issue is whether the grievant had notice to report for work Saturday.

In the Umpire’s opinion the evidence clearly establishes that he did. Ba.’s and Bo.’saccount of what the grievant said at the disciplinary interview supports Ba.’s version ofwhat he told the grievant on Friday. Moreover, it is improbable that Ba., having alreadygiven the telegram to Western Union, would merely tell the grievant that he might bescheduled to work. Although there was a dispute as to the time Management gaveWestern Union the telegrams for employees scheduled to work on Saturday, it was beforeBa. spoke to the grievant. The evidence as a whole leaves no reasonable doubt in theUmpire’s mind that the grievant violated Shop Rule No. 6. And in view of the grievant’sdisciplinary record, Management was warranted in concluding that he was incorrigible.Accordingly, his discharge must be upheld unless Management was guilty of racialdiscrimination against the grievant.

The Union has the burden of proof that Management violated Paragraph 6a. It does notfollow that, because employee R. was not penalized for his absence Saturday while thegrievant was, Management was guilty of racial discrimination against the grievant. Thefacts clearly establish that the grievant violated Shop Rule No. 6. There is no evidence thatR. did. Whether or not R. failed to comply with Paragraph 74, the Union does not suggestthat R.’s failure to provide Management with his new address was cause for breaking R.’s



seniority or was a violation of a shop rule which Management excused because R. waswhite while penalizing the grievant for the same violation under the same circumstancesbecause he was a Negro. And merely because Foreman Bo. excused R.’s tardiness whenhe presented a satisfactory excuse, and disciplined the grievant for being late when he didnot, does not prove racial discrimination. The grievance must be dismissed.

DECISION

Grievance dismissed.

May 5, 1969

/S/Abner Brodie

Umpire





No. M-19

May 15, 1969

Discipline:


Extent of Penalty

GRIEVANCE:

GENERAL MOTORS PARTS DIVISION, GENERAL MOTORS CORPORATION, VANNUYS PLANT, VAN NUYS, CALIFORNIA—APPEAL CASE M-25

"I protest being given a D.L.O. as unfair, unjust and without warrant. I also charge Mgt. witha vio. of Para. 76. N.A. I request that I be paid all lost and benefits, record cleared and Mgt.abide by the Agreements." S/R.S.


The penalty is reduced to a balance-of-shift and one-week layoff, with back pay. (Entiredecision should be read.)

In the Matter of:


and

General Motors Corporation, General Motors Parts Division Van Nuys Plant, Van Nuys,California -- Appeal Case M-25


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\m-019_13A5C73B.htm

The Union protests a disciplinary layoff for the balance of the shift plus two weeksassessed the grievant, S., on May 8, 1968, for the alleged violation of Shop Rule No. 8,"Absence without reasonable cause," on May 7.

The grievant’s disciplinary record is the following:

The grievant, who worked on the first shift, which started at 7:48 a.m., took his brother andthe latter’s pregnant wife, who was in labor, to the hospital about 1:30 a.m., May 7, 1968.The grievant’s brother had no car. The grievant remained at the hospital with his brotherand did not report to work that day. The baby was born about 7:30 a.m., and there wereindications that his health was not normal; and the grievant remained at the hospital untilhe was satisfied that the baby was all right. When the grievant reported for work on May 8his excuse for his absence was that his brother’s wife had a baby boy, and he explained tohis foreman the need to provide transportation to the hospital. The grievant’s foreman didnot accept his excuse. Later, during the processing of this grievance the Union claimedthat there were "complications" before and after the baby’s birth, and that the grievant’sbrother had asked the grievant to remain at the hospital.

Umpire Decision G-156 states the principle which applies to this case:

Where as here an employee is absent without permission, it is incumbent upon him toshow that such absence was necessitated by personal considerations which by acceptedstandards outweighed his duty to his employer to be present during working hours.

It does not appear that there was anything the grievant did or could do to remedy any"complications" before or after the birth of his brother’s child, or that he did more thanprovide company for his brother at the hospital. There is no evidence that the grievant’ssister-in-law needed any help from the grievant or that he gave her any. The grievant couldhave remained at the hospital with his brother, had he so desired, and still left in time toreport for work. Management was not unreasonable in refusing to accept the grievant’sexcuse for his absence from work.

In assessing the penalty the foreman did not consider the date of the last penalty andwhether to give any effect to the lapse of eleven months without a disciplinary penalty, butassessed a two-week layoff as a normal progression in penalties. In assessing a

8/20/65 Written Reprimand Violation of Shop Rule #16, "Refusal orfailure to do job assignment."

6/2/67 Balance of Shiftplus one (1) week

Violation of Shop Rule #32, "Fighting onthe premises at any time."

5/8/68 Balance of ShiftPlus one (1) week

Present case



disciplinary penalty, however, Management should consider, among other things, theseriousness of the offense, the grievant’s disciplinary record, and the time elapsed sincethe last penalty. Under principles of progressive discipline, disciplinary penalties should notbe mechanically increased in severity, without consideration of all relevant circumstances.On the whole record the Umpire is of the opinion that essential justice will be served byreducing the penalty to one week, with back pay for the balance.

Other questions raised have been considered but do not affect this decision.

DECISION

The penalty is reduced to a balance-of-shift and one-week layoff, with back pay.

May 15, 1969

/S/Abner Brodie

Umpire





No. M-21

May 24, 1969

Discipline:

Absence Without Reasonable Cause:

Fourth Step Evidence

GRIEVANCE:

GENERAL MOTORS ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION,SOUTH GATE PLANT, SOUTH GATE, CALIFORNIA—APPEAL CASE M-515

"I charge mgt with unjustly discharging me for alleged viol of SR #6 also charge vio ofPara’s 76, 29 and 19d of the National Agree. Request that I be paid all monies lost &discip. be removed from my record Further request that Mgt abide by the provisions ofPara’s 76, 29 and 19d of the National Agreement now and in the future and at all times."

Amended to Read: "I charge Mgt with unjustly discharging me for alleged viol. of SR #6,also charge vio’s of Para’s 76 and 29 of the National Agreement. Request that I bereinstated with full benefits and that I be paid all monies lost and that the discipline beremoved from my record also request full compliance with the provisions of Para’s 76 and29 of the Nat. Agree."


The grievant’s discharge shall be set aside and he shall be reinstated with his recordcleared of any penalty for his absence on June 3 and 4, 1968. Back pay shall be limited toa period of four months prior to the date of this award. (Entire decision should be read)

In the Matter of:


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and

General Motors Corporation, General Motors Assembly Division South Gate Plant, SouthGate, California -- Appeal Case No. M-515

The Union protests the discharge on June 12, 1968 of the grievant, B., seniority dateSeptember 26, 1960, for the alleged violation of Shop Rule No. 6, "Absence withoutreasonable cause," on June 3 and 4, 1968. The grievant, who was away from workbecause of an injured arm, was treated by Dr. M. on May 13 and May 21, and returned towork on May 29, with a "return to work" slip signed for Dr. M. by an office assistant. Thegrievant worked May 29 and May 31, was absent without permission on Monday andTuesday, June 3 and 4, and returned to work on June 5 with a return to work slip bearingDr. M.’s name signed by an office assistant and stating that the grievant had been underDr. M.’s care on June 3 and 4. The grievant claimed that he had been unable to workbecause his arm was swollen, and that on June 3 he had telephoned

Dr. M. who advised him to stay home a few more days. Management checked with Dr. M.who denied that he talked with the grievant on June 3 and that his office assistant hadauthority to give the grievant the slip on June 5.

According to the Union, during the week following his discharge the grievant twice tried tosee Dr. M., but M. refused to see him. In August, answering a letter from the grievant’slawyer, Dr. M. wrote that the grievant had gotten the slip in question from the "thereceptionist without a doctor’s visit."

In February, 1969, shortly before the Umpire Hearing, Dr. M. gave the Union a writtenstatement that he did not recall the grievant’s telephoning him on June 3 but that since thegrievant had "two return to work slips from our office, signed by a receptionist" he was"inclined to believe" that the grievant had told him then about his arm and inability to work.According to the Union, this followed a discussion a week or two earlier during which Dr.M. admitted that his office staff had erred and neglected to note that the grievant hadtelephoned him on June 3. The Union also claimed that following the Third Step meetingon August 27, 1968, International Representative G. had tried to see Dr. M., but withoutsuccess. The Corporation objected to all this evidence on the ground that it was notreferred to in the prior record of this case.

OPINION

The grievant has the burden of establishing that there was reasonable cause for hisabsence without permission on June 3 and 4. The note of June 5 from Dr. M.’s office,although on its face evidence of reasonable cause, was not conclusive. See UmpireDecision L-104. Management was justified in acting on information from Dr. M. that he hadnot seen or spoken to the grievant on June 3, sanctioned the grievant’s absence from



work, or authorized the return to work slip the grievant presented on June 5. Although Dr.M.’s statement of February, 1969, and evidence that he admitted errors by his office staffare objectionable as Fourth Step evidence, see Umpire Decision M-12, the Umpireconsiders that he should exercise the discretion vested in him under Paragraph 47 of theNational Agreement to set aside the grievant’s discharge in the interest of essential justiceand reinstate him with his record cleared of any penalty for absence on June 3 and 4,1968. The grievant and the Union, however, were dilatory in attempting to correct whatthey claimed was an error of Dr. M.’s office. For this reason the grievant is not entitled tofull back pay, and the award of back pay should be limited to a period of four months priorto the date of this award.

The Union presented no evidence or arguments to support its charges of violations ofParagraphs 76 and 29 of the National Agreement, and those charges have not beenconsidered.

DECISION

The grievant’s discharge shall be set aside and he shall be reinstated with his recordcleared of any penalty for his absence on June 3 and 4, 1968. Back pay shall be limited toa period of four months prior to the date of this award.

May 23, 1969

/S/Abner Brodie

Umpire





No. M-25

June 16, 1969

Assault:

Extent of Penalty

GRIEVANCE:

CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION, INDIANAPOLISPLANT, INDIANAPOLIS, INDIANA—APPEAL CASE M-231

"I charge management with an unjust discharge I deny assault on anyone. I demand to bereturned to work at once with pay for all time lost and my disciplinary record cleared. I alsocharge mgt. with violation of paragraph 76, with using warfare chemicals against me. Ifurther demand that mgt. cease these kind of activities at once. Also charge mgt with bodilyassault upon me, and falsifying IND 43 form." S/C.B.C.


"The grievant’s discharge shall be set aside. He shall be reinstated with back pay for 3months immediately preceding the date of this award, the balance of the time off to beconsidered as a disciplinary layoff." (Entire decision should be read.)

In the Matter of:


and

General Motors Corporation, Chevrolet Motor Division, Indianapolis Plant, Indianapolis,Indiana -- Appeal Case M-231


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At issue is the propriety of the discharge of the grievant, Cl., seniority date September 19,1966, and assigned to the second shift, for an alleged assault on October 19, 1968, upon amember of supervision.

The Corporation’s version of the events in issue is the following: When the grievantreturned from lunch on October 19, he seemed under the influence of alcohol. GeneralForeman B. and Foreman A. questioned him about his condition. He denied that he hadbeen drinking. B. left the area, and A. told the grievant to go to the Metal Shop office, butthe grievant refused. At A.’s request, Foreman W. summoned General Foreman B. whoreturned with two other supervisors. The grievant directed obscene, abusive andthreatening remarks to B., then turning to Foreman W., pushed him backwards andexclaimed, "Move out of my way, you white m----- f-----." He then charged at W. andrammed both hands into his chest, shouting, "I said move." Plant Protection Sergeant Ca.,who had come to the area with Patrolman M., told the grievant to go with him to the plantgate. The grievant, who was about 6 feet from Ca., threatened to "cut" him and reached forhis pocket as if to get a knife, whereupon Ca., who had not used it before, released a sprayof "riot gas" in the grievant’s face and repeated it when the grievant came toward himswinging his arms. It took the combined efforts of Ca., M. and B. to subdue the grievantand take him to the gate, whence he was removed by the Indianapolis police. Managementsent a telegram to the grievant’s home address stating that he was discharged for anassault on Foreman W. Later the same day, Management gave the grievant’scommitteeman notice of the discharge. The grievant at no time requested hiscommitteeman.

The Union’s version is as follows: During their lunch period the grievant and four fellowemployees consumed a "fifth" of whiskey. The grievant asked for his committeeman whenA. and B. questioned him about drinking and he refused to go to the office until hiscommitteeman was sent for. He was not told he was subject to discipline. Severalmembers of supervision encircled the grievant and he may have brushed against W. intrying to break out of the circle; but he did not assault W. or use the obscene languagecharged. The grievant had no knife or other weapon and made no threatening gesturetoward Ca. When Ca. sprayed him he was temporarily blinded and incapacitated.

The Union contends that use of the spray against the grievant amounted to an assault, andthat unnecessary force was otherwise employed against the grievant. The Union alsocontends that Management violated Paragraphs 29, 76, and 76a of the NationalAgreement.

The Corporation’s position is that the force employed against the grievant, including the riotgas, was reasonable and necessary under the circumstances, that Management compliedwith Paragraph 76 in sending a telegram to the grievant’s home and giving hiscommitteeman a copy of the discharge notice.

OPINION



The evidence clearly establishes that the grievant assaulted Foreman W. If, however,Management violated the grievant’s rights, as the Union charges, the penalty must bereduced.

The Umpire is not persuaded that it was necessary for Sergeant Ca., in self protection orotherwise, to use the riot gas against the grievant. There is no evidence that the grievanthad a knife. True, he threatened Ca., but he had no visible means of carrying out histhreat. Considering the number of strongly built Plant Protection and supervisory personnelon the spot, the Umpire is not convinced that the grievant, slight of build and of less thanmedium height, could not have been subdued and removed to the gate without resort tothe riot gas, the effects of which might have been dangerous. Under the circumstances ofthis case, the use of the spray constituted unreasonable and unnecessary force and anassault upon the grievant which must be considered in mitigation of the penalty.

Management also violated Paragraph 76 of the National Agreement which requires adischarged employee to "be furnished a brief written statement advising him of his right torepresentation and describing the misconduct for which he has been ... discharged," andprovides that he shall have an opportunity to discuss the case with his committeeman"before he is required to leave the plant." No reason appears why Management could notcomply with Paragraph 76. The grievant could have returned to the plant at another timeand been given the statement and an opportunity to discuss the case with hiscommitteeman as Paragraph 76 requires.

The evidence does not establish that Management violated Paragraphs 29 and 76a of theNational Agreement, as the Union charges.

The grievant’s offense was a serious one. But Management’s violation of the grievant’srights were also serious. On the whole record, the Umpire is of the opinion that essentialjustice will be served by reinstating the grievant with back pay for 3 months immediatelypreceding the date of this award, the balance of the time off to be considered a disciplinarylayoff.

DECISION

The grievant’s discharge shall be set aside. He shall be reinstated with back pay for 3months immediately preceeding the date of this award, the balance of the time off to beconsidered as a disciplinary layoff.

June 16, 1969

/S/Abner Brodie

Umpire




of 4UMPIRE DECISION M-25



No. M-36

October 27, 1969

Discharge:

Alleged Solicitation of Money for Fund

to be Used to Have General Foreman Beaten Up;

Refusal of Company to Disclose Name of Accuser

Until Third Step of Grievance Procedure

GRIEVANCE:

GM ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION, ARLINGTON PLANT,

ARLINGTON, TEXAS—APPEAL CASES M-1403 AND M-1429 -- Appeal Case M-1403:

"Chg. mgt. with giveing me an unjust discharge, also making false & milishious chargesagainst me, slander, also viol. of para. 6 of N.A., also refusing to give the union informationconcerning the instant discharge. Demand Mgt. reinstate me and clear my record & pay allmonies lost, plus all other benefits restored immed., also mgt. refrain from viol. of theremaining charges & make me whole immed." S/J.H.C.

Appeal Case M-1429:

"Chg. Mgt. with giveing me an unjust discharge on 5/8/69, also slander & false accusationagainst me & defimation of my character. Demand mgt. clear my record immed. & pay meall monies lost and make me whole on the balance of charges immediately." S/W.A.W.


For the reasons given in the accompanying Opinion, the evidence advanced by theCompany in support of the grievants’ discharge is held to be inadmissible. The Company is


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directed to reinstate the grievants with reimbursement for wages lost and restoration ofseniority rights from the date of discharge. (Entire decision should be read)

In the Matter of:

United Automobile, Aerospace and Agricultural Implement Workers of America LocalUnion No. 276

and

General Motors Corporation, Assembly Division, Arlington, Texas -- Appeal Cases Nos. M-1403 and M-1429

OPINION

C. is the grievant in Appeal Case M-1403. W. is the grievant in Appeal Case M-1429. Eachof them was a Stockman in the Material Department. C.’s service with the Company beganin late 1957; W.’s began in late 1965. Neither man has a clean prior disciplinary record.

Both grievants were discharged on May 8, 1969. The following is given in the "Report ofDisciplinary Action" form which was mailed to each of them:

"On the morning of March 21, 1969, General Foreman (R.) wasviciously beaten outside his home as he prepared to drive to work.Prior to March 21, 1969, you solicited monies in the plant for thepurpose of having Mr. (R.) assaulted. You are thereforedischarged."

The background is essentially as follows:

Operations in the Material Department had been going badly, and General Foreman R.was designated to bring them back to a satisfactory level of efficiency. Apparently, he boredown hard.

In late January, 1969, one of the department’s Committeemen requested a meeting withthe plant’s Personnel Director and the department’s Superintendent. The request wasgranted. In the meeting, the Union’s representatives stated that considerable difficultieshad developed between R. and the men and that the situation was so explosive that itmight lead or resort to physical force. Additionally, the Union’s representatives requested ameeting with the Plant Manager. This request was denied.

For some weeks prior to March 21, 1969 -- the date of the assault— there were persistentrumors that R. would be beaten up. At the arbitration hearing, indeed, it was put in terms of"common knowledge". The Union concedes that the assault must realistically be assumedto have been related to R.’s functioning as General Foreman in the Material Department.



The assault occurred as R. was leaving his house to go to work. It was vicious in theextreme and had all the earmarks of a professional job. Aside from severe contusions atvarious parts of his head, R. sustained a fracture of his right orbit (which was repairedsurgically), permanent retinal damage to one eye and partial loss of vision to the other. Hislife hung in the balance for a while and he was on sick leave for nearly three months.

On the day on which the assault occurred, Management posted a notice on the plant’sbulletin boards. In part, it read as follows:

"The Management of this plant will offer a substantial reward to anyindividual or individuals giving information leading to the arrest andconviction of the person or persons who assaulted and/or attemptedto kill General Foreman R. at his home early this morning."

The chief accuser against the grievants is a Stockman in the Material Department. He willhere be referred to as X. He read the notice when he came to work on March 21 andindicated to his foreman that he had valuable information concerning the assault. Theforeman referred him to the department’s Superintendent and the latter referred him toPlant Protection. X. told both of these parties that he had been solicited by W. and C. formoney to be used to having R. beaten up.

On Monday, March 24, the department’s Superintendent called X., asking whether hewould be willing to give the information to the police. X. replied in the affirmative and wasinterviewed by the police on the same day. The information which he provided was put inwriting by a detective at the police station. The following is the substance of it:

"About three or four weeks ago, (C.) and (W.) came up to me andsaid they were taking up a collection to get (R.) beat up. They saidthey needed $250.00 to get the job done. They were asking for$5.00 a man and that’s what they asked me for. I told them I didn’twant nothing to do with it and if I had known what they intended todo and that they were serious about it I would have said somethingsooner. The word is out that anybody who says anything about whathappened they’re going to get his family."

At the time he gave the statement, X. apparently agreed that both the police andManagement could make use of it as they saw fit. As a matter of not hampering itsinvestigation, however, the police asked Management not to act on the information.Management complied with the request. Then, some five or six weeks later, the policedropped the case.

Upon that, Management got in touch with X. and asked him whether he was still agreeableto its use of the statement. X. manifested reluctance, saying that he had received twothreatening phone calls, that a rock had been thrown through his living-room window, andthat he had received another phone call in which he was offered $500 if he kept quiet.Considering his apprehensions justified, and in return for the risk he would be assuming,Management made X. a $1,000 offer for the use of his statement. X. accepted and, at hishome on May 9, was paid the money in cash. (The date of the payment was given at thearbitration hearing by the plant’s Personnel Director. X. stated he had received the money



about a month before the grievants were discharged.)

With respect to grievant W., there is additionally a statement by Foreman E. It was given tothe police on March 25. Its substance reads as follows:

"About three or four weeks ago, I was working at the GeneralMotors Assembly Plant in Arlington, Texas. I was in my section ofthe plant and (W.), one of the men who work under me, came byand asked if I would give five dollars to get the ‘Georgia Peach’ runout of town. I thought at the time that he was just talking, but Iunderstood him to mean that there might be a collection to get (R.)out of town. Many people in the plant referred to (R.) as the ‘GeorgiaPeach’.

I just passed it off and I didn’t think anymore about it until last Fridaywhen I learned that (R.) had been beaten up."

In both the First Step and the Second Step of the grievance procedure, Managementrefused to identify the names of the accusers. It took this stand on the grounds that enoughviolence had occurred and that to divulge the source of its information would be to invitefurther violence; it asserted to the Union’s representatives that it was in everyone’s interestthat they not press for the information and that the best and most realistic thing for them todo was to withdraw the grievances; and it adhered to its stand despite the statement by theUnion’s representatives that the withholding of the information would be relied upon by theUnion as making the discharges defective.

On June 19, in connection with his pre-Third-Step investigation, InternationalRepresentative R.W. interviewed a number of employees. X. was one of them, and he toldR.W. that he had been solicited for money by grievants W. and C. for the purpose ofhaving R. beaten up. In response to R.W.’s questions, X. denied: (1) having receivedmoney from Management; (2) having had any particular difficulties in his past relationshipat the plant with either grievant.

The Third Step meeting was held on July 10. In this meeting, Management submitted thestatements (the full texts, as obtained at the police station) of both X. and Foreman E. Alsoin this meeting: 1) X. admitted having received $1,000 from Management, and 2)Management offered, and the Union declined (unless Management agreed to pay thegrievants wages for the period of the attendant delay, which in turn was rejected byManagement), to have the grievances referred back to the Second Step.

The following is a brief review of the parties’ respective positions at the arbitration level.

Union

First, Management’s withholding until the Third Step of the evidence on which thedischarges were based was violative of the grievants’ rights to a speedy investigation ofthe propriety of the action against them; it represented an insult to the Local Union; and itconstituted a flagrant disregard of the full-and-immediate-disclosure principle longunderstood and followed by the parties. The statements given by X. and Foreman E. (and



their testimony at the hearing) should therefore be ruled inadmissible.

Second, even if a contrary ruling were to be made, the Company has failed to establishthat the grievants are guilty as charged. As to the grievants themselves, they appeared atthe hearing and testified that they had been falsely accused. As to Foreman E., he broughtnothing against C.; he admitted that, at the time W. allegedly approached him, he (E.)thought that W. was merely kidding; and the likelihood is that what E. says was solicitationfor a fund to have R. mugged has been confused in E.’s mind with the soliciting which W.did make at the time for a fund to help out ailing Committeeman S. And as to X., he standsas a wholly discredited witness: he admittedly did not report any of the alleged phone callsto the police—leading to the almost inescapable conclusion that he reported the allegedphone calls to Management, particularly the alleged one involving the alleged $500 offer tokeep quiet, for the purpose of upping the amount of money Management might pay him; headmittedly needed money at the time; he lied when he was first asked by the Unionwhether he had received money from Management; he lied again on the question ofwhether there had been difficulties in the past between himself and either W. or C. both byway of the testimony of W. and C. and by way, despite his attempted evasions, of X.’s owntestimony, there is the clearest evidence that there had been various nasty encounters inthe rather recent past; and finally, there are discrepancies between the statement X. gavethe police and the testimony he gave at the arbitration hearing—the former implies that W.and C. approached him jointly, whereas the latter is to the effect that they did so separatelyand that C. merely (i.e., without specification of any particular fund) asked whether X. wassure that he did not want to give "to the collection". It is most unlikely, the Union argues,that the grievants would have left themselves "wide open" by soliciting these two men—theone filled with animosity toward both W. and C., the other a supervisor.

Company

With respect to the admissibility of the evidence, the Company asks that there beappreciation for uniqueness and realities. There had been a vengeful, planned and viciousattack on a member of Supervision; there obviously was every indication that anyonegiving information about the conspiracy would receive quite the same treatment; and it wastherefore only wise and proper for Management to defer the identification of X. andForeman E. until such time as things had quieted down a bit. It was not for purposes oftactical advantage but for good and substantial reasons that Management withheld theinformation for a time. And when the Union speaks of a violation of the grievants’ "dueprocess’ rights, it is merely throwing around big words. For, not only was full disclosuremade at the Third Step, but the disclosure was coupled with an offer to refer thegrievances back to the Second Step. Under all these circumstances, the Companycontends, it would be theoretical and wrongful to declare the evidence inadmissible.

On the merits, the Company submits that it has met its burden of proof. It asserts that,when X. first denied having received the money, he was acting on Management’s advice;that the payment itself, considering the risks X. would be taking, was entirely proper; thatthere was no bargaining over the amount of the money; that the Union has interjectedsubstantial exaggerations with respect to the past relationship between X. and W. and C.;that the Union’s reliance on an alleged fund for Committeeman S. is suspect for a numberof reasons and should be dismissed; and that its effort to make a tainted witness out of X.must be rejected, not only because of lack of substantiation concerning X. himself, but also



because the statement and testimony of Foreman E. corroborate those of X.—and there issimply not the slightest showing that Foreman E. would have resorted to fabrication. Insum, the Company submits that the statements and testimonies of X. and Foreman E.ought to be believed and thus accepted as clearly and convincingly establishing that thegrievants are guilty as charged.

Though obviously not without real concern and prolonged deliberation, the Umpire hasconcluded that the Union’s preliminary position should be sustained. If what Managementbelieves here happened did in fact happen— a brutal assault on a supervisor via thecollection of an employees’ fund to pay the price of professional muggers—there can be noquestion that the act was as despicable an act as one can find in the annals of laborrelations. Nor can there be any question that participation in this kind of an affair warrantsthe discharge penalty. In the opinion of the Umpire, however, neither these considerationsnor the concern which Management held for the safety of X. and Foreman E. can serve tojustify or excuse Management’s refusal in Steps One and Two to disclose what it wasbanking on. To the contrary, the conclusion must be that Management should have knownbetter—simply too much has been understood between the parties and handed down bytheir Umpire Office to avoid this conclusion.

Excerpts from certain prior Umpire decisions will momentarily be given. The Umpire wantsfirst to comment on certain matters which he thinks deserve focus.

The foremost one lies in the obvious distinction between the withholding of information andthe belated discovery of information, be it through oversight, sloppy workmanship or whollyunderstandable circumstances. The Umpire is aware that some have thought him tooliberal with respect to the introduction of such belatedly discovered information. Be that asit may, the Umpire sees no inconsistency between a liberal approach on this score andclamping down when it comes to the deliberate refusal to divulge already-possessedinformation. Oversights, understandable or otherwise, are an inescapable part of animperfect world. Not so with the withholding of information—it is done knowingly and it isthus utterly inimical to what the parties have long striven for with respect to the operation ofthe grievance procedure. And therein, too, lies the answer to the Company’s reliance onManagement’s offer to refer the grievances back to Step Two. The "refer back" approach isa wholly proper and useful one when it comes to a newly discovered piece of informationor to overcoming an inadvertence of some sort—for here it is a matter of furthering thepurpose and design of the grievance procedure. In the case of withheld information, on theother hand, a "refer back" request amounts to acknowledging a breach and thereuponasking the other party nonetheless to proceed in open minded spirit.

Another factor is that Management here withheld its entire case, not merely someevidentiary fact related to it. In Umpire Decision G-12, even this latter kind of withholdingwas met with "Management ignored its fundamental obligation to make known all the factsin its possession relative to the pending grievance. (See, for example, Umpire Decisions A-15, A-25, B-29, C-175, C-204, D-56, E-132, F-53, and F-97.)" Let it be granted, however,that when it comes to the withholding of some element of the evidence, one might have totake a look at whether or not the matter constituted a serious enough defect to warrantletting it affect the outcome of the case. Such qualitative approach is obviously ruled outwhere Management withholds the whole of what it is relying on.



Next, there is the fact that Management’s position with the Local Union was not to theeffect of "we will of course provide you with the information in due course; we merely thinkwe ought to hold off for a while". Rather, Management refused flatly to divulge theinformation; gave no indication that it would relent on this at some future date; and soughtto persuade the Local Union that it had "the goods" and that the realistic thing for the LocalUnion to do was to drop the grievances. To seek to prevail while withholding seems to theUmpire even more inimical to the idea of the bilateral resolution of grievances than doesthe withholding which is coupled with the word "you’ll get a crack at our guy, but let’s letthings cool off first". Furthermore, aside from the fact that Management gave the Union tounderstand that it would forever withhold the names of the accusers, the evidenceindicates that Management itself, when it proceeded as it did in Steps One and Two, didnot intend to change course in Step Three. Rather, the evidence indicates, the informationwas there made available because the Union had uncovered X. as a possible accuser orbecause Management had received word from corporate headquarters that it could notpossibly prevail without making the disclosure (or because of the combined effect of bothevents).

Fourth and last, the Umpire wants to comment on the Company’s argument thatManagement acted in good faith—that its sole purpose was to protect the witnesses andthat its concern for their safety was wholly justified under the circumstances. Though thereis clear and substantial appeal in the argument, the Umpire believes that it must beoverridden. It is of course to be assumed that Management was acting in good faith. Wereit otherwise, this would be the easiest of cases to decide. Indeed, one may legitimatelydoubt that the Company’s corporate staff would even have let the case come to the Umpirehad Management acted in bad faith and for the purpose of gaining a tactical advantage.The real question is whether the full-and-immediate-disclosure principle should berespected or bent where its observance entails difficulties. The Umpire thinks it clear thatthis question must be decided in favor of the sanctity of the principle. Indeed, its standingas a principle is sorely thrown into question if it is abandoned where its application "hurts".Moreover, though in a different context, the matter of proceeding secretively for the sake ofthe protection of witnesses has long since been decided in favor of openness. See UmpireDecision G-13, which, on this point, concludes with "We are mindful of the need to protectwitnesses against retaliation, but are of the opinion that such need can be and must befulfilled by other means." And further still, the fact in the present case is that X. was given$1,000 in consideration of the risk he would be assuming. One may wonder what risk therewas to him if his identification as the accuser was to be withheld. What it all comes downto, it seems to the Umpire, is that Management did not face up to the admittedly difficultdecision it had to make: either honor the full-and-immediate-disclosure principle or acceptthe fact that discharge action could not be taken for lack of evidence.

The preceding discussion might seem harsh and doctrinaire were it not for the history ofthe full-and-immediate-disclosure principle under these parties’ collective-bargainingrelationship. Excerpts from prior Umpire Decisions will now be given. Reference is toDecisions F-97, F-98, G-12 and G-13 -- all issued in the early fifties and all either backingand reinforcing the full-and-immediate-disclosure principle or dealing with a way of doingthings which theretofore had been tolerated as not falling within the purview of theprinciple. It is in this framework—the solid and ancient character of the principle—that theUmpire has confronted the admissibility issue here raised.



Decisions G-12 and G-13 have already been quoted from. Additionally, they contain thefollowing:

G-12:

"... The fact that an employee has violated a shop ruledoes not automatically deprive him of his full right torepresentation in accordance with the NationalAgreement, or deprive the Union of the right to full andcandid disclosure of all facts upon which Managementbases disciplinary action. The necessity for followingestablished bargaining procedures is paramount..."

G-13:

"... In Decision G-12, last issued, the Umpire calledattention to numerous prior rulings to the effect that thewithholding of evidence at lower steps by any party isimproper, and ruled squarely that the opposite party isentitled to have such withheld evidence excluded fromthe record at the fourth step. There can be no doubt thatthis principle is sound or that it is necessary in order tomaintain the proper supremacy of collective bargainingover Umpire trials. Enough has been written in previousopinions so that the point needs no further elaborationhere. Management erred in refusing to divulge to theUnion at the lower steps the names of the witnesses andthe close substance of the testimony upon which it wasrelying to support its finding that Complainants wereguilty."

Decision F-97 has the following:

"... We cannot pass this case without noting that both Managementand the Union, locally, have so far violated the basic principles ofAgreement administration as to knowingly and intentionally refuse todisclose to each other the names of witnesses to the altercationfrom which this appeal arises. The Corporation, the InternationalUnion, and the Umpire have made clear time and time again thatsound collective bargaining requires frank and candid disclosure atthe earliest opportunity of all the facts known to each party. Therewill undoubtedly be times when facts are not discovered, andtherefore not disclosed, until after the grievance has been partiallyprocessed, and problem enough is created by those instances.There is not a scintilla of justification for the withholding ofinformation by either party from and after the time it is discovered."

And Decision F-98 has the following:



"... The Union protests the refusal of Local Management to discloseto the Shop Committee until the Third Step the name of theForeman who reported the accident that precipitated the demotion.Management admitted the charge, but sought to justify its action byreliance on the fact that the Foreman was new and needed"protection." Such a defense is no justification whatsoever andmanifests disregard for a fundamental aspect of the grievanceprocedure that has no place under the National Agreement.Moreover it is inconsistent with the position uniformly taken by theCorporation that sound administration of the grievance procedurerequires the earliest possible disclosure of all available facts."

It is true that none of these decisions is "on all fours" with what is here involved and beingdecided. In three of them, a verdict on the merits was rendered (and a penalty of one sortor another was imposed). And in the fourth, the evidence which had been withheld andwas ruled inadmissible had been withheld through all the lower Steps and was presentedfor the first time at the Umpire level. One could, if one chose to, differentiate the presentcase from the prior ones. To the Umpire, however, the point is that it was not narrowly, orin mere relation to particular problems presented by particular cases, that the principlecame under discussion in the prior Decisions. The words are broad, and they were utteredby a man who understands and implements as well as anyone the need to employ termsyielding narrow coverage where this is called for. Nor is the Company here really arguingthat the full-and-immediate-disclosure principle is of less than general applicability. Rather,it is on grounds of a justifiable departure, of the fact that disclosure was made at StepThree, and of the fact that an offer was made to refer the grievances back to Step Two,that the Company is asking for the non-exclusion of the evidence. The Umpire has dealtwith these matters in the earlier discussion. His considered opinion is that the principle is ofsuch fundamental importance and has so long been imbedded as a cornerstone of theparties’ grievance procedure that it should be applied, rather than merely reiterated, andthus be given its proper standing of supremacy.

DECISION

For the reasons given in the accompanying Opinion, the evidence advanced by theCompany in support of the grievants’ discharge is held to be inadmissible. The Company isdirected to reinstate the grievants with reimbursement for wages lost and restoration ofseniority rights from the date of discharge.

October 27, 1969

/S/Rolf Valtin

Umpire





No. M-46

November 16, 1969

Paragraphs (106) and (111)(b) of National Agreement:

Termination of Employee;

Evidence

GRIEVANCE:

CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION, TONAWANDAFOUNDRY PLANT, TONAWANDA, NEW YORK—APPEAL CASE NO. M-19

"Protest unjust discharge under Para. (111B) employee known to be ill should not bereleased from roll. Demand reinstatement and back pay." S/E.J.


The grievance is denied. (Entire decision should be read.)

In the Matter of:

United Automobile Aerospace and Agricultural Implement Workers of America Local UnionNo. 1173

and

General Motors Corporation, Chevrolet - Tonawanda Foundry, Tonawanda, New York --Appeal Case M-19

OPINION


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Grievant J. was hired by the Company in October, 1961, and last worked as a first-shiftLaborer-Inside in the Foundry Department. Under protest is the Company’s dropping himfrom the rolls, as of May 17, 1968, on the grounds that he was an employee who "shall beconsidered as having voluntarily quit" as given in Paragraph (111) (b) of the NationalAgreement.

The following is background and framework information:

Though the details on it are skimpy, J. was beset by some sort of accident involving anautomobile and himself as a pedestrian on Friday, April 5, 1968. He went to the BuffaloGeneral Hospital, and X-rays there taken showed that he had sustained no bone injuries.J. also went to the office of a Dr. S. The latter’s findings were:

"sprained left ankle, left leg contused, pulled muscles & ligaments lower back, headache,dizziness". J. and Dr. S. seem to have agreed, however, that J. should "try" to go to workon Monday (April 8, 1968).

Having on hand a supply of "General Motors Group Insurance Program" forms, J. filled outthe "Employee" portion of the form over the weekend. He went to work on Monday, but,within an hour, contacted his foreman, complained of soreness in his back and left leg, andrequested and was given a medical pass to leave the plant. He thereupon returned to Dr.S.’s office and had him fill out the "Doctor’s Statement" part of the form. Dr. S. entered"unknown" in the space provided for "Date Claimant will be able to perform usual work".

As a matter of understanding between the local parties, the following is true of the use ofthe forms. First, the submission of a filled-out form serves at once as an application forinsurance benefits and as a request for sick leave under Paragraph (106) of the NationalAgreement. This provision will be quoted below. It includes the phrase "supported bysatisfactory evidence". The form, of course, is an insurance-claim form. However, to avoidthe bother of making and processing two separate applications, the physician’s certificationon the form is also used for the "satisfactory evidence" purpose of Paragraph (106).Second, where there is uncertainty about the duration of the particular employe’sdisability—in the present case, as shown, "unknown" was entered—the sick leave isgranted on a one-month-at-a-time basis. Each of such one-month leaves, where thedisability continues beyond the one-month period, is to be extended by means of the fillingof a supplementary form—the so-called short form.

The grievant went on sick leave on the basis of the form which he had filled out over theweekend and which Dr. S. had filled out on Monday. He (the grievant) did not return forwork until about six months later -- namely, on October 15, 1968. He did not file asupplementary form in early or mid May—i.e., upon the elapsing of a one-month periodfrom the beginning of his sick leave.

In late May, advised by the plant’s insurance office that J. had not been heard from, LaborRelations Representative K. phoned Dr. S. K. testified to the following: that Dr. S. stated"emphatically" that J. was not disabled; that he (Dr. S.) had not seen J. from April 8 untilMay 13; that, on May 13, he (Dr. S.) had found J. able to work and had given him a return-to-work slip; and that Dr. S., indeed, had assumed that J. was back at work. In response toK.’s request, Dr. S. agreed to put these statements in writing.



The confirming information is contained in a form letter (not the insurance-claim form) sentDr. S. by Mr. W., Supervisor of Labor Relations. The top portion of it consists almostentirely of pre-typed, purpose-of-letter sentences (leaving spaces to be filled in only for thename of the physician, the name and social security number of the employee, and the dateon which the latter’s sick leave began). The bottom portion, to be filled out by thephysician, also contains a number of pre-typed sentences. The first one is "Date on whichemployee was last treated by me ________"—Dr. S. entered 5-13-68. The second one is"Employee was able to work on ________"—

Dr. S. entered 4-15-68. And the third and fourth ones are "Employee has not beenapproved for return to work. However, it is expected he will return to work on ________".Here and on the reverse side of the form letter (there is little space left by the time one getsto the end of the fourth of the pre-typed sentences), Dr. S. noted the following:

"Pt (patient) ignores fact that I tell him he is able to work: I cannotforce him to return. Was seen 4/5, 4/8 and not again until 5/13/68.10 days disability should be maximum for this type of injury & sincehe is not coming for treatment I assume he is OK."

Management dropped J. from the rolls on the basis of this information.

As already mentioned, it applied May 17 as the date of termination. It arrived at this dateby counting "three working days" (see Paragraph (111) (b), about to be quoted) from May13, the date on which Dr. S. had last seen J. and found him fit for work.

To be quoted, now, are the pertinent National Agreement provisions.

Paragraph (106) reads as follows:

"Any employee who is known to be ill, supported by satisfactoryevidence, will be granted sick leave automatically for the period ofcontinuing disability. Seniority of such employees shall accumulateduring sick leave and shall be broken, figured from the date the sickleave started, on the same basis as provided in Paragraph (64e) forlaid off employees breaking seniority. Not later than 10 days prior tosuch loss of seniority, Management will send a letter to theemployee’s last known address as shown on the Company recordsreminding him of the fact that his seniority is subject to being brokenas provided above. A copy of such letter will be furnished promptlyto the Chairman of the Shop Committee. However, failure throughoversight to send the letter to the employee or furnish a copy to theChairman of the Shop Committee will not be the basis for anyclaim."

Paragraph (111) commences with:

"All of the above leaves of absence including sick leaves aregranted subject to the following conditions:"



Subparagraphs (a) and (c) need not be given. Subparagraph (b) reads as follows:

"Any employee who fails to report for work within three working daysafter the date of expiration of the leave, shall be considered ashaving voluntarily quit unless he has a satisfactory reason; provided,however, that in the case of failure to report for work within threeworking days after the expiration of leaves of absence grantedunder Paragraphs 104, 105, 109, 109a, 110, 110a and 113,Management will send written notification to the employee’s lastknown address as shown on the Company records, that his seniorityhas been broken and that it can be reinstated, if, within threespecified working days thereafter, he reports for work or properlynotifies Management of his absence. A copy of such Managementnotification will be furnished promptly to the Chairman of the ShopCommittee. If the employee complies with the conditions set forth inthe notification, his seniority will be reinstated if it has not otherwisebeen broken; however, such reinstatement shall not be construedas limiting the application to his case of the Shop Rule regardingabsence without reasonable cause."

The case was among the hardest-fought which the Umpire has witnessed, required ahearing of great length, and embodies numerous and varied contentions and counter-contentions. The Umpire has considered all that has been presented but sees no need toprovide a comprehensive review of it. The following is the essence of what the Unionsubmits:

The burden for showing that the grievant’s "period of continuing disability" hadended rests on the Company. The Company has failed to meet this burden.The very Dr. S. on whose statement the Company is relying has signed variousdocuments containing information which conflicts with it. He signed asupplementary insurance-claim form on June 8, 1968, in which he gave 4/5/68as the "Date Claimant was unable to work because of his disability" and hethereby designated a period of disability which spans the point at which theCompany broke the grievant’s seniority. To the same effect is a documentdated November 18, 1968: it certifies to visits by J. on the dates of 4/8, 5/13,5/17, 5/29, 6/3 and 6/8/68. And, aside from these certifications by Dr. S., thereis the action of the Metropolitan Life Insurance Company, the insurance carrierfor General Motors. Insofar as the April 8 - May 8 period is concerned, it is truethat the payment of disability benefits was a matter of what had been approvedby the plant. The fact is, however, that the grievant—pursuant to Metropolitan’sauthorization and upon an examination by a Metropolitan physician—wasadditionally paid disability benefits until June 14. Simply stated, the Unionsubmits, J. was receiving disability benefits at the time the Company declaredhim no longer disabled.

Following June 14 -- namely, on June 15 -- J. had another accident (fallingdown stairs) and Dr. S. has certified that he saw J. on June 15 as well as onJune 21. Then, in July, J. was in a fight in which his lip and left hand wereinjured. Dr. S. has certified that he saw J. on July 19. Then, on August 13, J.



suffered a contusion of his great right toe. Dr. S. has certified that he saw J. onAugust 13 and 14. And finally, in late August, J. was in a bus accident. Dr. S.has certified that he saw J. on August 21, August 26, September 14,September 30 and October 14. On the occasion of the last visit, J. asked for,and was given, Dr. S.’s approval for returning to work. J. in fact reported forwork on October 15 (though he was turned away). He has accounted, theUnion submits, for the entire approximately 6-month period. All of it was a"period of continuing disability" and it was promptly upon the end of it that J.reported back for work.

Management, in terminating J., not only acted erroneously, it acted secretivelyand, in all likelihood, vengefully. It broke his seniority without in any way lettinghim know or inquiring of him as to whether he was still disabled and as to whenhe might be expected to be back at work. And Management’s true motivation isrevealed by its insertion into the record of J.’s prior sick-leave record. Trueenough, J. had been on numerous sick leaves. But this is obviously irrelevant tothe question here to be determined, and what the introduction of the past sickleave record really shows is that Management was ready to seize on anyexcuse for getting rid of J. Paragraph (111)(b) was not intended to operate as,and must not be permitted to become, a substitute for disciplinary action.

Even if it were to be concluded that J. was no longer disabled and on sick leavein the period following May 13, he certainly did not know that his leave ofabsence had expired and he thus had good grounds for believing that he wasnot obligated to be at work. This adds up to being absent for a "satisfactoryreason", as given in Paragraph (111)(b).

For the reasons to be given below, the Umpire has concluded that the grievant wasmalingering rather than still disabled at the time in question and that his termination underParagraph (111)(b) is therefore to be sustained. It is necessary first to deal with anevidentiary matter as to which a dispute of considerable proportions developed at thehearing.

The dispute is concerned with whether or not, in determining a question of an employee’s"period of continuing disability", evidentiary weight should be given to: 1) findings orstatements by a Metropolitan physician and the action taken by Metropolitan with respectto the payment or non-payment of disability benefits; 2) such findings or statements madeby the employee’s own physician as appear on the insurance-claim forms.

The Company objected to the Union’s attempted use of the fact that Metropolitanauthorized and paid disability benefits to J. from May 8 to June 14 on the grounds that: theassessment of Metropolitan’s criteria and the correctness or incorrectness of the actions towhich they lead are beyond the jurisdiction of Umpire determination, that the plant’sapproval or disapproval of sick leave is made independently of Metropolitan, and that theplant’s approval of J.’s disability benefits did not extend beyond May 8. The Company alsoobjected to the Union’s reliance on the statements of Dr. S. to the extent that they appearon the insurance-claim forms. It argued that the Union was proceeding in utterinconsistency with the stand it took in a prior case (which resulted in Umpire Decision J-91). There, the tables were turned and the Union strongly objected to the Company’s effort



to make use of the statements, appearing on the insurance-claim forms, by the physicianof the particular employee.

The Union countered by pointing out that it was the Company, in one of the lower steps ofthe grievance procedure, which put into the record the report of Metropolitan’s medicalexaminer. The Union does say that this was improper and it asks that the report bedisregarded. It also argues, however, that, once anything relating to Metropolitan’s actionwas put into the record by the Company, the Union can properly rely both on the approvalby Metropolitan for the payment of disability benefits to J. through June 14 and on Dr. S.’sstatements contained in the insurance-claim forms.

The controversy is rooted in certain assurances sought by the Union and given by theCompany in the 1961 negotiations. As they were in the case leading to Decision J-91, theparties are in dispute as to what was and was not intended to be covered by theassurances. It would manifestly be better if the parties, rather than the Umpire, made adetermination of a dispute of this sort. This is especially true here, as testimony from thosewho participated in the discussions leading to the assurances is lacking. Nevertheless, theUmpire cannot escape confronting the matter, and, based on what can be gathered fromthe parties’ arguments and documentary submissions, he makes the following findings.

The first one seems necessarily called for. It is that any action by Metropolitan or its agentswith respect to disability benefits is precluded from consideration when it comes todetermining a sick-leave question under Paragraph (106). Unless the Umpire has badlymisunderstood things, the Union’s very underlying concern was that a physician workingfor Metropolitan—one who represented its interests and who, so to speak, was in itscorner—should not be permitted to be of influence, let alone have a decisive role, indetermining the employee’s rights under Paragraph (106). Sought was protection againstadverse determinations wrought by clashing interests. And, in addition to what seemsclearly indicated as a matter of underlying purpose, there is the language of paragraph (c)of the assurances. The Umpire reads it as explicitly proscribing the use of the report of aMetropolitan medical examiner for any purpose other than the evaluation of a claim forsickness and accident benefits.

Obviously, if the report of a Metropolitan medical examiner is to be excluded fromconsideration for the purpose of sick-leave determinations, so must the disposition byMetropolitan—the payment or non-payment of benefits—which is based on the report.Else, one would allow to come in indirectly what is prohibited from coming in directly. Andobviously also -- unless it were shown, which it has not, that the assurances were meant tobe applied to the one-sided advantage of the Union—the exclusion must be taken to cutboth ways. It is to be respected, in other words, whether it helps or hinders either party’sclaim in any particular (106) case.

Based on this first finding, the Umpire is here striking from consideration the report of theMetropolitan medical examiner and the payment of the disability benefits to J. from May 8to June 14. It may be added that the present case rather powerfully illustrates thesoundness of the assurances’ exclusion policy. Despite the report of Metropolitan’smedical examiner—he found that J.’s complaints could not be objectively substantiatedand that J. "should be able to do any type of work exclusive of heavy object lifting over 50pounds" (not involved in J.’s job) --



Metropolitan chose to pay J. disability benefits for the time preceding the examination(which was conducted on June 14). It is at least possible that Metropolitan made the lump-sum, retroactive payment as a matter of its preference to settle rather than face thepotential expense of litigation. And this is merely another way of saying that Metropolitan’sdisposition could well have been based on the kind of economic considerations which cancut both ways and which the Union fundamentally sought to have removed for the sake ofprotecting the employees’ rights under Paragraph (106).

On the second question—concerning the use of statements which are made by theemployees’ own physician and which are contained on the insurance-claim forms—theUmpire finds that such statements are admissible and properly considered in connectionwith (106) determinations. In the first place, the Umpire sees no language in theassurances which either explicitly or impliedly directs itself to such statements. And thebare assertion in the Union’s October 30, 1962 letter to the effect that such statementswere intended to be within the coverage of the assurances -- there is certainly nothing inDecision J-91 which can be taken as upholding the contention—seems to the Umpire aninsufficient basis for going beyond what the assurances, by their own terms, provide for. Inthe second place, it is confirmed by both parties that such statements have long beenaccepted and applied for the purpose of "satisfactory evidence" under Paragraph (106) (atleast insofar as this plant and the plant involved in J-91 are concerned). To accept andapply them also for the purpose of the "period of continuing disability" under the sameParagraph seems nothing more than a natural extension—nothing more than merelycontinuing the avoidance of needless duplication on which the "satisfactory evidence"practice is based. Indeed, if the "satisfactory evidence" practice is to be retained, theUmpire does not see where one would draw the line beyond which the physician’sstatements (on the insurance claim forms) could no longer be relied upon. And in the thirdplace, the above-discussed clash of interests can obviously not be said to be present whenit comes to the employee’s own physician. To the contrary, if anything, it is in theemployee’s corner that his own physician would be found. Moreover, an employee is notstuck with any particular physician and instead can shop around to whatever extent heconsiders to be in his own best interests. (J.’s use of some twelve or thirteen physicians inconnection with his various sick leaves is extreme, but it makes the point.)

Granted that Metropolitan’s action and the statements of the employee’s physician appearon one and the same form and that considerable difficulty is therefore presented in lookingat the one without looking at the other. But to see and yet to disregard is simply not aninsuperable task. For all the reasons given, the Umpire finds against the exclusion of thephysician’s statements.

To turn, then, to the termination itself.

It seems to the Umpire that there can be no question that the Company, at the point whereit terminated J., had the strongest prima facie grounds for concluding that J.’s sick leavehad ended and that the "considered as having voluntarily quit" language was thereforeoperative. It had before it all of the following: that J. had sustained no broken bones andthat Dr. S.’s assessment that "10 days disability should be maximum for this type of injury",as he subsequently put it, seemed correct on its face; that, by the local parties’ long andunderstood practice, a sick leave of "unknown" duration is a sick leave for one month andis renewable at the end of it; that J.’s failure to file a supplementary form on or about May 8



was the equivalent of not renewing it; and that, upon inquiry with Dr. S. in late May,Management received the report which, to re-quote part of it, said: "Patient ignores factthat I tell him he is able to work: I cannot force him to return... since he is not coming fortreatment I assume he is OK." When these things are taken together, it is difficult toconceive of stronger evidence yielding the expiration of an employee’s sick leave and hisfailure to come back to work upon it. *

The Umpire went to considerable length (see p. 5) in describing the form letter whichcontains Dr. S.’s late-May statement. He did so in order to show how one of the Union’scontentions in this case cannot possibly be accepted. The contention is that the letter,among other things, states that "Employee has not been approved for return to work". Asexplained, however, this sentence is one of the pre-typed ones. The Umpire rejects theUnion’s contention as clearly wide of the mark.

In the opinion of the Umpire, the Company’s prima facie case has not been overcome bywhat the Union has presented.

There are, on the one hand, the various other statements by Dr. S. Granted that they canbe taken as showing Dr. S. to be going off in different directions. But there is at least someambiguity on the question of whether, as to the post-June 15 visits, J. was treated becauseof the series of alleged accidents (or instead merely visited Dr. S. while asserting thevarious accidents); what the Union seeks to make of Dr. S.’s statements of June 8, 1968and September 8, 1968 is substantially squashed by Dr. S.’s letter of September 29, 1969;whatever statement by Dr. S. is taken, there is a 5-week gap between J.’s visit of April 8and May 13; and, above all, the one truly positive and unequivocal statement by Dr. S. isthe one he gave in late May (1968). It has not been retracted and it is obviously of the mostdamaging effect on the grievant’s case.

The grievant’s own testimony was among the least persuasive testimonies which theUmpire has ever encountered. To the Umpire, the grievant was someone who simply couldnot be believed. His testimony was at once marked by the extra-fast answer of the veteranfabricator and by a too long-suffering demeanor. There is the objective indicator that, inseeking employment with another company following his termination, J. falsified hisemployment application. There are the series of alleged accidents starting with June 15 --considering their conveniently overlapping nature and the types of accidents which arealleged, there is simply too much to accept by normal human experience and reasonablestandards of credulity. There is J.’s allegation that, between April 8 and May 13, hestopped in at Dr. S.’s office on several occasions for heat treatments, seeing the nurse andnot Dr. S. himself—no substantiating records were supplied, J.’s assertions wereunaccompanied by meaningful detail, and the only realistic reading of the assertions is thatJ. was seeking to "cover" the 5-week gap in his visits to Dr. S.’s office. And there is, finally,what to the Umpire became the true climax of J.’s fabrications. In connection with the crossexamination of the Company’s insurance-office representative, the Union asked why theusual custom of sending the monthly supplementary form to an employee on sick leave ofunknown duration had not been followed with respect to J. The asking of the question leftno doubt in the Umpire’s mind that the Union was under the impression—presumablybecause of what it had been told by J.—that the supplementary form had not been senthim. Yet, the answer of the insurance-office representative, backed by a record-entrywhich substantiated it, was that the form had been sent to J. J. was subsequently recalled,



but his lame statement that he had "lost" the form was utterly unconvincing. Putting it alltogether, the Umpire believes that J. stands as a badly discredited witness.

The Union’s remaining arguments cannot be sustained. Given the above conclusions andgiven J.’s truly extensive experience with sick leaves, it would be wholly unrealistic andwrong to hold that J. thought he was free not to come back to work and therefore waswithin the meaning of the "unless he has a satisfactory reason" phrase. And as to the"secretively and vengeful" arguments, the answers must be these: 1) the fact that thesupplementary form was sent shows that J., rather than having been treateddiscriminatorily, was treated completely in accordance with what the renewal practice callsfor—it was not Management which, deliberately or otherwise, failed to send him the leave-extension form, it was he who failed to have it filled out and return it to the plant; 2) the"written notification" proviso of Paragraph (111)(b) applies to a series of enumerated leave-of-absence Paragraphs of which Paragraph (106) is not one.

The Umpire, then, sustains the Company’s position that J.’s "period of continuing disability"had ended on May 13, 1968, and that, on May 17, 1968, J. was properly terminated as anemployee who "shall be considered as having voluntarily quit".

DECISION

The grievance is denied.

/S/Rolf Valtin

Umpire

November 16, 1969





No. M-47

FEBRUARY 26, 1970

Discharge:

Possession of Loaded Pistol

GRIEVANCE:

FISHER BODY DIVISION, GENERAL MOTORS CORPORATION, MARION PLANT,MARION,

INDIANA—APPEAL CASE M-114

"Chg Mgt. W/unjustly discharging emp.________(W.) on 1/27/69 for alleged vio of ShopRule #12. Demand Mgt. reinstate emp. at once, clear record of penalty and pay emp. for alltime lost & any other benefit lost due to the discharge." S/L.E.W.


The grievance is denied. (Entire Decision should be read.)

In the Matter of:


and

General Motors Corporation, Fisher Body Division, Marion, Indiana -- Appeal Case M-114


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\m-047_13A60110.htm

OPINION

Grievant W. was hired by the Company in early 1960. He last worked as a second-shiftPress Operator-All. With one slight exception, he has a clean prior disciplinary record. Hewas discharged for violating the prohibition laid down in Shop Rule 12: "Possession ofweapons on Company premises at any time."

The essential facts are these:

At about 2:15 PM on Thursday, January 23, 1969, Management received a phone call fromthe Marion City Police Department. The police reported that it had received a tip that W.,supposedly because of differences with another employee (J.S.), would be armed incoming to work.

Management decided that W. should be stopped at the plant entrance—Plant Gate No. 1.It got in touch with the police; the police agreed to the plan; and two officers from the police(the Assistant Chief and a Captain) came to the plant shortly before 3 PM. Also dispatchedto Plant Gate No. 1, to identify W., was Shift Superintendent M.W.

Grievant W. arrived at about 3:15 PM. As he came through the gate, he was stopped byShift Superintendent M.W. and asked to step into the Plant Protection Office. There, thetwo police officers asked him whether he was carrying a gun. W. denied it, and the policeofficers thereupon searched him. The search revealed a .25 caliber Hawes automaticpistol. Though there was no round in the chamber, the pistol clip contained liveammunition.

Confirmed, conceded or in the status of something to be assumed for the purpose ofdeciding the case are the following: 1) W. was on his way to and, had he not beenapprehended at the gate, would have gone to his work area (about a quarter of a mile fromthe gate); 2) there had been bad blood between W. and the other employee; 3) it was forthe purpose of self-protection that W. was carrying the pistol; 4) it takes but a split secondto retract the chamber and thus to feed a bullet into it.

The Union makes clear that it does not condone the possession of weapons at the plant,but takes the position that the discharge penalty is excessive. Its arguments are: 1) that theShop Rule designates a penalty range of a 2-week DLO to discharge and that, given thegrievant’s nine years of service and practically spotless disciplinary record, the outer limitof the range should not be applied; 2) that the imposition of the discharge penalty isinconsistent with certain prior instances at this plant involving the possession of guns; and3) that employees are entitled to be in the know of the consequence of one transgressionor another, and that the grievant here—for lack of either general knowledge or policyannouncement by Management—did not know that discharge would follow from hispossession of the gun.

The Umpire sees no proper choice but to sustain the discharge. As shown, the facts hereare that the pistol was loaded, that the grievant did not intend to leave it with the guard atthe gate, and that he had the purpose of using it—the contention that it would have been amatter of self-protection merely serves to confirm, rather than alter, this conclusion. Thegrievant thus committed the most extreme form of a Shop Rule 12 violation. That he knew



as much is indicated by the fact that he initially denied possession of the pistol and initiallyasserted that he had not come to the plant to go to work. It cannot be held, the Umpirebelieves, that the discharge was improper for lack of awareness by the grievant as to theconsequence of his act.

Even in the absence of evidence indicating the presence of a feud between two employeesand the intention by one of them to fire his pistol, it seems to the Umpire that possession ofa loaded pistol at the plant must itself be regarded as a capital offense—as an offense soserious that length of service and a clean disciplinary record cannot be given their normalweight. For, obviously, the possession of the loaded pistol spells the ever-present dangerthat the pistol will be used. Consider, as an illustration, what happened in the case coveredby Decision M-30. To regard the possession of a loaded pistol at work as less than acapital offense, in other words, would be to tamper with the Company’s clear obligation toprotect the safety of its employees and supervisors.

The Umpire sees no merit in the Union’s reliance on the prior instances at this plantinvolving the possession of a gun. All but one of them were a matter of leaving or seekingto leave (it was declined in one of the instances) an unloaded gun at the guardhouse.Clearly, these were not violations of the Shop Rule in anything other than the strictsemantical sense. And as to the one instance which did involve possession of a loadedpistol (beyond the guardhouse and in the employee’s work area), the employee wasdischarged. The Union’s effort to distinguish this instance on the grounds that theemployee, unlike the grievant in the present case, was also in possession of alcohol andcaused a struggle before the pistol was taken away from him is rejected as utterlyunconvincing.

DECISION


February 26, 1970

/S/Rolf Valtin

Umpire





No. M-51

MARCH 19, 1970

Paragraph 63 (a) of National Agreement:

Local Practice and Local Agreement;

Evidence

GRIEVANCE

CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION, ST. LOUISASSEMBLY PLANT, ST. LOUIS, MISSOURI—APPEAL CASE M-2009

"I charge management with violation of paragraph #63A of the National Agreement &demand to be given the higher paying job in line with my seniority. Also be paid back paypast due to this violation." S/C.D.

UMPIRE’S DECISION


In the Matter of:

United Automobile Aerospace and Agricultural Implement Workers of America, LocalUnion No. 25

and

General Motors Corporation, Chevrolet Assembly Division, St. Louis, Mo. -- Appeal CaseM-2009


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\m-051_13A60CD3.htm

OPINION

This case is concerned with the filling of a promotional vacancy in Department 35. Both thegrievant and employee G. are members of this department. The grievant’s service datesfrom October, 1935; G.’s service dates from April, 1953. At the time in question, G. was athird-shift employee and the grievant was a first-shift employee.

The vacancy was in the third-shift job of "Utility-man-Driver-Licensed Truck and PassengerCar-Out". It is higher-rated than either of the jobs respectively held at the time by G. andthe grievant. G. was selected to fill the vacancy, and he began filling it on November 4,1968. The grievant is here claiming that he was entitled to fill the vacancy in preference toG.

The opening portion of Paragraph (63)(a) of the National Agreement reads as follows: "Inthe advancement of employees to higher paid jobs when ability, merit and capacity areequal, employees with the longest seniority will be given preference."

As already given, the grievant is of longer service than G. Also, it is conceded that thegrievant’s qualifications were such as to have satisfied the phrase "when ability, merit andcapacity are equal". The Umpire nevertheless believes that the grievant’s claim must bedenied.

The case is concerned with the so-called scope of selection and reduces itself to threepoints. First, it has long been true under the parties’ collective-bargaining relationship thatthe scope of selection—the group of employees from among whom a selection is to bemade in filling a promotional vacancy—is establishable by practice or agreement. By longpractice at this plant, the scope of selection within a department (or a unit consisting ofmore than one department) was confined to the shift on which a vacancy might arise. Tothis extent, thus, the grievant was not eligible to fill the vacancy here in question—he was afirst-shift employee and the vacancy was a third-shift vacancy.

Second, the within-shift scope of selection was expanded in the 1967 local negotiations.The expansion agreement reads as follows:

"For the purpose of applying Paragraph 63(a) of the NationalAgreement, the following shall apply:

"Employees in Departments 7 & 8(Passenger Assembly Line), Departments 1& 3 (Truck Assembly Line), Departments 51& 53 (Corvette Assembly Line), Departments27 & 28 (Material), Department 26(Inspection), Department 55 (CorvetteInspection), Department 2 (Paint),Department 51 (Corvette Paint), Department25 (Final Process), Department 32 (LoadingDock), and Departments 35 & 39 (Porters),will be permitted to make written applicationfor higher rated jobs within the established



scope of selection on the opposite shift."

Thus, since the time of the adoption of the agreement, employees on one shift have beenin a position to make themselves eligible for consideration for filling a promotional vacancyon another shift. Two things, however— despite some contentions to the contrary voiced atthe hearing—are unquestionably true; 1) by the express terms of the agreement, the cross-shift application must be in writing; 2) the application must be on file in advance of the timethat a particular promotional vacancy is filled. On this latter score, the point is simply that itis for the purpose of vacancy filling that the cross-shift application is filled and that, if theapplication were implemented either retrospectively or simultaneously with its filing—irrespective of whether or not a promotional vacancy were in existence—the filing of across-shift application would serve to displace an occupant of one job or another. Thedifference between a vacancy-filling event and a displacement event requires noelaboration. One would clearly be going beyond the bounds of what the scope-of-selectionarrangement is intended to accomplish were one to sanction such retrospective orsimultaneous implementation of a cross-shift application.

Third, on the factual dispute as to the date on which the grievant’s cross-shift applicationwas filed, the Umpire believes he must hold that it was filed on November 5 (1968) -- thedate which was in fact filled-in on the application form. The evidence, in the Umpire’sopinion, fails to substantiate the Union’s contention to the effect either that it was beforeNovember 5 that the application was filed or that, if not filed until that date, there was a 2 or3-day delay attributable to administrative fault on the part of Management. The fact thatthese contentions were not introduced until the Third Step of the grievance procedurewould seem to support the Umpire’s conclusion. And the meaning of the conclusion is thatthe grievant’s cross-shift application was filed after the vacancy was filled—as shown, thevacancy was filled on November 4.

The Union has additionally sought support for the grievant’s claim by pointing to the factthat it was not until late on November 4 that G. began to occupy the job and that the shifton which he began to occupy it extended into November 5. But the answer must be thatthe job had been filled by the time the grievant’s cross-shift application was received.Given the grievant’s long service, one can be sympathetic about the proximity of thevacancy-filling day and the application-filing day. The grievant indeed "missed it by a hair";but he did miss it, and this must be made controlling.

DECISION


March 19, 1970

/S/Rolf Valtin

Umpire




No. M-59

May 15, 1970

Discharge:

Threatening Patrolman;

Evidence;

Extent of Penalty

GRIEVANCE:

CADILLAC MOTOR CAR DIVISION, GENERAL MOTORS CORPORATION, DETROITPLANT,

DETROIT, MICHIGAN—APPEAL CASE M-53

Grievance 756652.

"I Charge Manaj With Unjust Discharge. Request I be reinstated and I be paid All lost timeinvolved." S/B.J.S.


The grievance is denied. (Entire decision should be read)

In the Matter of:


and



General Motors Corporation, Cadillac Motor Car Division, Detroit, Michigan -- Appeal CaseM-53

OPINION

Grievant S. was hired by the Company in late 1955. At the time of his discharge - June 3,1968 - he was a Plant 4, midnight-shift Press Operator. His prior disciplinary record iscomposed of two entries (Shop Rule 27 - Restricting Output, and Shop Rule 13 - Refusalto Obey Orders of Supervision). He was discharged for violating the prohibition laid downin Shop Rule 20: "Threatening, intimidating, coercing or interfering with employees orsupervision at any time."

The first issue in the case is one of credibility. On the evidence presented, the Umpire isleft with no reasonable doubt that the grievant committed that with which he is charged.The following is the essence of what happened.

Friday, May 31, 1968, was pay day. S. had been absent from his scheduled shift (ending at8 AM). He drove to the plant in the afternoon to obtain his pay check.

S. parked his car at the apron near Plant Security Post No. 6. At the Post itself, heidentified himself to Patrolman M. and told the latter that he wanted his pay check. Bytelephone, M. ascertained that a particular Clerk had the check and would deliver it to thePost in about five minutes. M. transmitted the information to S.

Two or three minutes later, and before the Clerk had arrived, S. told M. that he would notwait and would go into the plant to get his check. M. made it clear that he would not permitit and positioned himself on the sidewalk in such a way as to block S.’s entrance into theplant.

S. made one unsuccessful effort to go around M., and, while bending sideways, M.’sshoulder came in contact with S. He (S.) then stepped backward, pulled a knife from hispocket, opened it, held it in "palmed" fashion, and made two threatening remarks at M.Shortly thereafter, as M. stood his ground, S. closed the knife and returned it to his pocket.He then made two or three degrading remarks at M., to the effect that M. would be afraid tofight him.

S. then asked for his Committeeman; M. said he was not authorized to call aCommitteeman; and the incident came to a close as employees, at shift-ending time, wereleaving the plant via the Post.

According to the grievant, the object which he pulled out of his pocket was a key. Theimprobability of it is nearly self-apparent, and the Umpire otherwise found the grievant’stestimony wholly unconvincing. He rejects the "key" as well as other parts of the grievant’sversion.

On the above facts, the Umpire does not believe that he can properly modify the dischargepenalty. He has considered both the facts that the grievant had about 12 ½ years of



service and that he apparently was somewhat intoxicated when he came to the plant onthe day in question. But the pulling of a knife is the mark of a bully, and it obviouslyconstitutes an extreme form of a Shop Rule 20 violation. It is, in other words, so serious anoffense that the most extraordinary extenuating circumstances are needed to overturn thedischarge penalty. In the opinion of the Umpire, the two factors here presented do notsuffice to reach such level of extenuating circumstances.

DECISION


May 15, 1970

/S/Rolf Valtin

Umpire




UMPIRE DECISION

No. M-62

May 27, 1970

Paragraphs (103) and (111) (b) of National Agreement;

Termination of Employee

GRIEVANCE:

CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION, BAY CITYPLANT, BAY CITY, MICHIGAN—APPEAL CASE M-173

Grievance 806656

"I charge management with unjustly discharging me as management did not live up to theprovisions of Par. #111 of the N.A. I demand immediate reinstatement with all back payand any benefits due me." S/W.F.S. (grievant) W.L., Jr. (Committeeman)



In the Matter of:


and

General Motors Corporation, Chevrolet Motor Division, Bay City, Michigan -- Appeal CaseM-173


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OPINION

Grievant S. was hired by the Company in late 1958. At the time of his termination, he wasa Die Cast Operator in Department 51. Having been granted a leave of absence underParagraph (103), he was terminated as an "employee who fails to report for work withinthree working days after the date of expiration of the leave", as given in Paragraph (111)(b). The latter paragraph will be quoted below. Paragraph (103), titled "Informal Leaves ofAbsence", reads as follows:

"A leave of absence may be granted for personal reasons for aperiod not to exceed thirty days, upon application of the employee toand approval by his foreman. Such leaves of absence shall not berenewed and seniority will accumulate during the leave."

The following is the factual framework:

Pursuant to his request, S. was granted a personal-reasons leave beginning April 30, 1969and ending May 11, 1969. He was told that the leave was being granted under Paragraph(103) and, additionally, was sent a letter which closed with: "Such leaves of absence arenot renewable; therefore, you will be expected to report to your respective job on May 12,1969."

S. did not show up for work on any of the three days commencing with May 12, 1969.However, Management received two phone calls—one on the 12th, the other on the 14th.On the 12th, the caller identified himself as S., stated that he was absent for "personalreasons", and said that he expected to be at work on the following day. On the 14th, thecaller identified herself as S.’s wife, stated that S. was "sick", and said that S. would comeback to work "when able".

The Company neither accepted the phone calls as meeting the "report for work"requirement nor believed that the explanations advanced in the phone calls constituted "asatisfactory reason"—both of which phrases, as will be seen, appear in Paragraph (111)(b). Following the end of the grievant’s scheduled shift (3 PM) on the 14th, Managementprepared a termination letter; and the grievant was thus terminated on the 15th. The Union,on the other hand, is no longer contending (as it did at one or another stage of thegrievance procedure) either that Management acted prematurely in preparing thetermination letter or that the grievant had a "satisfactory reason" for failing to show up forwork.

Paragraph (111) (b) reads as follows:

"Any employee who fails to report for work within three working daysafter the date of expiration of the leave, shall be considered ashaving voluntarily quit unless he has a satisfactory reason; provided,however, that in the case of failure to report for work within threeworking days after the expiration of leaves of absence grantedunder Paragraphs 104, 105, 109, 109a, 110, 110a and 113.Management will send written notification to the employee’s last



known address as shown on the Company records, that his seniorityhas been broken and that it can be reinstated, if, within threespecified working days thereafter, he reports for work or properlynotifies Management of his absence. A copy of such Managementnotification will be furnished promptly to the Chairman of the ShopCommittee. If the employee complies with the conditions set forth inthe notification, his seniority will be reinstated if it has not otherwisebeen broken; however, such reinstatement shall not be construedas limiting the application to his case of the Shop Rule regardingabsence without reasonable cause."

As shown, it is a conceded fact that the grievant (without "satisfactory reason" for hisabsence) did not show up for work on any of the three working days following theexpiration of his leave. What the Union is contending, on the grounds to be developedbelow, is that the telephone calls sufficed to put the grievant in the status of someone whodid "report for work". Therein lies the sole issue here to be determined: whether totelephone the plant with the message of an intention to return to work— of an intention tomaintain the employer-employee relationship—is "to report for work" within the meaning ofParagraph (111) (b).

Initially to be noted is that the Union is not saying that, insofar as Paragraph (111) (b) itselfis concerned, the words "to report for work" have been construed as it is here urging byany prior GM-UAW decision. Nor, for that matter, does the Umpire believe that thedecisions cited by the Company squarely support its position in this case—namely, that "toreport for work" under Paragraph (111) (b) requires the employee’s physical presence atwork.

To understand the Union’s position, it is necessary to quote Paragraph (64) (d) of theNational Agreement. Paragraph (64) commences with "Seniority shall be broken for thefollowing reasons:", and subparagraph (d) reads as follows:

"If the employee fails to return to work within three working daysafter being notified to report for work, and does not give asatisfactory reason. A copy of Management’s notification of suchloss of seniority will be furnished promptly to the Chairman of theShop Committee."

Thus, the very same phrase—"to report for work"—appears in (64) (d). Invoking the same-language-same-meaning principle, the Union is relying on three prior Umpire decisionsinvolving (64) (d) -- E-241 (Wallen), F-8 (Alexander), and L-80 (Brodie). The Unionsubmits: 1) that these decisions stand for the proposition that "to report for work" under(64) (d) is satisfied by a telephone call to the plant; and 2) that it must follow that the sameconstruction properly applies under Paragraph (111) (b).

Moreover, the Union argues, the construction is not at variance with the underlyingpurpose of Paragraph (111) (b). That purpose is to avert the burden which Managementwould be under if it did not know whether an employee, upon expiration of his leave,intended to remain in the Company’s employ. Silence from the employee would createsuch a burden. And, while the employee’s actual showing-up for work obviously reveals his



intention to remain in the Company’s employ a telephone call giving the word that theemployee will be coming back to work also achieves the central purpose of keepingManagement in the know respecting the maintenance of the employment relationship.Here, on the very first day following the expiration of his leave, the grievant letmanagement know that he intended to come back to work. The phone call should havebeen accepted as meeting the "to report for work" requirement, and the grievant’stermination should therefore be set aside.

On essentially two grounds, the Umpire is in disagreement with the Union. The first is thatthe three prior decisions, as the Umpire reads them, do not interpret Paragraph (64) (d) inthe clear-cut way which the Union is claiming. The second is that, even granting somesupport for the Union’s position by virtue of the three prior decisions, there is a significantdifference between Paragraph (64) (d) and Paragraph (111) (b) -- both in what they directthemselves to and in their language. The Umpire does not believe that, by proper readingof Paragraph (111) (b) in its entirety, he can accompany the Union in the construction it isseeking for "to report for work".

To proceed, first, to a discussion of the three prior decisions. As to Decision E-241, it istrue that a phone call served to preserve an employee’s seniority. The factualcircumstances, however, were highly unusual. The case involved an employee who hadbeen laid off and who became aware of the fact that he had been recalled in the very nickof time -- 18 minutes before the elapsing of the critical "three working days" period. If hewas to preserve his seniority, it was by phone alone that he could have done so. Moreover,the issue of whether or not a phone call satisfies the requirement of Paragraph (64) (d)was not squarely raised, and was neither briefed nor argued by the parties. Rather, asUmpire Wallen put it:

"This case poses two questions: (1) When is an employee ‘notified’to report for work? (2) What constitutes ‘three working days’ withinthe meaning of Paragraph 64 (d)? These questions comprise theissues in the case."

It was in this context—i.e., upon deciding these two questions in the Union’s favor and thusconcluding that the "three working days" period had not yet ended—that Umpire Wallenapplied the phone call as preserving the employee’s seniority. And, to repeat, he did so ina situation where but 18 minutes were left to preserve the seniority.

In the case leading to Decision F-8, the grievant (a female) had gone to Florida (fromIndiana) under the guise of illness; Management, apparently on the basis of a "tip"concerning the true nature of the grievant’s absence, sent her a (64) (d) notice; during theperiod which the Umpire found to be the "three working days" period, the grievant made nocontact of any kind with the plant; and the grievance protesting her termination was denied.Hence, in terms of both the absence of any phone call within the "three working days"period and of what was in fact decided in F-8, there is nothing for the Union here to bankon.

It is true, however, that the grievant telephoned the plant on the day which, by the Umpire’sfinding as to when she had been "notified to report for work", was the day after theelapsing of the "three-working days" period. And it is also true that the Umpire—and this is



what the Union is here relying on—noted that "Management does not contend that suchreport (the telephone call) was defective". The fact is, however, that the issue of thestanding of a telephone call in lieu of showing up for work was rendered moot by theUmpire’s finding as to when the "three working days" period had begun and ended. It wasmerely in passing that the Umpire made the statement. And the further fact is—the presentUmpire has studied the entire record in the case—that the question of whether a telephonecall is "good" under Paragraph (64) (d) was simply not gone into and that the Companynowhere went on record as conceding that it considered such a call to be "good".Accordingly, rather than accept the statement which the Union is relying on as connotingan affirmative conclusion on the question, the Umpire believes that it cannot be acceptedfor anything more than it in fact says: "Management does not contend that such report wasdefective".

The facts in the case leading to Decision L-80 were these: having been on layoff, thegrievant was notified on August 10 (1966) to come back to work on August 15; rather thancome back to work, the grievant stopped by at the plant to explain why he would not be atwork on any of the "three working days"; Management refused to accept the explanation,and the grievant was thus terminated.

It is obviously true that, on these facts, a significant holding might have emerged on thequestion of whether anything short of actually coming to work is "good" under Paragraph(64) (d). But, on the one hand, the case did not involve a phone call; and, on the otherhand, such a holding did not emerge. It is true that Umpire Brodie sustained the grievanceand that, in doing so, he referred to Decisions E-241 and F-8 and relied in part on the factthat the grievant had come to the plant and let Management know of his intention toresume his employment relationship. But the holding appears primarily to be based on thenature of the return-to-work notice which the grievant had received. Umpire Brodie found,in effect, that the notice was so written as to constitute more an invitation to tea than thesort of unequivocal return-to-work mandate which he considered necessary to make thetermination consequence operative. Moreover, it is arguable that the grievant, in coming tothe plant and telling Management that he could not go to work within the "three workingdays" period, had complied with the notice. For, the last sentence of it read: "If for somereason you will not return on the above date, please notify the Personnel Department."

So much for the three prior decisions. Obviously, the discussion is without intention tointerpret Paragraph (64) (d) or to go so far as to say that a phone call under it is not"good". What the Umpire is saying, to restate what he said above, is that the three priordecisions amount to something less than the ironclad support which the Union is urging.

The Umpire next turns to the differences between Paragraph (64) (d) and Paragraph (111)(b). One difference is that Paragraph (64) (d) does not contain the language, found inParagraph (111) (b), "if... he reports for work or properly notifies Management of hisabsence". This difference will be dealt with below.

The other difference concerns the fact that Paragraph (64) (d) and Paragraph (111) (b) arenot directed to the same type of absence. At least for the most part—it was true of two ofthe three prior decisions, and F-8 involved the unusual situation of an employee slipping-away—Paragraph (64) (d) is directed to layoffs. Hence the language "to return to workwithin three working days after being notified to report for work". Though not without



exception, layoffs are by their nature of indefinite duration -- i.e., they do not have a knownterminal point—and an employee thus has no advance knowledge of when he will becoming back to work. He thus may be "notified" quite unexpectedly; and it is thisunexpectancy that can engender the sort of problems which were presented in E-241 andL-80.

Paragraph (111) (b), on the other hand, is directed to leaves of absence. Its requirement,rather than put in terms of notification to the employee, is that the employee "report forwork within three working days after the date of expiration of the leave". And though it isnot true of all leaves of absence, it is certainly true of a Paragraph (103) leave that it is ofdefinite and known terminal point and that there thus simply cannot be the uncertainty forcoming back to work involved in E-241 and L-80.

What the Umpire is saying in pointing up these matters is that Paragraph (64) (d) andParagraph (111) (b) play different Agreement roles. He is not prepared, accordingly, toequate the two Paragraphs in the fashion which the Union is urging.

To turn, finally, to Paragraph (111) (b) itself. For the following reasons, the Umpire rejectsthe meaning which the Union is seeking to give to "to report for work".

First, in the absence of compelling considerations, Agreement words are to be given theirordinary, everyday-usage meaning. By that standard, "to report for work" plainly means toshow up in readiness to go to work. To report for work is simply not the equivalent ofreporting off—and, in the end, the Union is urging that the phrase be given both meanings.

Second, the requirement to report for work or suffer the voluntarily-quit consequence is notwithout an "out". The "out" lies in "unless he has a satisfactory reason". Given its presence,the Umpire sees no good reason in equity to fail to adhere to the plain meaning of the "toreport for work" phrase.

Third, there is the already-mentioned language in the latter part of Paragraph (111) (b).With respect to certain types of leaves of absence (and the fact that a Paragraph (103)leave is not among them is clearly without bearing on the present discussion),Management is obligated to "send written notification to the employee’s last knownaddress as shown on the Company’s records, that his seniority has been broken and that itcan be reinstated, if, within three specified working days thereafter, he reports for work orproperly notifies Management of his absence". Emphasis supplied.) There is no way toread this underscored portion except that "properly notifies Management of his absence" isan alternative to "reports for work". Yet, by the construction which the Union is seeking,"reports for work" would be the same thing as "properly notifies Management of hisabsence". The stated alternative would be no alternative at all and, instead, would berendered useless surplusage. Thus, it is not merely that the Union is bucking the naturalmeaning of "report for work"; it is also that the Union is in effect asking that one shouldaccept that, with respect to the latter part of Paragraph (111) (b), the parties set out to saythe same thing twice.

To come back, in conclusion, to the present case itself. The grievant had a Paragraph(103) leave; the leave was non-renewable—by the terms both of Paragraph (103) and theletter which was sent him; the grievant did not show up for work on any of the three



working days following the expiration of the leave and he did not have—so it mustobviously be assumed by the Union’s withdrawal of its earlier contention in this regard -- a"satisfactory reason" for failing to show up for work; the excuses advanced in the phonecalls must thus be rejected as worthless ("personal reasons"), on the one hand, and asfalse ("sick"), on the other; and, for the reasons given, the phone calls cannot be acceptedas meeting the "to report for work" requirement.

In the opinion of the Umpire, it is the specific "to report for work" terms of Paragraph (111)(b) which matter. Rather than accept the underlying-purpose argument which the Unionhas here made, the Umpire believes that the case is correctly viewed as involving anemployee who lost the benefits of the National Agreement because he failed to live up tohis obligations under it.

DECISION


/S/Rolf Valtin

Umpire

May 27, 1970





No. M-66

June 24, 1970

Discharge:

Absence Without Reasonable Cause;

Extent of Penalty

GRIEVANCE:

GENERAL MOTORS ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION,TARRYTOWN PLANT, TARRYTOWN, NEW YORK—APPEAL CASE M-62

Grievance 292951

"I charge Management with unjustly discharging me and demand that I be reinstated withfull benefits and pay and that all lost moneys be paid me. Also all credits and my record becleared." S/B.C.F.


For the reasons given in the accompanying Opinion:

1. The grievant’s absence on the days in question was without"reasonable cause" and a violation of Shop Rule 6.

2. The grievant is to be reinstated without back pay. The time lostshall be applied as a DLO. (Entire decision should be read.)

In the Matter of:

United Automobile, Aerospace and Agricultural Implement Workers of America Local


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Union No. 664

and

General Motors Corporation, GMAD Tarrytown, New York -- Appeal Case M-62

OPINION

At the time of his discharge—September 5, 1969 -- grievant F. was a second-shift UtilityReliefman in the Paint Department. The Labor Day holiday in 1969 fell on Monday,September 1. F. was absent on the succeeding two days. He was discharged under ShopRule 6: "Absence without reasonable cause" and Shop Rule 39: "Repeated violations ofShop or Safety Rules".

The first issue is whether, as F. asserts, he had "reasonable cause" for his absences onthe two days in question. The following is a summary of what he relies on:

On the afternoon of Friday, August 29, F. was told that his wife had called him at the plant.He returned the call, and his wife told him that her aunt, residing in Darlington, S.C., wasgravely ill with cancer. The relationship between the aunt and F.’s wife had been a closeone because the aunt, following the death of the father of F.’s wife, had helped to bring herup.

F. and his wife decided to take advantage of the Labor Day weekend and to drive toDarlington to visit the aunt. They departed in the early morning hours of Saturday, August30, and arrived at Darlington some 20 hours later.

The aunt was in a state of deliriousness and apparently near death. F.’s wife, therefore,insisted that they stay on. A day or two later (there is a conflict between the Union’s briefand F.’s testimony), the aunt rallied, and F. and his wife therefore decided to drive backhome.

They left in the early morning hours of September 2 and arrived home, some 36 hourslater, in the afternoon of September 3 (on this score, too, there is a conflict between theUnion’s brief and F.’s testimony). Upon arrival at home, F. called the plant and left wordthat he would be back at work on September 4.

F. was twice interviewed on September 4; he explained why he had been absent; he wasasked a series of questions; his explanation was not accepted; and he was discharged onSeptember 5.

The Company has attacked the veracity of F.’s account; and it is true that the account isaccompanied by a number of weaknesses and inconsistencies. The Umpire, however, isnot deciding the case on the basis of the credibility issue thus raised. Rather, he is holdingthat, even if F.’s version is accepted in its entirety, it does not add up to "reasonablecause" for the absence. For one thing, there is at least a serious question of whether awife’s aunt qualifies as sufficiently close a relative to justify taking off from work in the



event of her illness. For another, by F.’s own account, he knew about the illness and hiswife’s wish to travel to South Carolina over the Labor Day weekend before he left work onthe Friday. Clearly, the Umpire believes, F. should have sought permission fromSupervision to make the trip. For it simply cannot be accepted that F. and his wife wouldmake so long a trip with the intention of staying a mere 24 hours with the aunt—which isabout all the time they would have had, by F.’s own account of the time consumed inmaking the roundtrip, if he was going to be back for the afternoon shift on September 2. Tothe contrary, F. says that he and his wife came back when the aunt rallied; and theimplication of this is that, absent the rallying, they would have come back from Darlingtoneven later than they did. And finally, the fact is that it was F.’s wife, not F. himself, who wasanxious to visit the aunt, and that F.’s wife could have traveled to South Carolina by bus atapproximately the same expense as being driven by private automobile by her husband.Putting it all together, the Umpire believes that he must hold that "reasonable cause" forF.’s absence on September 2 and 3 was lacking.

On the second issue—the extent of the penalty—the Umpire is nonetheless holding for thegrievant. There is no denying the facts that the grievant has a woefully poor pastdisciplinary record and that, as to that record, both of the last two violations were ShopRule 6 violations. It is also true, however, that about nine months elapsed between thesecond of these violations and the present one (and that the grievant’s record wasotherwise clean in this 9-month period). And, overshadowing all else, the fact is that thegrievant had 22-1/2 years of service at the time of his discharge. It is much like in the casecovered by Decision M-43: the Umpire believes that this much service should be givenoverriding weight. He is directing the grievant’s reinstatement without back pay and withthe same comment made in M-43: "The grievant must understand that this is theequivalent of being given one more chance for the most drastic kind of improvement andthat, if he cannot shape up, it will be the Company’s basic plea—‘we cannot build (cars)with employees like (F.)’—which will have to be given overriding weight."

DECISION

For the reasons given in the accompanying Opinion:

1. The grievant’s absence on the days in question was without"reasonable cause" and a violation of Shop Rule 6.

2. The grievant is to be reinstated without back pay. The time lostshall be applied as a DLO.

June 24, 1970

/S/Rolf Valtin

Umpire





No. M-67

July 1, 1970


Under Paragraph (64)(c) of National Agreement;

Failure to State True Reason for Absence

GRIEVANCE:


"I protest Management placing off rolls as voluntary quit. I did not voluntarily quit and amnot a quit. Demand I be reinstated with full seniority at once and pay for all time lost from 3-25-69 and I be made whole for all benefits due me." S/J.L.H.


The (64)(c) termination here in question is held to have been improper, and the Companyis directed to reinstate the grievant with restoration of seniority rights and withreimbursement for the wages lost. (Entire decision should be read.)

In the Matter of:

United Automobile, Aerospace and Agricultural Implement Workers of America, LocalUnion No. 1364

and

General Motors Corporation, GMAD, Fremont, California -- Appeal Case M-585



OPINION

Grievant H.’s plant seniority dates from September, 1967. He was a first-shift Assembler inthe Chassis Department. He was terminated, effective February 25, 1969, underParagraph (64) © of the National Agreement.

Paragraph (64) is titled "Loss of Seniority"; commences with "Seniority shall be broken forthe following reasons:"; and its subparagraph (c) reads as follows:

"If the employee is absent for three working days without properlynotifying the Management, unless a satisfactory reason is given.After the unreported absence of three working days, Managementwill send written notification to the employee’s last known addressas shown on the Company records, that his seniority has beenbroken and that it can be reinstated if, within three specified workingdays thereafter, he reports for work or properly notifies Managementof his absence. A copy of such Management notification will befurnished promptly to the Chairman of the Shop Committee. If theemployee complies with the conditions set forth in the notification,his seniority will be reinstated if it has not otherwise been broken;however, such reinstatement shall not be construed as limiting theapplication to his case of the Shop Rule regarding absence withoutreasonable cause."

The following are the basic facts:

H.’s last day of work was Friday, February 14, 1969. On the following Monday, he wasarrested and sent to jail.

On Wednesday, February 19, 1969 -- the third working day of the grievant’s absence fromwork—his wife telephoned the plant’s call-in center. She stated that her husband was illand that she did not know when he would be back at work.

A week later, having received no further word about the grievant, Management sent a letterto the grievant’s house. It was not answered.

The body of it read as follows:

"This is to inform you that our records indicate that you have beenabsent from work for three consecutive working days without propernotification. In accordance with Paragraph 64c of the GM-UAWNational Agreement, dated December 15, 1967, your seniority hasbeen terminated.

Your seniority may be reinstated, however, if you contact theEmployment Office or report to work on Feb. 27, 28 or March 3,1969 and give a satisfactory reason for your failure to report for



work."

H. was released from jail on March 24, 1969. He reported for work on the next day, butwas turned away as a person whose seniority had been broken.

Both parties’ positions are of manifold character. Rather than provide a review of all thathas been argued, the Umpire will move directly to the central question.

As indicated in the above statement of the facts, it is conceded that Mrs. H. called theproper place (the plant’s call-in center) and that it was within the "three working days" thatshe notified Management of her husband’s absence. What the case turns on is the factthat Mrs. H. did not tell the truth as to the reason for her husband’s absence. By virtue ofthis, the Company asserts, Management had not been "properly" notified. The Company iscontending, in other words, that telling the truth as to the reason for the absence isincluded among the requirements for satisfying the phrase "properly notifying" in (64)(c)’sfirst sentence. Contrarily, the Union contends that "properly" goes to following the correctprocedure in notifying Management of the absence, not to the substantive matter ofwhether or not the reason given for the absence reflects the truth. In the alternative, theUnion relies on Decision B-16 (about to be reviewed) and thus asserts that, even if it wereto be accepted that Mrs. H. had failed "properly" to notify Management, there was a"satisfactory reason" for the failure, and H.’s termination must therefore be set aside byapplication of the phrase "unless a satisfactory reason is given".

The Umpire believes that proper treatment of the case requires a rather extensive reviewof past (64)(c) Decisions. He will next turn to that review.

The facts in B-16 (Taylor, 1941) were these: the grievant had been jailed for a 30-dayperiod; his wife phoned the plant within the "three working days"; she gave false reasonsfor his absence (death and illness in the family); Management learned of the true reasonfor the grievant’s absence; it considered the true reason as spelling less than a satisfactoryreason for the absence; and it thereupon terminated the grievant under (64)(c).

The following is the heart of Umpire Taylor’s Opinion:

"Under Part (c) of Paragraph 64, an employee’s seniority is broken ifhe is absent for three working days without properly notifying theManagement. An exception to the requirement just stated isprovided by the same clause when it states "unless a satisfactoryreason is given". Under this paragraph, an employee who is absentfor three working days or more assures retention of his seniority bynotifying management on the third day of absence. The required"proper notification" clearly includes a statement of the reason forthe absence and its likely duration. Both factors are important tomanagement in the conduct of the business. In the absence ofproper notification as outlined, an employee’s seniority isnevertheless not broken if he later advances a "satisfactory reason"to explain his failure to give such notice. This is the clear meaning ofthe clause as it is written and it is not proper to extend the coverageof that clause.



"In the present case, management was actually notified that S.would be absent. The notification was clearly defective, however, asrespects the reason advanced for the absence and the likelyduration of the absence. Under Paragraph 64, S.’s seniority wouldtherefore be broken because of the lack of proper notification"unless a satisfactory reason is given" for this situation.

"The defect in the notice of absence resulted because it was givenby S.’s wife while S. was not at liberty. She was obviously beset withunexpected and serious troubles. In the midst of them, and notknowing how best to proceed, she gave a report to managementthat is quite understandable under the circumstances. If she made amistake, it was a very human error. These circumstances, in thejudgment of the Umpire, provide a "satisfactory reason" for thedefect in the notice. It is concluded, therefore, that the technicaldefect in the notice of absence that was given does not result in abreak of seniority under the terms of Part (c) of Paragraph 64."

Thus, Umpire Taylor applied "properly" as requiring that the truth be told as to theabsence, and he applied "unless a satisfactory reason is given" as an "out" for the failureto give the truthful reason for the absence. The Union, here, argues two things: 1) that,even if "properly" were so to be re-applied, the present situation is quite the same as wasthe situation in B-16; 2) that the Opinion in B-16 went on with comments which indicatethat Umpire Taylor was less than enthusiastic about the "properly" interpretation. TheOpinion closes with: "his (the grievant’s) seniority should not be considered broken sincethat could be effected only by a technical and highly doubtful interpretation of Paragraph64".

Decision C-402 (Seward, 1945) is concerned with another "jail" case. In this case,however, the truth had not been withheld from Management— i.e., Management had beennotified (in timely fashion) of the grievant’s actual predicament. Management terminatedthe employee, not on the grounds that it had not been properly notified, but on the groundsthat it had not been furnished with a "satisfactory reason" for the absence.

Umpire Seward overruled the Company. He first expressed his agreement with the Taylorinterpretation of (64)(c) -- as given in the first of the above-quoted three paragraphs—andhe then went on with the following:

"... The general rule established by Paragraph (64) © is that anemployee’s seniority is broken if he is absent for three working dayswithout properly notifying the Management. Even if nothingwhatever was said in the Agreement about the giving of "asatisfactory reason", proper notification would prevent the breakingof seniority. The inclusion of an exception which prevents thebreaking of seniority, under certain circumstances, even whennotification has not been given, can hardly be construed asfurnishing grounds for the breaking of seniority when notification hasbeen given."



Mr. Seward added the following:

"Management argued at the hearing that it was unreasonable toexpect it to retain an employee indefinitely on its payrolls on thebasis of his mere notification and regardless of the length of hisabsence or of the reason for it. Can an employee call up theEmployment Office, Management asks, and by saying "I’ll be off fora month, getting drunk," tie Management’s hands and force hisretention on the payroll? The answer is obviously no. That negativeanswer, however, is based upon the fact that Management’sdisciplinary powers in cases of that sort do not depend upon theabsence of notice but depend squarely upon the existence or non-existence of reasonable cause for absence....".

Decision E-263 (Wallen, 1948) involves language which the Union is here in part relyingon. The case involved an employee who, by Mr. Wallen’s reconstruction of the facts, "didnotify Management of his impending absence, in a general way several times in the threemonths prior to his absence, and specifically a few days prior to March 9th. Managementwas not left in the position of not knowing when, if ever, B. was going to return to work. Byvirtue of this notice it had time to make arrangements for a substitute for B."

Mr. Wallen then stated:

"Was this proper notice within the meaning of Paragraph 64(c)?What does the word "properly" as used in Paragraph 64(c) mean?Does it mean that notice must be given in a proper manner or isManagement properly notified only if a satisfactory reason for theabsence is also given?

"Both the context of the word "properly" and the purpose ofParagraph 64(c) lead to the conclusion that it is procedural and notsubstantive in its meaning. The obvious meaning of the phrase"properly notifying the Management" is that Management must benotified of an absence within three working days in the correctmanner; that is, the notice must be timely and it must be directed tothe proper persons. This meaning is in accord with the manifestpurpose of 64 © which is to make certain that an employee who isor expects to be absent will inform Management of that fact in orderto enable it to make arrangements for a replacement.

"If an employee notifies Management of his absence within threeworking days but fails to furnish a satisfactory reason for hisabsence, however, he is guilty of a violation of shop rules governingabsences without reasonable cause and he is subject to thedisciplinary powers of Management under Paragraph 8..."

The Union characterizes E-263 as involving a case where the Umpire "squarely consideredthe matter of whether ‘properly notifying’ had to include the true reason for the absence...".The present Umpire dissents from this characterization. The use of the phrases "proper



manner" and "procedural and not substantive" indeed goes a long way in the directionwhich the Union is here urging, but the distinction in E-263 clearly goes to whether or notthe reason for the absence is a satisfactory one, not to whether or not the true reason forthe absence has been advanced.

Decision G-145 (Alexander, 1953) is also relied upon by the Union. It involved anemployee who, according to Mr. Alexander’s factual finding, "said no more to Foreman H.than that he was sorry to ‘run out’ on him, or ‘to leave him in a mess’, and that Grievant didnot say he was ‘going on his vacation’ or was ‘taking a trip’."

Mr. Alexander then stated:

"On the question of whether Grievant’s remark as uttered was a‘proper notice’ under Paragraph 64(c), the Umpire is of the opinionthat on its face and in its immediate context it was not... Actuallyfrom the testimony of B. himself, the Umpire gains the impressionthat he was indifferent as to the consequences of his leaving, andwas willing to be written off as a quit, if that was necessary in orderfor him to take his vacation. It was only after he returned and wasdenied employment that B. seriously considered the advisability ofprotecting his seniority rights.

"Loss of seniority is a drastic consequence, but the operation ofParagraph 64(c) may easily be avoided by the simple expedient ofgiving an intelligible notice of absence..."

The Union is here seizing on the use of the phrase "intelligible notice" and argues that anotice which is timely and which is given to the right person, albeit one which conceals thetrue reason for the absence, is an "intelligible notice". Nevertheless, the Umpire must note,Decision G-145 simply does not direct itself to the question of whether "properly notifying"requires giving the true reason for the absence.

Both Decision D-33 (Seward, 1946) and Decision F-6 (Alexander, 1949) involved a jailedemployee. The holding in D-33 was that the employee could have let Management know ofhis whereabouts and that, as he did not, he was properly terminated under (64)(c). Theholding in F-6 was that the grievant "was unable to communicate with persons outside thejail because of his physical condition and the restraint of his jailers"; that the grievanttherefore had a satisfactory reason for failing to notify Management of his absence; andthat it followed that he had been improperly terminated. The implication of both Decisions,and it is expressly so stated in F-6, is that confinement to jail is not a satisfactory reasonfor failing to report the absence so long as the employee is in a position to communicatewith the outside world. It is to be stressed, however, that no absence notice was given ineither case (though it is true that the jail sentence in D-33 came on the immediate heels ofa military leave and that the employee was thus not expected at work while serving the jailsentence).

All the remaining (64)(c) cases which the Umpire has researched—D-28, E-265, E-242, F-128, G-10 and G-107 -- involved only the question of whether Management had in factbeen notified of the employee’s absence, and did not go to the question of the employee’s



obligation to advance the true reason for his absence.

This review, in the opinion of the Umpire, warrants the following conclusions: 1) thequestion raised in B-16 -- whether telling the truth as to the absence is a required part of"properly" notifying Management— was not re-confronted in any case since the issuanceof B-16 (Umpire Seward, in C-402, expressed his agreement with the Taylor interpretation,but he did so in the absence of any truth-telling problem and he ruled on an entirelydifferent issue); 2) the rationale in B-16 -- that the phrase "unless a satisfactory reason isgiven" can serve to overcome the failure to tell the truth as to the absence—has neitherbeen set aside nor been perpetuated; 3) putting aside the question of whether or not thetruth has to be told, the reason for the reported absence does not have to be a satisfactoryone to prevent the breaking of seniority—i.e., the Company erred, and was overruled, inapplying "satisfactory reason" as requiring that the absence be a justifiable one; 4) to bejailed is not in and of itself justification for not notifying Management at all of the absencefrom work; 5) though not in relation to whether or not the truth has to be told, there aresome strong comments among the prior decisions to the effect that "properly notifying" isprocedural in character—i.e., that what matters is, not the reason for the absence, but thatthe absence be accompanied by notification so that Management will be in the know thatthe absence is a temporary one and that the employee intends to come back to work; 6) allof the Decisions were issued prior to 1955; and, until then, Paragraph (64) © consistedsolely of what is now its first sentence.

With these things in mind, and with the elaboration about to be given, the Umpire hasconcluded that the approach taken in B-16 ought to be abandoned. He is holding that thetermination here in question was wrongful and is to be rescinded.

First, it seems to the Umpire that, while B-16 is to be applauded for its refusal to sanctionuntruthfulness and for yet coming up with the "right" result in terms of humanisticconsiderations, it was nevertheless the Wallen Decision (E-263) which correctly construedthe nature and design of Paragraph (64)(c). The basic idea is that Management is to bekept informed and is not to have an obligation indefinitely to retain an employee on theseniority roster where he simply stays away from work. And it is in this light that "unless asatisfactory reason is given" emerges sensibly— namely, that the employee’s seniority isstill not broken if he has a satisfactory reason for failing to notify Management. It would beunrealistic to assume, it seems to the Umpire, that those who drafted (64)(c) inserted"properly" in part because they anticipated that employees might lie as to the reason fortheir absence and went on with "unless a satisfactory reason is given" in part because theysought to provide a means by which such a lie might be excused. Clearly, taking off fromwork while giving a phony explanation is conduct which makes an employee subject todisciplinary action under the Shop Rule prohibiting absence without reasonable cause.Would the parties write National Agreement language which exonerates such conduct?

Second, there is not only the fact that Umpire Taylor himself characterized his constructionas "technical and highly doubtful", but there is the fact that 1955 saw the expansion of (64)(c). In the opinion of the Umpire, the expansion cannot help but confirm that it was in E-263, rather than in B-16, that the then-(64)(c) -- i.e., what is now the provision’s firstsentence—was correctly interpreted. For the expansion, rather than in any way echo"properly" as construed in B-16, commences with "after the unreportedabsence" (emphasis supplied). To the Umpire, this is the clearest indication that the parties



themselves saw (64)(c) as being concerned with an employee from whom there is no wordconcerning his absence. And this is further confirmed by the language "to the employee’slast known address as shown on the Company records"— language which reflects anassumption that the employee has not been heard from.

Third, though related to the point just made, the expansion of (64)(c) is here of additionalsignificance. As shown, Management sent the grievant the letter provided for in the secondsentence of (64)(c); and the fact is that an employee’s seniority nowadays cannot bebroken without the letter (and his failure to respond to it by either reporting for work orproperly notifying Management of his absence). The letter, in other words, is a sine quanon for the breaking of an employee’s seniority. Yet, by the express terms of the secondsentence of (64)(c), the letter must here be rejected as lacking in contractual standing. Forit is after an "unreported" absence that the letter is to be sent. And an "unreported"absence is simply not what Management was presented with. If Management wasskeptical about the truthfulness of the report it had received or if it wished to know moreabout the likely duration of H.’s absence, it might have proceeded with an investigation; itmight have proceeded with disciplinary action; or it might have sent the grievant a (64)(d)notice (though it is to be noted that there is a Decision, F-13, which holds that confinementto jail is a "satisfactory reason", within the meaning of (64)(d), for not reporting to work).What Management could not do, to repeat the point, is to send the (64)(c) letter and rely onit for the purpose of H.’s termination under (64)(c).

Fourth, it seems to have been well established (see C-402 and E-263) even before (64)(c)was expanded that a reported absence, for purposes of (64)(c), did not have to be anabsence for the kind of good and sufficient reason which would constitute an absence forreasonable cause in the Shop Rule sense. With respect to the present (64)(c), the mattercan be stated more positively: by the provision’s own terms, there can be absences whichare not justified absences in the Shop Rule sense but which nonetheless do not operate tobreak an employee’s seniority. This is the clear meaning of the last portion of (64)(c):"however, such reinstatement shall not be construed as limiting the application to his caseof the Shop Rule regarding absence without reasonable cause". And if this much is true,why should an absence which is reported as stemming from illness, when in fact it stemsfrom a brief jail sentence, operate to break seniority? The Umpire has found no goodanswer.

Fifth and finally, while it is a time-honored principle that employees must live up to theirobligations under the Agreement in order to reap its benefits, a principle which the Umpirerecently (see Decision M-62) had occasion to restate and which he has every intention tocontinue to hold respect for, it is also true that (64)(c) is a kind of forfeiture clause whichoperates alike for an employee with 30 years of service and for an employee with 3 monthsof service and that the application of such a clause, at least in the Umpire’s opinion, shouldbe held to its express and clear terms. What the Company is here urging requires doingthe opposite— requires going the broad-interpretation route by reading something into"properly" which, both as a matter of preserving substantial meaning for "properly" and asa matter of the context in which it appears, does not have to be read into it. For all thereasons given—particularly the fact that the Company’s disciplinary powers respecting theShop Rule prohibiting absence without reasonable cause are in no way jeopardized— theUmpire declines to go this broad-interpretation route.



DECISION

The (64)(c) termination here in question is held to have been improper, and the Companyis directed to reinstate the grievant with restoration of seniority rights and withreimbursement for the wages lost.

July 8, 1970

/S/Rolf Valtin

Umpire





No. M-72

August 3, 1970

Termination Under Paragraph (64) (d) of National Agreement;

Home Address of Record

GRIEVANCE

GENERAL MOTORS ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION,LINDEN PLANT, LINDEN, NEW JERSEY—APPEAL CASE M-804

Grievance 267940

"I have been discharged unjustly. Request reinstatement at once my record cleared of thisdischarge and I be reimbursed for all monies and benefits lost."

S/S.M. (Grievant)

E.M. (Committeeman)

UMPIRE’S DECISION


In the Matter of:


and

General Motors Corporation, GMAD Linden, New Jersey -- Appeal Case M-804


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OPINION

Grievant M. was hired by the Company in October, 1967. At the time of his termination—inmid-August, 1969 -- he was a Factory Sweeper in the Maintenance Department. He wasterminated under Paragraph (64) (d) of the National Agreement. Under this Paragraph,seniority is broken.

"If the employee fails to return to work within three working daysafter being notified to report for work, and does not give asatisfactory reason. A copy of Management’s notification of suchloss of seniority will be furnished promptly to the Chairman of theShop Committee."

The following are the basic facts:

By reason of model changeover, M. was laid off on July 3, 1969. The announced recalldate, at the time of his layoff, was September 2, 1969.

On August 7, 1969, it was determined that certain maintenance employees, including M.,would be needed back at work as of August 18, 1969. A telegram to this effect wasdispatched to M. at the home address shown on the so-called recall card (the content ofwhich will be shown below). The telegram was verified as received, though not by M.himself.

M. did not show up for work on August 18; and, on August 22, Management sent him, atthe same address, a (64) (d) termination letter.

M. returned to work on September 2 (the original recall date). Asked why he had not comeback to work on August 18, M. replied that his home address was no longer the one towhich the telegram had been sent; that, on three separate past occasions, he had takensteps to have the records reflect the address at which he now lived -- 346 South 12th

Street, Newark, New Jersey; and that, though not on his person at the time, he had a copyof the change-of-address form.

Management re-checked the employment records; found that the address there shown forM. -- 292 Hunterdon Street, Newark, New Jersey—was the one to which the telegram andthe termination letter had been sent; and advised M. that, unless he could present the copyof the change-of-address form assertedly in his possession, the termination would stand.Subsequently, saying that he had misplaced it, M. was unable to produce such copy.

The Union takes essentially a twofold position in asking that M.’s termination be set aside:1) that M. had lived at the 12th Street address for about a year and that Management forvarious purposes—e.g. SUB, Savings Bonds and Medical Insurance—was in possessionof this address and had used it; 2) that, insofar as the specific recall purpose is concerned,there were three occasions on which M. let it be known that he had moved to the 12th

Street address: once in the spring of 1968, to his then-supervisor, B.; again, upon his recallfrom model-change layoff in 1968, when he filled out the appropriate change-of-address



form and gave it to a Clerk in the Personnel Office (though he lost his copy of the form);and once more, at the time of the (model change) layoff in 1969, when he told hissupervisor, L., that the recall card showed the old address—and when L. told him not to beconcerned about it and to go ahead and sign the card.

The Umpire has previously (see Decision M-67) indicated his approach when it comes tothe sort of forfeiture clause represented by (64) (d); and, as he noted at the hearing, heholds concern for the fact that, at least for two purposes (Savings Bonds and MedicalInsurance), the 12th Street address had been on record with Management for as long asabout a year. For the reasons about to be given, however, he believes that he has nochoice but to uphold the grievant’s termination.

An employee’s obligation to keep Management informed of his home address -- for thepurpose of protecting his seniority—is laid down in the National Agreement itself.Paragraph (74) reads as follows:

"To protect his seniority, it is the employee’s responsibility to keepthe Plant Management informed of his proper home address. Themethod of notification of change of address is to be established bythe respective Plant Managements for their operations. Forms forthis purpose shall be available in designated offices in theplant." (Emphasis supplied.)

The evidence is entirely clear that it has long been understood at this plant that there is butone particular form on which the home address, for seniority-protection purposes, is to beprovided. The address provided on this form is known as the official address, and it is thisaddress alone which "counts" for seniority-protection purposes. The Local Union’s ownnewspaper acknowledged as much, and a bulletin-board notice expressly stated that anaddress shown on a card for paycheck purposes would not be treated as the officialaddress.

The reason for Management’s insistence that there be but one official for seniority-protection purposes was made clear at the hearing and, in the opinion of the Umpire, mustbe accepted as entirely legitimate: there are many employees who give Management oneaddress for Savings Bonds, another for Medical Insurance, yet another for SUB (withvariations from time to time within this category) and any one or all of these addresses maybe different from the one to be used for seniority-protection purposes. Management simplymust be in a position to rely on the so-called official address—rather than have to wonderwhich address is to be used—when it comes to recalling employees.

And beyond these things, there is the fact that the grievant, along with all other employeesbeing laid off in connection with the 1969 model changeover, was handed the so-calledrecall card. Its body read as follows:

"You are to report for work at the time and date indicated on thiscard, unless otherwise notified. In case of any change in yourreporting date, you will be notified at the above address, as on file inthe Employment Office. If this is not your correct address, makesure it is changed at the Employment Office. I fully understand the



above." (Emphases supplied.)

The card showed the Hunterdon Street address. M. signed the card (and received a copyof it). Moreover, a check with the Post Office, made by Management after the presentgrievance was filed, revealed that M. had taken no change-of-address step and was stilllisted as residing at the Hunterdon Street address.

Little need be said about the Union’s second contention—that M., on three separateoccasions, took steps to have the Hunterdon Street address changed to the 12th Streetaddress (for official-address purposes). M.’s testimony was wholly unconvincing; both ofthe two supervisors (B. and L.) effectively denied any such conversation; and as to thegrievant’s allegedly going to the Personnel Office and leaving a filled-out form with a Clerk,it seems too much to believe—given the facts both that no such filled-out form could befound at the Office and that M. could not produce a copy of it. The real significance of theintroduction of these assertions, in the Umpire’s opinion, is that the grievant was wellaware of the fact that it is the so-called official address along which "counts" for seniority-protection purposes.

To reiterate the point already indicated, it would obviously be a "crying shame" if thebreaking of the grievant’s seniority is the result of a mere oversight—of overlooking theneed to have a change in his official address recorded. The Umpire, however, cannotassume this to be the fact. Neither the grievant nor the Union has so pleaded; and it isquite as possible, as appears to be true of a host of other employees, that the grievant hasbeen keeping two addresses, seeking to have one or the other address used for one or theother purpose.

DECISION


August 3, 1970

/S/Rolf Valtin

Umpire





No. M-78

September 4, 1970

Discharge:

Shop Rules 9 and 42:

Evidence Respecting the Alleged Violation of Shop Rule 9;

Extent of Penalty;

Right to Private Discussion with Committeeman in Advance of DisciplinaryInterview;

Evidence Respecting Existence of Local Agreement

Under Which the Private Discussion is Not Permitted Until After the DisciplinaryInterview;

Conflict Between That Local Agreement

and

Paragraph (76)(a) of National Agreement as Interpreted in Decision J-63;

Remedy

GRIEVANCE


Grievance 167512

"I protest manag. alleged viol. of S/R #9. I did not viol. this or any other Shop Rule. Idemand that my record be cleared and be made whole all monies and benefits lostimmediately.


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Amended at the Step and One-Half to include violation of Para. #76(a). Also, demandgrievant be reinstated at once from discharge. 11-20-69."

S/W.D. (Committeeman)

UMPIRE’S DECISION

The various issues presented by the case are defined and dealt with in the Opinion. Theirdisposition need not be restated but should be seen as part of the "Decision". The Com- isdirected to reinstate the grievant as given in the Opinion. (Entire decision should be read)

In the Matter of:


and


OPINION

Grievant H. was hired by the Company on July 3, 1963. At the time of his discharge—mid-November, 1969 -- he was a second-shift Driver Unlicensed Cars and/or Trucks and wasassigned to the Truck Repair Department (No. 28-17). He is charged with violating theprohibitions laid down in Shop Rule 9, "Leaving the job or work place during working hourswithout permission", and Shop Rule 42, "Repeated violations of shop or safety rules".

H. is the same person whose protest (Appeal Case M-833) against a 30-day DLO wasconsidered and determined in Decision M-70. That Decision explains the circumstancesunder which, and the extent to which, certain penalties which preceded the 30-day DLOwere modified. And, by the holding in that Decision, the 30-day DLO itself was modified toa 2-week DLO. In setting forth H.’s prior disciplinary record for the purpose of the presentcase, the Umpire is incorporating all of these modifications. Note should be taken of thefact that H. received a further 30-day DLO following the one considered in Decision M-70.It preceded the discharge here at issue by about two months. H.’s protest against it waswithdrawn by the Union.

Rendered as given above, H.’s prior disciplinary record is as follows:



2-23-65 Balance of Shift & One Day ShopRule 6 "Absence without reasonable causeand/or habitual absenteeism."

3-18-65 Balance of Shift & Three Days ShopRule 6 "Absence without reasonable causeand/or habitual absenteeism."

6-12-67 Balance of Shift Shop Rule 13"Refusal to obey orders of foreman or othersupervisor."

7-11-68 Written Reprimand Shop Rule 15"Refusal or failure to do job assignment. (Dothe work assigned to you and followinstructions; any complaint you may take uplater through the regular channels.)"

8-23-68 Balance of Shift Shop Rule 15"Refusal or failure to do job assignment. (Dothe work assigned to you and followinstructions; any complaint you may take uplater through the regular channels.)"

8-28-68 Balance of Shift & One Day ShopRule 15 "Refusal or failure to do jobassignment. (Do the work assigned to youand follow instructions; any complaint youmay take up later through the regularchannels.)"

10-16-68 Balance of Shift & Three DaysShop Rule 6 "Absence without reasonablecause and/or habitual absenteeism."

4-30-69 Balance of Shift & One Week ShopRule 13 "Refusal to obey orders of foremanor other supervisor."

6-29-69 Balance of Shift & Two Weeks ShopRule 19 "Wasting time or loitering in toilets oron any Company property during workinghours."

9-10-69 Balance of Shift & 30 Days ShopRule 9 "Leaving the job or work place duringworking hours without permission."

As indicated by the topical heading, the case presents a series of issues. They will be



successively defined and dealt with.

The first issue is factual in nature and comes down to a question of credibility—did H.violate Shop Rule 9? Once more - i.e., as in Appeal Case M-833, covering the 30-dayDLO—the two principals are H. and Foreman O. There, the Umpire acceptedManagement’s version and essentially concluded that H. was an endlessly evasive personand someone who could not be believed. The Umpire saw or heard nothing in the presentcase which would change that assessment. The difference between the prior case and thepresent case is that, here, Management’s version rests substantially on the testimony ofForeman O. alone (whereas the prior case saw the testimony of four members ofManagement, the Umpire finding their respective testimonies consistent with each other).However, as to both cases, the testimony of Foreman O.—by the usual standards ofstraightness, firmness and staying intact under cross-examination—was wholly convincing.Indeed, in the present case, the Union argued that Foreman O.’s testimony was "toogood"—that flawless testimony is something to be wary of. The Umpire has himselfencountered situations where the point could validly be made, but he does not believe thatthis is one of them. As was true in the prior case, the Umpire perceived no "canned" ring inForeman O.’s testimony and, instead, found it to have the ring of truth to it. (So assessingForeman O.’s testimony, and noting that Foreman O. denied the men’s presence or near-presence during the conversation, the Umpire rejects the statements of certain fellowemployees of H.’s to the effect that they overheard him ask to go home with thepassenger-car-line employees.)

As he did in M-833, then, the Umpire accepts Management’s version. It remains to showwhat happened on the night in question. The following is a summary.

At the time in question, the second-shift hours for an 8-hour shift ran from 5:12 PM to 1:54AM. The incident occurred on the night of November 12-13, 1969.

Both the Truck Repair unit and the passenger-car line had been scheduled to work 9.5hours (until 3:24 AM). Sometime between 12:15 AM and 12:30 AM, Foreman O. receivedword, and thereupon passed it on to his men, that the Truck Repair unit was to work 11hours.

At about 1 AM, H. approached Foreman O. and asked whether he could go home at theend of 9.5 hours. Foreman O. said he would check on it. He got back to H. at about 1:30AM and gave him permission to leave at the requested hours. (The essence of H.’s versionis that he asked for permission to go home with the passenger-car-line employees, at theend of 8 hours, and that Foreman O. (then and there, without first checking on it) gave himpermission to do so. It is a fact that, sometime during the course of the shift, thepassenger-car-line hours were reduced from 9.5 to 8 hours.)

Shortly before 2 AM, Foreman O. encountered H. at the lockers. H. was changing to hisstreet clothes and said to Foreman O.: "Hey, m----- f-----, you didn’t tell me the line wasonly working eight hours; now I’m going home in eight hours." Foreman O.’s reply was tothe effect that H. had been given permission to leave at the end of 9.5 hours and wouldhave to work until then. H. nonetheless went home upon the conversation (clocking-out at2:04 AM).



There is obviously no telling whether H., in asking to go home at the end of 9.5 hours, hadin mind his own Truck Repair unit or the passenger-car line (both of which, as shown, hadbeen scheduled for 9.5 hours). Granted that, if true that H. had the passenger-car line inmind, it is understandable that he would want to change his request once he found out thatthe passenger-car line’s hours had been reduced from 9.5 to 8 hours. Granted also that, byvirtue of the fact that passenger-car-line employees were coming off at the end of 8 hoursand that one or another of them could readily serve as replacements for departing TruckRepair employees, it would have been administratively easier to excuse H. at the end of 8hours than at the end of 9.5 hours. And granted, finally, that this administrative ease couldstill have been taken advantage of at the time of the conversation between H. andForeman O. at the lockers. Thus, had H. at that time made a civilized request to go homeat the end of 8 hours rather than at the end of 9.5 hours, one may conclude that there wasno good reason why such a request should not have been granted. By the facts as theUmpire finds them, however, there was no such civilized request. Rather, with a degradingobscenity as a starter, H. told Foreman O. that he was going home at the end of 8 hours.An employee who so conducts himself can scarcely expect a cooperative attitude fromSupervision and, instead, must expect what here happened: Foreman H. got his dander upand insisted that H.’s departure hour not be further changed. The Umpire, thus, does notbelieve that he can properly hold that H. should have been given permission to leave at theend of 8 hours and, instead, believes that the proper holding is that H. left the plant earlierthan he had been permitted to leave and, indeed, in defiance of what he was expressly toldjust before he left.

The next question is concerned with the extent of the penalty. The meaning of Decision M-70 is that the discharge penalty was preceded, not by two 30-day DLO’s, but by one 2-week DLO and one 30-day DLO. This is what the Union is relying on. The Umpire rejectsthe argument. There is no gainsaying the fact that, as things have turned out, the twopenalties preceding the discharge are not those which were in existence at the time thatthe discharge action was taken. It is clearly also true, however, that H.’s prior disciplinaryrecord, even as modified, is such as to have rendered him ripe for discharge. It is anatrocious record; it fully reflects the application of the corrective-discipline principle; and themost recent 30-day DLO not only came a mere approximately two months before thedischarge but was given H. for an offense of quite the same nature as the offense here atissue. Furthermore, the Company entered the statement, and the Union did not effectivelyrefute it, that the plant’s practice is to resort to discharge in the face of the disciplinarysequence which is now here presented—i.e., that employees are normally not given two30-day DLO’s within a short span of time, and that it was as a matter of leaning overbackwards that H. was given a further chance (represented by the second 30-day DLO).Given all of these things, the Umpire believes that he must properly rule that theconversion of the (M-833) 30-day DLO to a 2-week DLO does not warrant modifying thedischarge penalty here in question.

On the issues dealt with up to this point, accordingly, the Umpire finds not only that H. wasguilty of the Shop Rule 9 violation he is charged with but also that Shop Rule 42 wasproperly invoked and that the discharge is therefore not to be set aside.

The next series of issues are concerned with the Union’s assertion that Management’srefusal to grant the grievant’s request for a private discussion with his Committeeman inadvance of the disciplinary interview violated his rights under the National Agreement.



It is stipulated that: 1) grievant H. came to work on the day (the second shift, November13-14) following the incident dealt with above; 2) sometime during the course of the shift,he was asked why he left early on the preceding day and was told that there was to be adisciplinary interview; 3) he made the request that he be permitted to have a privatediscussion with his Committeeman (D.) before the disciplinary interview would take place;4) his request was turned down, though together with the statement that he could have theprivate discussion following the disciplinary interview; 5) the grievant’s Committeemanattended the disciplinary interview; 6) the disciplinary interview commenced at about 11PM; 7) thereafter, starting at about 12:30 AM, the private discussion between H. and hisCommitteeman took place.

The first question is whether—in January, 1969 -- the local parties entered into anagreement which called for deferring the private discussion until after the disciplinaryinterview.

In contending for an affirmative answer, the Company (among other things) introduces thefollowing:

There came the time, sometime in 1968, where it was recognized that something had to bedone about the poor and ever deteriorating relationship between the local parties at theFremont plant. It was agreed that meetings should be held with an eye toward frank andproblem-solving discussions of various issues marring the parties’ relationship. The tone-setting session was attended by Messrs. Bramblett and Woodcock.

The matter of disciplinary interviews was among the problem areas taken underconsideration. Both parties had complaints on this score. The Union’s complaint went tothe presence of Labor Relations personnel in the disciplinary interview: that their presencehad frequently resulted, to the disadvantage of the employee being given the disciplinaryinterview, in prepping and quarterbacking. Management’s complaint went to the privatediscussions, held in advance of the disciplinary interviews, between the employee and hisCommitteeman: that the private discussions frequently consumed an inordinate amount oftime. Taken together, the complaints seemed to call for the removal of both sides’"technicians" and the opportunity for immediate and unencumbered confrontation of theemployee and his supervisor.

At a meeting held on January 20, 1969, the following was agreed to: 1) except in casesinvolving so-called capital offenses, Labor Relations representatives would not attenddisciplinary interviews; 2) to the extent that the particular employee wanted it at all (it is notasked for by many an employee), the private discussion with his Committeeman would beheld after completion of the disciplinary interview.

On this first question, it is the Umpire’s opinion that the Company’s presentation was farthe stronger and that the evidence as a whole, properly weighed and balanced, must betaken as establishing that the asserted agreement was made. Pages could be filled inelaboration. Suffice it to point up: that the plant’s Personnel Director, who simply cannot bedismissed as an inexperienced or incompetent man, reported the consummation of theagreement to his Central Office; that there is a video tape which shows him announcingthe agreement (and explaining the problems to be overcome by it) to the plant’s entiresupervisory staff; that Management put together and conducted (role playing) training



sessions covering the change disciplinary-interview procedure; and that it is at once true—a well-nigh conclusive fact, it seems to the Umpire—that the former procedure (meaningthe holding of the private discussion in advance of the disciplinary interview and thepresence of Labor Relations representatives in the disciplinary interview) had previouslybeen followed and was abandoned on or about January 20, 1969, and that the newprocedure was put in effect at that time and has been followed to this day.

The next question assumes the just-made holding—that the local "disciplinary interview"agreement was in fact made and that the denial of the grievant’s request for a privatediscussion with his Committeeman in advance of the disciplinary interview was a matter ofthe existence and implementation of the local agreement. The question raised is whetherthe local agreement is consonant with Paragraph (76)(a) of the National Agreement, asinterpreted in Decision J-63. If so, the Umpire would be prepared—the Union seeminglydid not quite grant it—to hold the local agreement to be of proper standing and thus tosanction its continued implementation. If not, it is agreed—the Company, as the Umpirethinks it must, concedes this point—that the local agreement is without proper standingand must fall.

The Umpire will momentarily quote Paragraph (76)(a) of the National Agreement. He notesat once, however, that he is doing so only as a matter of orientation. His task in the presentproceeding is, not to interpret the Paragraph, but to determine whether the already-giveninterpretation of the Paragraph—i.e., Decision J-63 -- leaves the "not before" part of thelocal agreement a permissible state of affairs. On this much—that it is for the Umpire toexamine and apply Decision J-63 rather than to look at the Paragraph’s language itself forthe answer—the parties are in agreement.

Paragraph (76)(a) reads as follows:

"Any employee who, for the purpose of being interviewedconcerning discipline, is called to the plant, or removed from hiswork to the foreman’s desk or to an office, or called to an office,may, if he so desires, request the presence of his DistrictCommitteeman to represent him during such interview."

Though it is of course accompanied by a series of sub-arguments, the Company’s positionwith respect to Decision J-63 is susceptible to brief summary. Granting that the Decisionestablished the right of private discussion between the employee and his Committeeman inconnection with a (76) (a) disciplinary interview, the Company is saying that the Decisiondid not lay down a mandate as to when the private discussion shall take place. To thecontrary, so the Company comments in its brief, "The Umpire (Feinsinger) stated theinterview (reference is to the private discussion) could be held before, during, or after thedisciplinary interview ..." These things being true, the Company submits, the localagreement constitutes a perfectly proper implementation of the Decision—it merely adoptsas a single course one of the courses which the Decision leaves as alternatives.

The Umpire has read and re-read both the Decision and the briefs which the parties filed inthe J-63 proceeding. It is true that the Decision does not direct itself to the "before vs.



after" issue here presented. Nor did it turn on the question of whether the private-discussion right encompasses both a "before" and a "during" right. Of themselves,however, these things are obviously not the equivalent of the flexibility—"before", "during"or "after"—which the Company is asserting. And as to what was determined in Decision J-63, as well as from the stand-point of the various considerations underlying the holding, theUmpire sees no proper way for accepting the position which the Company is hereadvancing.

Search as he has for it, the Umpire simply cannot find the "before, during or after"statement which the Company attributes to the Decision. The closest to it is found at thevery beginning of the Opinion, where Umpire Feinsinger defined the issue: "The issue inthis case is whether the right of an employee to have his Committeeman ‘represent him’during a disciplinary interview, as set forth in Paragraph 76(a) of the National Agreement,includes the right of a private discussion between them either before or after the interviewhas begun." True enough, there is here a "either before or after" reference. The fullreference, however, is that of "either before or after the interview has begun" (emphasisadded). Clearly conveyed by "after the interview has begun", the Umpire believes, is theassumption that the interview is still in progress. Which is to say that the "after" is a matterof "following the commencement of the interview", not "following the completion of theinterview". Any doubt about so reading the "before or after" reference in the issuestatement is erased by a subsequent paragraph in the Opinion (paragraph 11). It reads:

"Finally, the Corporation calls attention to the word ‘during’ inParagraph 76(a) as implying that a private conversation before thedisciplinary interview is clearly excluded. The present positions ofthe parties seem to be, however, that the same ruling must apply toconversations before and after the beginning of theinterview." (Emphasis in the original.)

Plainly, "after the beginning of the interview" is used as synonymous with "during" and thusin no way goes to any stage following the completion of the interview. And incidentally tobe noted—incidental insofar as this immediate discussion is concerned, but of obvioussignificance insofar as the determination of the issue here raised is concerned—is that theCompany’s emphasis on "during" was entirely a matter of contradistinction to "before", nota matter of seeking to confine the private discussion to "during" in the sense of excludingboth a "before" and an "after" discussion. On this, the paragraph reflects the J-63proceeding as a whole. It simply did not go to any question concerning a private discussionfollowing the completion of the disciplinary interview; it dealt entirely with the "before" and"during" stage. It was these two stages which Umpire Feinsinger treated as alike inanswering the Company’s "during" argument. And though it is arguable that his Opiniondoes not make clear whether he upheld the right to private discussion at both stages ormerely at one or the other stage—though it may be true, in other words, that he had thesetwo stages in mind as alternatives—it is not arguable that the "after" stage which theCompany is here contending for was thrown-in, or impliedly incorporated, as a thirdalternative.

Consider, next, the facts in the case leading to Decision J-63.

Paragraph 3 of the Decision reads as follows:



"The facts of the particular case are agreed. On 8-28-59, as LaborRelations Analyst G. and Foreman V. were about to interviewemployee S. concerning discipline, the latter requested thepresence of Committeeman B. to represent him, pursuant to Section76(a). Prior to the start of the interview and, it may be assumed,again thereafter, B. asked to be allowed to speak privately with S.Management rejected the request. B.’s grievance followed, alleginga violation of Paragraph 76(a).

Little by way of elaborating comment is required. The facts are truly "on all fours" withthose of the present case. The sole difference is that the "before" claim in J-63 was madeby the Committeeman whereas here it was incorporated as part of the interviewee’sgrievance. This can scarcely serve as a basis for distinguishing the two cases.

Worthy of mention, also, is the grievance statement in the case leading to J-63. It reads:

"I charge Mgt. & F.G. with a violation of Para. 76a of N.A. G. refusedto let me talk to C.S. alone preceding & during a discip. interview 8-25-59 & thereby denied me the right to properly represent him. Idemand this practice stop immed."

As can be seen, no claim is advanced for an "after" discussion—either as such or as analternative to the claim which is made. Nor, unless the Umpire has missed something, dideither party before Mr. Feinsinger as much as even suggest that an "after" discussionmight serve either as a proper alternative or itself as satisfaction of the private-discussionright which the Union was asserting. And, to return to the grievance statement, UmpireFeinsinger’s answer - i.e., the ultimate holding found under "Decision"— was:

"The right of a Committeeman to ‘represent’ an employee during adisciplinary interview pursuant to Paragraph 76(a) includes the rightto private conversation. The grievance is sustained."

As already noted, there is room for doubt as to whether Mr. Feinsinger established aprivate-discussion right for both the "before" and the "during" stage of a particulardisciplinary interview covering one and the same employee. But, to say it again, he wasconfronted by, and dealt with, these two stages alone. And he chose to conclude with thestraightforward sentence "The grievance is sustained". The present Umpire sees somesignificance in this because it happens not infrequently, because of slight or not-so-slightissue changes by the time a grievance reaches the Umpire level, that the ultimate rulingcannot be stated in straightforward "grievance is sustained" terms.

Finally, and at least as significant as anything which has so far been discussed, there iswhat the present Umpire would characterize as the main thread of Decision J-63: Mr.Feinsinger’s reliance on the presence and normal meaning of the word "represent". This,rather than the presence of the word "during" (which, as shown, he dismissed rathersummarily), is what Mr. Feinsinger started with, elaborated upon, applied as a matter ofwhat the Company would have to overcome to prevail (which it failed to do, in hisjudgment), and ultimately came back to in the final paragraph of his Opinion. Thediscussion part of Mr. Feinsinger’s Opinion starts with the following:



"Paragraph 76(a) expressly gives an employee the right to have hisCommitteeman ‘represent’ him during a disciplinary interview.Contractual language should be given its common meaning unlessto do so would produce an absurd result. The word ‘represent’, bycommon understanding not limited to the attorney-clientrelationship, includes private consultation between therepresentative and the person represented."

In making this his point of departure, Mr. Feinsinger did three things. The first two, by anyreasonable reading of the parties’ briefs in the case, are clear on their face; the third is amatter of the present Umpire’s deduction. First, Mr. Feinsinger accepted the essence ofthe Union’s position (and it simply cannot be argued that it was for the purpose of gainingan "after" right that the Union submitted its "represent" position). Second, he rejected oneof the Company’s main arguments—that there is no right of private discussion unlessexpressly conferred by the Agreement and that it would be wrong to create the right by theimplied-meaning route. Third, so the present Umpire believes, once the presence andcommonly-understood meaning of the word "represent" was made the approach andcornerstone for deciding the case, there could be but little question that a "before" rightwould be found to exist. For, at least as the Umpire has always understood the matter, a"before" right inheres in the right to private consultation in an adversary proceeding. Andan adversary proceeding with the right to private consultation (to be "represented") is whatMr. Feinsinger essentially made of Paragraph (76) (a).

It is, however, unnecessary to rely on what the present Umpire is making of Mr.Feinsinger’s central reliance on "represent". In a succeeding part of the Opinion, Mr.Feinsinger became quite explicit about the "before" right. He turned to Paragraph (29) andits history. Noting that the language of the Paragraph had resulted from a directive of theWar Labor Board, and that the Board, following the issuance of the directive, had beencalled upon to provide an interpretation, Mr. Feinsinger quoted the three-part interpretation.The third part read as follows:

"3. After arrival of the committeeman, the employee shall have the right, if he so desires, todiscuss the grievance privately with the committeeman before it is discussed with theforeman."

Having provided the quote, Mr. Feinsinger commented:

"The significance of this history is the clear indication that in theminds of experienced people representing the points of view ofmanagement, labor and the public, the concept of representationincludes the right of private discussion, at least at that stage of agrievance. It is not immediately apparent why a different conceptshould apply at the stage of a disciplinary interview."

Mr. Feinsinger’s references to "at least at that stage of a grievance" and "at the stage of adisciplinary interview" unquestionably go to the "before" stage—no other stage ismentioned in the War Labor Board interpretation.

The rest of Mr. Feinsinger’s Opinion is largely devoted to his rejection of the Company’s



reliance on the history of Paragraph (76)(a), on the Union’s unsuccessful effort in 1958 tomake a particular language change in it, and on past practice. His discussion of thesematters is bare of even so much as a faint hint to the "after" stage as a proper alternative.

It is, then, the Umpire’s conclusion that the Company is urging an erroneous interpretationand application of Decision J-63. The Decision establishes a "before" private discussion asa right, not as one of two courses—"before" or "after"—either of which can be precludedwhile still satisfying the private-discussion right of Paragraph (76)(a). It follows, as alreadygiven, that that portion of the Fremont local agreement which confines the private-discussion right to the "after" stage is invalid and must be declared null and void.

The remaining question concerns the remedy insofar as the grievant is concerned. It is wellsettled under the parties’ collective-bargaining relationship—and it is not here disputed bythe Company—that a violation of an employee’s procedural rights in connection with theimposition of a disciplinary penalty calls for the modification (not full reversal) of thepenalty. The Union is urging the grievant’s reinstatement with back pay beyond areasonable period. The Company stresses the fact that the local agreement wasimplemented without protest from the Union for nearly a year; invokes the so-called "firstinstance" rule (citing C-227, G-13, G-30, E-81 and E-105); and thus asks that the grievantnot be awarded any back pay.

The "first instance" rule arose in the early days of the parties’ collective-bargainingrelationship and apparently was thought to be the equitable solution in connection withAgreement violations resulting from inexperience and lack of knowledge respecting theproper application of Agreement clauses. One may gather that the following from DecisionE-192 signaled the obsolescence of the rule: "... The ‘first instance’ rule, which results inthe denial to an employee of pay to which he is held to have been entitled under theAgreement, must be narrowly construed—if indeed, after seven years of familiarity with theAgreement, its continued application is justified at all..." (emphasis added). To the extentthat the rule has become obsolete, the Umpire in no way means to resurrect it.

It does seem to the Umpire, however, that it would be wrongful in the present case to grantback pay for any period prior to such time as the Company was made aware of thatcontention by the Union on which it has here been upheld. The Company is simply correct,and with obvious persuasiveness, that the local agreement was allowed to be implementedfor nearly a year. Insofar as the denial of his "before" request is concerned, the grievantwas treated quite the same as had been scores of other employees. And, until such timeas it was confronted with the contention that the local agreement would have to bedisbanded for lack of validity— the one contention which warranted having a real look andon which the Union has now been upheld—Management had every good reason to resistthe charge that the grievant’s procedural rights had been violated. The Umpire does notbelieve, in other words, that either the mere assertion that there was a violation ofParagraph (76)(a) or the denial by the Committee that the local agreement had beenmade, should be taken as sufficient to "start the clock running". He has examined the priorrecord; finds it bare of the specificity which he is here requiring; and therefore assumesthat it was at the shake-out meeting that the Union first made the "local agreement cannotstand even if made" contention. His ruling, accordingly, is that the grievant is to bereinstated with back pay from the date of the shake-out meeting.



DECISION

The various issues presented by the case are defined and dealt with in the Opinion. Theirdisposition need not be restated but should be seen as part of the "Decision". TheCompany is directed to reinstate the grievant as given in the Opinion.

September 4, 1970

/S/Rolf Valtin

Umpire





No. M-81

September 22, 1970

Termination Under Paragraph (111) (b) of National Agreement

Application of Phrase

"Within Three Working Days After the Date of Expiration of the Leave"

GRIEVANCE:

FISHER BODY DIVISION, GENERAL MOTORS CORPORATION, ST. LOUIS PLANT, ST.

LOUIS, MISSOURI—APPEAL CASE M-1080

Grievance 634753

"Protest unjust release under par. 103. Request employee be paid for all time lost and allbenefits." S/R.F. (Grievant) G.B. (Committeeman)



In the Matter of:


and

General Motors Corporation, Fisher Body Division, St. Louis, Missouri -- Appeal Case M-1080


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\m-081_13A660BC.htm

OPINION

Here under protest is grievant F.’s termination under Paragraph (111)(b) of the NationalAgreement. F. was a Committeeman and a second-shift Loaner in the Trim Department.He held seniority from mid-1956.

The facts are not in dispute:

For reasons not here material (though it should be noted that the absence was anauthorized one), F. was absent from work on Monday, Tuesday and Wednesday, January27, 28 and 29, 1969. He was to be back at work on the second shift on Thursday, January30, 1969.

During the course of the morning on the latter date, he requested a Paragraph (103) *leave of absence for the remainder of the week and all of the following week. The requestwas granted.

Paragraph (103) of the National Agreement is titled "Informal Leaves of Absence" andreads as follows:

"A leave of absence may be granted for personal reasons for aperiod not to exceed thirty days, upon application of the employee toand approval by his foreman. Such leaves of absence shall not berenewed and seniority will accumulate during the leave."

It is conceded that: F. understood that he was to be back at work on Monday, February 10,1969; he did not come to work either on this day, or on Tuesday, February 11, 1969, or onWednesday, February 12, 1969; rather, he came to work at 4 PM on Thursday, February13, 1969; he was still a second-shift man in this week; and, also as had been true before F.went on leave, the second-shift hours were from 4:30 PM to 1 AM.

On the grounds that his wife had become ill (while vacationing with him in Florida), F.initially asserted that he had a "satisfactory reason" for not coming to work in the Monday-through-Wednesday period. This assertion has been abandoned.

The opening language of Paragraph (111)(b) reads as follows:

"Any employee who fails to report for work within three working daysafter the date of expiration of the leave, shall be considered ashaving voluntarily quit unless he has a satisfactory reason..."

To be determined is whether F.’s absence on the three days—i.e., Monday, Tuesday andWednesday, February 10, 11 and 12, 1969 -- was a matter of failing to report for work"within three working days after the date of expiration of the leave". It is a fact thatManagement, in terminating F., applied these three days. The Union contends that



Management misapplied the Agreement and that F., in coming to work at 4 PM onThursday, February 13, 1969, was not outside the "three working days" period provided forin Paragraph (111)(b).

It should preliminarily be noted that the Union, in so contending, is neither overlooking norseeking to pull back from the concession that F. understood that he was to be back at workon Monday, February 10. The Union is saying that a case of contractual interpretation isbefore the Umpire and that, whatever F. or Supervision may have understood, it is theterms of the Agreement which must be made to control the outcome of the case.

In contending that F. was improperly terminated, the Union offers three approaches.Though the first two are different in terms of refinement, their common point is theargument that Management erred in treating the Monday as the first of the "three workingdays". The third approach, to be considered only if the first two are rejected, is geared tothe starting time of the shift on which F. was scheduled to work.

The argument in the first two approaches proceeds from the inclusion of the word "date" inthe (quoted) language. Banking on the fact that F. was concededly on leave on the date ofSunday, February 9, the Union submits that a date of leave cannot be taken assynonymous with a date of expiration of the leave; that it is equally true that the two datescannot be taken as overlapping; that, accordingly, it is not until all of the last day of leave isover that the date of expiration of the leave sets in; that it follows from these things thatMonday, February 10 was the "date of expiration of the leave"; that the fact is that it isthree working days after that date which is the permissible period under the provision; thatThursday, February 13 was within this three-working-days period; and that F. in factreported for work on that Thursday.

In its first approach, the Union is saying simply that all of Sunday— i.e., Sunday, throughthe last minute and second of the day—was part of F.’s leave and that it was thusinescapably Monday, February 10 when the "date of expiration of the leave" arrived. Asindicated, the Union’s second approach is of similar character. Here, however, the Uniongoes with the ending time of the second shift. It is concededly true both that the secondshift ended at 1 AM and that, had F.’s unit been scheduled to work on the second shift onthe Sunday, he would not have been obligated to report for work in the last hour of theshift—i.e., that the hour ending at 1 AM on Monday was seen as part of his leave. Again,the Union submits, Monday, February 10 was in being when the "date of expiration of theleave" had arrived.

The Union’s third approach is altogether different. Here, the Union foregoes the "date ofexpiration" argument which it makes in its first two approaches. It grants, in other words,that the "three working days" period began to run on the Monday. This statement,however, is accurate only if it is read with emphasis on the "on" in "on Monday"—i.e., theUnion does not grant that all of calendar Monday was properly made the first working dayof the "three working days" period. What the Union is saying is that, given the fact that F.was a second-shift man and thus obviously was not obligated to be at work before the 4:30PM starting time of the second shift, the Monday hours up to 4:30 PM constituted excusedtime and hence should not be applied as part of the "three working days" period. Takingthree successive 24-hour periods commencing with 4:30 PM on Monday, the Unionsubmits that the "three working days" period ended at 4:30 PM on Thursday and that F.,



having concededly come to work at 4 PM on Thursday, was not an "employee who fails toreport for work within three working days after the date of expiration of the leave."

The Umpire is in disagreement with the Union. By any one of its approaches, he believes,the Union is urging an interpretation which goes contrary to what is conveyed by naturalreading of the language. The Umpire is not prepared to discard the language’s naturalmeaning in the absence of a compelling showing which would support doing so—e.g.absurdity of result, past practice or past Umpire Decisions respecting the application of thelanguage, evidence respecting the intent of the drafters of the language. No such showinghas been made.

In its first two approaches, the Union is contending that the presence of the word "date"requires that the last day of leave and the day of expiration of the leave be treated as twoseparate and distinct days. One reason for rejecting such a construction lies in the fact thatthe word "date" does not appear in the language which immediately follows the alreadyquoted language of the provision. The succeeding language is:

"provided, however, that in the case of failure to report for workwithin three working days after the expiration of leaves of absencegranted under Paragraphs 104, 105, 109, 109a, 110, 110a and 113,Management will send written notification to the employee’s lastknown address as shown on the Company records, that his seniorityhas been broken and that it can be reinstated, if, within threespecified working days thereafter, he reports for work or properlynotifies Management of his absence."

Obviously, if the appearance of the word "date" is to carry the significance which the Unionis urging, the non-appearance of the word must carry the contrary significance. But whatthis would mean is that that which is provided for in the earlier quoted language ("shall beconsidered as having voluntarily quit") and that which is provided for in the just quotedlanguage ("Management will send written notification") do not come into play at the samepoint in time. This lack of sameness is itself enough to decline to give significance to theappearance and non-appearance of the word "date": the two parts of the provisionimmediately succeed each other; the criteria in each part (here assuming that "date" is nota distinguishing feature) are exactly the same—"within three working days", "after" and"expiration"; and it is simply manifest that the second part goes back to the event given inthe first part. But it is not merely that the two parts would come into play at different pointsin time. It is also that the second part would come into play a day earlier than the first part.And, given what is provided for in the two parts, this would be a wholly nonsensical result:the "written notification" event would be triggered at a time when the "considered as havingvoluntarily quit" event had not yet materialized.

But even apart from this, it seems to the Umpire that the Union is urging a strainedinterpretation. It can scarcely be questioned that the provision—meaning now the earlierquoted language—addresses itself to the point where an employee’s leave is over. Andwhat is it that comes to mind when thinking of when one’s leave or vacation is over? TheUmpire has asked himself the question over and over again, and the answer he keepscoming back to is "the end of the last day of the leave or vacation". It is not, so the Umpirebelieves, the first day of one’s return to work which springs to mind in identifying the end of



a leave or vacation. The Union, of course, is not saying that the date of expiration is thefirst day of work—it relies on "date of expiration" coupled with "after". But this does notchange the unlikelihood of the proposition that the parties gave standing to the day ofexpiration as a separate and distinct entity which follows the day on which the leave ends.Indeed, together with "after", the proposition yields a day which is a non-entity—a kind ofno-man’s land, constituting neither a day of leave nor a working day and thus constituting aday as to which the parties’ respective obligations would be left unclear. If the employeeshowed up for work on it—and one may certainly assume that the vast majority ofemployees do show up on it— would the Company be free to send him home withoutpaying him on the grounds that the day is of independent standing and something otherthan a working day? To raise the question is to answer it. And yet, it is not the farfetchedquestion which it seems to be. For if the "date of expiration" as the Union asks to have itconstrued is also to be accepted as constituting a working day, the meaning of it would bethat the parties, though clearly addressing themselves to the problem of an employee’sfailure to show up for work at the end of the leave, provided that there first be a workingday following the end of the leave which is not to "count" and that there then be threeworking days which are to "count". This is farfetched and the Umpire does not believe thatthe presence of the word "date" is enough to support such a construction. Moreover, thenet effect of such a construction would be precisely the same as would a provision callingfor a limit of four working days following the end of the leave. If this had been the parties’intention, the Umpire is convinced that they would have found a way to express it directlyand would not have expressed it in the circuitous "date" fashion.

The Umpire, then, rejects what the Union is seeking to make of the presence of "date" andholds that, under Paragraph (111)(b), the "three working days" period begins to run on theday following the day on which the employee’s leave ends.

This conclusion, the Umpire believes, is not alterable by what the Union argues in itssecond approach. In the first place, at least so far as the Umpire has been made aware,leaves are not granted in terms of shift hours. They are granted in terms of days or weeks.F.’s own request illustrates the matter—the rest of the then current week and all of thesucceeding week. In the second place, and consistent with the above, the language ofParagraph (111)(b) is without indication that a full day is to be added— or, equallyimportant, to be subtracted—based on the accident of an employee’s particular shift hours.More on this below. And in the third place, the Union’s second approach merely echoes itsfirst approach and, in substance, is no different. Either way—just past midnight, in the firstapproach; 1 AM, in the second approach—the Union is saying that Monday had arrivedand that Monday thus has to be applied as the date of expiration rather than as the first ofthe "three working days". It is obviously true that, had F. been scheduled for the secondshift on Sunday, he would have been free—as a matter of still being on leave—not to cometo work on it. In this sense, in other words, it is true that F. was on leave through 1 AM,Monday. But the fact is that, despite its Monday terminal hour, the shift is regarded as aSunday shift. It is quite the same—and here the Umpire comes back to the above madepoint that it is equally true that the accident of shift hours cannot properly result in thesubtraction of a day—with respect to a shift which commences at 11 PM. Taking such ashift in terms of a Sunday-to-Monday overlap, it is regarded as a Monday shift. And, anymore than the fact that the second shift ends at 1 AM on Monday can be taken to meanthat Monday is the last day of leave and that Tuesday, Wednesday and Thursday becomethe "three working days", so cannot the fact that the night shift begins at 11 PM on Sundaybe taken to mean that Sunday is not the last day of leave and that Sunday, Monday and



Tuesday become the "three working days." In both instances, rather, Monday is the first ofthe "three working days."

Two caveats are in order. One concerns the possibility that there are shifts—say, onewhich starts at 8 PM—as to which it is not clear what calendar day they fall into. This wouldbe a complication to be dealt with at such time as it might arise. The Umpire is not seekingto make all encompassing law. The other matter concerns the fact that the Umpire is notsaying that an employee’s shift hours are without relevance. He is holding: 1) that the factthat the second shift ends at 1 AM of the succeeding day cannot be taken to mean that thissucceeding day is squashed as one of the "three working days"; and 2) that, consistentwith Decision E-241, "three working days" are three 24-hour periods. This does not mean,however, that Paragraph (111)(b) can properly be applied on a straight calendar basis andwithout regard to an employee’s shift hours. Thus, in F.’s case, the "three working days"period would properly have to be applied as having run its course, not at the end of thecalendar Wednesday (February 12), but at 1 AM on Thursday (February 13). And though itmay be technical to treat someone situated as was F. as being "good" under Paragraph(111)(b) if he showed up for work at, say, 12:30 AM on the Thursday, the fact is that theprovision, rather than in any way being geared to an all-or-major-part-of-the-shiftrequirement, expressly stipulates "within three working days" (emphasis supplied).

For all intents and purposes, the foregoing discussion disposes of the Union’s thirdapproach as well. Fundamentally, the Union is relying on what has been rejected (save forthe wrinkle given in the caveat) as a proper basis for identifying the "three working days"period—namely, the accident of an employee’s shift hours. It is quite true that all the hoursup to 4:30 PM on Monday were free hours for F. But it simply does not follow that thesehours are properly given the status of leave hours. Rather, for all the reasons given: theleave was over on Sunday; Monday was the first of the "three working days"; and the"three working days" period was over at 1 AM on Thursday. F. did not come to work withinthis period.

Even if the "three working days" period were to be construed as commencing at 4:30 PMon Monday, the Umpire does not believe that F.’s arrival at work at 4 PM on Thursdaycould legitimately be accepted as having made him "good" under Paragraph (111)(b). Forit is not any showing-up within the 3-day period which the provision speaks of. Rather, theprovision expressly refers to "report for work" (emphasis supplied). And just as the Umpirebelieves, as given above, that the calendar day must be seen as extended by an hourwhere the employee’s shift ends at 1 AM and that the employee is "good" even if he showsup for work just a few minutes before the completion of the shift, so does the Umpirebelieve that the showing-up at some hour outside the employee’s shift hours—the meredeclaration of presence, which, for want of the employee’s shift hours, cannot be convertedto going to work—could not be credited as making the employee "good". In both instances,it is a matter of heeding the provision’s language—"report for work", on the one hand, and"within three working days", on the other. F. came in at 4 PM on Thursday, but he was notgoing to work then. His arrival cannot be related to anything but the 4:30 PM starting timeof the second shift. And at 4:30 PM, even the "three working days" period contended for inthe Union’s third approach had run its course.

The Opinion should not close without comment on certain past Umpire Decisions.



First to be considered are Decisions E-241, F-8 and G-193 (respectively: Wallen, 1948;Alexander, 1949; and Alexander, 1954). These Decisions, though they dealt with variousfact situations and decided various points, may be joined for the purpose of this discussion.Taken together, they unquestionably establish that the day of notification is not to becounted in applying the "three working days" period under Paragraph (64)(d). The fact is,however, that they are (64)(d) Decisions. And, this being so, the Umpire does not believethat they provide support for what the Union is urging in the present case. For one thing,there are the differences between (64)(d) and (111)(b) discussed in Decision M-62 --particularly the fact that most layoffs are of indefinite duration whereas most leaves, andcertainly all Paragraph (103) leaves, have a definite and known terminal point. And foranother, it seems to the Umpire that what he is here holding does not constitute anapplication which is contrary to that established by the three Decisions. Under both (64)(d)and (111)(b), there is the phrase "within three working days after". The "after" has beenhonored in both instances: under (64)(d), it is a matter of "after" the day of notification—rather than making the day of notification part of the three days; and under (111)(b), it is amatter of "after" the last day of the leave—rather than interposing an extra day betweenthe end of the leave and the beginning of the three days.

Decision G-97 (Alexander, 1952), though it includes the statement "see F-8", is concernedwith one of the time limits laid down in Paragraph (77). The Umpire admits to somesurprise over the "see F-8" comparison—for, unlike the "after" at (64)(d), it is a matter ofwithin so many days "of" the particular event at Paragraph (77). The essential point to bemade, however, is that Paragraphs (111)(b) and (77) cover entirely different subjectmatters. Paragraph (77) is concerned with time limits respecting protests against DLO’sand discharges, and the only real concern to be had is that there be consistency ofapplication among the three separate time limits given in this Paragraph.

Left is Decision E-190 (Seward, 1948). All of the following are true about this Decision: it isa (111)(b) Decision; the fact situation in it is quite similar to that which is here presented;and it includes a statement which supports what the Union is here contending for.

Briefly stated, the case had the following framework: the grievant had been granted aParagraph (103) leave; the leave was for a period which ended on, and included, Sunday,June 22, 1947; the grievant was neither seen nor heard from until Friday, June 27, 1947;he was terminated under Paragraph (111)(b); and his claim was that he had become ill—i.e., that he had "a satisfactory reason"—and that he had notified Management of hisillness on Wednesday, June 25, 1947.

The grievance was denied on the grounds that the evidence failed to support the"satisfactory reason" claim. However, in defining the issue, Mr. Seward stated:

"The sole issue in this case is whether or not the complainant had asatisfactory reason for failing to report to work within three workingdays after June 23rd."

It is the latter part of the statement which the Union is here relying upon: though there wasno question in the case that the grievant was due back at work on Monday, June 23, Mr.Seward put it in terms of "within three working days after June 23rd" (emphasis supplied).



This statement is undeniably in line with what the Union is here urging to be the correctinterpretation. Further, there are few, if any, who would deny that Mr. Seward is among themost careful craftsmen in the arbitration profession. The present Umpire, nevertheless,declines to accompany the Union in its reliance on the statement. The clear fact is that Mr.Seward was not confronted with the issue here posed. Nor, obviously, can it be assumedthat he intended to decide anything more than the factual issue which was before him. Thestatement could have been made -- as happens even to the best of arbitrators—in hasteand without reflecting on its implications. And if the contrary be true—if Mr. Seward sawthe problem here raised as a potential issue and consciously made the 3-day period asbeginning on the day after the Monday—the present Umpire sees himself as withoutproper choice but respectfully to disagree.

DECISION


September 22, 1970

/S/Rolf Valtin

Umpire





No. M-83

October 1, 1970

Discharge:

Falsification of Employment Application

GRIEVANCE:

GENERAL MOTORS ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION,LEEDS PLANT, KANSAS CITY, MISSOURI—APPEAL CASE M-83

"Charge Management with unjust discharge and request that my record be cleared and allback pay be made up, and also be brought back to work."

S/W.H.W.


The discharge here at issue is set aside; a 30-day DLO is to be entered on the grievant’sdisciplinary record for a violation of Shop Rule 1; the grievant is to be reinstated withreimbursement for wages lost starting with what would have been the completion of theserving of a 30-day DLO. (Entire decision should be read.)

In the Matter of:


and

General Motors Corporation, GMAD Leeds Plant, Kansas City, Missouri -- Appeal Case M-628


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OPINION

At the time of his discharge, grievant W. was classified as "Install Door Hinges" andworked on the second shift in the Body Department. His plant seniority dates from October20, 1967. He was discharged about fourteen months later—on December 13, 1968 -- forviolating the prohibition laid down in Shop Rule 1: "Falsification of personnel or otherrecords."

The facts are not seriously in dispute. The following is a summary.

Until November 1, 1958, the Company’s Kansas City complex was made up of twoplants—the Chevrolet Division plant and the Fisher Body Division plant. As of that time, thetwo plants became one GMAD facility.

On April 6, 1967, in the capacity of Material Handler, W. was hired by the Chevrolet plant.On April 25, 1967 -- i.e., less than three weeks later and at a time when W. was still aprobationary employee and therefore without right of appeal—he was let go as anunsatisfactory employee.

On October 19, 1967, W. applied for employment with the Fisher Body Division. In fillingout the application form, he entered "no" for the question "Have you ever worked for FisherBody or any other GM Division?". It is conceded that it was not through inadvertence thatW. gave the "no" answer—the fact is, indeed, that it was in order not to jeopardize hischances of being hired that W. resorted to falsification.

As already given, W. was hired a day after filling out the application form and worked forFisher Body for about fourteen months. The evidence can only be taken to show that hewas a wholly satisfactory employee: he had a spotless disciplinary record and the Unionasserts, without refutation by the Company, that Superintendent C. expressed himself incommendatory fashion about W. to a Union representative.

In mid-November, 1968, there arose a problem between W. and another employee. TheUmpire will let the Company’s brief tell the story: "The grievant alleged the other employeehad threatened him with a knife and reported this fact to his Supervisor and LaborRelations. The other employee denied the threat, but conceded making a remark in poortaste to the grievant. In Management’s presence the other employee apologized to thegrievant and Management considered the matter dropped. The grievant did not accept theapology and, when he determined no disciplinary action was to be taken against the otheremployee, he swore out a warrant for his arrest with the Kansas City, Mo., PoliceDepartment. Subsequently the other employee was taken from the plant by Police Officers,booked and released on bond. This conduct, plus the grievant’s attempt to personallydeliver a summons to the Labor Relations Representative involved in the case to appear inCourt as a witness, led to the discovery that he had recently been discharged fromChevrolet at the same plant site. The grievant’s involvement in this type incident hadrecalled his name to the minds of the former Chevrolet salary supervisors who were nowhis employer."



It was by virtue of this development that Management checked W.’s employmentapplication and discovered the falsification. Though conceding this much, the Companyinsists that it was for the falsification—not for the above-described fracas—that W. wasdischarged.

The case is one of those which, though of factual simplicity, presents a number ofconsiderations which are rather substantial and which pull one back and forth in trying todecide what the proper outcome is. Based on what he sees as the two ultimateconsiderations—the state of the law respecting falsification under the parties’ collective-bargaining relationship, and the particular facts and circumstances here presented— theUmpire has concluded that W. should not have been discharged.

Preliminarily to be noted—as a matter of showing what the Umpire is not relying upon—isthat there are two Union arguments which, when put together, strike the Umpire as tryingto have it both ways. As it has in prior falsification cases, the Union argues, on the onehand, that humanitarian considerations require tolerance of certain omissions in anemployment application form: a person with a bad past has little chance of being hired if headmits to the bad past on his employment application, and, in turn, has little chance ofgoing "straight" if he does not obtain gainful employment. This much, though it raises theever-difficult question of whether the end justifies the means, cannot help but fall onsympathetic ears. At the same time, however, the Union seeks to go with the propositionthat only such acts of falsification as go to something "material" are punishable offensesand that, at least in many instances, the withholding of one part or another of a person’sbad past does not have the requisite materiality. This is where the Umpire has difficultyaccompanying the Union. The very reason that the falsification is resorted to is that theapplicant assumes that his chances of being hired are substantially reduced if he tells thetruth. Nor can it reasonably be argued that this person is making anything but a correctassumption. But to grant these things, it seems to the Umpire, is to grant that there ismateriality to the hiring process in the particular piece or pieces of withheld information.Simply stated, the falsehood is by definition a material one. And, this being so, the Umpirethinks it would be wrong to shift the burden to the Company at some subsequent stage toprove that it would not have hired the particular individual if the correct information hadbeen before it at the time of his hire. The Umpire does not believe, in other words, thatcases of this sort can properly be approached on the basis of "the Company hasn’t shownthat it wouldn’t have hired him."

It does not follow, however, that either the nature of that which has been withheld or thelength and quality of the employee’s service prior to the discovery of the falsification arewithout relevancy. Consider two extreme examples: on the one hand, the withholding ofinformation relating to some physical impediment together with the employee’s inability,shortly upon hire and by virtue of the impediment, to cope with the physical demands of thejob; and, on the other hand, the withholding of information relating to arrest in connectionwith a drunken brawl—which, rather than being reflective of the person’s life pattern,constitutes an isolated incident—together with an extended period of service which iswholly satisfactory and which the Company then seeks to bring to an end solely becausethe falsification is discovered. The Umpire sees but one basis for failing to distinguishbetween these two situations. It is that "a lie is a lie is a lie" and that, therefore, falsificationper se equates to the discharge penalty. The Umpire is not saying that this is an inherentlypreposterous proposition. It is not one, however, for which he holds any great enthusiasm.



And, as already indicated, the fact is that the state of the GM-UAW law on falsification issuch as to foreclose an automatic-discharge approach.

Rather than merely make this statement, the Umpire thinks it useful and appropriate toprovide a review of what it is based on.

First, there is the Shop Rule itself. It is concerned exclusively with falsification (of recordsof one sort or another) and yet provides for a penalty range of a 1-week DLO to discharge.Since deceit is involved in every form of falsification, there is no way to read the presenceof the range except as a recognition that deceit is not a single or uniform entity invariablycalling for the discharge penalty and that, instead, there are various forms of falsificationswhich, because of varying degrees of seriousness and various sets of surroundingcircumstances, call for penalties of varying severity. The one prior falsification case whichhas been brought to the present Umpire—the Norwood case resulting in Decision M-53 --illustrates the point. The case was concerned with the falsification of a record other than anemployment-application form. However, no less vehemently than here, Managementargued that the grievant had deliberately sought to mislead it and that this was somethingwhich Management could not be expected to tolerate. The penalty which had beenimposed was a 30-day DLO.

Next, there are the eight prior GM-UAW Decisions (aside from M-53) to which the Umpirehas been referred—F-11, F-132, J-3, K-64, K-93, M-15, M-20 and M-29. All of these casesare concerned with falsification of an employment-application form; all of them involved thedischarge penalty; in four of them, the penalty was upheld; and in the other four, it waseither set aside or modified. The Umpire is obviously not proceeding in box-score fashion.Indeed, it is to be granted that: two of the reversals went on special grounds (theCompany’s failure, in J-3, to prove that the grievant had in fact been discharged for thefalsification; and a violation, in K-93, of the grievant’s Paragraph (76) rights); all sorts offactors were analyzed and relied upon in the eight Decisions; and the common element inthe eight decisions is, not some governing principle, but the emphasis which each of thedecisions placed on the cases’ particular facts and circumstances. Nevertheless, it is clearbeyond question that, taken together, the eight Decisions fall far short of supporting anautomatic-discharge approach. Indeed, Decision K-64 includes the following statement(made in the context of referring back to F-11, F-132 and J-3):

"discovery of... concealment of a material fact does not automatically justify discharge."

Yet to be discussed is the history of Paragraph (76b) as it relates to falsification. Beforedoing so, the Umpire wants to insert brief treatment of two matters.

One concerns the fact that the application form which the grievant signed includes thefollowing among its printed material:

"I hereby represent that each answer to a question herein and allother information otherwise furnished is true and correct. I furtherrepresent that such answers and information constitute a full andcomplete disclosure of my knowledge with respect to the question orsubject to which the answer or information relates. I understand thatany incorrect, incomplete, or false statements or information



furnished by me will subject me to discharge at any time..."

It goes without saying that this cannot help but give one substantial pause. In the opinionof the Umpire, however, it is not something which can properly be given determinativeweight. In the first place, though true that Management here acted within the 18-month limitprovided for in the Agreement, the "at any time" statement lacks contractual validity (seethe discussion respecting Paragraph (76b), below). In the second place, the statementdoes not absolutely make discharge the consequence of falsification—it employs thehedging phrase "subject to". And in the third place, there is no showing that the statementwas not part of the application form in the years in which the falsifications leading to theprior Umpire Decisions came to light. In the absence of such a showing, it seems proper toassume that the statement has long been a standard part of the form and thus was inbeing when the discharge-reversing Decisions were handed down.

The other matter concerns the fact that the Company has sought to liken the present caseto the "gun" case covered by Decision M-47. The Umpire has two reactions. One is thatthe argument impliedly grants the absence of an automatic-discharge rule in thefalsification area. The discharge penalty in the "gun" case was upheld, not via anautomatic-discharge rule, but on the grounds that the carrying of a concealed and loadedpistol into the plant constitutes the most extreme form of violating the prohibition laid downin the "possession of weapons" Shop Rule (which also, at least at the Marion Plant, has arange of penalties). The Umpire’s other reaction is a matter of declining to accompany theCompany in the comparison. The Umpire simply does not believe that the falsificationoffense here presented warrants a penalty of the same drastic proportions which he held tobe warranted for the offense presented in the "gun" case. Stated otherwise, contrary towhat he held to be true in the "gun" case, the Umpire does not believe that the offensehere in question is of capital magnitude.

Standing in the way of an automatic-discharge approach, finally, is the history ofParagraph (76b) of the National Agreement. The Paragraph’s final portion nowadaysprovides that Management will not "impose discipline on an employee for falsification of hisemployment application after a period of eighteen (18) months from his date of hire". Tosay this obviously is to imply that Management can impose discipline for the offense withinthe 18-month period. It is, however, the word "discipline" which is employed in theregulation. By common application of industrial-relations practitioners, "discipline" is thebroad term which covers the entire penalty range. It includes, but is not limited to, thedischarge penalty. And any notion that one might have that a full proscription after so muchtime has elapsed is meant to render the discharge penalty as an automatic one in theperiod preceding the cutoff point, is dispelled by the regulation’s negotiating history. Thathistory, without rejoinder by the Company, is given in the Union’s brief as follows:

"In 1964 Negotiations and following the issuance of Decision K-64,we sought a provision in the Agreement that if an employeeescaped detection for a period of one year following hire he was notsubject to be fired for falsification of his employment application. Wewere well aware that Mr. Feinsinger had already ruled that theemployee’s amount and quality of service before a materialfalsification was discovered were factors to be taken into accountwhen considering imposition of discharge and that discharge was



not automatic in that type of case. The Corporation was aware of ittoo. It sought to upset K-64 by its response to our demands for astatute of limitations on falsification of employment application. TheCorporation proposed language which would have granted our one(1) year demand and made discharge automatic for any materialfalsification discovered within one (1) year of hire. This Corporationproposal was rejected by the International Union because of theprovision for discharge which it contained. As a result we waitedanother three (3) years for a statute of limitations which wasincorporated into Paragraph 76(b) in its present form."

So much, then, for a substantiation of the already-stated conclusion that an automatic-discharge approach cannot properly be followed. The Umpire has gone to some length inproviding the substantiation because it seems to him that the question of the properapproach is the basic one raised in this case. On the facts here involved—i.e., once it isdetermined that falsification is not in and of itself a dischargeable offense—it seems ratherclear to the Umpire that the discharge penalty was excessive.

One may gather that W. pressed things unduly, with consequent headaches forManagement, in connection with the difficulties he had with the other employee. But theCompany itself insists that it was not for the incident that W. was discharged. And unlessthere were evidence which would establish a tie-in between the incident and thefalsification—unless it were shown that the incident was reflective of proneness by W. toget embroiled in production-interfering arguments and that it was for this reason that W.was let go from the Chevrolet plant in April, 1967 -- it seems to the Umpire that W.’sapproximately fourteen months of service, wholly satisfactory as shown above, must betaken as standing in the way of discharge as a proper penalty. Under the non-automaticapproach, Management is barred from making falsification the device for getting rid ofindividuals whom it has come to regard as undesirable. It seems to the Umpire that onewould be sanctioning just that were one to uphold discharge on the facts of the presentcase.

This is obviously not to say that the falsification should go unpunished. Management has alegitimate concern about obtaining honestly filled-out-employment-application forms; theShop Rule was violated; and it was within the 18-month limit of Paragraph (76b) that thefalsification was discovered. The Umpire is directing a 30-day DLO.

DECISION

The discharge here at issue is set aside; a 30-day DLO is to be entered on the grievant’sdisciplinary record for a violation of Shop Rule 1; the grievant is to be reinstated withreimbursement for wages lost starting with what would have been the completion of theserving of a 30-day DLO.

October 1, 1970

/S/Rolf Valtin



Umpire





No. M-84

October 13, 1970

Discipline:


Evidence

GRIEVANCE:

CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION, FLINTASSEMBLY PLANT, FLINT, MICHIGAN—APPEAL CASES M-146, M-232 and M-330

Grievance 740537 - Appeal Case M-146

"I charge Mgt. With giving me and unjust Penalty and demand my record cleared at oncewith Pay." S/W.D.N.


"I chg. mgt with an unjust Pen. I demand this Pen be removed from my record & that I bemade whole for all losses & or benefit due me at once." S/R.C.


"I charge Mgt with an unjust pen. I demand that this pen be cleared from my record at once& that I be made whole for all losses at once."

S/J.J.


The grievances are denied. (Entire decision should be read.)


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In the Matter of:


and

General Motors Corporation, Chevrolet Motor Division Flint Assembly Plant, Flint, Michigan-- Appeal Cases M-146, M-232 and M-330

OPINION

Each of these cases was separately heard and involves its own grievant and its own set offacts and contentions. The Umpire is here joining them because: they were heard as partof one agenda; they involve one and the same plant and Local Union; the charge in eachinstance is that the grievant was absent without reasonable cause (Shop Rule 8); thoughthe penalty is not the same in all three cases—Balance of Shift in both M-232 and M-330,2-week DLO in M-146 -- the variation is a matter of differences in the respective priordisciplinary records and no extent-of-penalty issue is raised in any of the three cases; thesole issue thus presented in each of the cases is the factual one of whether or not thegrievant was absent without reasonable cause.

In the opinion of the Umpire, the evidence in each case is such as to require an affirmativeanswer. Each of the grievances, accordingly, is being denied. Brief explanatory commentswill be given on a separate basis.

Appeal Case M-146

Hired in late 1958, grievant N. was a second-shift "Utility Paint and Enamel Class A" in thePaint Department. He was absent on Tuesday, October 8, 1968.

On the next day, Foreman M. asked N. about the reason for the absence. N. replied thathe had been sick and had seen a doctor. Foreman M. inquired whether N. hadsubstantiation, and reminded N. that it was understood that, in the light of N.’s poorattendance record, N. had an obligation to provide substantiation.

It is agreed: that N. was not in possession of a doctor’s certificate on this day—October 9;that Foreman M. gave his consent to N.’s request to submit the substantiation on thefollowing day; that on this day—October 10 -- N. was once more without a doctor’scertificate; and that Foreman M. therewith imposed the DLO. The difference between therespective versions of Foreman M. and grievant N. is as follows. Foreman M. asserts thatN., on October 9, said that he had overlooked, when seeing the doctor on October 8, toask him for a certificate; that, because the doctor was out of town, he (N.) could not obtaina certificate on October 9; but that he (N.) would obtain the certificate on October 10 andwould have it with him when coming to work on that day. Grievant N., to the contrary,



asserts that he said nothing about having failed to get a certificate when seeing the doctoron October 8 or about the doctor being out of town on October 9; that, instead, he toldForeman M. (on October 9) that he (N.) had a doctor’s certificate but had forgotten to bringit with him; and that, unfortunately, he forgot to bring it not only on October 9 but also onOctober 10.

Though there is some dispute about it, the Umpire is going on the assumption that, as ofOctober 11, Union representatives were in possession of a certificate from the doctor andapprised Supervision of this fact. Supervision nonetheless declined to rescind the DLO.

The certificate is in the form of a receipt—of $6.00 from N. by a Dr. W.J.L., ChiropracticPhysician. It is dated October 8, 1968; and, at "For Professional Services", it states"Unable to work - muscle spasm".

A doctor’s certificate is obviously not something lightly to be cast aside. Indeed, more oftenthan not, it is dispositive of a controversy of this sort. For reasons which require noelaboration, however, the Umpire has long been of the opinion that a doctor’s certificatecannot mechanically be applied as always being of determinative weight. And as to thepresent case, the Umpire believes that the surrounding circumstances are such as torender the certificate most suspect. His conclusion is that the certificate was secured onOctober 11 and that it merely echoes a false statement of disablement by the grievant.

N. admittedly had had a poor attendance record and admittedly knew that illness as anasserted reason for absence would have to be substantiated. It is simply incredible thatsuch an employee, if in fact ill to the point of missing work and in fact visiting a doctor forthe illness, would forget to ask the doctor for a statement certifying to the illness. ByForeman M.’s account, this is what N. said had happened. By N.’s account, of course, hehad not forgotten to ask for such a statement and in fact had obtained it. But this createsan improbability of equally great proportions—that N. then forgot to bring it to work. Andone is asked to accept that this was true not only as to October 9 but as to October 10 aswell. In the absence of either a truly convincing explanation or of evidence showing that N.offered to go home to fetch the alleged certificate, the Umpire sees it as too much toaccept. Neither such an explanation nor such an offer is here in the picture. Indeed, N. wasamong the most unpersuasive witnesses whom the Umpire has ever encountered. Asidefrom other problems in his testimony, there was N.’s statement that he could not rememberwhen (on October 8) he had gone to the doctor’s office. Given the nature of the case andthe fact that the grievance was promptly filed, this is simply something which N. wouldhave remembered. N. subsequently changed the "don’t remember", asserting that it hadbeen in the afternoon. But if this were to be accepted, the meaning of it would be that N.,though beset by muscle spasms as early as 4 AM (as he testified), waited until theafternoon before seeing a doctor—once more a rather unlikely state of affairs. And finally,it is a conceded fact that N. at no time made a phone call informing someone at the plantof the alleged predicament, which would have been of about 12-hour duration. Putting it alltogether, the Umpire believes that N. has presented a story which does not stand up.

Appeal Case M-232

Grievant C. was a first-shift Truck Production Assembler. His seniority dates fromSeptember 7, 1967. He was absent from work on Tuesday, January 7, 1969.



C.’s version, essentially, is that his car had for some time been in a state of disrepair; that,for this reason, he had been riding to and from work with B., a fellow employee fromanother department; and that, due to a heavy snowfall on January 6 followed by heavywinds and accompanying snowdrifts on January 7, B. was unable to get through to his(C.’s) house on January 7 and thus failed to bring him to work.

The Umpire wants to make clear that he is deciding this case without consideration of whatamounts to the Company’s alternative position: that an employee has an obligation tomake certain that he has reliable means of getting to work and that, where his failure to getto work is the result of his having arranged for transportation which is not reliable, he is anemployee who is absent without reasonable cause. Not only is the Umpire here proceedingwithout consideration of this contention, but, indeed, it seems to him that if C.’s story heldup—i.e., if true that C. was someone who had a rider arrangement while his car was underrepair and who was left stranded on a particular day due to snow conditions—a holdingthat reasonable cause for the absence was lacking would be highly questionable.

In the opinion of the Umpire, however, there are too many holes in C.’s story to accept it.There is no question that a considerable amount of snow had fallen in the Flint area andthat January 7 was a day of considerable winds. It is equally clear, however, that theroads—at least for the most part—had been cleaned up; that January 7 was not a day ofabnormal absenteeism at the plant; that B., who lives but a short distance from C., did getto work; and that, even if one were to place credence in C.’s assertion that there were highsnowdrifts in the immediate vicinity of his house, the fact would remain that C. would havehad to walk but 50 or 60 feet to the point at the (admittedly) cleared highway where hecould have met B. and been picked up by him. Aside from this, there is the fact that C.’sattendance record had been a poor one and that Supervision had counseled him about theneed to improve it. Given this, if true that it was by reason of snow conditions that C. hadbeen kept from getting to work, it seems to the Umpire that C. would have spared neithertime nor effort to report this fact to Supervision. This would mean, for one thing, that C.would have called Supervision on the morning of January 7 -- when he knew that he wouldnot be picked up and when he obviously would have surmised (his testimony at thehearing renders this an inescapable point) that it was because of snow conditions that hehad not been picked up. C. did not call the plant on January 7. Even if this were to beoverlooked— and, as C. plainly is not a stupid man, the Umpire does not believe that it canbe overlooked—C. surely would have referred to snow conditions in responding toForeman J.’s inquiry, on January 8, as to why he (C.) had been absent on the day before.Foreman J. testified, firmly and convincingly, that C. made no mention of snow. C. deniesthis, but the Umpire believes that, by any realistic assessment, the testimony of both C.and B. was marked by hedging and evasiveness and was generally unpersuasive.

One must doubt, indeed, that B. and C. were riding together at the time.

Both men testified that B. drove C. to work on January 8. Thus raised—C. left the plant notlong after the beginning of the shift (serving the balance-of-shift DLO) -- is the question ofhow C. got home on January 8. The question was in fact asked, and both men first statedthat they were not sure and subsequently said that they "thought" B. drove C. home. Andthis led to the highly improbable proposition that B. had "heard" (though he could notremember from whom) that C. had been disciplined and that the two men then somehowmet at a nearby bar or bowling alley at the end of the shift (and, indeed, with B. allowing



that he could not remember whether he had picked up C. or whether C. already had B.’scar when they met). Neither man, moreover, gave anything even approaching specifics onthe question of how long C. had been riding with B. There is, furthermore, the fact that B. isa Committeeman and that, when asked whether it did not occur to him to protect C.’sinterests and thus to let Foreman J. know on January 7 that snow had kept him frompicking up C., B.’s answer was the wholly evasive and hedging one of "I might have toldanother member of Supervision—but I’m not saying that I did". And finally, there is the factthat B.’s written statement asserting that snow had kept him from picking C. up (thoughdated January 8) was not submitted to Management until March 19 (1969). Unless theUmpire is very much mistaken, B. is the sort of person whose response to an injusticewhich he is in a position to correct would be one of quickly and directly confrontingSupervision.

When all these things are put together, it seems to the Umpire that there is no realisticchoice but to conclude that there are too many implausibilities in C.’s story. It is a storywhich does not hang together. The grievance is being denied on this basis.

Appeal Case M-330

Hired in October, 1965, grievant J. was a first-shift Assembler. He was absent on Monday,Tuesday and Wednesday, May 19, 20 and 21, 1969. As to May 20 and 21, he allegesillness on the part of his infant child, requiring his wife to be with the child at a hospital andrequiring him to stay at home for baby-sitting purposes. As to May 19, he admits to havingbeen in Detroit for personal-business reasons but alleges that he had told Foreman C. (onthe last working day of the preceding week) that he would be absent. J.’s testimony wasunpersuasive, and his alleged proof with respect to May 20 and 21 not only was submittedbelatedly but is weak and tenuous in important particulars. As to May 19, Foreman C., whowas a convincing witness, denies that J. told him anything of an upcoming absence. As toall three days, if J. had had the good reasons which he now alleges—in effect excused onMay 19 and family needs of a quasi-emergency nature on May 20 and 21 -- it seemscertain to the Umpire that J., when he came back to work on May 22 and was asked aboutthe absences by Foreman C., would have stated the reasons rather than have respondedin profane and defiant "none of your business" fashion. That the nature of the responsewas denied throughout the lower steps of the grievance procedure and then finallyadmitted at the arbitration hearing makes it all the more certain. The Umpire concludes thatJ.’s version has to be rejected as untruthful.

DECISION

The grievances are denied.

October 13, 1970

/S/Rolf Valtin

Umpire




No. M-85

NOVEMBER 12, 1970

Denial of Promotional Opportunity Under Paragraph (63)(a);

Company’s Offer to Place Grievant in Job with Back Pay;

Whether Questions Raised by Grievance Have Been Rendered Moot

GRIEVANCE:

Grievance 670393

"I charge mtg with vio of 63a of the N.A. I request that I be promoted to the job, in question,in line with my seniority, and I be paid all back pay due me, due to this vio and mtg abideby 63a of the N.A. in future." S/B.T.


For lack of a concrete case before him, the Umpire rejects the Union’s request for a rulingon the particular interpretative question. (Entire decision should be read)

In the Matter of:


and

General Motors Corporation, Chevrolet Assembly Division, St. Louis, Missouri -- AppealCase M-1328



OPINION

The basic facts are not in dispute and may be summarized as follows: As of September 9,1968, employee S. was promoted from the job of Reliefman-Repair Auto General to the jobof Utilityman-Repair Auto General. The rate for the latter job is 5¢ an hour above that of theformer.

The Reliefman job was created in 1967 and, pursuant to local negotiations, carries a rate5¢ an hour above the Repair Auto General job. Once vacancies in the Reliefman job weredeclared, S. was among those to apply for it and to be placed in it. T., the grievant in thiscase, neither expressed an interest in it nor was placed in it.

On this ground—that he was not a Reliefman at the time the opening in the Utilityman jobcame up—T. was considered as not being in the so-called scope of selection and thereforewas bypassed for the purpose of filling the Utilityman vacancy.

The grievance constitutes a claim that T. rather than S. should have been placed in theUtilityman opening. T. is of longer service than S. and relies on the opening portion ofParagraph (63)(a) of the National Agreement.

The Paragraph reads as follows:

"(63) The transferring of employees is the sole responsibility ofManagement subject to the following:

(a) In the advancement of employees to higher paid jobswhen ability, merit and capacity are equal, employeeswith the longest seniority will be given preference. If thesettlement of a grievance alleging violation of thisParagraph (63)(a) is on the basis that a differentemployee should have been promoted, that employeewill receive back pay equal to the difference between hisrate and the rate for the job in question for the number ofhours worked by the employee improperly promoted onthe job in question, back to the date of the grievance."

Shortly before the arbitration hearing, S. was removed from the Utilityman job and grievantT. was placed in it. Also, the Company has offered to pay T. the back pay provided for inthe Paragraph’s second sentence. Actual payment of it has been held up pending theoutcome of this proceeding.

The Union is seeking a twofold ruling: (1) that Management was wrong in the scope-of-selection position which it took in resisting T.’s grievance; (2) that Management—ratherthan merely remove S. from the job, declare it open, and thereupon make a selection fromamong those eligible and qualified for it—had an obligation to place T. in it. Contrarily, theCompany, relying on the fact that T. has been placed in the job and has been offered theback pay, asks for a ruling that any question raised by the grievance has been renderedmoot and that there is therefore nothing for the Umpire to decide.



Potentially at stake is an interpretation of the second sentence of Paragraph (63)(a). It wasadopted in 1964, in response to the Union’s concern over the fact that, theretofore, theerroneous placement of a relatively junior employee into a promotional vacancy resulted inno more than Management’s redeclaring the job open and thereupon making anotherselection and, without back pay, placing the selectee in the opening. The Company,though granting its back-pay obligation, is here saying that it still possesses the right toredeclare the job open and to start the selection process anew, rather than award the jobto the grieving employee. The Union is saying, on the other hand, that Management is notfree so to "start all over" and that it is the grieving employee who is entitled to be placed inthe job (so long as eligible, qualified and senior to the employee who was placed in thejob).

The Umpire agrees with the Company that the present grievance is not the proper vehiclefor deciding the controversy. It is true that Management’s corrective action vis-a-vis T. isnot the equivalent of a declaration by the Company that the Union is right on the principleon which it seeks to be sustained. It is also true that there is no telling why Managementchose to grant T.’s claim. But there is no getting away from the facts: (a) that, for thepurpose of T.’s claim, Management has abandoned its prior reliance both on the scope-of-selection assertion and on the "declare vacancy and select anew" assertion; and (b) thatManagement has fully granted T.’s claim. There is thus nothing in T.’s grievance which isleft to be decided. It is this which matters. Confronting and deciding contractual principlesis indeed among the Umpire’s functions. It is, however, a function which is to be carried outon the basis of concrete cases, not via pronouncements in the absence of such cases. Theneed for this restraint has long been recognized by GM-UAW Umpires, and is echoed inM-39, one of the present Umpire’s decisions.

It should be obvious that the non-acceptance of Management’s back-pay offer is withoutconsequence. Together with T.’s placement in the job, Management’s back-pay offerconstitutes full satisfaction of T.’s claim. All that is needed to produce a settlement of thecase is for T. to accept that which his grievance asks for and which Management hasoffered him. To permit the Union to bar the acceptance of the offer, and thus to be in aposition to argue that a "live and kicking" case is pending, would be to act in discord withthe very purpose of the grievance procedure.

DECISION

For lack of a concrete case before him, the Umpire rejects the Union’s request for a rulingon the particular interpretative questions.

November 12, 1970

/S/Rolf Valtin

Umpire





No. M-92

April 27, 1971

Disciplinary Action,

30-Day DLO in the One Case and Discharge in the Other,

for Alleged Use of Abusive Language

Against Various Members of Management;

Evidence;

Extent of Penalty;

Charge of Violation of Paragraph (76) of National Agreement

GRIEVANCE:

CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION, NORWOODPLANT,

NORWOOD, OHIO—APPEAL CASES M-880 and M-881

"Grievance No. 395260:

Protest Mgt. for giving me unjust suspension, d.l.o., or discharge. Charging me with S/R31, I am not guilty of this charge. Demand I be paid for all lost time & my record becleared." s/E.S.

"Grievance No. 394891:

Protest unjust suspension and or discharge for alleged viol. of S.R. 31. I am not guilty ascharged. Demand record cleared and pay for all time involved." s/J.O.




1. Grievances Nos. 394892, 394893, 395261 and 395262 -- referred to in the Opinion, butnot quoted therein—are dismissed.

2. The 30-day DLO against grievant S. is upheld.

3. The discharge of grievant O. is modified to a 90-day DLO. Grievant O. is to be reinstatedwith back pay covering the period from the end of the 90-day DLO to the time of hisreinstatement. (Entire decision should be read.)

In the matter of:


and

General Motors Corporation Chevrolet Motor Division Norwood Plant, Norwood, Ohio --Appeal Cases M-880 and M-881

OPINION

At the time here in question, grievant S. was a Utility-Stock Chaser in the MaterialDepartment and a second-shift Zone Committeeman. His seniority dates from October 17,1966. He is the grievant who was assessed a 30-day DLO. Grievant O. was an Inspector-Final Car, Body and/or Repair in the Inspection Department and the Chairman of the ShopCommittee. His seniority dates from October 12, 1964. He was discharged.

S.’s prior disciplinary record consists of but a single reprimand. O.’s prior disciplinaryrecord has four entries; some of the offenses covered by the entries were serious offenses;but it is also true that O. had compiled a clean record in the nearly three-year period whichpreceded the time here in question. The Umpire will not further elaborate on the grievants’prior disciplinary records because, though there was some equivocation about it at thehearing, the Company’s position is that the offense in each instance was such as itself tohave called for the particular penalty which was assessed.

As indicated at the heading, the grievants are charged with having violated Shop Rule 31.This Shop Rule prohibits "abusive language to any employee or supervisor."

In the context of "117" discussions concerning production standards (which discussionshad been going on for about a week), the incident occurred on the evening of July 20,1970. O. and S. called the plant personnel office and requested a meeting. They came to



the office of Assistant Personnel Director H. and were there seen by H. himself and by K.,Supervisor of Labor Relations. They are accused of having thrown various abusiveepithets at H. and K.—largely in response to H.’s refusal to discuss production-standardsproblems. About a half-hour later, after they had been put on disciplinary-action notice andbeen asked to wait in the conference room, they entered the office of Personnel Director S.They are accused of similarly abusive conduct, both there and at a counter outside ofPersonnel Director S.’s office (while K. was making out a plant-leaving pass for them).

Though conceding that rough language was used, the grievants deny that they are guiltyas charged. Indeed, they assert that they were abused by one or another of thesemembers of Management—both in the form of abusive language and in the form of adeliberate shove by K. against O. Their assertions on these scores are covered by fourgrievances (Nos. 394892, 394893, 395261 and 395262). These grievances are officiallybefore the Umpire as part of the present proceeding. He has not quoted them (in contrastto the two grievances appealing the disciplinary actions) because he sees them asrepresenting sheer fabrication. Insofar as the facts are concerned, in other words, theUmpire finds that Management’s version—at least in its essence, if not precisely in all ofthe particulars—is the correct one.

More particularly, the Umpire makes the following three-fold finding:

First, the abusive language in this case was as extreme as anything one mightencounter—certainly more extreme than anything the Umpire has heretofore encountered.This is true both as to the protracted nature of the incident—there was a stream ofinvectives, rather than one or two outbursts—and as to the choice of words. Little purposewould be served by reproducing the particular epithets. But it is to be understood that therewas here a verbal attack of the worst kinds of vulgarities and degradations. Management’splea to the effect of "no one should have to take that much" is thoroughly justified.

Second, going to the fact that O. was discharged whereas S. was given a 30-day DLO, it istrue that O. was the first one to resort to abusive language and that his were the moreextreme and more numerous vilifications. Additionally, the Umpire accepts that O., somethree hours after leaving the plant, phoned Personnel Director S. and hurled furtherinvectives at him. O. thereby compounded things. It is also true, however, that S. (exceptfor the phone call) was a participant in the affair and did employ foul and insulting terms.

Third, the abuse which was heaped on the members of Management cannot be excusedon grounds of provocation. H. gave the grievants to understand that he was not preparedto settle the production-standards issues, saying that an understanding had been reachedwith representatives of the International that the issues would be referred to asubcommittee. One can accept that this stand by H. accentuated the feeling of frustrationand irritation which the grievants had already been experiencing. But H.’s stand wastruthful and valid, and was not a matter of "needling" or improper resistance to discussion.The abusive response by O. and S. was unjustified and they themselves must be heldaccountable for it.

By these findings, the Umpire upholds the 30-day DLO against S. but believes that O.’sdischarge must be overruled as excessive. The Umpire agrees, as indicated, that O.’sconduct warranted a more severe penalty than S.’s conduct. Also as indicated, however,



the Umpire does not accept that S. should be seen as a kind of unfortunate victim ofcircumstances— as a mere "dragged-in" person of comparatively mild conduct. It wasentirely within S.’s powers, if not to caution O. against the vilifications, to stay out of theaffair by simply refraining from abusive conduct of his own. This is not what happened. Tothe contrary, S. produced both denigrations and hard filth. And, as the Umpire believes thatManagement has an obligation to proceed even-handedly in the administration of disciplineand as he sees the distances from a 30-day DLO to discharge as a disproportionately longone, he has concluded that O.’s discharge should be reduced to a 90-day DLO (withreimbursement for the wages lost in the remainder of the time since the discharge).

In so holding, the Umpire is overruling a series of contentions by one party or the other.Some of them require comment.

In appealing the severity of S.’s penalty, the Union urges that Management should havegone the progressive-discipline route; and, in so urging, the Union stresses a prior case(involving one Van H.) in which the use of abusive language was responded to with theprogressive-discipline approach. The Umpire has not accepted this argument because hesees the incident here in question as having involved conduct of such a uniquely extremenature as to have warranted foregoing the application of the corrective-discipline approachand to have warranted going directly to a severe penalty. At the same time, of course, theupholding of S.’s 30-day DLO is not the equivalent of the upholding of a 30-day DLO whichhas been assessed by application of the corrective-discipline approach—meaning that S.is not in the "launching pad" posture as is someone with a 30-day DLO which climaxes aseries of corrective-discipline penalties.

The record in this case incorporates a substantial number of prior GM-UAW decisions. Forthe most part, they cover cases involving the use of abusive language. Either upheld ordirected by the particular Umpire were penalties of various severities, and, taken as awhole, the decisions simply do not compel one result or other in the present case.

There are two decisions, however—C-273 and F-72 -- which are not concerned withabusive language and which are concerned, rather, with the matter of disparatedisciplinary action. The Company relies on both decisions in defending the discharge of O.vis-a-vis the 30-day DLO of S.

In F-72, the Umpire agreed with the Union that the particular incident (a fight between twoemployees) called for the application of the equal-penalty rule but rejected the Union’scontention to the effect that Management, having failed to impose equal penalties, wasstuck with the lower penalty and had to bring the higher penalty down to the lower one.The decision’s implication—that unequal penalties are proper where the one employee ismore culpable than the other—is not here being rejected or disregarded. It is on the extentof the disparate treatment that the Umpire is overruling the Company. Obviously true,however, is that the present decision does not adopt the holding in F-72 that the Companywas free to equalize either in terms of the lower penalty or in terms of the higher penalty.The umpire sees no error in this non-adoption of the F-72 holding. For one thing,equalization is not being required in the present case. And for another, F-72 has thestatement that "In this case the greater penalty (one week) is not so inappropriate for theconduct of either employee as would justify modification". The Umpire thinks it would beunrealistic and wrong to apply this statement to the present case— i.e., that discharge



would have been an appropriate penalty for S.

Properly to summarize C-273 would require a review of considerable length. Suffice it tosay that C-273 does grapple with the problem of disparate treatment of equally guiltyemployees and does seem to be in conflict with the evenhandedness to which the Umpirehas here referred as a requirement in the proper administration of discipline. It is at oncetrue, in other words, that C-273 (though in carefully stated terms) rejected the Union’scontention that the penalties there at issue had to be set aside by virtue of the disparity oftreatment of the grievants vis-a-vis others and that, here, the Umpire is modifying thedischarge of O., not because of the intrinsic inappropriateness of the penalty in relation tothe offense, but because the disparity between O.’s discharge and S.’s 30-day DLO is toogreat. The case itself in C-273, however, involved a different situation. It involved fivegrievants all of whom had been given a disciplinary layoff—with the disciplinary layoff in allfive instances having been of equal length—for continuing to violate a no-smoking rulewhile others, also guilty of continuing to violate the rule, had not been penalized at all. TheUmpire is not saying that the difference is necessarily a decisive one. It does seem to him,however, that it is by no means certain that the conclusions and comments in C-273 wouldhave been the same had the case involved disparate treatment as between the fivegrievants—at least if that had been true without corresponding differences in the frequencyof resort to smoking, the nature and extent of warnings, the prior disciplinary records, etc.This uncertainty, obviously, is particularly to be held in mind where, as here, the steeper ofthe two disciplinary actions is the ultimate penalty of discharge and the disparate treatmentis not based on differences in the prior disciplinary records. And, beyond theseconsiderations, there is the fact that the pertinence of F-72 extends beyond what hasalready been discussed. It includes the following statement (found in its last paragraph): "Apenalty may be fair in severity and unfair comparatively, or vice versa. Both aspects arewithin the compass of the Umpire’s discretion." The statement clearly gives expression toevenhandedness as a consideration in reviewing the propriety of disciplinary action.

The Union brings the charge that the grievants’ rights under Paragraph (76) of the NationalAgreement were violated. The opening sentence of the Paragraph provides that:

"Any employee who has been disciplined by a suspension, layoff ordischarge will be furnished a brief written statement advising him ofhis right to representation and describing the misconduct for whichhe has been suspended, laid off or discharged and, in the case of alayoff or discharge, the extent of the discipline."

No question is raised with respect to anything in the sentence other than the under-scoredportion. The Union is saying that the grievants’ disciplinary-action notice fell short ofconstituting "a brief written statement... describing the misconduct". The disciplinary-actionnotice for each grievant cited and quoted Shop Rule 31 and then, following the printedphrase "This discipline is assessed because", stated "of your actions on Monday, July 20,1970 when you directed abusive language towards members of Management."

The Umpire has been exposed to many disciplinary-action notices. In some instances, theyhave been brief and of skeleton-like character; in others, they have been rather lengthyand detailed. This is not surprising, and it confirms the Umpire’s belief that no broad orrigid rule can be laid down on the question of what constitutes an adequate description of



the misconduct. It is clearly true that a mere citation of the particular Shop Rule is notsufficient: Management nowadays is obligated to "furnish a brief written statement...describing the misconduct". But as to whether or not the description suffices to put thegrievant and the Union in the know of what it is that needs to be defended should there bean appeal from the disciplinary action—and for the grievant and the Union so to be in theknow is the clear purpose of the "describe misconduct" requirement— the Umpire believesthat there are bound to be so many varying circumstances that a case-by-case approachmust be followed.

The Umpire finds that the description of the misconduct in the present case was adequateand sufficient. The description gave the date and it stated that abusive language had beendirected at members of Management. The phrase "members of Management" normallyconnotes a reference to persons other than a Foreman or a General Foreman. Hence,even assuming that either grievant had profane or abusive words with immediateSupervision on the day in question (and there is nothing in the record to this effect by wayof either assertion or evidence), the disciplinary-action notice nonetheless pinpointed theaffair here at issue. Given this much, there could not be any doubt as to the misconductthe grievants were being charged with—unless, of course, the grievants denied all andthus took the stand that they didn’t know what Management was talking about. The Umpireagrees with the Company that Management was not obligated to do that which the 76-violation charge is in effect claiming should have been done -- attach a statement detailingthe string of uncivilized remarks.

The Union has also invoked Paragraph (76b) of the National Agreement.

Reference here is to the fact that there had been one or two past occasions on which O.had been cautioned about the use of abusive language and that this was alluded to by theCompany at one stage or another in the processing of O.’s case. The Umpire will overlookthe fact that the Union is here making a new, 4th Step assertion. He overrules the Union onthe same grounds as were given in M-70 (see the decision’s paragraphs 14 and 15). It isentirely true that Management cannot issue warnings or reprimands, fail to enter them inthe individual’s personnel record, and then rely on such warnings or reprimands indefending a subsequent disciplinary action against him. As shown, however, the fact is thatthe Company is not relying on the prior cautioning and, instead, is taking the position thatO.’s misconduct was such as itself to have warranted the discharge penalty. And though,also as shown, there was some equivocation about it at the hearing, the Umpire has heldthe Company to that position -- i.e., in assessing the disparate treatment between O. andS., he has given no "credit" to the fact that O. had been cautioned and S. had not.

A final comment ought to be entered. The Umpire is by now squarely on record with theproposition that disciplinary measures for violations of Shop Rules (or for seriousmisconduct not covered by a Shop Rule) can be taken against an individual even if truethat the individual is in the role as Committeeman, rather than an ordinary employee, at thetime that the offense is committed. (See Decisions M-53, M-88, M-89 and M-90.) It is to beunderstood, however, that the Umpire holds concern for the possibility that the principlemight be stretched too far. When it comes to meetings involving the administration of theAgreement, as was here involved, it is at once true that things can get rough—abusiverecriminations are hardly unheard of—and that the parties must meet on equal terms. Thismuch— equality of status—is a vital assumption underlying collective bargaining. And as



Management’s disciplinary powers with respect to employees are not matched by Uniondisciplinary powers vis-a-vis Management personnel, the maxim of equality of status wouldbe seriously jeopardized if it were held that Management is as free to move againstabusive language in meetings involving the administration of the Agreement as it is withrespect to abusive language used "on the floor" or other forms of misconduct by anemployee who is acting as Committeeman at the particular time. The holding in the presentcase is not intended to lay down any such broad rule. It is a holding geared to the findingthat the grievants’ misconduct was both uncalled-for and as extreme as anything one mightencounter. The Umpire reiterates his acceptance of the Company’s plea that "no oneshould have to take that much".

DECISION

1. Grievances Nos. 394892, 394893, 395261 and 395262 -- referred to in the Opinion, butnot quoted therein—are dismissed.

2. The 30-day DLO against grievant S. is upheld.

3. The discharge of grievant O. is modified to a 90-day DLO. Grievant O. is to be reinstatedwith back pay covering the period from the end of the 90-day DLO to the time of hisreinstatement.

April 27, 1971

/S/Rolf Valtin

Umpire





No. M-96

MAY 19, 1971

Interpretative Question Concerning 30-Day Period

Under Paragraph (56) of National Agreement

GRIEVANCE:

GENERAL MOTORS PARTS DIVISION, GENERAL MOTORS CORPORATION, DALLASPLANT, DALLAS, TEXAS—APPEAL CASE M-82

"I charge management with an unjust discharge and ask that I be returned to work, withoutloss of seniority days and that I be paid for all lost time." S/S.C.


The grievance is denied for the reasons given in the accompanying Opinion. (Entiredecision should be read.)

In the Matter of:

United Automobile, Aerospace and Agricultural Implement Workers of America -- LocalUnion No. 816

and

General Motors Corporation, GMPD, Dallas, Texas -- Appeal Case M-82

OPINION


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\m-096_13A69F80.htm

The facts in this case are simple and undisputed:

Grievant C. was hired by the Company on February 17, 1969. He worked as a second-shiftStock Handler.

It is agreed that March 18, 1969, marked the 30th day of his employment, within themeaning of Paragraph (56) of the National Agreement. (The Paragraph will be quotedbelow.) C. worked on that day. During the course of his shift (though apparently near theend of it), he was told that he was being terminated as an unsatisfactory employee. C.completed the shift and was thereupon in fact terminated.

It is conceded that C. was not discharged for misconduct or any sort of Shop Ruleviolation; that he was not given a notice as provided in either Paragraph (76) or Paragraph(76b) of the National Agreement; and that Management has offered no "for cause" defenseof C.’s discharge.

The question raised is whether Management was free so to discharge C. The Companyurges an affirmative answer, saying that C. should be held to have been discharged withinthe 30-day probationary period and that no "for cause" defense need be made, and no "76"notices need be given, with respect to an employee so situated. The Union, though itinsists that even a probationary employee has the right to protest his discharge to theextent that it is tainted by either personal discrimination or discrimination for Union activity,concedes that no "for cause" showing need be made, and no "76" notices need be given,with respect to an employee who is discharged within the 30-day probationary period. Itsposition is that C. was an employee who had gone beyond the end of the 30-dayprobationary period and that, this being so, C.’s discharge was defective for lack of a "forcause" showing and for lack of fulfillment of the "76" procedural requirements.

Before going further, two things should be noted by way of issue clarification. Oneconcerns the status of a grievance filed by an employee who is admittedly still within the30-day probationary period. As indicated, the Union insists that certain types of actionsadversely affecting a probationary employee can properly be protested through thegrievance procedure. No such issue, however, is here raised and the present decisionshould not be read as passing on it. Nor can the Umpire do what the Company is hereurging: to declare the present grievance to be lacking in status if the Company prevails onit. What the present grievance in effect does, quite properly so, is to test a question of theproper application of the 30-day period under Paragraph (56).

The second issue-clarifying matter concerns the method for calculating the duration of the30-day period under Paragraph (56). Though the parties are agreed that it is a calendar-day, rather than working-day, period which is to be applied under Paragraph (56), casescould conceivably arise which, due to such complications as shift-starting times or anemployee’s transfer from one shift to another within the 30-day period, would raisequestions as to when the 30-day period should be seen to have begun and to have ended.Again, however, the Umpire is not here passing on any such questions. For, in the presentcase, the parties have stipulated that the end of the second shift of March 18, 1969,marked the end of 30 days of employment for C. and the beginning of the second shift ofMarch 19, 1969, would have marked the beginning of the 31st day of employment for C.



Paragraph (56) of the National Agreement reads as follows:

"Employees shall be regarded as temporary employees until theirnames have been placed on the seniority list. There shall be noresponsibility for the reemployment of temporary employees if theyare laid off or discharged during this period. However, any claim bya temporary employee made after 30 days of employment that hislayoff or discharge is not for cause may be taken up as agrievance."

The Umpire is making a de novo interpretation. Part of the record in the present case ismade up of a series of documents—past GM-UAW decisions and certain letters coveringunderstandings between the parties—which make reference to the 30-day period underParagraph (56). Thus, there is a letter with respect to the proper application of Paragraph(77) which refers to an employee who has passed the probationary period as an employee"with thirty (30) days of employment"; there is a letter with respect to the proper applicationof Paragraph (76) which refers to such an employee as an employee "with more than thirty(30) days of employment"; and there is a series of past GM-UAW decisions which havevarious references typified by "a temporary employee but with more than 30 days ofemployment". The Union places reliance on the first of these documents; the Companyplaces reliance on the remaining ones. Aside from the fact that there is here something ofa stand-off, the difficulty with the parties’ reliance on these documents is that none of thedocuments is concerned with an interpretation of Paragraph (56) itself. It is quite like in M-81, where the issue was how the phrase "within three working days after the date ofexpiration of the leave" at Paragraph (111b) was to be applied and where the Union reliedon a prior GM-UAW decision which had a statement in line with the interpretation urged bythe Union but which was not itself concerned with the proper interpretation of the phrase.The Umpire rejected the Union’s reliance on the decision as misplaced for this reason --i.e., that the mere appearance of language favoring one side or the other in a decision,where the decision is not itself concerned with the particular interpretative problem, cannotbe applied as already having disposed of the problem. So it is here. The task is that ofdirectly and independently confronting the interpretative question posed by the presentcase.

In the opinion of the Umpire, the Company must be upheld. It is true that, taken literally,the last sentence of Paragraph (56) supports the Union’s position. C. had completed 30days of employment when he protested his discharge, and the sentence does say that"any claim by a temporary employee made after 30 days of employment that his layoff ordischarge is not for cause may be taken up as a grievance". Equally true, however— andequally to be borne in mind if this literal route were to be pursued— is that the decision todischarge C. had been made, and had been transmitted to him, before the end of the shift.The mere fact that C. was permitted to complete the shift can hardly be legitimately appliedas having produced the "for cause" right which C. otherwise was lacking.

But the real point, in the opinion of the Umpire, is that to proceed along the literal routewould be to go contrary to what the Paragraph, in clear essence and purpose, provides for:a 30-day probationary period. Management is given a 30-day period to "look over" a newemployee and to make up its mind as to his or her suitability. The 30th day is obviously partof the 30-day period. And what the Union, by relying on the fact that C. had been



terminated by the end of the shift, is in effect urging is that not all of the 30th day canproperly be applied as part of the 30-day period. Stated otherwise, the Union is saying thatthe "for cause" right became operative a minute after the completion of the shift markingthe 30th day of employment. This is where the Umpire is in disagreement with the Union.For the clear fact is that C. was terminated on grounds of unsuitability as assessed byManagement over the course of the 30-day probationary period. In the opinion of theUmpire, it is this—the fact that the Company is relying on Management’s assessment ofC.’s performance over the 30-day period, together with the fact that the termination camewithout elongating the assessing period—which matters. The fact that it was a minute ortwo past the completion of the shift marking the 30th day -- or, indeed, that it might havebeen an hour or two—does not matter.

The Umpire thus holds that Management is free—i.e., without a "for cause" showing andwithout a "76 notice" obligation—to terminate an employee at any time before thebeginning of the shift marking his or her 31st day of employment. This is no meretechnicality—merely switching the "for cause" and "76 notice" requirements from a fewminutes after the end of the shift marking the employee’s 30th day of employment to a fewminutes following the beginning of the shift marking the employee’s 31st day ofemployment. For, as the Umpire sees it, there are two sides to the probationary-periodcoin. One side is the one already treated: that Management can use all of the 30-dayperiod for making up its mind. The other side—and this is again a matter of going with whatthe Umpire sees as the Paragraph’s design and purpose, rather than going with anexpress command—is that once the employee has been permitted to go to work on the31st day of his or her employment and is thereupon discharged, Management, even ifprepared to fulfill and in fact fulfilling the "for cause" and "76 notice" requirements in theformal sense, cannot bank on general unsuitability as shown by the employee’sperformance during the probationary period. The Paragraph’s assumption is that anemployee who is permitted to go to work on the 31st day of his or her employment hashurdled the probationary period and is not dischargeable on grounds of unsatisfactoryperformance during the period. Stated otherwise, the Paragraph’s assumption is that thedischarge of an employee who is no longer a probationary employee will be geared toconduct which occurs subsequent to the end of the probationary period.

At the hearing, the parties alluded to the possibility that an employee might be dischargedfor some sort of off-plant offense committed during the period between the end of the shiftmarking the 30th day of employment and the beginning of the shift marking the 31st day ofemployment. Such a discharge would be based, not on general unsuitability as assessedover the course of the 30-day probationary period, but on a particular event occurringbeyond the end of the period. It would therefore be subject to the "for cause" and "76notice" requirements and appealable via a grievance.

DECISION

The grievance is denied for the reasons given in the accompanying Opinion.



May 19, 1971

/S/Rolf Valtin

Umpire





No. M-106

November 26, 1971

Termination of Employee Under Paragraph (111)(b)

of National Agreement

GRIEVANCE:

GM ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION, FREMONT,CALIFORNIA — APPEAL CASE M-2490

Grievance 378713

"I protest Manag’t removing me from Rolls as Voluntary quit per 111b N/A. I contend that Idid not vol. Quit. Also charge Manag. with Viol. of Para 72 N/A. Demand I be reinstatedwith full seniority and made whole for all monies & benefits lost at once." S/M.S., Jr.


For the reasons and to the extent given in the Opinion, the grievance is upheld. (Entiredecision should be read)

In the Matter of:


and



3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\m-106_13A6A9EC.htm

OPINION

The grievant in this case, L., was a first-shift "Utility Welder-Spot" in the Body ShopDepartment. His seniority dates from September 13, 1961. To be determined is whether hewas properly terminated as a voluntary quit under the provisions of Paragraph (111)(b) ofthe National Agreement.

The following are the background highlights:

On September 23, 1968, L. sustained an inplant injury to his right arm.

He was placed on a "(106)" sick leave for about a month thereafter.

On returning from the sick leave, L. was cleared for work by the plant’s Medical Director onthe basis of certain restrictions. L. was thus placed on "(72)" work. He remained on it untillate November, 1968.

For the next approximately nine months, L. worked in his regular "Utility Welder-Spot"classification. However, on the grounds that the performance of the work of theclassification brought on pain in his arm, he frequently went home (or was sent homebecause of his complaints) during the course of his shift.

Also in this approximately 9-month period, there were various medical events relating toL.’s complaints that he continued to experience pain when performing "Utility Welder-Spot"work. Among the events were:

L.’s filing of a Workmen’s Compensation claim (ultimately resulting in the denial of histemporary-disability claim and the ruling that L. had sustained a 4 percent permanentdisability); the filing of a grievance by L., in the spring of 1969, claiming that he was entitledto be placed on "(72)" work (which grievance was still alive when L. was terminated); andthe referral by the plant’s Medical Director of L.’s case to a number of specialists. On thewhole, their reports substantially supported his finding that there no longer was objectivemedical evidence of a malady and that L.’s best course was to keep the arm exercised.Also to be noted, however, is that the plant’s Medical Director and L.’s personal physicianagreed that L. should be restricted to the extent of not performing "heavy labor". Thephrase was subsequently refined as designating work involving the lifting of an objectweighing 25 pounds or more.

On August 22, 1969, L.’s foreman, in response to continuing complaints by L., instructed L.not to keep coming to work until cleared for the performance of his regular work by hispersonal physician and the plant’s Medical Director. This resulted in a letter from L.’spersonal physician to the plant, asking that L. be placed on sick leave and advising that L.was being referred to the Stanford Medical Center for studies. L. was thus once moreplaced on sick leave. The leave was granted until October 6, 1969.

L. did not come to work on the three working days following the expiration of the leave.These are the three days which the Company relies on in defending L.’s termination.

L. came to the plant on November 10, 1969. He presented reports from staff members of



the Stanford Medical Center and he was seen by the plant’s Medical Director. The essenceof the reports was that "we are hard pressed to make a specific diagnosis in thisgentleman’s case and would hope that he would be able to return to work although not in aheavy labor capacity it would appear". The plant’s Medical Director cleared L. for theperformance of his regular work.

Confronted with this determination by the plant’s Medical Director, L. asked to be put ondifferent work. The plant’s Medical Director declined himself to issue instructions to thiseffect but suggested that L. consult with the plant’s Workmen’s Compensationrepresentative.

L. saw the plant’s Workmen’s Compensation representative both on November 10, 1969and on November 11, 1969. On one of these two days, the representative talked to L.’sSuperintendent, passing on L.’s request for assignment to light duty. The Superintendentindicated that no such work was available and that L. would be assigned to his regularwork. L. declined to return to work on this basis.

Then, on November 14, 1969, the plant sent L. a letter advising him that he had beenterminated as a voluntary quit under Paragraph (111)(b). L. received the letter onNovember 15, 1969, and promptly went to the plant and talked to the Workmen’sCompensation representative. L. told the representative that he was still receiving Statedisability benefits and says that the representative stated that, so long as this was true, he(L.) did not need to be concerned about the termination notice. The representative deniesthat he made any such statement.

L.’s State disability benefits ran out in late February, 1970. Thereafter, L. unsuccessfullysought to obtain benefits from two other sources (disability benefits from Social Securityand unemployment benefits from the Department of Human Resources and Development).Failing in both efforts, he filed the present grievance in October, 1970.

The case was unusually hard-fought, saw a hearing of inordinate length, and produced agreat many contentions and counter-contentions and the citation of a substantial number ofpast GM-UAW Umpire Decisions. The Umpire has thoroughly studied all that is before him.However, rather than provide a review, he will move directly to what he sees as the coreconsiderations. He notes that he sees no inconsistency between what is is here holdingand what was held in the various past Umpire Decisions.

The following is the relevant portion of Paragraph (111)(b) of the National Agreement:


In thrust and essence, the Company sees the case as quite the same as the case whichled to Decision M-46. Involved, it contends, is a faking and malingering person whopreferred to taste the fruits of receiving various forms of benefits over working for a livingand who carried things one step too far. The Company submits that it spent substantialsums of money in sending L. to the various specialists and thereby seeking confirmation ofthe judgment of the plant’s Medical Director; that all the relevant medical evidence shows



that L. was not disabled and could safely have performed his regular work; and that ittherefore cannot properly be held that L. had a "satisfactory reason" for not reporting forwork on the three days in question. Moreover, the Company urges, L. was not dischargedbut, rather, was released via the automatic operation of the terms of the Agreement.Applicable to him, the Company says, is the long-held view of the office of the Umpire that"if employees are to enjoy the privileges and benefits granted them by the NationalAgreement, they must be willing to fulfill the obligations which that Agreement places onthem". And, finally, the Company urges that the grievance should be dismissed for itsextreme untimeliness. The Company grants that there is no provision in the Agreementwhich explicitly bars consideration of the grievance. But the waiting of a whole year beforeprotesting the termination, the Company submits, is inconsistent with one of the purposesof the Agreement ("to secure a prompt and fair disposition of grievances") -- and, at theleast, must be seen as reflective of the woefully weak nature of the protest.

The Umpire views the case differently.

There are of course substantial indications that the injury which L. sustained was of lessthan great severity and that L. has since then unduly prolonged things. It may indeed betrue, in other words, that the grievant either is of enormous hypochondriacal tendencies orhas deliberately "pushed a good thing". In the opinion of the Umpire, however, theevidence is not clear cut enough to go this route.

The evidence can also be taken as showing the existence of a lingering and stubborncondition: there are not only the facts that L. was put on sick leave for about a monthfollowing the injury and thereafter was placed on "(72)" work; there are also the facts thatL. received a Workmen’s Compensation disability award, that L. was repeatedly excusedfrom work upon being returned to his regular job without resort to discipline for absenceswithout reasonable cause, that the finding of the plant’s Medical Director with respect toswelling or enlargement of L.’s arm was not substantially different in the fall of 1969 ascompared to what it was in the fall of 1968, that a "no heavy labor" restriction was imposedand was still recognized as proper more than a year after the injury, that L. was once moreput on sick leave in the fall of 1969, and that L. received State disability benefits throughearly 1970. These pieces of medical evidence, moreover, must be put alongside the factsthat L.’s "(72)" grievance was still pending; that, though the lifting of an object weighing 25pounds or more is apparently not entailed, the work of the "Utility Welder-Spot"classification is clearly of a physically onerous variety—it involves the repeated lifting ofobjects of considerable size and weight and it requires repeated and substantial exertion inapplying the welding guns; and that, though true that the classification involves some postswhich are physically less demanding than others and that L. had in recent times not beenassigned to the "heavy" posts, the fact is that this was happenstance and that Supervisionhad made no commitment to confine him to the "light" posts. Putting it all together—i.e.,joining these latter considerations with sum total of the given pieces of medical evidence—the Umpire holds that L. had a "satisfactory reason" for not coming to work on the threedays in question.

In so holding, the Umpire has been mindful of the particular circumstances here involved.This was not a clear situation of a one-shot sick leave followed by a mysterious absenceupon the expiration of the leave. There was here a year of a continuum of lack of claritywhich had not come to an end with the end of the leave.



It is arguable, indeed—unless it was an instance of the right hand not knowing what the lefthand was doing—that Management itself did not see L. as someone who was terminablefor not coming to work on the three days. As shown, a whole month went by before L.came back to the plant. When he did so, Management did not take the position that it nolonger had any obligation toward him on the grounds that he had voluntarily quit. To thecontrary, the plant’s Medical Director saw him and cleared him for work. And it was whenL. resisted the finding that he could do the work of his regular classification and once moreasked to be reassigned to light duty -- in effect persisting in his "(72)" demand—thatManagement sent him a letter saying that he was terminated as a voluntary quit. Given thesequence of events, it seems to the Umpire that there are here the earmarks of resorting tothe use of Paragraph (111)(b) as a convenient means of breaking a deadlock andunloading an employee who had become a thorn in Management’s side. And this much,though the Company is on sound grounds in urging the observance of the distinctionbetween a discharge and the automatic operation of the Agreement, clearly represents aperversion of the purpose and intent of Paragraph (111)(b).

No long dissertation is needed on the Company’s untimeliness argument. Though it isclear that there is nothing in the Agreement which explicitly bars the consideration of agrievance filed long after the occurrence of the protested event and though the Unionseems correctly to have argued that the retroactive-pay limitations laid down in Paragraph(48) of the National Agreement constitute the parties’ answers to the untimelinessproblems experienced in the early collective-bargaining days, the Umpire is not making thebroad ruling that no claim can ever be so untimely as to be dismissable under the "promptand fair" objective of Paragraph (5) of the National Agreement. It does seem to him,however, that the circumstances of the present case are not sufficiently compelling towarrant the non-consideration and non-determination of the grievance.

In accordance with the understanding reached at the hearing, the Umpire does not here gobeyond the holding that L.’s termination was improper. The implementation of the holdingis in the first instance left to the parties, with either party having the right to bring the caseback to the Umpire for final determination should a disagreement with respect to theimplementation develop.

DECISION

For the reasons and to the extent given in the Opinion, the grievance is upheld.

November 26, 1971

/S/Rolf Valtin

Umpire





No. M-107

December 7, 1971


Under Paragraph (111) (b) of National Agreement

GRIEVANCE:

DELCO MORAINE DIVISION, GENERAL MOTORS CORPORATION, DAYTON, OHIO—APPEAL -- CASE M-1970

Grievance 502334

"Charge Mgt. of Delco Moraine with terminating my seniority. Demand I be reinstated withfull seniority rights and I be paid all monies and benefits lost." S/R.A.F.


For the reasons and to the extent given in the Opinion, the grievance is upheld. (Entiredecision should be read.)

In the Matter of:


and

General Motors Corporation, Delco Moraine Division, Dayton, Ohio -- Appeal Case M-1970


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\m-107_13A6B486.htm

OPINION

The grievant in this case is F. His seniority dates from August 26, 1963. To be determinedis whether he was properly terminated as a voluntary quit under the provisions ofParagraph (111)(b) of the National Agreement:


As was true of the "(111)(b)" case covered by the recently-issued Decision M-106, there ishere a great deal of material by way of both factual contentions and contractual argumentswhich, if reviewed and treated, would produce a very long Opinion. Once more, rather thango to such length, the Umpire will confine himself to what he sees as the coreconsiderations.

The following are the central facts as the Umpire finds them:

By reason of a hernia problem, which was surgically corrected, F. was on sick leave fromeither late March or early April, 1970 until June 16, 1970. He was cleared through theplant’s Medical Department, and he thereupon returned to work, on the latter date.

On this first day of work, he was assigned to an inspection job on the Sander Line. As amatter of brevity and convenience, the job will here be referred to as the Sander job. Itinvolves visual inspection duties, no heavy lifting, and the choice of working in a sitting orstanding position. The operation goes down for 5 or 10 minutes every hour. Except for this,it is a stationary job.

Either at the end of the shift on June 16 or at the beginning of the shift on June 17, F.complained to his foreman about pain and swellings. On June 17, though it is not clearwhether it was done in response to his complaints, F. was assigned to a packing jobknown as the Rod Guide job. It involves loading and unloading duties and the occasionaluse of a crow bar. It is not, however, a job requiring substantial physical exertion; and itoffers more of a chance to "move around" than does the Sander job.

On June 18, F. was reassigned to the Sander job. He objected to the assignment; askedfor, and was given, a medical pass to visit the Medical Department; and told the DivisionMedical Director that he did not think that he should be assigned to the Sander job. TheMedical Director looked at the job and concluded that its duties were such as to make F.’sassignment to it consistent with the medical coding which F. had been given in connectionwith his clearance on June 16: light labor, no climbing, moderate lifting, and moderatepushing or pulling. F. nonetheless declined to perform the Sander job and went home.

On June 19, F. went to his personal physician, Dr. H., and obtained from him the followingstatement:

"Mr. R. _____ F. _____ who has been under my care since hisrecent surgery can not do any strenuous work or heavy lifting, butshould not be on a job that requires standing for any length of time.



He needs light work that he can move around at the same time."

This statement did not change Management’s mind with respect to the suitability for F. ofthe Sander job.

Similarly, F. did not relent and did not go to work on the Sander or any other job. On June22, he had a conversation with Employment Supervisor B., reiterating his request not to beassigned to the Sander job. In response, the Employment Supervisor met with F.’sforeman and the Medical Director and reviewed with them the job’s duties in relation to F.’smedical coding and the June 19 statement of his physician. The conclusion of these threemen was that the job was appropriate for F. and that he should not be offered another job.F. was so advised on June 25.

F. thereupon filed a grievance alleging a violation of his rights under the local seniorityagreement to be placed on a light-duty job. The grievance became Appeal Case M-1850. Itwas still alive when F. was terminated under Paragraph (111)(b).

On July 6, either by mail or by F.’s having brought it to the plant (there is a mysteriousconflict in the evidence on this score), Management received a supplementary formcovering claims for sickness and accident benefits. It had been filled out by F.’s physician,Dr. H. Among the pieces of information provided on it was that there had still been somepost-operative healing but that F. was sufficiently recovered to return to work. Dr. H. hadfilled in the date of July 6, 1970, as the date on which he filled out the form. He had leftblank the space reserved for giving "the date the patient was able to return to work"—theso-called "5(a)" space on the supplementary form.

On the basis of the supplementary claim, Management authorized the payment of sicknessand accident benefits and treated F. as on sick leave in the period June 18 through July 6.This, the July 6 sick-leave terminal point, is what Management’s case is based on.

F. did not show up for work on July 7, 8 and 9 -- or, for that matter, made no contact withthe plant either on those days or on a number of days thereafter. Based on his absence onthe three days, Management decided that F. should be terminated under Paragraph (111)(b). It sent him a letter, notifying him of his termination, on July 15.

On July 20, F. contacted the plant’s Employment Supervisor and inquired about theavailability of a suitable job. Told that he had been terminated, he replied, in effect, that thiswas a wrongful action as he was still under a doctor’s care.

In response to this assertion by F., the plant’s Supervisor of Insurance telephoned Dr. H.’soffice and spoke to a secretary familiar with insurance claims. She informed him that F.had last been seen by Dr. H. on July 6 and that Dr. H., having found the post-operativehealing process to be complete, had intended F. to return to work on July 7. Management,accordingly, adhered to its position that F. had properly been terminated.

By this finding of the facts, the Umpire is rejecting F.’s assertions in several respects.Among the assertions are: 1) that F. came to the plant on July 7, 8 and 10 and was turnedaway on each occasion (by Management’s insistence that no job other than the Sander jobwas available to him), and 2) that Dr. H. intentionally left the "5(a)" space blank to show



that he was not releasing F. to go back to work on July 7 (except perhaps on a tightlyrestricted basis). The evidence convinces the Umpire that the Company’s version on thesescores is correct.

Nevertheless, though F.’s pretenses and misstatements are regrettable, the Umpire doesnot believe that F.’s termination can properly be upheld. The Company is obviously right insaying that it does not have to tolerate a situation where an employee refuses to come towork and thus seeks to negotiate the job he is to be assigned to. Furthermore, from all thatthe Umpire could gather, it seems quite clear that the Sander job was an appropriate onefor F.’s particular problem and in line with the medical coding he had been given. F. seemssimply to have preferred the Rod Guide job. However, in the opinion of the Umpire, whatManagement here did was to decline to test the issue and, contrary to the intent andpurpose of Paragraph (111)(b), to seize on that Paragraph to get rid of the grievant.

The Umpire assumes it to be correct that an employee for whom Management authorizesthe payment of sick and accident benefits for a particular period is properly seen as anemployee who was on sick leave for that period. But here to honor this assumption wouldbe to go with the technically correct while disregarding the essential nature of the case. F.had not been granted and placed on sick leave in the usual way or in any real sense. Hehad come off sick leave, been cleared for work, and then bucked his assignment. He wasin limbo starting with June 18, and this was still his status on July 6 and thereafter but forManagement’s receipt of the supplementary form. And what Management did was not onlyto apply the form to retroactively put F. on sick leave but, so it seems to the Umpire, topounce on the thus-established leave as a means for starting the clock running underParagraph (111)(b). Under all the facts and circumstances here involved, the Umpirebelieves, the proper view of the case is that Management is asking to be sustained on aconvenient-vehicle-for-unloading application of Paragraph (111)(b). Such an application,as pointed out in Decision M-106, clearly represents a perversion of the purpose and intentof Paragraph (111)(b). Or, to return to the above technically-correct point, to sustain suchan application would be to push the technically correct to unsound extremes.

In similarity to what he did in Decision M-106, the Umpire does not here go beyond theholding that F.’s termination was improper. With respect to back pay, there are theproblems that F. was still objecting to the Sander assignment on July 20; that hepresumably would have continued to object for some time and perhaps all the way to thepoint of resolution of Appeal Case M-1850 (which point can scarcely here be identified);and that he twice more underwent surgery in 1971. The Umpire urges the parties to cometo agreement on a realistic estimate as to the amount of back pay due the grievant. In theevent such an agreement is not reached, either party is free to return the case to theUmpire for final determination.

DECISION


December 7, 1971



S/Rolf Valtin

Umpire





No. M-108

December 30, 1971

Discharge:


Evidence;

Extent of Penalty

GRIEVANCE:

UNITED DELCO DIVISION, GENERAL MOTORS CORPORATION, ATLANTA WARE-HOUSE,

ATLANTA, GEORGIA—APPEAL CASE M-31

Grievance 324385

"I protest unjust disciplinary discharge effective 9-10-70, 5:00 PM. I had a reasonableexcuse from a doctor and was on sick leave. Request all pay and benefits for all loss oftime due to discharge and for disciplinary discharge to be removed from my record."S/R.E.W. (Grievant) L.K. (Committeeman)



In the Matter of:



3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\m-108_13A6BE85.htm

and

General Motors Corporation, United Delco Division Atlanta Warehouse, Atlanta, Georgia --Appeal Case M-31

OPINION

Grievant W. was one of the Warehouse’s Material Handlers and held seniority dating backto early 1962. He was discharged, on September 10, 1970, by combined application ofShop Rule 6 and his prior disciplinary record. Shop Rule 6 covers "Absence withoutreasonable cause".

The case is one of those involving an employee’s absence and rather voluminous medicalmaterial going to the question of whether the employee should have been at work. Ratherthan provide a detailed review, the Umpire will seek to provide the factual framework in away which reflects the essence of the case.

The period of absence here at issue was from August 21 to September 10, 1970. It cameon the heels of a very poor attendance record. For 1970, W.’s prior disciplinary record hasfive entries. Though one was for insubordination, another was for tardiness and the otherthree were for absences without reasonable cause. The last of the disciplinary actions forabsence without reasonable cause came in mid-May, 1970; consisted of a 4-week DLO,assessed in line with progressively-severe penalties of the corrective-discipline approach;and was expressly coupled with the word that discharge would be the next step.

On August 21, 1970, W. requested, and was granted, permission to leave work and visithis physician, Dr. M. W. came back to the plant a few hours later and presented a notefrom Dr. M. It bears the date of August 21, 1970 and it reads as follows:

"Mr. W_____ has a lumbar disc disease and I recommend that hecontinue following Dr. B_____’ treatment and advice regardingsurgery. In my opinion he is unable to work & am referring him to Dr.B_____’ care."

On the assumption that W. would be seeing Dr. B. forthwith, and with the understandingthat it would be filled out and returned to the plant as expeditiously as possible,Management gave W. an S & A form. W. testified that he called Dr. B.’s office on the sameday (August 21) and that he was told by a secretary that Dr. B. was on vacation and thathe, W., could not be seen until September 14. W. neither passed this on to the Warehousenor otherwise let Management know that he expected to be absent from work throughSeptember 14.

Having received no word from W., Management wrote to him on August 28, 1970. Thesubstance of the letter is as follows:

"Attached is a S & A form that should be filled out and sent inimmediately as Dr. M_____ does not indicate your return date,



merely that you are being referred to Dr. B_____ for treatment. It willbe necessary that you have Dr. B_____ substantiate your absencesince August 21, 1970.

Please have the enclosed S & A form completed as quickly aspossible and return to my attention."

On September 4, 1970, still not having heard from W., Management sent him a so-called64-c letter. (The counterpart to Paragraph (64)© of the National Agreement is Section IV-(12)-© of the Warehouse Agreement. The Section expressly authorizes that whichManagement put W. on notice of in the last paragraph of the letter.) The letter reads asfollows:

"This is to advise that you have been absent for three (3) workingdays without properly notifying Management and that your seniorityhas been broken.

Your seniority can be reinstated if you report for work, or properlynotify Management of your absence no later than September 10,1970.

You should be aware that reinstatement of your seniority will not beconstrued as limiting application of the shop rule regarding absencewithout reasonable cause."

Also on September 4, 1970: a copy of this letter was given to the Chairman of theGrievance Committee; the latter called W.’s home, but spoke only to W.’s brother; and W.subsequently called the plant. In the telephone conversation: W. was told that the letterwas sent to him because the Warehouse had received no word from him since August 21and because the note of that date from Dr. M. was not considered a satisfactory basis forW.’s continuing absence; W. expressed the opinion that the contrary was true; W. alsostated that he had visited both Dr. M. and Dr. B. earlier that day; and W. was told that hewas to report for work on Tuesday, September 8 (Monday, September 7, having beenLabor Day). This instruction—to report for work on September 8 -- not only was repeatedon the phone but also was confirmed in a telegram sent to W. on September 4.

W. did not come to work either on September 8 or on September 9. He came to theWarehouse on September 10 -- about an hour after the start of the shift, not dressed inworking clothes, and with the stated purpose of preserving his seniority. There followed aninterview in which Management’s and W.’s respective positions concerning W.’s absencesince August 21 were reviewed. Upon conclusion of the interview, W. was first put onnotice of possible disciplinary action and then sent to a Company doctor for anexamination. The latter’s opinion was that W. was physically able to perform normalWarehouse duties.

W. was discharged following these events of September 10. However, either onSeptember 9 or early on September 10, Management had received a report from Dr. B.The report was submitted in response to Management’s request of a few days earlier. It isdated September 9 and its substance is as follows:



"... I examined Mr. W_____ on 27 July 1970 at the request of Dr.M_____ of this city. The patient was complaining on the date of myexamination of a continuing low back and left leg discomfort whichhad bothered him since 21 November 1968, when while at work helifted a carton of carburetors weighing approximately seventy fivepounds. To make a rather complicated subsequent history short, hehas been seen by five physicians before I saw him including twogeneral surgeons, two orthopedists and his family physician. Duringthese nearly two years he has never been hospitalized, never hadmyelography nor any form of conservative therapy other thanambulatory. His physical findings are minimal and he is overweight.All of his x-rays of his neck and low back have been normal andessentially identical throughout the entire series. Upon concludingmy examination I recommended that the patient reduce his weightrapidly by some thirty pounds and that he be hospitalized formyelography to settle once and for all the perennial question ofwhether or not he was truly physically disabled and in need offurther treatment. Nothing more has come of this. In the meantime Ican see no reason why the patient should not carry out light tomoderately heavy work without prejudice to his health or comfort. Ibelieve that the fact that the patient is actively campaigning for theState Legislature as a Representative would indicate that he is notseriously disabled. Upon Dr. M_____’s request, he has scheduledanother appointment in this office on 14 September 1970 and I willbe able to advise further at this time whether he has carried out myinstructions in regard to weight reduction. In any event, authorizationfor myelography should be given by the responsible carrier that Ifinish the work at hand."

The Union submits two alternative contentions. The first is that W. should have been giventhe status of an employee on sick leave and that Management’s failure to do so constituteda violation of W.’s rights under Section XI-(4) of the Warehouse Agreement (which Sectionis the counterpart to Paragraph (106) of the National Agreement). The Union reliesessentially on Dr. M.’s note of August 21; the fact that Management, upon receiving thenote from W., neither challenged the authenticity or content of the note nor told W. that thenote would not be treated as satisfactory evidence of a back ailment; and the fact that theopening sentence of Section XI-(4) states that: "Any employee who is known to be ill,supported by satisfactory evidence, will be granted sick leave automatically for the periodof continuing disability". The Union submits that W. clearly was such an employee and thatthis is not alterable by the fact that he did not immediately present a filled-out S & A form.W. did seek to be seen by Dr. B. without delay and he obviously cannot be heldblameworthy for the fact that Dr. B. was on vacation and that his secretary gave W.September 14 as the first available date for an appointment. Hence, W. must properly beviewed as having been on sick leave from August 21 through September 14 -- or evenbeyond that, depending on what Dr. B.’s findings would have been on September 14. And,manifestly, on a holding that W. was right-fully on sick leave, there is no alternative but toreinstate him.

The Union’s second contention presupposes that the first contention will not be upheld.Even assuming that W. was not in the status of an employee on sick leave, the Union



submits, W.’s absence was not without reasonable cause and W. therefore did not violateShop Rule 6. Once more, though here in the sense that W. was someone who could atleast rightfully consider himself to be excused from work, the Union relies substantially onDr. M.’s note of August 21, W.’s non-delayed getting in touch with Dr. B., and Dr. B.’sinability to see W. before September 14. Additionally, the Union argues that neither Dr. B.’sreport of September 9 nor the examination by the Company doctor on September 10provides aid and comfort to the Company’s case. As to the examination by the Companydoctor, the fact is that he knew little about W., had last seen him some five months before,and could not know—indeed, did not state—whether W. was physically able to perform theWarehouse work in the August 21 -- September 10 period. And as to Dr. B.’s report ofSeptember 9, it similarly fails to establish that W. was physically able to perform theWarehouse work in the period here in question—Dr. B. had not seen W. since July 27,1970, the report states that a myelography would have to be done to determine whetherW. was in need of treatment, and the report also notes that Dr. B. was to see W. onSeptember 14. By all of these considerations, the Union contends, W.’s absence was notone without reasonable cause.

In one of the lower steps of the grievance procedure, the Union also made an extent-of-penalty argument—contending, in other words, that the discharge penalty was in any eventtoo severe. At the arbitration level, the Union neither briefed this contention nor otherwisereiterated it. Whether or not the contention is to be taken as abandoned, the Umpire doesnot believe that it can properly be sustained. W.’s absences without reasonable cause hadclearly reached last-straw proportions and he had specifically been so told only fourmonths before. If he was here once more irresponsibly absent, the discharge penalty is notreasonably subject to modification.

The Umpire has concluded that this—that W. was once more irresponsibly absent—is thefinding which must be made.

On its face, the evidence which the Union principally relies on is of clear strength. W. wasexcused from work to visit a physician; he visited a physician; he obtained a statementfrom the physician and duly delivered it to the plant; the statement refers to W. as having alumbar disc disease, gives the opinion that "he is unable to work", and notes that W. wasbeing referred to the care of a specialist; there is no reason to doubt that W. got in touchwith the specialist’s office without delay; and there is also no reason to doubt that thespecialist could not see W. until some three weeks later. Ordinarily, these are facts andcircumstances which would clearly suffice either to require the granting of sick leave or torender the employee immune from discipline on grounds of absence without reasonablecause. Management’s desire to be in quick receipt of a filled-out S & A form obviouslycannot serve to convert an absence for good and sufficient reasons to an absence withoutreasonable cause.

It is, however, quite clear that this is not an ordinary case and that the evidence on whichthe Union is relying cannot be accepted at face value.

First, there is the statement of August 21 by Dr. M. It is certainly the key element in theUnion’s evidence. In February, 1971, Dr. M. gave a deposition as part of the proceedinginvolving W.’s claim before the State Board of Workmen’s Compensation. In the opinion ofthe Umpire, the deposition adds up to a repudiation of the August 21 statement. Dr. M.



does some weaving and he does not explicitly retract the content of the August 21statement. But he leaves no doubt that he never examined W. (having instead previouslyreferred W. to Dr. B.), that he allowed himself to be pressured by W. to give him the kind ofstatement which he (W.) wanted, and that he (Dr. M.) was without proper basis either foraffirmatively stating that W. had a lumbar disc disease or for giving it as his opinion that W.was unable to work.

The following are excerpts from the deposition. They are reflective of its thrust andessence.

"... the man was frantic, and I—he talks forever, and I thought— hesaid he was going to be fired if he didn’t get some papers filled out,so I filled this out... it was just something that I shouldn’t have beeninvolved in and got into... the first time the man came up here, I toldhim that his problem was perfectly insoluble by me, and I will notsee him again. You couldn’t run him out of the office. He keepscoming back. I don’t make a practice of running people out, but I justfelt like this man was wasting everybody’s time. I finally signed hispapers to get him out of here.

"... my findings were nil, Dr. B_____ did the findings... I just took noresponsibility for his treatment, diagnosis... B_____ threw him out ofhis office. I don’t mean threw him out, he just said go to the hospitalor go to work.

"... He wanted papers signed for disability... This is just a case that Ishouldn’t have ever put my name on anything...

"... I have absolutely no medical opinion as to what is wrong withhim ... the fact that I started out, the man has a lumbar disc disease,that could be in total error...

"... I felt sorry for him, he was limping around. I said, you look likeyou can’t work so I will sign them this time, this is the last time, goback to see Dr. B_____"

If it were simply a matter of the August 21 statement versus the deposition, one might havedifficulty deciding which one of the two is to be accepted as the correct version. But theevidence as a whole gives every indication that the comments made by Dr. M. in thedeposition square with the facts. On August 21, W. was not beset by any new injury orillness. His was a lingering complaint of long standing; and, aside from other doctors, hehad already been seen by Dr. M. and had already been referred by him to Dr. B. Whatpurpose, then—other than obtaining the sort of statement which he in fact obtained—wouldthere have been in going back to Dr. M.? The surrounding circumstances, in other words,fit the picture which is given in the deposition. And what this means, to repeat the basicpoint which is being made, is that the document which constitutes the very prop of W.’scase stands as repudiated.

Second, aside from Dr. M.’s own repudiation of the August 21 statement, there is the



contradiction of that statement found in Dr. B.’s report of September 9. The Umpiredisagrees with the Union’s position regarding the probative value of this report. Dr. B. wasthe specialist; he had thoroughly examined W., less than a month before August 21; and,going back to the point already made, W.’s complaint was of long standing and there issimply no evidence which would indicate that W.’s condition was any different in the periodhere at issue than it was previously. To the Umpire, it is unquestionable that it is Dr. B.’sreport, not Dr. M.’s statement, which furnishes the reliable guide to the question of whetheror not W. was disabled in the period here at issue.

Third, there is W.’s own conduct. For one thing, he had been told that having amyelography done was the one way to determine whether he was truly disabled and inneed of treatment, and he did not then—indeed, he never did—have the myelographydone. This is not the conduct of a person who truly believes himself to be disabled andwho clings to this belief despite the findings to the contrary of several doctors. And foranother thing, there is damaging evidence with respect to W.’s activities in the absenceperiod itself. As to some days, W. claims to have rested at home and taken medicine. As toother days, however, he admits to: 1) having gone fishing -- indeed, off a boat; 2) havinggone to political meetings—W. was a candidate for the State Legislature at the time, andSeptember 9 was the date of primary elections. These are scarcely activities which lendcredence to the claim that W. was suffering from a disability which prevented him fromperforming normal Warehouse duties.

By proper scrutiny and realistic assessment of all the evidence, then, the Umpire believesthat he must make the already-stated finding that W. was irresponsibly absent. This impliesthat W. knowingly resorted to a sham. In all likelihood, he was furthering his politicalambitions. Even assuming, however, that W. saw himself as thoroughly "covered" by Dr.M.’s note of August 21 and in that sense thought that he was free not to come to work, thefact is that, on September 4, he was explicitly told over the phone that Management wasnot accepting Dr. M.’s note as a satisfactory basis for his continuing absence and he wasgiven explicit instructions, which were confirmed by telegram, to report for work onSeptember 8. Yet, he did not come to work either on September 8 or on September 9.Though the contractual framework is of course quite different from that of the casescovered by the recently-issued Decisions M-106 and M-107, the present case stands instark contrast to those two cases. W. was openly given a warning, and he defied it.

DECISION


December 30, 1971

/S/Rolf Valtin

Umpire





No. M-111

FEBRUARY 3, 1972

Back-Pay Questions

Involving Reinstated Employee

Who Had Been Terminated Under Paragraph (111) (b)

of National Agreement

GRIEVANCE:

GENERAL MOTORS PARTS DIVISION, GENERAL MOTORS CORPORATION, ST.LOUIS PARTS DISTRIBUTION CENTER, ST. LOUIS, MISSOURI—APPEAL CASE M-40

Grievance 375357

"Charge Management with unjust release (Voluntary quit). Demand my seniority berestored and I be paid all monies due me". S/D.K.

UMPIRE’S DECISION

The dispositions of the back-pay questions here raised are given in the Opinion. TheCompany is directed to reimburse the grievant accordingly. (Entire decision should beread)

In the Matter of:


and


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\m-111_13A6CB8F.htm

General Motors Corporation, GMPD St. Louis Parts Distribution Center, St. Louis, Missouri-- Appeal Case M-40

OPINION

Grievant K. is one of the Warehouse’s Material Handlers. His seniority dates fromNovember 3, 1964.

In early January, 1968, K. sustained a back injury when pushed by others making a rushfor the time clock. For some time thereafter, he was on sick leave and received S & Abenefits. In early March, 1968, he produced a doctor’s statement recommending that he bereturned to work "in a light status with no lifting or bending". What happened thereafter isnot entirely clear, but it appears that K. either resisted undergoing an examination by theCompany’s doctor or otherwise declined to report for work and that Management saw himas unjustifiably having failed to come back to work following the end of his sick leave. Inany event, as of March 14, 1968, K. was terminated under Paragraph (111)(b) of theNational Agreement.

K.’s protest against the termination, filed on March 18, 1968, is embodied in the above-quoted grievance. In the ensuing nearly two-year period, there were a series of eventswhich will be dealt with below. Then, on February 2, 1970, Management reinstated K. byits own action— i.e., without achieving a full settlement of the grievance. K.’s reinstatementwas accompanied by the restoration of his seniority. Hence, two of the grievance’s threedemands have been met. What remains to be determined is the extent, if any, to which K.is owed back wages. He has received none.

The Company’s defense of the non-payment of any back wages rests on viewing thenearly two-year period as being composed of three parts. The following are the Company’sprincipal arguments:

In connection with the injury which K. had sustained in early January, 1968, K. filed a claimunder the Workmen’s Compensation laws of Missouri. Among other things, K. claimed tohave suffered a temporary total disability—and, obviously, an employee with such adisablement cannot work and hence is not entitled to wages for the period of thedisablement. K.’s claim was settled short of litigation through a compromise, lump-sumsettlement. It was arrived at on October 7, 1968, and K. received $2,686.85. In acceptingthis sum of money, he acknowledged that it satisfied all of his claims and that he wouldreceive no further compensation. The Company submits that it was thus freed of a wageobligation toward K. in the period from March 14, 1968 ( the date of K.’s termination)through October 7, 1968 (the date on which the compromise, lump-sum settlement wasreached).

The second period which is yielded by the Company’s view of the retroactive period as awhole runs from October 8, 1968 to November 21, 1968. In this period, the Companycontends, K. must be seen either to have been still disabled (the doctor’s "no lifting orbending" statement had not been rescinded) or to have been entitled to "(72)" work.However, any claim as to "(72)" work must be ignored as it was not until March, 1970 --



after the grievant had been reinstated -- that the Union first made a charge relating toParagraph (72) of the National Agreement. Either way—continued disablement by K. orappreciation of the belated nature of the "(72)" charge—the Company submits that K. isnot owed wages for the period October 8 - November 21, 1968.

The third period commences on November 21, 1968, and runs until the time K.’sreinstatement. November 21, 1968, is the date on which K.’s grievance was heard at theThird Step. In the course of the meeting, the Union asked that the grievance be referredback to the Second Step in order to repair its (the Union’s) part of the prior record.Management agreed to the request in return for the Union’s waiver of continuing liabilityattendant on the delay. The parties’ agreement on this score is recorded in the minutes asfollows:

"This grievance is referred to the second step of the grievanceprocedure at the request of the Union. Liability is waived until it isheard at the third step of the grievance procedure."

Acknowledging that the grievance was re-appealed (as distinguished from when it wasreheard) to the Third Step on March 17, 1969, and acknowledging that the Union’srepresentative sent Management a letter shortly after the issuance of the minutes in whichhe allegedly made it clear that the re-appeal date was meant to be applied as the end ofthe liability waiver, the Company asserts that the letter is lacking in sufficient specificity toovercome the express "heard" reference found in the minutes. The Company submits, inother words, that the "heard" reference must be respected as reflecting the agreementwhich the parties in fact made. And by this test—i.e., by the test of when the grievance wasagain heard at the Third Step—there is no onset of a wage liability toward K. prior to hisreinstatement. For it was not until after his reinstatement—namely, on March 9, 1970 --that the grievance was again heard at the Third Step.

Contrarily, the Union contends that K. is owed back wages for the entire period from histermination to his reinstatement except for the approximately four months—November 21,1968 to March 17, 1969 -- for which liability was admittedly waived. By way of overallapproach, the Union urges (in line with Decision E-43) that, since it is an admitted fact thatK. was wrongfully terminated, the Company carries the burden of justifying the non-payment of back wages and therefore should not be permitted to prevail on the basis ofinfirm and casual proof. And more particularly—i.e., addressing itself to the three periodswhich the Company is advancing—the Union makes essentially the following responses:

The Company errs in what it seeks to make of the Workmen’s Compensation settlement.For one thing, the settlement represented a compromise covering all of K.’s claims—notmerely his claim of temporary total disability. It is not a settlement which can correctly beapplied against any particular period. For another, even if part of the settlement were to beseen as covering K.’s temporary-total-disability claim, the fact is that Missouri’s Workmen’sCompensation law provides for the payment of an amount equivalent to only two-thirds of aperson’s wages for a period of lost time. For still another, Missouri’s Workmen’sCompensation law does not preclude the side-by-side collection of such other benefits towhich a person may be entitled by virtue of other instruments—e.g., a collective-bargainingagreement. And finally, it is clear that K.’s acknowledgment that the settlement satisfied allof his claims and that he would receive no further compensation related solely to his rights



under the Workmen’s Compensation law.

As to the period from October 8 to November 21, 1968, there is simply no proof as towhether or not K. could have performed normal Warehouse duties. The doctor’s statementon which the Company is relying was about seven months’ old and might well have beenoutdated when it came to the October-November period. The Company is proceeding onspeculative grounds—and this is not enough where the Company must meet the sort ofburden of proof which it here must meet.

As to the period from November 21, 1968, to February 2, 1970, as already noted, theUnion concedes that K. is not owed back wages up to March 17, 1969. The Union insists,however, that its waiver must be taken to have ended on that date. It relies in part on theabove-mentioned letter of its representative and in part on the argument that the Unioncannot reasonably be supposed to have agreed to the waiver of liability all the way to theactually "heard" point.

The letter reads as follows:

"I want to take this opportunity to notify you the Union is takingexception to your statement in the Third Step Minutes on AppealCase M-40. The Third Step meeting was held November 21, 1968. Ireceived the minutes from you December 23, 1968. I received nocorrespondence from you requesting extension on these minutes,and I would like to point out that this is very unusual and completelycontrary to the provisions of the National Agreement."

The Union is saying that the first sentence was directed to the "heard" reference in theminutes and that, with the minutes thus having been protested, the Company cannotvalidly contend that there was an agreement to waive liability up to the "heard" point. Andas to the unlikelihood of such an agreement having been made, the Union argues that,since the hearing of any particular grievance at any particular Third Step meeting is amatter of bilateral determination, Management could have prolonged the running time ofthe waiver by simply declining to agree to put K.’s case on the agenda for one or anotherupcoming Third Step meeting—that the end of the waiver period, in other words, wouldhave been at Management’s mercy. Accordingly, the Union takes the position that thewaiver of liability which it admittedly agreed to (and which admittedly began on November21, 1968) ended on March 17, 1969 -- the date on which the grievance was re-appealed tothe Third Step.

The Umpire wants to make it clear at once that it will be his purpose to decide the case asnarrowly and with a little precedent value as possible. The case is unusual; neither partyhas advanced a solid, internally-consistent position; and there are clear weaknesses inboth parties’ positions. One may gather, in fact, that the parties got hung up and erectedarguments in seriatim and crescendo fashion from resentment one against the other—Management because it saw the grievant as seeking to make a good thing out of anessentially harmless shuffle at the time clock, the Union because it saw Management asoverstepping in terminating K. What is needed now is a decision to dispose of the case—adecision which brings a reasonable result in the light of all the peculiar facts andcircumstances here involved, rather than one which holds concern for principles on general



applicability.

As to the first period, the Umpire has not striven to become an expert in the MissouriWorkmen’s Compensation law. He is proceeding on the basis of what he can glean from,and what he finds the most persuasive in, the parties’ respective post-hearing memoranda.The Umpire rejects the Company’s contention that the settlement of K.’s Workmen’sCompensation claim should be treated as freeing the Company from all back-wagesobligations from the date of K.’s termination to October 7, 1968. There appears to be noproper basis for equating the fact—indeed, the happenstance—that the settlement wasconsummated on the particular date with a point up to which no back-wages liability wasaccruing to the Company; K.’s claim incorporated claims for medical costs and permanentpartial disability as well as for temporary total disability—and it would appear that therewas greater emphasis on the permanent-partial-disability claim than there was on thetemporary-total-disability claim; the settlement was a compromise settlement of overalldimensions, without designation as to which parts of K.’s multi-element claim were beingtreated as with or without merit; and it is simply a fact that K.’s "no further claims"acknowledgment went to his rights under the Workmen’s Compensation law alone. Also,however, the Umpire rejects the Union’s contention that no part of the settlement isproperly to be applied against the Company’s back-wages obligation toward K. Satisfactionof K.’s temporary-total-disability claim was incorporated in the settlement, and the Umpiresees no proper way of disagreeing with the Company’s point that a person who receivescompensation for a period of temporary total disability cannot be seen as a person who isin a position to work and therefore entitled to wages. The Umpire rules that the settlementis to be treated as removing ten weeks’ wages from the Company’s back-wages obligation.By this, the Umpire means a deduction of the equivalent of ten weeks of full, not two-thirds,wages. Also, the deduction is to be treated as apart from, not to be offset against, suchdeductions for unemployment compensation and "outside" wages as are called for byParagraph (50) of the National Agreement.

As to the second period—October 8 - November 21, 1968 -- the Umpire is in essentialagreement with the Union. Whatever the validity may have been of the doctor’s statementat the time of its issuance—and it is quite obvious that the Company was in disagreementwith it even at that time— the statement cannot properly be applied as still "holding" someseven months later. Nor can it be assumed that K. would at that stage have been entitledto "(72)" work rather than to his regular work. To the Umpire, the Company has seized onconvenient debating points and has not presented the sort of proof, just as the Unioncontends, which would be required to sustain the Company. As to the second period,accordingly, the Umpire sustains the Union’s back-wages claim in full.

To turn, then, to the third period. The Umpire’s function here is to resolve the re-appeal-vs.-reheard controversy. Fundamentally, the Umpire believes that the Company has thebetter argument. The idea behind a waiver agreement in a situation where the Unionrequests that a grievance be referred back to a lower step in order to repair its prior recordis that the Company is not to be financially encumbered by virtue of the back-referral. (AndK. should understand, it may be noted in passing, that he obtained value in return for thewaiver—namely, that the repair of the prior record may have been a vital link inManagement’s decision to reinstate him.) Clearly, if the Company is not to be financiallyencumbered through the delay attendant on the back-referral, the waiver must run to thepoint where the grievance has returned to the stage where it was when the back-referral



request was made and granted. In the present instance, this means the Third Step meetingitself. The re-appeal date precedes the date on which the case is heard—normally, theUmpire gathers, by several weeks. Hence, it would be inconsistent with the just-discussedconsiderations to apply the re-appeal date as the date on which the waiver ends—unless,which is not the case here, the back-referral request had been made at the first re-appealstage. And though the Union may have a point in arguing that to apply the "heard" date isto put the Union in jeopardy by giving Management the chance to prolong the period of thewaiver, it can be argued with equal force that to apply the re-appeal date is to putManagement in jeopardy by giving the Union the chance to stop the running of the waiverand then to prolong the period in which Management has a potential continuing wageliability.

For these reasons, the Umpire believes that the proper conclusion is that the "heard"reference in the minutes squares exactly with what one would expect to find. Even if itwere to be assumed that the "heard" reference does not reflect the understanding whichboth parties in fact came to, it certainly cannot be assumed that Management, for its part,would have agreed to an earlier date. And as to the letter from the Union’s representative,aside from its lack of specificity in relation to the "heard" reference, the letter can scarcelybe taken as an instrument spelling the parties’ agreement to apply the re-appeal date. Torepeat, the Company has the better argument.

Nevertheless, it is equally the Umpire’s opinion that it would here be wrong to give literalapplication to the "heard" date. In the first place, nearly a year passed before thegrievance, following its re-appeal, was formally heard again at the Third Step. This is itselfenough to make one wary of giving literal application to the "heard" date—the evidence isthat the parties at the time had Third Step meetings at something like 3-month intervals.And in the second place, though true that the grievance was not "heard" at the Third Stepin the formal sense at any time within the nearly one-year period following its re-appeal,the evidence is that it was considered via Management offers at various stages in thatperiod— including even at one or two Third Step meetings. Had this not occurred— hadthe grievance simply been shoved aside and left in a dormant state while covered by aliability waiver—the Union might well have pressed, and successfully so, for getting thegrievance on one or another Third Step agenda preceding the one to which the grievancefinally made its way. The Umpire does not believe that this can be overlooked. Through itsoffers, Management lulled the Union into a false sense of security and cannot nowlegitimately insist on a literal "heard" application.

It is one thing to arrive at this conclusion and quite another to determine what cutoff datefor the waiver should be applied. The Umpire does not believe that he can properly orderthe application of the date of the first Third Step meeting following the re-appeal. Theevidence is that the Warehouse had a very high volume of grievances at the time, and itcannot be assumed that all the pending grievances were of such relatively low priority thattheir handling would have been deferred in favor of K.’s grievance. Neither, for the reasonsgiven, can the converse be assumed. Under all the circumstances—admittedly somewhatarbitrarily, but also with due regard for the objective of fair and reasonable results and forthe fact that the record does not compellingly suggest any other date— the Umpire rulesthat the midpoint between March 17, 1969 and February 2, 1970 is to be applied as thecutoff date for the waiver. This yields a back-pay obligation, for the third period, of about 5months and 1-1/2 weeks.



The Umpire trusts that his dispositions are of sufficient clarity and exactitude to enable theparties to agree on the overall dollars-and-cents figure which will implement thedispositions. Should difficulties nonetheless develop, either party is free to return the caseto the Umpire for a final determination.

DECISION

The dispositions of the back-pay questions here raised are given in the Opinion. TheCompany is directed to reimburse the grievant accordingly.

February 3, 1972

/S/Rolf Valtin

Umpire





No. N-4

September 13, 1971

Discharge:

Falsification of Employment Application Form;

Evidence;

Application of 18-Month Period Under Paragraph (76b) of National Agreement;

Extent of Penalty

GRIEVANCE:

GENERAL MOTORS ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION,TARRYTOWN PLANT, NORTH TARRYTOWN, NEW YORK—APPEAL CASES N-1, N-2AND N-13

N-1 -- "I have been unjustly discharged. I demand that I be reinstated at once with fullseniority and all benefits plus all money due." S/J.W.

N-2 -- "I charge Management with unjust discharge. Demand to be reinstated with allmonies and benefits due me." S/D.M.

N-13 -- "I charge Management with unjust discharge. Demand to be reinstated with allbenefits due me, and all back pay." S/G.T.


For the reasons given in the Opinion:

1) The discharge in in Appeal Case N-13 is rescinded. The Company isdirected to reinstate the grievant with restoration of seniority rights andreimbursement for the wages lost since the time of the discharge.

Page 1 of 11UMPIRE DECISION N-4

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2) The discharges in Appeal Cases N-1 and N-2 are modified to 30-day DLO’s,with a 30-day DLO in each instance to be entered in the grievant’s disciplinaryrecord for a violation of Shop Rule 1. The Company is directed to reinstateeach of the grievants with restoration of seniority rights and reimbursement forthe wages lost starting with what would have been the completion of theserving of a 30-day DLO. (Entire decision should be read.)

In the Matter of:


and

General Motors Corporation, GMAD, Tarrytown Plant, Tarrytown, New York -- AppealCases N-1, N-2 and N-13

OPINION

Though as part of one hearing agenda, these three cases were heard separately. Eachcase involves its own grievant and its own particular facts and circumstances; and one ofthe cases raises an interpretative question not raised by the other two cases. There iscommonality, however, in that the grievant in each of the cases was discharged on thegrounds that he falsified his employment application form and thereby violated theprohibition laid down in Shop Rule 1: "Falsification of personnel or other records". TheUmpire is joining the three cases for this reason.

The basic facts in each of the cases will momentarily be given. First to be noted is that theinterpretative question which is raised in one of the cases and not the others concerns thelast portion of Paragraph (76b) of the National Agreement:

"In imposing discipline on a current charge, Management willnot...impose discipline on an employee for falsification of his



employment application after a period of eighteen (18) months fromhis date of hire."

The case in which the question arises is Appeal Case N-1. The Union contends that thegrievant had reached the 18-month point of immunity, and the presentation of the basicfacts in this case will therefore require the giving of a series of dates surrounding thegrievant’s discharge.

The basic facts in Appeal Case N-1 are as follows:

W. Filled out an employment application form on May 21, 1969 and was hired on May 22,1969. In the space reserved for "Second Last Place Employed", he entered "CastleMachine & Manufacturing Co.", claiming that he had worked as an Assembler and that hehad been employed by that company from June, 1963 to January, 1969. In the spacereserved for "Name and Location of High School", he entered "Madison H.S." and "SanDiego, Cal.", claiming that he had completed the 12th grade and had graduated in 1963.

On November 17, 1970, under circumstances to be commented on below, Managementcommenced a check on W.’s employment application form. Two initial phone calls to theCastle Machine & Manufacturing Co. were unfruitful. A third call was placed shortly beforenoon (Eastern Time) on November 19, 1970. Management was informed by a Mr. K. thatthere was no record of W.’s having worked for the company. Additionally, the Mr. K.promised to send written confirmation of W.’s not having worked for the company (via afollow up form which the Company (GM) uses in checking on the accuracy of informationgiven by applicants and which Management had sent to the Castle Machine &Manufacturing Co. on November 17, 1970). The written confirmation is dated November19, 1970 and Management presumably received it on or about November 21, 1970.

The high-school information was checked via the Company’s South Gate Plant. The recordis not clear as to when and how this check was commenced and as to when, if at all,Management received telephonic word from the South Gate Plant that W. had not attendedthe Madison High School. In evidence, however, is a letter from the South Gate Plant,dated January 12, 1971, which attests to that fact.

The decision to discharge W. was made upon the completion of the third phone call to theCastle Machine & Manufacturing Company. This, to recall it, was on November 19, 1970.W. could not be directly informed of his discharge because the plant was struck at the time(as part of the national strike against GM). The notice of discharge, in the form of aregistered letter, was sent to his home address in New York City on November 19, 1970.Attempted delivery would evidently have been made on either November 20 or November21, 1970. November 21 and 22 in 1970 constituted a weekend. The letter is signed for ashaving been received by W. on November 23, 1970. It is additionally true, however thatManagement sent the Union a letter advising it of W.’s discharge and that the Unionreceived this letter on November 20, 1970.

But for one entry (a reprimand for careless workmanship), W. has a clear prior disciplinaryrecord. The Company makes no challenge of the Union’s assertions: 1) that W. was awholly satisfactory employee; and 2) that the investigation of his employment applicationform was not prompted by a decline in the quantity or quality of his work, or by any other



type of work-connected activity on his part.


M. filled out an employment application form on July 3, 1969 and was hired on July 9,1969. He was discharged on December 1, 1970 -- i.e., clearly and concededly prior to thetime that the 18-month period provided for in Paragraph (76b) of the National Agreementhad elapsed.

The union does not accept all of the particulars of the Company’s falsification charge, andit quarrels with the Company as to the importance of accuracy or completeness withrespect to certain items in the employment application form. It is an admitted fact in thiscase, however, that the grievant falsified the form. It seems unnecessary to detail theparties’ disagreement as to the nature and extent of the falsification. The essence of thefalsification goes to M.’s education and military service. Either hidden or explicitly withheldwere the facts: 1) that M. attended, and apparently even graduated from, City College ofNew York; 2) that M., while in the Army, refused to serve in Viet Nam, was tried andconvicted by a military tribunal, served a three-year sentence in a military stockade, andwas given a dishonorable discharge from the Army.

As to M.’s employment at the plant, it is concededly true: that he had a clear priordisciplinary record; that he performed his work satisfactorily throughout his period ofemployment (about 17 months); and that the investigation of his employment applicationform was not prompted by any work connected activities on his part.

The investigation was prompted by an inquiry from a federal agency as to whether M. wasemployed at the plant. The Company stated at the hearing that the inquiry was of aconfidential nature and that it (the Company) could not properly identify the federal agency.Introduced into evidence at another point of the hearing, however, were certain newspaperarticles covering M.’s military trial and conviction. One of the articles refers to M. as aperson "with a deep commitment to left-wing causes".


T. filled out an employment application form on October 2, 1969 and was hired on October8, 1969. He was discharged on December 17, 1970 -- once more, clearly and concededlyprior to the time that the 18-month period provided for in Paragraph (76b) of the NationalAgreement had elapsed.

In his employment application form, at the spaces reserved for "Present or Last PlaceEmployed" and "Third Last Place Employed", T. entered "May Fair Photo Finishing" andshowed "Dec. 68 to Present" and "Sept. 67 to June 68" as the respective periods ofemployment. Management discharged T. on the twofold basis of: 1) the report of itsinvestigator, to the effect that the May Fair Photo Finishing Company had no record of T.’shaving worked for it; and 2) the refusal by T., in the disciplinary interview, to answerquestions relating to the asserted employment.

Following the discharge, the Union sent a Zone Committeeman to the May Fair PhotoFinishing Company. His written report to the Union and his testimony at the hearing are to



the effect that he was told by the owner of the May Fair Photo Finishing Company that T.had worked for that Company. Though both parties requested it, neither party everreceived written confirmation from the owner (or any other representative) of the May FairPhoto Finishing Company either that T. had or that he had not worked for that company.

Also following the discharge, Management got in touch with the company which T. hadlisted as the "Second Last Place Employed", asking this company to pass on theinformation which T. had given on its employment application form. The request wascomplied with. T. had named two employers whom he did not name in his employmentapplication form with GM. As to one of these employers, the period of employment shownby T. falls within the period of employment which T. gave, in his GM employmentapplication form, for the period of employment with the May Fair Photo Finishing Companyas the "Third Last Place Employed". And as to the other of these employers, the period ofemployment shown by T. is a one-month period and the particular month is the monthwhich T., in his GM employment application form, showed as the last month ofemployment with the May Fair Photo Finishing Company (again as the "Third Last PlaceEmployed"). Falsification by T., the Company submits, is thus clearly established. TheUnion’s rejoinder is: 1) that this information was belatedly uncovered and therefore shouldnot be considered; and 2) that, even if considered, though it may leave a question as to theproper dates of employment, it does not destroy the fact of employment with the May FairPhoto Finishing Company as both the "Last Place Employed" and the "Third Last PlaceEmployed".

Aside from this specific rejoinder, the Union takes the position that falsification in this casehas not been proved and that, even if the Umpire were to make the contrary finding, thedischarge was defective because the Company, at the time it took the discharge action,was lacking in an adequate basis for it—that the owner of the May Fair Photo FinishingCompany had declined to put anything in writing, that the oral word which the Company’s(GM’s) investigator had received was of inconclusive nature, that the grievant could not berequired to accommodate Management’s fishing expedition at the time of the disciplinaryinterview, and that his refusal to answer the various questions can therefore not be heldagainst him.

Once more, the grievant had a clear (or near clear) prior disciplinary record; he concededlyperformed his work satisfactorily throughout his period of employment (in this instance, alittle over 14 months); and the investigation of his employment application form wasprompted, not by an work-connected activities on his part, but by an inquiry from a federalagency as to whether the grievant was employed at the plant.

First to be decided is the "18 months" question raised in Appeal Case N-1. The parties areagreed that, as to grievant W., the 18-month period ran from May 22, 1969 throughNovember 21, 1970. The Union relies on the fact that it was not until November 23, 1970that the grievant received the discharge notice, saying that this date—not the date(November 19, 1970) on which Management sent the discharge notice or the date(November 20 or 21, 1970) on which the discharge notice might have been delivered to thegrievant had he been at home—must be made to "count". In support of this contention, theUnion asserts that National-Agreement provisions requiring notice to an employee—e.g.Paragraph (64d) -- have historically been applied as making the date on which theemployee receives the notice, not the date on which Management sends the notice, the



pertinent date.

The Umpire is overruling the Union on this issue It should first be noted that a well-nighunique situation is here presented. The combination of a struck plant and of zero hour forthe start of an employee’s immunity having just about been reached is not likely to occurvery often. It should also be noted that it is rather obvious that Management acted withlast-minute haste to keep the 18-month period from elapsing—rather than await a reply toits written communication, which it had sent on November 17, Management placed aphone call on November 19 and then, rather than hold off until in possession of writtenconfirmation, went ahead with the discharge action upon completion of the phone call.There are all the earmarks here of beating-the-deadline efforts. This cannot help but showthat Management was anxious to unload the grievant and that it saw the falsification as ameans for doing so. More on this below. And finally to be noted is that the Umpire, in hereoverruling the Union, is not questioning the general validity of the Union’s assertion withrespect to notice-receiving versus notice-giving as it might affect various other parts of theAgreement. To the contrary, it seems to him that there is a clear difference between thelanguage here at issue and the language which is found, for example, at Paragraph (64d)of the National Agreement. The latter Paragraph is explicitly geared to the employee’s"being notified".

In the conflict here presented, the Umpire is relying on the express language of the quotedprovision. It is true that a discharge involves both Management and the affected employeeand that it is not complete until the employee has been notified. But, by natural reading—and, if not that, certainly by legitimate reading—the "imposing" of a penalty refers to theinitiating action by Management. This is the more true in the context of a clause whichrequires that "the employee will be tendered a copy of any warning, reprimand, suspensionor disciplinary layoff entered on his personnel record, within three days of the actiontaken." Paragraph (76b) has this requirement—what has just been quoted constitutes itsfirst sentence, and what has previously been quoted constitutes part of its second (andlast) sentence. Paragraph (76b), in other words, seems itself to reflect a distinctionbetween the action by Management and letting the employee know about it. And thelanguage here at issue employs the word "impose". Reading this as the discharge-initiatingaction on the part of Management, and there being no dispute that Management’s initiatingaction was taken on November 19, 1970 and that the 18-month period for the grievant didnot end until November 21, 1970, the Umpire rejects the Union’s contention that thedischarge should be set aside by reason of the immunity provided for in Paragraph (76b).

To the Umpire, this holding is should not only as a matter of semantical correctness butalso as a matter of reasonableness when considering the application of the phrase "date ofhire". The phrase could well be taken to refer to the date on which the employee first goesto work for the Company. So construed, the beginning of the 18-month period in thepresent case would have been June 8, 1969 rather than May 22, 1969 -- which wouldmean that the grievant’s discharge would have been within the 18-month period even bythe discharge date which the Union asks to have applied. But the "date of hire" phrase isnot so applied, and instead is held to its strict meaning. The Umpire’s holding with respectto the end of the 18-month period is consistent with the strict-meaning application whichthe parties give to the beginning of the 18-month period.

Finally to be appreciated is that this is not a case as to which there might be clarity as to



the date of the receipt by the grievant of the discharge notice and lack of clarity or doubt asto the date of the imposition of the discharge penalty. It is a clear and undisputed fact thatthe Union received notification of the discharge on November 20, 1970. There simplycannot be any doubt, thus, that Management had fully declared itself prior to the end of the18-month period. And to make the date on which the grievant received the dischargenotice the determining date would in effect be to say that the grievant could himself be theinstrument for reaching immunity by the device or the happenstance of not being availablefor the receipt of mail. Here, it happened to have been a matter of a day or two. But it mighthave been a matter of a week or two. Theoretically at least, the Union’s position does notcall for a distinction based on the number of days on which an employee might beunavailable for the receipt of mail.

Next required are findings with respect to whether or not the grievant in each of the casesis in fact guilty of the asserted falsification, and, if so, whether or not the Union is correctlycharging that Management had too little to bank on at the time it took the discharge action.

In Appeal Case N-1, the Umpire holds for Management on both questions. W. entered"Castle Machine & Manufacturing Co." and the dates of "June, 1963 to January, 1969" forthe second-last place employed; there is documentary evidence, in the form of a signedstatement from that company, that "we have no record of employment of this man"; W.declined to testify at the Umpire hearing; and the Union took the position that it was neitherdenying nor confirming the asserted falsification. It is true that Management went aheadwith the discharge action at a time when it had only telephonic word to the effect that therewas no record of W.’s having worked for the Castle Machine & Manufacturing Company.But Management had assured itself that it was speaking to an authorized representative ofthat company, and the telephonic word which it received was accompanied by a promisethat written confirmation would be sent. And though one can safely assume that prudentmanagements, including this Management, would normally hold off until receipt of thedocumentary substantiation, the fact here is that Management was up against the 18-month deadline. The Umpire is not prepared to hold that Management was obligated to riskbeing foreclosed from taking disciplinary action by awaiting receipt of the promisedconfirmation.

Appeal Case N-2 requires no findings on these scores. The Union here concedesfalsification, and, in the write up of the basic facts, the Umpire has commented on theparties’ disagreement as to the particulars.

Appeal Case N-13 presents a mixed picture, neither party being on solid grounds. On theUnion’s side, this is particularly true of the grievant’s silence. He was evasive in theinterview with Management; he once more declined to declare himself on whether or nothe had worked for the May Fair Photo Finishing Company in his UC proceeding; and,despite the Umpire’s observation at the hearing that the grievant’s refusal to testify wouldbe among the factors which would have to be weighed in a case of this sort, T. was notbrought to the stand. It is obvious that a straightforward and firm denial by the grievantwould have been the strongest way to squash a false accusation, if such it was.Something, somewhere in the grievant’s past, it seems clear, is being withheld. But, as theUmpire has consistently ruled that questions in cross examination may be directed toareas not covered in direct examination, it is not necessarily because the grievant did notwork at the May Fair Photo Finishing Company that he remained silent.



The Umpire has concluded that sound policy considerations require that the Union besustained in its contention that Management was lacking in a sufficient basis fordischarging T. at the time it took the discharge action. It is true that T., in the interview withManagement, provided anything but a satisfactory explanation. It is also true that theinterview was not based on nothing—Management had received word to the effect thatthere was no record of T.’s having worked for the May Fair Photo Finishing Company. Tothis extent, the Union is overstating things in asserting that Management was up to nothingmore than a fishing expedition. Nevertheless, unless one is prepared to allow Managementto have an employee make a case for it, the first question must be whether there was aprima facie case of at least reasonable strength against T.

The Umpire believes that the answer must be in the negative. The owner of the May FairPhoto Finishing Company not only declined to state positively that T. had not worked forthat company—and instead hedged in terms of "no record of his having worked here"—butalso declined to put anything in writing (despite several requests by Management that hedo so). Moreover, Management’s investigator, a man of ample experience in his field, wasdoubtful of the reliability of the owner of the May Fair Photo Finishing Company. Andfurther still, Management had pursued various other investigatory routes—T.’s education,possible arrests, and standing in his neighborhood—and had uncovered nothing untowardalong these lines. And yet, Management went ahead with an interview of T. (questioninghim not only as to prior employment with the May Fair Photo Finishing Company but alsoas to education and military service). It is an admitted fact that T. was discharged, notalone on the basis of the visit to the May Fair Photo Finishing Company by Management’sinvestigator, but on the combined basis of that visit and T.’s stance in the interview. Here tosanction the basis for the discharge, the Umpire believes, is to go too far in the direction ofcompromising the prima facie requirement and letting an employee make management’scase.

That Management was on infirm grounds when it discharged T. seems borne out by thefact that, at least in the Umpire’s mind, doubt is left as to the asserted falsification evenafter considerable further, post-discharge investigatory efforts by Management. There weretwo hearings in this case. At the first hearing, the Company’s posture was that of defendingthe discharge on the same twofold basis which was Management’s at the time of thedischarge. What happened at the first hearing was that the Zone Committeeman, whosereport on his conversation with the owner of the May Fair Photo Finishing Company waspart of the record, was out of town. The Union made an offer of proof that the ZoneCommitteeman would testify to that which was contained in the report. The Companydeclined the proffer, but expressed a willingness to adjourn the proceeding and toreconvene at such other time as the Zone Committeeman would be back in town andtherefore in a position to testify. This was done.

As indicated in the write up of the basic facts covering this case, the report of the ZoneCommitteeman is to the effect that he visited the May Fair Photo Finishing Company;spoke to the owner; was told by him that T. had worked for that company; but also (as inthe case of Management’s investigator) wad unable to obtain written confirmation. In crossexamination, the Company queried the Zone Committeeman as to why his signature didnot appear on the report, thus suggesting that it doubted the genuineness of the report.The difficulty is, however, that the Zone Committeeman testified in detail as to his visit tothe May Fair Photo Finishing Company and that the content of the report—i.e., even



assuming that the report was not written by the Zone Committeeman—stands up. Thusyielded are two wholly contradictory stories by the owner of the May Fair Photo FinishingCompany.

Between the two hearings, the Company had gotten in touch with the company which T.had listed as the "Second Last Place Employed" on his GM employment application formand thus had obtained the information, detailed in the write-up of the basic facts, indicatingemployment by T. at other companies in a period shown as employment with the May FairPhoto Finishing Company. There is simply no gainsaying the fact that this informationcould and should have been obtained before discharge against T. was resorted to.Nevertheless, over the Union’s objection and for the reasons which he gave at the hearing,the Umpire permitted the introduction of the information. The information is not of theconclusive strength which the Company ascribes to it. Accepted at face value, it shows: 1)with respect to the one employer, that T. did not work for the May Fair Photo FinishingCompany for as long as he showed; 2) with respect to the other employer, that T. workedfor him in the month which he showed as his last month of employment with the May FairPhoto Finishing Company. Neither piece of information shows that T. was not employed bythe May Fair Photo Finishing Company. And this—that his claimed employment with thatcompany was a falsehood—is the charge against T.

To return, however, to the Umpire’s basic conclusion in this case: there are a series ofmysteries about it, but the discharge must be reversed for lack of a proper prima facie caseat the time of the discharge.

There remains the question of the extent of the penalty in Appeal Cases N-1 and N-2. TheUmpire is in agreement with the Union that the discharges constitute a head-on collisionwith the conclusions reached in Decision M-83. Consistent with that Decision, he isdirecting the modification of each of the discharges to a 30-day DLO.

Decision M-83 was rather recently issued and need not be reviewed in any great detail.The conclusive highlights were these: that the Union’s effort to distinguish between amaterial falsification and an immaterial falsification had to be rejected—that falsification isresorted to for the very reason that there is fear that to tell the truth will mean not beinghired, and that falsification is therefore inherently material; that it does not follow that thereis no relevancy in the relationship between what has been withheld and the length andquality of the employee’s service at the time of the discovery of the falsification (paragraph11 of Decision M-83 gives contrasting examples); that the lack of relevancy would followonly if falsification per se were taken to equate to the discharge penalty; that such anautomatic-discharge approach, however, was foreclosed by the state of the GMUAW lawon falsification; that, likewise, an automatic-discharge approach was not justified byParagraph (76b) when read in the light of its negotiating history; that a non-automaticapproach meant that falsification could not be made the device for getting rid of employeeswho, though their working record was good, came to be regarded as undesirable byManagement; and that, on the facts of the particular case, one would have beensanctioning just that had one upheld the discharge penalty.

It should preliminarily be noted that Decision M-83 was issued on October 1, 1970. Thiswas about six weeks before the first of the discharge actions here in question was resortedto. The Umpire believes—and it is not contended otherwise—that he must go on the



assumption that Management either was or should have been familiar with Decision M-83at the time of the discharges.

As the Umpire understands it, the Company is not here taking the position that theconclusions in Decision M-83 were in error and should be reversed. Though the Companyreiterates that it is entitled to honest answers on its employment application forms and thatit has the right to act against those who supply false answers—both of which points, ofcourse, were granted in Decision M-83 -- the thrust of the Company’s position in thepresent cases is that the falsifications were, as the Company puts it, "considerable" and"significant". What the Company emphasizes in Appeal Case N-1 is that the grievant gavefalse information with respect to a span of time which, given his relatively young age,constitutes practically all his working life prior to coming to GM. And what the Companyemphasizes in Appeal Case N-2 is that the grievant hid what amounts to his real past.Rather than seek to reverse Decision M-83, in other words, the Company is seeking todistinguish the present cases from the case covered by Decision M-83.

The Umpire has not been persuaded. There are of course differences, quantitative andotherwise, in the falsified information. But such differences can be pointed to with respectto practically any two falsification cases. And whereas the case leading to Decision M-83involved the falsification of but a single item and less than a month of prior employment, itwas prior employment with, and discharge from, another GM Division which had beenwithheld, and the Umpire well recalls the vehemence with which the Company insisted thatit could not be expected, once it had discovered the falsification, to keep such a person inits employ.

Even granting some difference between the prior case and the present cases, however,the parallel is far the greater. Once more, there is the fact of a wholly satisfactory workingrecord over a substantial period (it was about 14 months in M-83, and it is about 18 monthsand 17 months, respectively, in these two cases); there is the fact that it was not somework-connected problem—e.g. a physical impediment—which might surface and bring withit the discovery of a falsification; and there is the fact that it was some special eventmaking the employee seem undesirable in the eyes of Management which prompted theinvestigation of the employment application form. There is no direct evidence on this latterscore, but, based on what is known, there is no realistic escaping the conclusion. As is trueof all three grievants, the grievant in Appeal Case N-1 was among those employees wholabeled the strike-ending agreement which the Company and the International Unionreached in the fall of 1970 as a "cheap deal" and who actively worked for the rejection ofthe agreement by the Local’s membership. It was on November 11, 1970 that theCompany and the International Union reached the agreement; it was on November 23,1970 that the Company was notified of the ratification of the agreement; as shown, it wason November 17, 1970 that the check on the grievant’s employment application form wasbegun; and there can be no question that there was singling out against the grievant—nochecks had been run at the plant on employment application forms for nearly two years;his was among nearly 1400 of the forms which had gone unchecked; and the check wason him as an individual, not part of a general catching-up operation. Similarly, in AppealCase N-2, as already given, the investigation of the grievant’s employment application formwas prompted by an inquiry from a federal agency; and what the investigation uncoveredwas a military-jail sentence for a refusal to go to Viet Nam on the part of a persondescribed as being committed to left-wing causes. In the opinion of the Umpire, these facts



must be taken as speaking loudly for themselves when it comes to making falsification thedevice for getting rid of individuals whom Management has come to regard as undesirable.If it was correct to reach the conclusion that this "device" element was present in the caseleading to Decision M-83 -- as the Umpire thinks it was—it is at least equally correct toreach that conclusion in these cases.

DECISION

For the reasons given in the Opinion:

(1) The discharge in Appeal Case N-13 is rescinded. The Company is directed to reinstatethe grievant with restoration of seniority rights and reimbursement for the wages lost sincethe time of the discharge.

(2) The discharges in Appeal Cases N-1 and N-2 are modified to 30-day DLO’s, with a 30-day DLO in each instance to be entered in the grievant’s disciplinary record for a violationof Shop Rule 1. The Company is directed to reinstate each of the grievants with restorationof seniority rights and reimbursement for the wages lost starting with what would havebeen the completion of the serving of a 30-day DLO.

September 13, 1971

/S/Rolf Valtin

Umpire





No. N-8

October 18, 1971

Discharge:

Threatening Foreman;

Evidence;

Extent of Penalty

GRIEVANCE:

CHEVROLET MOTOR DIVISION, GENERAL MOTORS CORPORATION, SAGINAWMETAL CASTING PLANT, SAGINAW, MICHIGAN—APPEAL CASE N-65

Grievance 133926

"I, #210085, protest unjust suspension (subsequently converted to discharge). The allegedviolation is denied. I demand that I be returned to work at once and paid for all time lostand my record cleared." S/J.C.

UMPIRE’S DECISION


In the Matter of:


and


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General Motors Corporation, Chevrolet - Saginaw Metal Casting Plants, Saginaw,Michigan --

Appeal Case N-65

OPINION

Grievant C. was hired by the Company in mid-1951. At the time of his discharge—thedischarge was made effective, following three days of suspension, on April 8, 1971 -- hewas a second-shift Laborer in the #2 Core Room of the Grey Iron plant. C. was dischargedfor allegedly having drawn a knife on Foreman L. C. denies that he is guilty as charged andthe Union additionally argues that, even if a contrary finding is made, the discharge penaltyshould be held to have been excessive.

In the opinion of the Umpire, the evidence overwhelmingly establishes that C. is guilty ascharged. Three principal factors have led to this conclusion. The first is that the testimonyof Foreman L. was utterly persuasive—straight and firm, and replete with the sort ofmeaningful detail which is foreign to a made-up story. The second factor is that the veryopposite was true of C.’s testimony. It was marked by evasiveness and improbabilities, andit included one assertion—that C. did not know that he had been charged with pulling aknife on Foreman L. when he left the plant on the night in question—which is contrary tothe truth beyond question. And the third factor is that C.’s story does not "fit" attendantcircumstances which, rather than merely asserted by Management, stand as confirmed.

The following is the essence of what happened:

Shortly before 10 PM on April 5, 1971, Foreman L. received word that the #4 CoreAssembly Line was running out of clamps. The furnishing of clamps to the line was C.’sresponsibility.

Foreman L. looked for C. and found him sitting on a barrel in the #2 Core Room. In theensuing conversation, it became clear to Foreman L. that C. had been drinking and wasnot fit to work. He told C. that he (C.) would be disciplined and asked him to come along tothe Core Room office.

C. complied, but, before Foreman L. had finished checking on C.’s prior disciplinary record,left the point just outside the office where he had been waiting and walked toward the #2Locker Room, located in the basement. Foreman L. followed C. down the stairs and caughtup with him near the shower room. C. declined to accept the disciplinary action noticewhich Foreman L. sought to give him and then went toward a locker and removed a jacketfrom it. Foreman L. surmised that C. was leaving the plant.

Not long thereafter, while Foreman L. was in conversation with General Foreman M.,another foreman came up and stated that he had just seen C. in the cafeteria (which isadjacent to the #2 Locker Room). General Foreman M. told Foreman L. to go to thecafeteria and instruct C. to go home.



Upon being confronted by Foreman L., C. said that he would go home but that he firstwanted to go to his locker. Foreman L. agreed to this request and accompanied C. to thelocker.

At the locker, C. removed a bottle of whiskey from it; took a drink; and then passed thebottle to Foreman L. in drink-offering fashion. Foreman L. declined to have a drink but tookthe bottle and told C. that it would be given back to him at the plant gate.

Foreman L. and C. had walked a short distance toward the staircase when C. stopped andtold Foreman L. that he (C.) would not accept being thrown out of the plant and that hewanted his bottle back. Foreman L. did not give the bottle back and reiterated that it wouldbe returned to C. at the plant gate.

At this point, C. took a hold of the front of Foreman L.’s sweater. Foreman L., in turn, tooka hold of C.’s hand and succeeded in releasing it from the sweater. With that, C. said "I’llget my knife"; initially put his hands in his jacket pockets; and then reached with his righthand into his right trouser pocket, withdrew a pocket knife from it, opened it up, andbrought the exposed blade to within a foot or two of Foreman L.’s stomach. Foreman L.fled from the scene.

Foreman L. reported the incident to General Foreman M.; the latter gave him instructionsto call plant security; and three patrolmen came to the cafeteria and led C. away.

The Umpire has given every consideration to the Union’s extent-of-penalty plea. Nearlytwenty years of service obviously is a major investment in a person’s working life. Andthere is additionally the fact that C. was drunk or nearly drunk on the night in question. Onecannot help but be tempted to view the incident as a single and momentary act which,despite its seriousness, should not cost the grievant his job.

The Umpire has concluded, however, that this is the wrong view and that it must beresisted. He still thinks—i.e., as he did in Decision M-59 -- that the pulling of a knife is themark of a bully, and hence the mark of a dangerous person, and that this is what the casemust turn on. The pulling of a knife cannot legitimately be likened to an enraged outburstwhich, though wrongful for the lack of control which it manifests, is nonetheless not viciousand is pardonable for its lack of meanness. If anything, the present case, rather thanlikened to such "outburst" cases, should be likened to the "gun" case covered by DecisionM-47. More pertinently, however, the fact is that the present case is essentially the sameas that covered by Decision M-59. In that case, too, the elements both of long service andof drinking were involved and specifically rejected as extenuating circumstances ofsufficient force to overturn the discharge. And, as in the case covered by Decision M-59and unlike the case covered by Decision E-16, there is here no basis for a holding that thegrievant’s act was preceded by wrongful provocation.

DECISION




/S/Rolf Valtin

Umpire





No. N-25

MAY 1, 1972

Discharge;

Destruction of Lock on Toolbox;

Evidence;

Overstatement on 76 Notice;

Extent of Penalty

GRIEVANCES:

DETROIT DIESEL ALLISON DIVISION, GENERAL MOTORS CORPORATION, DETROITPLANT, DETROIT, MICHIGAN—APPEAL CASE N-199

Grievance 797192

"I charge Foreman J.P. _______ with giving me an unjust discharge. Demand to bereturned to work, paid all lost monies and this be removed from my record." S/M.F.

Grievance 797193

"I charge Foreman J.P. _______ with giving me an unjust discharge. Demand to bereturned to work immed., paid all lost monies and this be removed from my record." S/H.M.

UMPIRE’S DECISION

For the reasons given in the Opinion, the discharges here in question are overruled. Eachof the grievants is to be reinstated, is to have his record changed to show a 2-week DLO inlieu of the discharge, and is to be reimbursed for the wages lost accordingly. (Entiredecision should be read)


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In the Matter of:


and

General Motors Corporation, Detroit Diesel Allison Division, Detroit, Michigan -- AppealCase N-199

OPINION

The parties have joined these two grievances in one Appeal Case because the grievancesgrew out of the same incident. Both grievants were day-shift employees in Department346, classified as "Engine Assembly". Grievant F.’s seniority dates from early 1965. Hisprior disciplinary record has three entries (two for absence without reasonable cause andone for reporting late). Grievant M.’s seniority dates from early 1964. His prior disciplinaryrecord has one entry (disregard of safety).

Both grievants were discharged under Shop Rule 26: "Abuse, misuse or deliberatedestruction of company property, tools, equipment or the property of employees in anymanner". The rule is citied and quoted on each of the grievants’ 76 notices. Additionally,under "Brief Explanation of Misconduct", there is the following on F.’s notice (andsubstantially the same on M.’s notice):

"The Indefinite Suspension you received on 2-24-71 will readDISCHARGED In deliberate destruction of company property. Youwere observed with another employee while a company lock wasbeing broken off a company tool box. This misconduct wasobserved by two (2) members of supervision at approximately 10:30A.M. February 24, 1971."

The following is a brief description of the incident as pictured by Management:

At about 10:15 AM on the day in question, Superintendent McL. was on his way fromDepartment 345 and, as he entered Department 346, noticed both grievants at the tool-boxof an afternoon-shift employee. F. was in a bent-over position immediately in front of thetoolbox; M. was standing next to him, apparently acting as a lookout man. AsSuperintendent McL. approached, M. spotted him and appeared to say something to F.With that, both men left the toolbox and went off toward the center of the department.Superintendent McL. did not follow them.

A short while later, at this stage in conversation with Foreman F., Superintendent McL. sawthe grievants back at the same toolbox. He pointed it out to Foreman F., and bothsupervisors thereupon walked toward the grievants. The two grievants were in



substantially the same relative positions as they had been before. As M. spotted the twosupervisors, he went off in one direction. F. stood up and started to go off in anotherdirection. He had advanced but a few feet when Superintendent McL. called him back.Though he first placed some sockets on another toolbox, F. obeyed and came back to thetoolbox in front of which he had been observed in a bent-over position.

The toolbox was open; the locking bar was on top of it; and the lock itself was broken.Noticing these things, Superintendent McL. asked F. for an explanation. F. Stated that hehad broken the lock with a hammer and that he was looking through the contents of thetoolbox because someone had stolen his channel locks. Asked why he had not taken theproblem to his foreman, F. gave no reply.

Subsequently, grievant M. was similarly questioned. He confined himself to a reply to theeffect that he happened to be briefly with F.

Both grievants were initially suspended. A day later, following further investigation—whichincluded an interview with the afternoon-shift employee whose toolbox had been brokeninto—they were discharged.

The Umpire is making a three-fold holding: 1) the grievants are guilty of having jointlybroken into the other employee’s toolbox—F. having done the actual breaking-in, M.having acted as a lookout for F.; 2) the 76 notice was of serious defect; 3) the penalty wasin any event too severe, and, when this is joined with the 76 defect, the penalty must bedrastically reduced—to the point, the Umpire has determined, of a 2-week DLO.

The first holding is a matter of assessing the relative strength of the testimonies ofSuperintendent McL. and Foreman F. and the testimony of grievant F. (grievant M. did notappear at the hearing). One does not run into many cases where the contrast is as big as itwas here. The Umpire is left with no reasonable doubt that F. made the admission whichthe two supervisors attribute to him. What F. now asserts is that he observed someoneelse (whom he declined to name) break the lock. But F. admits that he (i.e., F. himself) wasat the toolbox a few minutes previously; he says that the asserted other man walked awayafter breaking the lock; and he was wholly evasive on such questions as what movementshe observed the asserted other man make, what condition he (F.) found the lock in whenhe got to the toolbox, and whether he (F.) had to remove the lock before gaining access tothe toolbox. F.’s is a farfetched and unsupported story, and the Umpire thinks it would beclear folly to accept it.

The second holding concerns the "Brief Explanation of Misconduct" part of the 76 notice,quoted above. The Umpire has previously made it clear that no rigid rule can be laid downas to the amount of information—the extent of detail—which Management is obligated toprovide on a 76 notice. See the overruling of the Union’s objection to the particular 76notice in the case leading to Decision M-92. Nor is the Umpire here saying that every littlemistake, no matter how inconsequential, is to be treated as indictable error. The presentcase, indeed, provides an example of something which falls into this category: the noticerefers to "a company lock", when the fact is that the lock was the property of the particularafternoon-shift employee. But the notice also says that the lock-breaking was observed bythe two supervisors. This is at once untrue and a matter of significant misinformation. Norcan it be treated as the sort of error which a local Management might understandably



make. It would have been very simple to state the charge in accurate and unexaggeratedfashion—"you were observed at the toolbox on which a broken lock was found and youadmitted that you broke it". As already indicated, the Umpire is not here going so far as todismiss the Company’s case on the grounds that the Union has shown that the twosupervisors did not observe F. committing the misconduct. But to suggest that it would notbe technically incorrect to do so is to point up that 76 notices must be free of significantmisinformation and that the Union, in preparing its defenses, is not obligated to makeinterpolations of 76 notices.

The third holding, aside from taking the just discussed defect into account, is a matter ofappreciating that this is not in fact a theft case. The grievants are charged with a violationof the Shop Rule covering the destruction of employee or Company property, not the ShopRule covering theft. The Umpire agrees with the Company that the case cannot be treatedas if it involved the type of incident in which there is destruction from anger or pique (as, forexample, in the case leading to Decision N-21). In the present case, there were theelements of stealth and planning; and it can hardly be assumed that the only purpose ofthe breaking of the lock was to cause its destruction—indeed, grievant F. admits that hewas making use of the broken lock to gain access to the contents of the toolbox. What isalso true, however, is that the evidence shows no more than that F. (or M., or both) werereplenishing their supply of tools to be used in their work and that they were doing it in themidst of an epidemic of reciprocal "borrowing" in the department. The Umpire is not sayingthat the grievants thereby committed something less than a serious offense. But what theydid, it seems to him, was a good step removed from theft in the classic and normally-understood sense. Management apparently saw it the same way. It did not precipitouslydiscipline the grievants but, rather, first made what it itself terms a full investigation of theincident. And, upon that investigation, it applied the "destruction" Shop Rule rather than the"theft" Shop Rule.

DECISION

For the reasons given in the Opinion, the discharges here in question are overruled. Eachof the grievants is to be reinstated, is to have his record changed to show a 2-week DLO inlieu of the discharge, and is to be reimbursed for the wages lost accordingly.

May 1, 1972

/S/Rolf Valtin

Umpire





No. N-31

June 14, 1972

Discharge:

Alleged Fraud in Claiming Disability Benefits

GRIEVANCE:

Grievance 277022

"Chrge. Mgnt. with giving me an unjust discharge. Request I immediately be reinstated andreimbursed all monies lost." S/J.L.S.


For the reasons given in the Opinion, the discharge here in question is overruled. TheCompany is directed to reinstate the grievant with restoration of seniority rights andreimbursement for the wages lost from the time of his discharge. (Entire decision should beread)

In the Matter of:


and

General Motors Corporation, Flint Parts Plant, Flint, Michigan --

Appeal Case N-327


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OPINION

At the time of his discharge—late May, 1971 -- grievant S. was a first-shift Stock Picker atPlant No. 3. His seniority dates from September, 1962. It appears—there is no expressreference to it in the record—that he had a clean prior disciplinary record. He wasdischarged on the following grounds (as given in his 76 Notice):

"You are being discharged for perpetrating acts of fraud uponGeneral Motors Parts Division—Flint Parts Plant by going on sickleave and collecting sickness and accident benefits, but yetcontinuing to work your other regular employment at Flint City Hall.You attempted to fraudulently gain benefits as late as the sick leaveperiod of May 4, 1971, through May 25, 1971; a period of time thatyou worked at Flint City Hall while on sick leave from this plant. Areview of prior sick leaves for which you were paid sickness andaccident benefits indicates the same pattern of fraudulent actionperpetrated by you upon the Company."

The case was extensively argued, and a proper review of all that was presented wouldtake one into several areas and would produce a very lengthy Opinion. The Umpire willforego such a review because, in his opinion, the case turns on but three or fourconsiderations and much of what was argued may properly be bypassed.

S. has been under a physician’s care since 1967. The physician testified at the hearing,saying that S. has been suffering from a hypertensive cardiovascular disease withcoronary insufficiency; that the manifestations are headaches, fainting spells, dizzinessand spots in front of the eyes; that, though S. is a man in his late twenties, he has the heartof a man in his middle fifties; and that the avoidance of stress is among the most importantrequirements for keeping S. a reasonably fit person. The plant’s physician also testified. Hepointed out that examinations of S. at the plant had shown a blood pressure which, thoughon the high side, stayed within the limits which permit a person to hold a job which doesnot involve a great deal of strenuous lifting or pulling. He (the plant physician) alsoasserted that the Stock Picker job is of that kind and otherwise is a job suitable for S. toperform. Nevertheless, all three of the following are true: 1) the examinations of S. by theplant’s medical department have been nowhere near as extensive as those by S.’sphysician; 2) practically all the blood-pressure readings of S. by the plant’s medicaldepartment were done at times when S. was returning to work from sick leave; 3) theplant’s physician testified that he was not dissenting from the findings by S.’s physician asto S.’s medical problems.

In early 1969, S. took on a second job—i.e., a full-time job in addition to his GM job. It is aJanitor job at the Flint City Hall with 5 PM - 1 AM working hours. S.’s first-shift hours at theplant are from 6:30 AM to 2:30 PM.

In the approximately 2-year period preceding his discharge, S. went on sick leave from hisGM job and collected S&A benefits on some ten occasions. The length of time peroccasion varied from about 1 week to about 5 weeks. On each occasion—either some ofthe time or all of the time—he worked his Janitor job at the Flint City Hall.



The Company discovered this in connection with its investigation of S.’s claim for S&Abenefits on the last occasion. Therewith, aside from stopping the payment of S&A benefitsfor that occasion, it discharged S. As shown, the Company is charging that S. was guilty offraud in claiming disablement and collecting S&A benefits at times when he continued towork the City Hall job. For the reasons which follow, the Umpire does not believe that hecan uphold the Company.

The case leading to Decision N-14 involved an employee who had falsified an S&A form inorder to extend the cut-off point for the receipt of S&A benefits beyond that which hisdoctor had specified. The employee was discharged under Shop Rule 1, prohibitingfalsification of personnel or other records. The Union argued that the S&A form, rather thanconstitute a Company record within the meaning of Shop Rule 1, constitutes a form usedunder the Insurance Program; that, by the express terms of Paragraph (224) of theNational Agreement, the Insurance Program lies outside the Umpire’s jurisdiction; and thatthe falsification of an S&A form was therefore not properly punishable under Shop Rule 1.The Umpire overruled the contention, essentially holding that the S&A form at once is usedfor insurance purposes and is a Company record and that no analysis of the InsuranceProgram was needed to determine the fact of the falsification.

Paragraph (6) of the Opinion in N-14 reads as follows:

"The question here is not whether the disciplinary action iswarranted or dictated by one or another provision under theInsurance Program. Or, stating it otherwise, the case is not oneinvolving the interpretation and application of the InsuranceProgram—so that there is no transgression of the mandate that ‘nomatter respecting the provisions of... the Insurance Program... shallbe subject to the grievance procedure’. The question, rather, iswhether an S&A form may be treated as the type of record whichfalls within the purview of Shop Rule 1. For the reasons givenabove, the Umpire believes that the answer lies in the affirmative."

The present case is of a different nature. It does not involve the tampering with aphysician’s certification. It does not involve, that is to say, the act of falsification which isclearly wrongful and known to be wrongful and which requires no examination of theInsurance Program to establish the wrongfulness of it.

At the most, the present case involves an employee’s exaggerated ailment claims whichhis physician supported. But this gets one into imprecise and intangible areas. Further,because of the very nature of the uncertainties which frequently accompany medicalcomplaints and medical findings, there is clear danger in pursuing a path by whichallegedly exaggerated ailment claims are to be equated with fraud. And further still, ailmentclaims as to which there is uncertainty of their genuineness constitute something which isnot unusual. One may properly assume that it is an event which the parties anticipatedwhen they wrote their Insurance Agreement. But as to how they may have guarded againstit, and as to the kinds of consequences they may have thought should attach to it, onewould have to look to the Insurance Agreement. And this much—the interpretation andapplication of the Insurance Agreement—clearly is beyond the Umpire’s jurisdiction.



In fact, however, it is by no means that the case involves the careless or dishonest supportby a physician of an employee’s phony or exaggerated disablement claims. As to the lasttwo of the ten occasions here presented, there is reason to be suspicious about the claimsadvanced by S. But, even assuming that the evidence sufficed to make a flat holding thatS. or his physician (or both) made dishonest representations as to these two occasions,the Umpire does not believe that this could be made determinative of the case. For theclear fact is that the Company discharged S., not for the suspect nature of the last twooccasions, but for what it saw as the fraudulent scheme wrought by all ten occasions. Andwhen it comes to this—unless the fact of S.’s going on sick leave and claiming andcollecting S&A benefits while continuing to work the City Hall job is itself to be accepted asadding up to fraud—the answer must be that the medical evidence produced by the Unionis far the stronger than that produced by the Company. As indicated, S.’s physician wasclearly more familiar with S.’s condition than the plant medical department; the medicaljudgments made by S.’s physician were backed by the results of objective tests; and S.’sphysician testified with what seemed to the Umpire the conviction of a doctor who isknowledgeable and concerned about his patient’s condition. On the state of the medicalevidence in this case— again, unless the fact itself of S.’s having continued to work theCity Hall job were to be taken as establishing fraud—it cannot properly be held that thegrievant is guilty of the fraudulent conduct with which he is charged.

There remains, then, the "unless" element in the case—and clearly the real element whichcaused Management to writhe and to discharge S. Based on the hearing evidenceconcerning the requirements of the City Hall job and on his inspection trip to the plant toobserve the requirements of the Stock Picker job, the Umpire agrees with the Companythat there is little to choose between the two jobs in terms of either physical effort or pace.Going to the stress factor emphasized by S.’s physician, in other words, it seems to theUmpire that there is difficulty in distinguishing one job from the other. Also, the Umpireagrees with the Company that it is difficult to square the concern for the stress factor withthe holding of two fulltime jobs (allowing but about four hours of sleep between quittingtime of the one job and getting ready to leave home for the other job). On the face of it,thus, there indeed appears to be an indefensible situation notwithstanding the impressivetestimony concerning S.’s medical problems by his physician. But it is not necessarily truethat the Insurance Agreement makes the proper collection of S&A benefits dependent onnot being actively employed elsewhere. For all that the Umpire knows and for all that S.’sphysician may have known, the Insurance Agreement does not prohibit the collection ofS&A benefits while holding another job and, instead, permits relief from the one job whilecontinuing to work the other as a matter of alleviation for someone with S.’s particularcondition. The Umpire is not saying that this a a likely state of affairs. The point is that ithas not been established—as it cannot be, given the exclusion of the InsuranceAgreement from the coverage of the grievance procedure— that there can be no suchthing under the Insurance Agreement as a period of temporary disability with respect to theGM job while continuing gainful employment elsewhere. Similarly, it has not beenestablished that there is to be literal application of the phrase "totally disabled".

What these things add up to is that there is a question even as to the impropriety, let alonefraud, of the S&A claims here in question. And as to fraud, it is not merely that the presentcase, for the reasons given, properly is to be distinguished from the case which led toDecision N-14. It is also that the element of stealth is lacking in the present case. S. hasmade no secret of the fact of his other job and, indeed, on one occasion let it be knownthat he wanted a medical statement saved for presentation to his supervisor at City Hall.



The Umpire does not believe that S., to avoid being found guilty of fraudulent conduct, hadan obligation expressly to inform Management of his continuing to work the City Hall jobduring the periods here at issue.

DECISION

For the reasons given in the Opinion, the discharge here in question is overruled. TheCompany is directed to reinstate the grievant with restoration of seniority rights andreimbursement for the wages lost from the time of his discharge.

June 14, 1972

/S/Rolf Valtin

Umpire





No. N-50

JANUARY 23, 1973

Paragraph 63(a):

Promotion to Draftsman-Checker

GRIEVANCE:

Grievance 052001

"I charge Management with deliberate violation of Paragraph 63(a) of National Agreement.I demand all benefits and monies due me and this situation corrected at once." S/J.P.W.


1. The record does not substantiate C.’s promotion to Draftsman—Checker onJanuary 25, 1971, to have been a proper one.

2. The case is remanded to the parties for determination of who should havebeen promoted and how much back pay that person is entitled to receive.

3. If the parties are unable to reach a mutually agreeable settlement of thesematters, any open questions may be submitted to the Umpire for finalresolution. (Entire decision should be read.)

In the Matter of:


and


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General Motors Corporation, Oldsmobile Division, Lansing, Michigan -- Appeal Case N-22

OPINION

In this grievance, submitted on January 25, 1971, W., a Draftsman—Designer—Senior,seniority date March 26, 1948, protests the promotion of C. to the position of Draftsman-Checker. C. was also a Draftsman—Designer—Senior, but his seniority date is June 5,1967. Grievant W.’s seniority in the Draftsman—Designer—Senior classification is April 7,1961.

The grievance is submitted under Paragraph 63(a) of the National Agreement which statesin relevant part: In the advancement of employees to higher paid jobs when ability, meritand capacity are equal, employees with the longest seniority will be given preference.

This is a so-called "head and shoulders" dispute. In December 1941 the Umpire declaredin Decision B-52 that "in considering employees for promotion under Paragraph 63, it maybe that an employee’s record is so outstanding that he is ‘head and shoulders’ above anyother possible candidate. In such cases, he is entitled to promotion irrespective of seniorityand, if necessary, Management should have no difficulty in pointing out his superiorqualifications." Subsequent decisions have clarified the standards to be applied in thesecases and have made clear that the burden of establishing a "head and shoulders" case ison Management.

Decision E-305 recites some of the relevant considerations:

Such outstanding qualifications should be evidenced by "precise reasons", "citation ofinstances", "production records" and/or "Supervisors’ ratings." (Decision B-69.)Management likewise should evaluate "length of machine experience", "variety ofmachines operated" and "productive ability on machines." (Decision B-204.) The bareopinion of Supervisors, unsupported by an objective factual showing, will not sustain achallenged promotion. (Decision B-100, E-232.) Potential ability for further promotion is aproper factor to consider where Management in good faith promotes for training purposeswith an eye towards subsequent promotion to Supervisory jobs. (Decision B-55 and C-319.)

A subsidiary but critical question in this case concerns the introduction by the Company ofevidence and argument at the Umpire hearing which, the Union alleges, does not appearin the prior record. As the parties well know, new evidence is not to be introduced at theFourth Step and, if called to the Umpire’s attention, must be excluded from consideration.

With these precepts in mind, let us consider the evidence which appears in the priorrecord.

At the February 10, 1971, Management—Shop Committee meeting Managementsubmitted these facts and contentions:

1. At the time C. was hired in June 1967 he had about 25



years of experience in engineering drafting, detailing,tool and die designing and checking. He also attended atechnical institute where he obtained a year of formalinstruction in the drafting and designing field.

2. C. was evaluated as "outstanding" by his currentOldsmobile supervisor and a prior one.

3. Paragraph 63(a) is not applicable since C. wasupgraded in accordance with the Local SeniorityAgreement.

4. Even if 63(a) were applicable, C. is "head andshoulders" over Grievant W. In fact, there are otheremployees in the group who are equal or superior to theGrievant and who have greater seniority.

The Union alleged that any designer with Oldsmobile training could fulfill the checker’sresponsibilities. Consequently, Management should have upgraded W. since he wassenior to C.

In its February 24, 1971, Statement of Unadjusted Grievance, Management reiterated thefacts and contentions summarized above. Additionally it argued that, although the trainingavailable at Oldsmobile is excellent, not all employees engaged in designing activitiespossess equal ability or capacity.

The Union, in its Statement of Unadjusted Grievance, after rebutting Management’s LocalSeniority Agreement contentions, presented these facts and arguments concerning the twomen:

Grievant W.: (1) He successfully completed two Oldsmobile apprenticeship courses. (2)One was in the Die Room, (1962-66) where he worked as a top paid journeyman DieMaker until February 1961. (3) He worked to build, repair and try out all dies used in theproduction of Oldsmobiles. (4) He attended L.C.C., completing courses in machine design,and tool and fixture design. (5) He was a Die Design Apprentice between 1961 and 1963,when he was graduated into the Layout—Senior classification in Die Design. (Note: Thisclassification was subsequently changed to Draftsman—Designer—Senior.) (6) His fiveyears in the Die Room and Die Tryout provided him actual experience needed on all typesof dies (small, intermediate and large), in addition to experience on the presses,automation (such as Iron Hands and Unloaders), conveyor system, feeders andstraightening rolls. (7) The list of jobs and hours Management requires to become a DieDesigner through the apprenticeship program is further evidence of his qualifications. (Theattached list revealed that 300 hours in Design Checking were required.)

Mr. C.: (1) His experience record (provided by Management) was not as impressive as itwas intended to be. (It showed four years in engineering drafting at Douglas Aircraft (1942-46), one year at tool designing at Auto-Air, Inc. (1961-62), three years at detailing and diedesign at Dependable Engineering (1946-49), seventeen years of die designing andchecking at Dependable Engineering (1949-67), and three years as a Draftsman—



Designer—Senior at Oldsmobile (1967-70).) (2) Recommendations from DependableEngineering were suspect since the owner was C.’s father-in-law and frequently only thetwo were employed. (3) His experience was limited to small dies. (4) His checkingexperience at Dependable should be discounted because the dies made there (forOldsmobile) were all rechecked upon delivery.

At the Third Step Meeting the parties read their Statements of Unadjusted Grievance.Additionally, according to the Minutes, Management denied the Union’s assertion that C.was related to the owner of Dependable Engineering—a Mr. R. (The Union subsequentlystated, in a letter to Management, that this denial had not been made at the meeting.)

At the Umpire hearing Management sought to introduce evidence and argumentconcerning the details of C.’s experience in designing and checking dies, particularlyduring his years at Dependable Engineering, a Lansing firm which performed work undercontract with Oldsmobile. It also sought to bring to the Umpire’s attention evidence which,if accepted and verified, would tend to show that (1) the Grievant had actually spent verylittle time designing dies during his approximately three years in the Draftsman—Designerclassification (he served as District Committeeman and Apprentice Committee Chairmanduring 1969 and 1970); (2) C. spent substantially more hours on die designing, while atOldsmobile, than did the Grievant, and C. designed many more dies.

Unquestionably, this type of information is precisely what prior Umpires had in mind whenthey held that Management should have no difficulty in substantiating the superiorqualifications of a junior employee and that outstanding qualifications should be evidencedby precise reasons, citation of instances, production records, supervisors’ ratings, length ofexperience and the like. But it is equally clear that this type of information, which forms thevery basis for selecting one employee rather than another, should be brought forward andplaced in the record before a grievance is appealed to the Umpire. Contrary toManagement’s assertion, it is not rebuttal evidence to be introduced for the first time at theUmpire hearing.

There is testimony that in October 1971, about six months after W.’s grievance wasappealed to the Umpire, Management provided a Local Union Zone Committeeman with acopy of a letter from the owner of Dependable Engineering which (1) verified that he andC. were not related (the Union has dropped this allegation), and (2) contained details ofC.’s design and checking work. But again, this was not made part of the record (whichcould have been reopened), although it was of clear relevance.

In view of these facts I must conclude that much of the critical information dealing with therelative length and quality of C.’s and W.’s experience cannot be considered in thisproceeding. This includes a considerable part of the testimony of R., part owner ofDependable Engineering, Supervisor S., who selected C., and C. himself.

When the relevant and admissible testimony is considered, and the meager prior recordevaluated. it is apparent that a "head and shoulders" case has not been established. Note,for example, the following:

Promotions to the Checker position have customarily been made from the ranks ofDraftsman—Designer—Senior. There is a presumption (rebuttable of course) that a



competent Designer will make a competent Checker, particularly if he has fulfilled theChecker work requirements of the apprenticeship program.

Supervisor S., who made the January 1971 selection, had very little experiencesupervising W., having been appointed to his position only a few months before (onSeptember 1, 1970). He was only slightly familiar with W.’s work prior to September 1970(when S. served as a Production Engineer). He had never checked W.’s work himself. Hehad received no negative reports concerning W.’s work.

There is nothing in the record concerning either W.’s prior merit ratings or evaluations ofhis prior supervisors.

There is nothing in the record concerning C.’s merit ratings or evaluations of his priorsupervisors (or of S., for that matter).

The record which may properly be considered here contains no information concerningspecific assignments accomplished by C. which would demonstrate his marked superiority.Supervisor S. characterized C.’s work as "competent."

The only justification for selecting C. in preference to W. which was mentioned in the priorrecord was the length of C.’s pre-Oldsmobile experience. The information provided, in fact,consisted principally of an excerpt from the Company’s Personnel files listing names ofemployers, classifications held and years of employment. While this certainly is the startingplace for a comparative analysis, it does not constitute, in and of itself, the kind of evidencewhich is required to demonstrate "head and shoulders" superiority. It may be the skeleton,but flesh and blood are needed.

While Supervisor S. was apparently familiar with C.’s work even prior to 1967 (when C.worked on Oldsmobile designs for Dependable Engineering), his knowledge of C.’s work inthis prior period was not shared with the Union or entered into the record prior to theUmpire hearing.

Had all the relevant facts concerning W. and C. been revealed during the processing ofthis case, Management might well have prevailed. But the information on whichManagement can legitimately rely here is not sufficient to meet its burden of proof.Consequently, by proper application of the "head and shoulders" doctrine, I must declareC.’s promotion in preference to W. to have been improper.

Pursuant to the parties’ agreement, the matter will now be remanded to them forconsideration of who should have been promoted and how much back pay that person isentitled to receive.

DECISION

1. The record does not substantiate C.’s promotion to Draftsman—Checker onJanuary 25, 1971, to have been a proper one.



2. The case is remanded to the parties for determination of who should havebeen promoted and how much back pay that person is entitled to receive.

3. If the parties are unable to reach a mutually agreeable settlement of thesematters, any open questions may be submitted to the Umpire for finalresolution.

January 23, 1973

Arthur Stark

Associate Umpire

Rolf Valtin

Umpire





No. N-51

January 24, 1973

Discharge;

Shop Rules Respectively Covering Absence Without Reasonable Cause

and

Repeated Violations of Shop Rules;

Evidence;

Extent of Penalty

GRIEVANCE:

Grievance 842371

"Charge Mgt. With giving me an unjust & unfair Discharge. Request that I be reinstatedand paid for all benefits lost." S/J.T.S.



In the Matter of:


and


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\n-051_13A7156A.htm

General Motors Corporation, GMAD Lakewood Plant, Atlanta, Georgia -- Appeal Case N-130

OPINION

At the time of his discharge—April 1, 1971 -- grievant S. was a first-shift Assembler in thePassenger Chassis Department. He had seniority dating from August 5, 1965. His priordisciplinary record was as follows:

The following is a summary of the factual framework surrounding the incident which led tothe grievant’s discharge:

The annual deadline for obtaining new automobile tags in Georgia is April 1. April 1 itself isstill "good" for the old tags, and the old tags can legally be used thereafter so long as theuser has proof that he applied for new tags prior to the midnight, April 1-2, deadline.

At about the middle of the shift on Tuesday, March 30, 1971, S. spoke to his foreman,Foreman W. Stating that he had not previously been able to afford to pay the renewal fee,S. told Foreman W. that he wished to go to the Courthouse on the following day to obtainnew tags and that he therefore would be late in coming to work. According to S., Foreman

4/20/70 WrittenReprimand

Failure to report for work upon end of lunchperiod.

4/30/70 1-day DLO Shop Rule 17: "Making scrap unnecessarily,or careless workmanship."

5/11/70 2-day DLO Shop Rule 17:

5/18/70 1-week DLO Shop Rule 17:

6/22/70 2-week DLO Violation of the terms of the settlement of Local Demand No. 44: "Thisdemand was resolved on Management’s statement that employees whoare not adjudged by Plant Medical Department Personnel as too ill tocontinue at work will be granted an exit pass at their insistence to seetheir personal physician, provided satisfactory medical evidence issubmitted to the foreman on the shift when he returns to work."

7/14/70 30-day DLO Violation of the terms of the settlement of

Local Demand No. 44

9/12/70 Discharge Violation of the terms of the settlement ofsubsequently Local Demand No. 44converted to a 30-day DLO



W. merely smiled and said nothing. According to Foreman W., he (Foreman W.) rejectedthe stated reason as proper grounds for absence or lateness and, when S. said "well, I’vegot to go to get my license plates", told S. "I can’t excuse you for that, and I expect you tobe on the job at 6:30". (6:30 AM -- 3:00 PM were the first-shift hours.) As to this conflictbetween the testimony of S. and that of Foreman W., the Umpire believes that he mustaccept Foreman W.’s version as the correct one. S. showed himself as less than a reliablewitness in a number of ways, and the Umpire cannot help but agree with the Company thatthe thrust of the Union’s case would have been different if S.’s version were the correctone—that the Union, rather than picture Foreman W. as a hard-nosed foreman who erredin not accepting the stated grounds as reasonable cause for absence or lateness, wouldhave argued that there was tacit approval for S.’s absenting himself and that the questionof reasonable cause or the lack of it therefore did not need to be confronted.

On the following day, March 31, 1971, S. did not come to work. He accounts for the day asfollows: that he left his home at 6:30 AM, drove to the Courthouse and arrived there at 7AM; that a long line had already formed and that he had successively to get into twolines— one to pay the tax, the other to obtain the tags; that it was about noon when he wasthrough with the two transactions; that he drove home to change into work clothes; that,upon arriving at his home, he called the plant and was told that he should come in; that,when he came out of his house upon changing clothes, he found a flat tire on his car; that,as he was in the process of changing the tire, an Investigator from the plant (Managementconfirms that it send the Investigator) arrived and engaged S. in conversation; that S.showed the Investigator the new tags and the papers which substantiated that the tags hadbeen obtained that day; that the combination of conversing with the Investigator andcompleting the tire change brought the time to about 2 PM; and that S. at this stage figuredthat there no longer was any use in going to work.

At the beginning of the shift on the next day, April 1, 1971, S. was given a disciplinaryinterview (attended by his Committeeman, a Labor Relations supervisor, and ForemanW.). In substance, S. provided the just-given account of the preceding day. Managementdeclined to accept it as a satisfactory reason for the absence and, as indicated at thetopical heading, discharged S. under Shop Rules 6 and 41, respectively covering "Absencewithout reasonable cause" and "Repeated violations of shop or safety rules".

Because each party has presented its position with skillful elaboration and with supportingexcerpts from prior Umpire Decisions, a mere summary of what the parties are saying maydo them an injustice. Nevertheless, in the interest of brevity and because it suffices toshow the essence of the difference between the parties, the Umpire will state only theirmain points.

The Union’s alternative position is: 1) that S. did not violate Shop Rule 6 -- i.e., that hisabsence was not without reasonable cause; and 2) that, even if the Umpire were to findthat S. erred in staying away from work to get the tags, the discharge penalty should bemodified as too severe.

As to the first part of its position, the Union submits that the case should be judged, not interms of the might-have-beens (reference being mostly to the facts that the tag-renewalperiod runs from January 1 to April 1, that the Courthouse office which issues new tags isopen until 5 PM on week days and until noon on Saturdays, and that S.’s department



worked on only one Saturday in the first quarter of 1971), but in terms of the situationwhich confronted S. at the time in question. When seen in that light, what was true wasthat the deadline was at hand and that S. needed to obtain new tags. Obtaining themrepresented the kind of valid personal-business reason for which he should rightfully havebeen excused from work. An employee with a bad disciplinary record has the same rightas an employee with a good disciplinary record to have the reason for his request to beabsent or late considered on its merit. And with respect to S.’s not coming in at all on theday, his detention at home after he had obtained the new tags was brought on by the flattire and the presence of the plant Investigator—events for which S. obviously cannot beblamed.

As to the second part of its position—the extend-of-penalty part— the Union submits thatthe admittedly bad disciplinary record falls into a relatively brief period of about fivemonths; that the bad must be weighed against the good; that the good is represented bynearly five years of an unblemished record; that nearly six years of seniority are not to bedismissed as something brief and of little consequence, as the Company urges; and that S.was not once absent from the time the plant resumed operations (in late January, followingthe 1970-71 strike) to the time here in question.

Contrarily, the Company takes the position: 1) that S. was indeed absent withoutreasonable cause—and, moreover, was absent contrary to the specific and perfectlyproper instructions of his foreman; and 2) that there is nothing sufficiently appealing ineither the length or the quality of S.’s service to justify a modification of the dischargepenalty.

With respect to the absence itself, the chief assertions which the Company makes arethese: that, as S. had asked for and been denied permission to be off, he cannot beviewed as a poor soul who happened to make an erroneous judgment; that practicallyeveryone else owns a car and manages to take care of the annual tag-renewal chorewithout taking time off and that S. is thus in effect asking that he be given privileged status;that S. has owned cars for some ten years and hence is not someone who lacks familiaritywith either the renewal requirement itself or with the fact that the entire first quarter of theyear is available for taking care of the requirement; that S.’s "not previously enoughmoney" excuse does not stand up, for he had substantial earnings in week after weekstarting with the end of January; that there were several Saturdays on which S. could haveobtained the tags, for it was on but one Saturday in the entire 3-month period that he wasscheduled for work; that he had ample time on his workdays to obtain the tags—his shiftends at 3 PM, the tag issuing office is open until 5 PM, and S. lives but 5-6 miles from theplant and but 3-4 miles from the Courthouse; and that, aside from all these points, there isevery reason to believe that S. never intended to come in at all on this day—it is incrediblethat five hours would have been consumed in obtaining the tags and S. has advanced nogood reason (his job is admittedly not a dirty job) as to why he could not have worn hiswork clothes and thus have been in a position to drive directly to the plant upon obtainingthe tags.

On the extent-of-penalty issue, the Company argues that S. is nowhere near the sort oflong service employee who might be given special consideration; that S.’s disciplinaryrecord clearly is an appalling one— and, indeed, one which includes two 30-day DLO’s;that most of the infractions are concerned with S.’s not being at work when he should have



been at work; and that it is the fact of a bad disciplinary record, not whether it may havebeen incurred over a relatively short or a relatively long span of time, which matters.

The Umpire will similarly proceed on the two issue basis. He has concluded that he mustuphold the Company on both issues.

In approaching the first issue, the Umpire has been mindful of what clearly has to begranted: that, insofar as S. was absent to obtain the tags (i.e., overlooking the question ofwhether it can reasonably be accepted that it took him 5 hours to obtain them), it was notfor frivolous reasons that S. was absent. Obtaining auto tags is a public requirement and itinvolves both trouble and expense. It is an unpleasurable obligation, akin to going to thedentist rather than to going fishing or to going to a ball game or the like. To this extent, oneis in the area of "reasonable cause"; and it seems to the Umpire to follow that an absence("absence" is here used in the broad sense and is not intended to connote a whole shift)for the purpose of procuring auto tags would have to be countenanced if their procurementduring working hours is the only realistically practical alternative.

But it cannot legitimately be held that such was here the case. The evidence is clear that:the grievant was fully familiar with the tag-renewal requirement in all its aspects; Georgiamakes a 3-month period available in which to take care of the tag renewal requirement;there was but one Saturday in that period in which the grievant worked at the plant; and hisshift hours and the distances between the plant and his home and the Courthouse weresuch that there were untold opportunities to obtain the tags upon the end of one of hisworkdays. To hold, in the face of these facts, that S. was entitled to be absent (wholly orpartially) on March 30 to procure the tags would be tantamount to holding that anemployee’s obligation to show up for scheduled working hours is so limited and fragile asto properly give way where the employee prefers to use working hours rather than his owntime to procure tags.

The grievant claims, of course, that it was not until the time in question that he could affordto pay the fee for the tags (he referred to the strike as the cause of it). The Umpire agreeswith the Company that this is too much to accept. No details by way of substantiation werepresented, and it is noteworthy that S. purchased not one, but two sets of tags on the dayin question (one for his car, and the other for his self-owned taxi). Given his earnings in thepreceding weeks, and given the absence of a showing that there were pressing debts, itcannot be accepted that S. was as destitute as he in effect asserts. If in fact he lacked thefunds for the tags at an earlier stage, it can only be concluded that it was by his preferenceor poor planning that he failed to hold back the funds for the tags until the last week. And ifthat be true, it is the Umpire’s considered opinion that S. was obligated to procure the tagsupon the end of the shift on one of the days in the week or, if the lines of people at theCourthouse were so long as to make this impossible or unduly burdensome, to procure thetags on the forthcoming Saturday. To wait until the Saturday would have meant foregoingthe use of the car and using the bus on but one day (Friday, April 2). This would have beenan inconvenience; but, in the opinion of the Umpire, the inconvenience would have had tobe regarded as the fair price for the prior procrastinating or poor planning. S. could notlegitimately presume to take time off from work to make up for it.

Furthermore, the Company is quite right in pointing up the fact that S. had the word fromhis foreman that he (the foreman) would not accept getting tags as proper grounds for S.’s



taking time off from work. Shop Rule 6 having been invoked, this is not an insubordinationcase. But the Company is right in saying that the conversation between S. and his foremanprecludes a conclusion that S. made an unknowing mistake. Indeed, the fact that S. did notconsult his Committeeman upon the conversation with the foreman indicates that heconsidered himself on weak grounds and thus knowingly took a substantial risk.

The conclusion which the Umpire has here come to with respect to the "reasonable cause"question is essentially a matter of applying the following from Decision G-156:

"Absence without reasonable cause is certainly grounds fordiscipline, but the concept of reasonable cause is as broad asnecessary to maintain appropriate balance between the demands ofthe job on the one side, and personal and family needs on the other,conflict between which, at one time or another, confronts everyemployee.

"Where as here an employee is absent without permission, it isincumbent upon him to show that such absence was necessitatedby personal consideration which by accepted standards outweighedhis duty to his employer to be present during working hours."

In the Umpire’s judgment, the proper application of the phrase "by accepted standards"requires the holding that the procurement of auto tags under the circumstances of thepresent case did not constitute reasonable cause for taking time off from work. This is notto say, of course, that there might not be plants where the procurement of auto tags is bypractice sanctioned as reasonable cause for absence. Obviously, where this is true, thepractice rather than the Umpire’s judgment would govern in applying the phrase "byaccepted standards". No such practice, however, has here been shown to exist. To thecontrary, the Union’s thrust in the case—that it is not the might-have-beens but thesituation which confronted the grievant at the time in question which must be made tomatter—indicates that there is no practice at this plant which would routinely permit takingtime off from work to procure auto tags. And though the Union has shown that Foreman W.has on occasion permitted one or another employee to leave the plant for awhile even forpleasurable purposes (it is in this context that the Union makes the argument that anemployee’s disciplinary record must not serve to affect the intrinsic merit of a request to beabsent or late), the Umpire does not believe that there is enough in this to alter hisjudgment as to what the phrase "by accepted standards" must properly be taken to mean.Involved are situations where the foreman, largely in recognition of the employee’sexemplary attendance record, gave the employee permission to take off even though theShop Rule would have justified denying the request. They were exceptional situations, andthe Umpire does not believe that they can be taken as rendering a practice which eitherbound the foreman to the granting of S.’s request or precludes the Umpire from exercisinghis judgment as to the proper application of the Shop Rule in the present instance.

As already stated, the Umpire believes that he must also rule against the Union on theextent-of-penalty issue. He agrees that six years of seniority are not lightly to be dismissedas the equivalent of mere rookie status and he agrees that more than ordinary scrutiny iswarranted where five of the six years were without disciplinary blemish. But he does notbelieve that there is enough in either of these considerations to justify the modification of



the discharge penalty. S.’s disciplinary record itself is such as to outweigh theseconsiderations. All of the following are true: 1) four of the seven entries are concerned withS.’s being away from work when he should have been at work; 2) only about a month afterreceiving a 2-week DLO for violating the terms of the settlement of Local Demand No. 44,the grievant committed the very same offense and received a 30-day DLO; 3) despite this,and a mere two months later, the grievant once more committed the offense; 4) dischargedat this stage, the grievant was brought back to work through the Union’s efforts inconnection with the strike-settlement negotiations; 5) disallowing the strike as workingtime, it was again a mere two months later that the present offense occurred. It seems tothe Umpire that there is no realistic escaping the conclusion that both parties have alreadyexerted themselves to walk the last mile with the grievant. To order the Company toreinstate the grievant would be, not to apply, but to prostitute the corrective-disciplinenotions which the Company has over the years been directed to follow.

DECISION


January 24, 1973

/S/Rolf Valtin

Umpire





No. N-67

JUNE 15, 1973

Discharge Of Probationary Employee

With More Than 30 Days Of Service

On Grounds Of Irregular Attendance

GRIEVANCE:

GM ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION, SOUTH GATEPLANT, SOUTH GATE, CALIFORNIA—APPEAL N-1609

Grievance 612400

"I protest as unjust my termination as an unsatisfactory temporary employee for allegedirregular attendance. Request I be reinstated with no loss of accumulating time and pay forall time lost."

Amended to read:

"Protest management unjustly discharging me as an alleged Unsatisfactory TemporaryEmployee (Irregular Attendance). Request that I be reinstated with all time lost appliedtoward acquiring seniority; further request that I be paid all time lost plus benefits lost dueto Management’s error." S/K.D.

UMPIRE’S DECISION


In the Matter of:




and

General Motors Corporation, GMAD South Gate Plant, South Gate, California -- AppealCase N-1609

OPINION

Grievant D. was hired at the plant on September 5, 1972. She initially worked as a"Stockman" in the Material Department and thereafter was transferred to the classificationof "Clean and Grind" in the Body Shop. She was discharged on November 6, 1972, on thestated grounds of "unsatisfactory employee—irregular attendance". As she admittedly haspassed the 30-day point of her employment but admittedly was still within the 90-dayprobationary period, the question is whether her discharge was "for cause" as given atParagraph (56) of the National Agreement.

D.’s period of employment at the plant covered 44 working days. She lost about 20 percentof her working time—being absent for her entire shift on eight occasions, leaving the plantafter working about 2 hours on one occasion, and being 6 minutes late in coming to workon another occasion.

The Umpire is disregarding the one occasion of lateness. There are cases in whichtardiness and absences are properly lumped under the general heading of poorattendance. But the Company’s concern in the present case clearly has been with D.’sabsences; and the one occasion of tardiness must properly be seen as an isolatedinstance which does not form part of a pattern to be held against her. Nor, clearly, could alone instance of 6 minutes’ tardiness—whether or not incurred by transportation difficulties,as alleged—itself be accepted as sufficient grounds for discharge under the "for cause"standard of Paragraph (56).

Thus left are eight days on which D. was absent for the entire shift and one day on whichshe left after being at the plant for about 2 hours. Ailments of one sort or another were thegrounds given for the absences on all nine occasions. The following is a summary intabular form:

Friday

9/29/72 Tooth extraction. Reported for work (secondshift) but was advised not to go to work because ofcombined effect of extraction and medication.

Monday

10/2/72 Absent because of tooth extraction on previousFriday.



Monday

10/23/72 Reported to Medical Department upon comingto work. She was diagnosed as suffering from upperrespiratory infection and sinusitis and she was advised togo home and see her own doctor. She did so and hisdiagnosis was the same.

Tuesday

10/24/72 Absent for same condition.

Wednesday


Thursday


Monday

10/30/72 Absent because of "personal problems".

Thursday

11/2/72 Went to Medical Department about 2 hours afterstart of her shift. Complained both of her previous upper-respiratory-infection problem and of metal-poisoningproblem. Released from work via medical pass.Thereupon saw outside doctor, who made thesediagnoses: upper respiratory disease, mild intestinal flu,cystitis and mild kidney infection, mild pelvicinflammatory disease. She was given S&A coverage onthis basis from 11/3/72 to 11/12/72.

Friday

11/3/72 Absent because of just-given condition.

The essence of the Company’s position is that the Agreement continues to have a 90-dayprobationary period despite repeated and major efforts by the Union in past negotiations toshorten the period; that the very idea of a probationary period is to give Management achance to test an employ’s suitability; that the question of suitability does not go merely tothe observance of Shop Rules—does not go merely to whether or not an employee canstay clear of disciplinary action—but goes also to such matters as coordinated effort withfellow workers, adjustment to the various demands of plant life, and regular attendance;that a 20 percent absence rate is clearly excessive; that some of D.’s absences, thoughthey were never directly challenged by Management, are nevertheless subject to



skepticism—about half of her absences occurred on a Friday or Monday, one of theabsences came three days after the tooth extraction had been performed, anotheroccasion on which she claimed to be ill was the day on which she got married, and the"personal problems" day was not a day falling within her menstrual period (at least not bywhat is revealed in her employment application form); but that, in any event, herabsenteeism was such as to make her a poor employment risk—and a poor employmentrisk is fundamentally what a probationary period is designed to protect Managementagainst.

Contrarily, the essence of the Union’s position is that, though true that the Agreementcontains a 90-day probationary period, it is equally true that the Agreement requires a "forcause" showing once an employee has passed the 30-day point; that the "for cause"phrase found at Paragraph (56) is the same as that found at Paragraph (8) and thereforemust be similarly applied; that D. was discharged, not for any absences without reasonablecause, but for a series of illnesses; that illness is something beyond a person’s control andtherefore cannot applied as constituting "cause" for discharge; that the fact alone that D.was absent for about 20 percent of the time is not enough to support discharge—one mustlook to the reason for the absences and, when this is here done, neither a chroniccondition nor proneness to be ill is revealed; that the sick-leave provisions of Paragraph(106) do not make a distinction between a probationary employee and a seniorityemployee; and that to uphold the Company in the present case would amount to a holdingeither that a probationary employee is required to be a superhuman person or that theCompany is free to discharge a probationary employee merely by saying that he or she istoo sickly to be kept in employment.

Both because this is his first case involving the discharge of a probationary employee whohas gone beyond the 30-day point and because both parties have made certain argumentswhich ought to be treated, the Umpire deems it necessary and appropriate first to proceedwith a discussion of a general orienting nature.

Contractually speaking, the basic problem in the case concerns the proper application ofthe "for cause" phrase in Paragraph (56). Insofar as it covered probationary employees,the phrase initially came into the Agreement in 1945 pursuant to a directive of the WarLabor Board. It was removed from the Agreement in 1948; and it was then reinsertedthrough the parties’ own negotiating process in 1955. The Company’s arguments to thecontrary notwithstanding, the Umpire can see no significance deriving from how and whenthe phrase came into the Agreement. He will deal straightforwardly with the presence ofthe phrase and the context in which it appears.

To refer to the context, the Umpire believes, is to reject the Union’s reliance on theappearance of the same phrase in Paragraph (8). It is true that the identical "for cause"phrase appears at both places and that one would normally expect the same words in oneAgreement to have the same meaning. But "for cause" is itself a general and elastic term,and it would be clear error to pursue an application which fails to distinguish between aprobationary employee and a seniority employee. Nor could such an application besquared with Umpire precedent under the Agreement. Whereas "for cause" with respect toa seniority employee has over the years been developed to incorporate such notions ascorrective discipline and varying severity of discipline based on length of service and theprior disciplinary record, nothing of the sort is found in "for cause" Decisions covering



probationary employees. Of the five Decisions respecting probationary employees to whichthe Umpire has been referred, two were in favor of the Union and three were in favor of theCompany. One of the Decisions in which the Union was upheld (E-81) will be dealt withbelow.

The other one (E-165) turned entirely on the state of the evidence:

Management failed to prove its charge against the grievant that she had been inefficientand had failed to follow supervisory instructions. And as to the three Decisions (E-115, K-75 and L-102) in which the Company was upheld, it can legitimately be said that they weregeared to the peculiar considerations involving probationary employees and that thedischarge in none of them would have been upheld had the employees been seniorityemployees with satisfactory prior disciplinary records.

It would be equally wrong, however, to pursue an application under which the "for cause"phrase in Paragraph (56) would have so little force as to leave no real distinction betweena probationary employee who has not yet reached the 30-day point and a probationaryemployee who has gone beyond it. It is unusual, in the Umpire’s experience, to find anAgreement which provides for two classes of probationary employees. But this is exactlywhat the GM-UAW Agreement does. Though there is one and the same 90-dayprobationary period for all new employees, those who have not reached the 30-day pointare without recourse if laid off or discharged whereas those who have gone beyond thatpoint may appeal their layoff or discharge as lacking in "cause". And once this right ofappeal has been granted, the Umpire believes, it would be quite as wrong to vitiate theright to meaningless proportions as it would be to cease to appreciate that the employeesituated between the 30-day point and the 90-day point is nevertheless still a probationaryemployee.

Therein lies the difficulty. On the one hand, for the reasons just given, one cannot applythe "for cause" phrase in a fashion which would yield the same protection againstdischarge for probationary employees as "for cause" under Paragraph (8) has come toyield for seniority employees. On the other hand, unless one is prepared to say that thereis in the end no difference between an employee who has not yet reached the 30-day pointand an employee who has gone beyond it, one cannot apply the "for cause" phrase ofParagraph (56) so that it has the mere meaning of a "a reason" or "some reason" or "notwithout reason". For the difference between a subjective disinclination by Supervision tokeep an employee—which, for lack of recourse by the employee until he reaches the 30-day point, is what Supervision is in a position to exercise—and providing some objectivereason for the discharge could often be an elusive one. Assume that D. would have beendischarged solely for coming in 6 minutes late on the particular morning (and that thelateness was her own fault). There would be no gainsaying the fact that her discharge wasfor "a reason" or "some reason" or "not without reason". But there would also be adischarge for so flimsy a cause as to leave no real difference from a discharge based onthe color of an employee’s hair. The point—that the "for cause" phrase cannot be reducedto the mere meaning of "a reason" or "some reason" or "not without reason"—is also madeby Decision E-81. There, six female employees were terminated in response to six maleemployees becoming available to take their place. The Company asserted that the actionhad been taken in the interest of improved efficiency. Umpire Seward made it clear that hewas not passing on the merits of that contention and held, simply, that an employ’s sex



alone could not be accepted as satisfying the "for cause" standard. Restating the holdingfor the purpose of what the Umpire is here seeking to say, it was a holding that not everyreason advanced in support of the discharge of a probationary employee—even a reasonwhich does not have the defect of being plain arbitrary or capricious—can becountenanced as adding up to "cause" under Paragraph (56).

To say, however, that the Company has to present something substantial is not to revert tothe proposition that "for cause" under Paragraph (56) is the equivalent of "for cause" underParagraph (8). To the contrary, it has to be kept in mind that it is a probationary employeewith respect to whom the Company has acted and that the considerations of lack ofsuitability and poor employment risk are exactly and uniquely what the probationary periodis all about. Indeed, were this not so, one would have to wonder why the Union, havingpreviously gained the "for cause" protection of Paragraph (56) with respect to an employeewho has reached the 30-day point, persistently sought to shorten the 90-day probationaryperiod. It is relevant that the Company prevailed in its insistence that the probationaryperiod be kept that long and that it did so on the basis of extensive position papers whichexplained the reasons for its insistence—e.g. the desirability that Supervision have achance to try employees out on more than one job; the fact that hiring characteristicallytakes place in unsettled circumstances—when new production lines are established, newwork groups formed, shifts added, and new foremen assigned; the fact that it is to theadvantage of new employees not to force Supervision to a decision within 30 days(because doubtful cases would likely be resolved in favor of the Company’s efficiencyinterests); the fact that poor work habits might be kept under control and thus not surfacein a brief, 30-day period; and the fact that experience had shown this was particularly trueof absenteeism—that 40 percent of the probationary employees who were discharged forabsenteeism were employees who had gone beyond the 30-day point.

The entire foregoing discussion should be read as representing the approach which theUmpire believes must be taken in a case involving the discharge of a probationaryemployee who has gone beyond the 30-day point. It is, of course, an approach marked byimprecision and weaving. But the Umpire has found it unavoidable, given the Agreement’sbuilt-in conflicting factors. The task is to balance things as best one can.

The Umpire is holding for the Company in the present case. He agrees with the Union thatnot every illness or other incapacitation which may be incurred by an employee during hisor her probationary period can serve to add up to "cause" under Paragraph (56) -- considersuch clearly one-shot afflictions as a broken leg or an appendectomy. But D.’s case, itseems to the Umpire, must be contrasted rather than likened to that sort of predicament. Inher case, there were a series of ailments, and largely unrelated ones; the alleged ailmentsfor two of her days of absence are questionable on their face and would be substantiated,rather than merely asserted, by a responsible person—reference is to: 1) an absence on aMonday on account of a tooth extraction performed on the preceding Friday, and 2) theconvenient nature of the "personal problems" excuse when nothing of the sort hadpreviously kept her from coming to the plant; and, even assuming no factual difficulties asto any of the asserted ailments, the ailments were so frequent as to reduce D. to apractically on-again-off-again employee and as to legitimately cause Management tobelieve that the reservation expressed by the Medical Department in connection with herpre-hire examination—obesity and poor hygiene— should have been heeded. It is notwithout harshness but it inheres in the fact that D. was a probationary employee: the



Umpire believes that Management justifiably released her as a poor employment risk.

DECISION


July 15, 1973

/S/Rolf Valtin

Umpire





No. N-81

DECEMBER 9, 1973

Whether or Not Non-Payment of 4 Hours’ Call-In Pay

in the Circumstances

Constituted Violation of Paragraph (80) of National Agreement

GRIEVANCE:

The Grievance:

"Paragraph 80 of the National Agreement was violated in the following representativecircumstances:

On April 18, 1973, Management at GMAD—St. Louis discontinued work for hundreds ofemployees after they worked less than four (4) hours. The Union was advised that suchemployees would not be paid for up to four (4) hours call-in pay. Demand the affectedemployees be paid in accordance with the Agreement."

Amended to change date to April 17, 1973.


The grievance is upheld as given in the Opinion. The Company is directed to pay thegrievants on the two shifts on April 17 the difference between the time for which they werepaid and the 4 hours’ minimum provided for in Paragraph (80) of the National Agreement.(Entire decision should be read)

In the Matter of:

United Automobile, Aerospace and Agricultural Implement Workers of America -- Local


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\n-081_13A72F6F.htm

Union No. 25

and

General Motors Corporation, GM Assembly Division St. Louis Plant, St. Louis, Missouri --International Union Appeal Case N-1

OPINION

This grievance covers some 3,000 employees—about 1,500 employees on each of the twoshifts—who manned the passenger-car line on April 17, 1973. April 17 was a day within anapproximately 2-month period during which the line was run at a speed of 48.7 units perhour. There were numerous shifts in the period on which the line was shut down prior tothe completion of 4 hours of work. On April 17, the line was shut down 1.9 hours after thestart of the first shift and 1.6 hours after the start of the second shift. Except for repairpersonnel, the employees on each of the shifts were sent home upon the shutdown of theline and paid 1.9 hours and 1.6 hours, respectively on the first shift and the second shift.The question is whether they were entitled to receive the 4 hours’ pay provided for inParagraph (80) of the National Agreement.

That provision is titled CALL-IN PAY and reads as follows:

"Any employee called to work or permitted to come to work withouthaving been properly notified that there will be no work, shallreceive a minimum of four hours’ pay at the regular hourly rate,except in cases of labor disputes, or other conditions beyond thecontrol of the Local Management."

The evidence is lengthy (some 50 witnesses were heard from); the parties are in disputeas to certain factual areas; and there are a very large number and variety of contentionsand counter-contentions. The Umpire will move directly to a statement of what he sees asthe relevant background and the immediate facts. The statement will incorporate hisfindings in the disputed factual areas.

What had formerly been a complex with a Chevrolet side and a Fisher side was mergedinto one GMAD facility in October, 1971. The Union suggests that this is the origin of thedifficulties which were here experienced— that labor relations deteriorated and that thedeterioration was attributable to GMAD’s stance as a hard taskmaster, bent on increasingwork pace and output per man-hour. The Company agrees that severe labor-relationsproblems set in with the GMAD takeover but points elsewhere for the cause of it.

Late January, 1972, saw a top-level meeting in Detroit to see what could be done toalleviate the situation and perhaps make a fresh start. An agreement was reached bywhich Management would "pay and clear" all so-called job-related disciplines and theUnion would withdraw all grievances protesting production standards—so-called "78"grievances. (At the time, there were 361 pending job-related disciplines and 1,175 pending"78" grievances.)



The agreement did not have the desired results: by the fall of 1972, a hostile andacrimonious relationship was again in being. It was accompanied by a huge rise in thevolume of grievances, by three strike authorizations, and by one actual "mini" strike. Therefollowed a further high-level meeting in February, 1973. Its principal outcome was anagreement to experiment in certain ways to reduce the volume of written grievances. Theexperiment had but limited success.

The passenger-car line in these turbulent months ran at a speed of 57.7 units per hour.There came a point, in late October, 1972, where all the work-standard disputes at this linespeed seemed to have been settled. This, however, proved illusory.

As of March 26, 1973, the line began to be operated at a speed of 48.7 units per hour. Theline was operated at this speed through May 21, 1973. This is the approximately 2-monthperiod referred to above. Management says that its decision to go to the 48.7 line speedwas based on: 1) excessive absenteeism, 2) an unmanageable volume of grievances, and3) market conditions. The reduction in the line speed brought the layoff of about 760employees.

In going to the 48.7 line speed, Management let the Union know that it intended to operatewithout resorting to job-related disciplines. The main reasons which the Company gives forthe fact that this approach was adopted are that massive resort to job-related disciplinehad proved ineffective, if not counterproductive; that job-related discipline had repeatedlybeen responded to with acts of sabotage (there were over 4,000 instances of sabotage atthe plant in the approximately 1-1/2-year period from the GMAD takeover to the end ofMarch, 1973); and that the Union itself, at least at the International level, had urged thatconfrontations should be avoided and that problems should be worked out cooperatively.

A reduction in line speed from 57.7 to 48.7 units per hour is steep enough to requiresubstantial revamping of work elements and manpower arrangements per work station. Itis also inevitable that some employees will have a somewhat greater workload and otherswill have a somewhat smaller workload than they did at the former line speed. Old workarrangements simply cannot be superimposed on the new line speed. In recognition ofthis—to allow employees to become familiar with changed work stations and changed worktasks—Management directed line stops at various intervals and of various durations in thefirst few days of operation at the 48.7 line speed. March 30 was the first day for which theline was scheduled to operate without stops.

Difficulties in getting quality work done in timely fashion developed almost from the start ofthe operations at the 48.7 line speed. The chief bottlenecks were the Headliner Hang area(Soft Trim Department) and the Cushion Room (in which the difficulties were morepronounced on the second shift than on the first shift). Though to a lesser extent thanthese two areas, the Hard Trim Department was also a major source of defective andincomplete work.

The result was that Management was faced with an inordinate volume of repairs. The term"repairs" connotes both the correction of defective work and the making-up of missed work.What Management did in response to the presence of the excessive volume of repairs wasto shut down the line for the rest of the shift at such times as the defective units hadaccumulated to a point where the remainder of the shift would be needed to make the



repairs. Thus, the line employees were sent home early and the repair employeesremained at work. The evidence is not completely clear that this was done on all the "shorthour" shifts in the approximately 2-month period. But the evidence does permit thatinference, as it is established that repair personnel at no time worked overtime hours in theperiod. In any event, as to April 17, it is undisputed that the line was shut down at the 1.9-hour point on the first shift and at the 1.6-hour point on the second shift in order to permitthe necessary repairs to be completed by the (8-hour) end of each of the shifts. It is alsoundisputed that the entire repair force on April 17 stayed on and worked until the end ofeach of the shifts. This—more than six hours of repair work per less than 2 hours ofassembly work—obviously serves to show that the volume of repairs was excessive in theextreme.

It is useful, by means of the following table, to give the overall picture for the "48.7" period:

Line Hours- Line Hours-

Date First Shift Second Shift

March 26 8.0 8.0

March 27 8.0 5.8

March 28 3.5 2.0

March 29 2.8 2.4

March 30 2.5 2.7

April 2 2.7 1.7

April 3 1.5 2.0

April 4 2.0 1.5

April 5 2.2 1.5

April 6 3.5 1.5

April 9 5.2 1.6

April 10 4.7 1.5

April 11 5.8 1.6

April 12 6.5 3.5

April 13 6.5 3.7

April 16 5.2 4.0



April 17 1.9 1.6

April 18 1.7 1.5

April 19 1.5 1.5

April 23 2.0 1.5

April 24 2.0 2.0

April 25 3.0 1.4

April 26 3.5 1.5

April 27 2.2 1.3

April 30 2.2 2.2

May 14 .2 1.4

May 27 .0 1.2

May 38 .0 1.2

May 48 .0 1.3

May 78 .0 1.4

May 84 .2 1.7

May 91 .6 2.3

May 10 4.2 1.5

May 11 2.8 1.6

May 14 8.0 1.5

May 15 7.2 1.7

May 16 4.2 2.5

May 17 8.2 2.5

May 18 8.0 1.9

May 21 8.0 8.0

The following is to be said as to the cause of the excessive repairs. It is true that some 200



"78" grievances were filed during the period and that none of them were settled. Withpossibly one minor exception, Management made no concessions. Further, it maylegitimately be assumed that there were a few operations which realistically called forsome alleviation. But, on the evidence presented, the excessive repairs cannot principallybe attributed to work standards which were too tight. The excessive repairs mustprincipally be attributed, rather, to the deliberate restricting of output on the part of some100 employees in the three already-identified areas. The evidence is over-whelming thatthese were employees who, rather than being overworked, resorted to such tactics asdeliberately fumbling parts and materials, deliberately making excess movements, anddeliberately walking at a snail’s pace. In many instances, moreover, the non-completion oftheir tasks meant that designated tasks at subsequent stations could not be accomplished.Contrary to what the Company is suggesting, however, the Umpire is not prepared to gothe further step and attribute the excessive repairs to a general slowdown. For one thing,the evidence does not go that far—there is merely the assertion that the conduct of the100-odd employees is illustrative of what was happening elsewhere in the plant. And foranother, there were many days on which output-restricting employees were pulled off theirjobs and other employees were assigned to take their place. The predominant testimony ofthe supervisors who were put on the stand is that these were days of good results. Theprincipal cause of the excessive repairs, to sum up the Umpire’s finding, was theobstructionism on the part of some 100 employees in the three areas.

As the above table shows, the line employees worked at least 4 hours on each of the twoshifts on April 16. Also on that day, there was a meeting between certain representatives ofthe plant’s Labor Relations Office, the Local Union and the International. Among the thingsdiscussed was the Local’s objection to the use of replacement operators (assertedly asbeing violative of the Local Seniority Agreement). Management agreed to bring the regularoperators back on the next day. There is not the slightest indication that Management soagreed as a bad-faith move to produce short hours on the following day. And it is agreedthat nothing happened on April 16 which would have caused a reasonable Management tocancel the work schedule for the following day.

At the beginning of each of the two shifts on April 17, Management held the line for 15minutes to permit the foremen to talk to their employees. The purpose was: 1) to explainwhy replacement operators had been brought to some of the jobs and why the regularoperators were at this stage being returned, and 2) to encourage everyone to do their bestso as to obtain 8 hours of production. The talks were in some instances met with cat-calls,e.g. "to hell with the place—let’s go home now," "hurry up and start the line so we can gohome," "I’m going fishing again," "I don’t give a s—if we work or not," "are you going to callback the employees that you laid off?" As already noted, April 17 proved to be a dismalday in terms of the volume of repairs. Subtracting the 15 minutes in which the line washeld, operating time was about 1-1/2 hours per shift. Generated were about 2,300 repairitems on the first shift and about 2,700 repair items on the second shift. And on each shift,it took the full repair crew the remaining approximately 6 hours to complete the repairs.

Finally to be mentioned as part of the factual framework are the following two points. First,Management not only told the Union before going to the 48.7 line speed that it intended torefrain from imposing job-related discipline, but it in fact imposed no such disciplinethroughout the "48.7" period (though other types of discipline continued to be assessed).The absence of any job-related discipline by any supervisor was a matter of policy directive



from top Management. Second, also as a matter of policy directive from top Management,the repair crews worked no overtime in the "48.7" period. They worked overtime, of course,in the sense of remaining at work when the line employees went home early. But the repairemployees at no time worked overtime in the conventional, premium-pay sense: theshutdowns of the line were so timed as to permit the repairs to be done by the end of the8-hour shift. The complete absence of overtime work by repair crews—particularly at work-revamping times, e.g. when there is a model change, or style change, or line-speedchange—is a highly unusual state of affairs.

The Umpire wants it understood that he has found himself in substantial sympathy withManagement in this case. He has found it a difficult case because, as he sees it, fairnessand contractual requirement do not fall together. It is of course true that some 3,000employees should not be made to suffer the loss of earnings for the obstructionism ofsome 100 employees. But the Company, too, was made to suffer the loss of earnings—and, indeed, its objective on the various days obviously was to obtain 8 hours, not merely 4hours, of production. Nor is it solely a matter of blameworthiness residing in the 100-oddemployees. It is additionally difficult to overlook: that it seems never to have occurred tothe Local Union leadership that its proper role perhaps lay in "sitting on" the obstructionistsand making them own up to their obligations toward the rest of the employees and towardthe Company; that, to the contrary, the replacement operators seem in some instances tohave been made to feel that they were the disloyal ones; that, further, it was at the Union’sinstigation that the replacement operators were removed and the regular operators werebrought back; that the comments heard at the beginning of the shifts on April 17, as quotedabove, are indicative of how determined some of the regular operators were to resumetheir obstructionism; that practically any employer, not merely GMAD or GM, would resentpaying overtime wages as a means of making up for the kind of deliberate restriction ofoutput here presented; and that, against the twofold background of 1) the "pay and clear"agreement and the Union’s urgings to avoid confrontations and 2) the magnitude of thesabotage problem in the months when job-related discipline was resorted to (and it is to benoted that there was no sabotage in the "48.7" period), the fact that Management adopteda "no job-related discipline" policy for the period is not without understandable origin. All ofthese considerations, to say what has already been suggested, pull one in the direction ofsiding with the Company. In the Umpire’s considered opinion, however, the case cannotproperly be decided on these bases. As he reads the contractual requirement, he believesthat different views must be taken in applying the present situation to the requirement andthat Management does not stand as absolved from the 4 hours’ call-in pay obligation.

The Company makes three arguments in relation to Paragraph (80). First, it contends thatthe present situation is not one to which the opening provision of the paragraph applies.The provision refers to an employee who is "called to work or permitted to come to workwithout having been properly notified that there will be no work." The Company is sayingthat the employees in the present case were not such employees—that, rather, they wereemployees for whom April 17 was a regularly scheduled day and as to whom there was nocause (as is conceded) to notify them not to come to work. Second, assuming that the firstargument is rejected, the Company contends that there was here a "labor dispute"—so asto make operative one of the Paragraph’s exceptions to the payment of 4 hours’ call-inpay. A "labor dispute" must be found to have existed, the Company elaborates, whetherone views the April 17 situation as generated by overly tight work standards, by deliberateemployee conduct, or by a combination of both. Third, assuming that both of the first twoarguments are rejected, the Company contends that the April 17 situation constituted a



"condition beyond the control of the Local Management"—so as, once more, to makeoperative one of the Paragraph’s exceptions to the payment of 4 hours’ call-in pay.Basically, the Company is here saying that the line employees were sent home earlybecause of an excessive volume of repairs, that the excessive volume of repairs was theresult of the failure of employees to make an honest work effort, and that Management’sthus-produced inability properly to operate the plant must be seen as a "condition beyondthe control of the Local Management." With respect to the various steps which the Unionsays might have been taken by Management to overcome or alleviate the situation—e.g.,to retain the replacement operators on the jobs to which they had been brought, to resortto disciplinary measures against the alleged offenders, to make use of the Yard for repairpurposes, to let the repair employees work overtime—the Company asserts thatManagement has no such obligations. To the contrary, the Company submits,Management has a right profitably to operate rather than have an obligation to limp alongwhile appeasing employees who refuse to make an honest work effort.

The first, argument, in the opinion of the Umpire, is lacking in merit. The foundation for theargument—that the provision is of very old vintage, dating back to the days when peoplewere "called" or "permitted to come" to work under what amounted to shape uparrangements—seems to be quite correct. But to go from there and argue that employeesare not protected by the call-in pay provision unless they are so "called" or "permitted tocome" to work is a very long leap indeed. It certainly cannot be held that the provision isobsolete and that the parties somehow overlooked to remove from the Agreement whathas long since become a useless provision. This would be not only intrinsically mostquestionable but also contrary to the fact that the provision has come under Umpirescrutiny a number of times when the "obsolete" argument could have been made andwhen it neither was made nor was perceived by independent Umpire analysis. On theother hand, if the argument is construed as saying that the provision applies only in thosesituations where the employees should have been but were not properly notified not tocome to work, it must be rejected for those reasons together with what, in the opinion ofthe Umpire, is the plain fallacy of reading the provision as if it applied only to suchemployees as were not intended to come to work—as to whom the only problem is thatManagement failed to notify them not to come to work. Consider any group of employeeswho have come to work pursuant to a regular working schedule and who are sent homeupon working an hour or so because there occurs a severe thunderstorm which knocks outthe plant’s source of power for the rest of the day. Such employees would not be entitled to4 hours’ call-in pay. But they would not be entitled to it because a condition beyondManagement’s control had arisen, not because they were ineligible to begin with—ineligible in the sense Management is here in effect urging: that the employees wereregularly scheduled employees rather than employees whom Management had notintended to come to work but had failed to so notify.

Stated otherwise, the Umpire accepts that Management had no good reason to notify thegrievants not to come to work on April 17 but does not believe that the first provisionthereby rendered Paragraph (80) inoperative for the grievants. Though the language is oldand not geared to the simple implementation of regular working schedules, the Umpirebelieves that the grievants are properly seen as employees who were "permitted to cometo work without having been properly notified that there will be no work." To hold otherwisewould be to convert an essentially defensive purpose—i.e., to make sure that employeeswho are properly notified not to come to work cannot collect call-in pay by the device ofnonetheless coming to work—into an offensive weapon by which Management would be



absolved of the call-in pay obligation wherever it can show that there was no cause to tellthe employees not to come to work.

The Umpire believes that he must also reject the Company’s second argument. It is ofcourse true that it would be highly elusive to seek to determine the question of theexistence or non-existence of a labor dispute on the basis of whether one side or the otherwas the originator or the resistor or whether it was or became a little bit of both. It is alsounquestionably true that the situation here at issue can be labeled a labor dispute. But so,broadly speaking, can a multitude of other situations which have their genesis in adisagreement between labor and management over working conditions of one sort oranother—including, even, a single grievance residing somewhere in the grievanceprocedure. The point is that it will not do under Paragraph (80) merely to find and go withsome correct definition of a labor dispute. For, what the language of Paragraph (80) doesis to require the application of only such labor disputes as constitute a condition beyondManagement’s control. This is so because the word "other" appears between the term"labor disputes" and the phrase "conditions beyond the control of the Local Management."If the language were without the word "other"—if the language read "except in cases oflabor disputes, or conditions beyond the control of the Local Management"—there wouldbe two distinct entities, each capable of its own application. But this is not what theParagraph says. And to say "or other conditions beyond the control of the LocalManagement" is inescapably to say that the condition which is laid down in advance of thephrase is among such conditions. There is simply no way to get around it; it is as true as amathematical fact.

One or two comments of a refining nature should be added. In terms of what wouldcharacteristically be true, the above conclusion has the meaning that "labor disputes"under Paragraph (80) are labor disputes in which the local parties themselves are not thedisputants—i.e., that reference is to outside labor disputes which affect the operation of theplant. One such example is found in the case which led to Decision E-1: a national railroadstrike which prevented switching operations at the plant and thereby brought a lack ofavailable work for employees of the Loading and Shipping Department. But it is not solelysuch outside labor disputes which may properly be applied as "labor disputes" underParagraph (80). A wildcat strike which occurs after the beginning of a particular shift butbefore 4 hours are up and which renders the plant incapable of being operated, such asoccurred in the Norwood holiday-pay cases (Decisions M-76 and M-113), would clearlyhave to be taken as freeing Management of the call-in pay obligation. This wouldmanifestly also be true of a general sitdown or slowdown situation within the plant. At thesame time, should there ever be a case in which the evidence shows Managementdeliberately to have imposed impossible working conditions in order to render the plantincapable of being operated—the Umpire is not saying that he has encountered it, but theCompany comes at least close to postulating such a case in its elaboration of what isproperly to be taken as the presence of a labor dispute—it would obviously be wrong toview the situation as a labor dispute beyond Management’s control.

This leads to the Company’s third argument and to what the Umpire sees as the realquestion in this case. As should be clear from all that the Umpire said at the outset of hisdiscussion, it is not because he sees Management as the instigator or even as the party oforiginal blameworthiness that the Umpire is deciding the third question against theCompany. He is deciding it against the Company because, in the end, he does not believe



that he can legitimately hold that the situation was one "beyond the control of the LocalManagement." For the reasons which follow, he believes that to so hold would be to gocontrary to long-articulated and long-applied notions of managerial authority—would be todiscard those notions at a particular time, contrary to what is true at practically all othertimes, when their application hurts Management.

First, it seems to the Umpire that the Union is simply correct in saying that, if true that theparticular employees were deliberately and demonstrably restricting output (as the Umpirehas now found it to be true), they should have been disciplined. This is nothing but trulyold-fashioned doctrine, and the Umpire does not believe that it can be taken as overcomeeither by the "pay and clear" agreement or by the high incidence of sabotage in theapproximately 1-1/2 years preceding the period here in question. The Umpire has grantedthe appeal which lies in both considerations. But he believes that he would be making badlaw if he allowed them to be determinative. Management was not bound by any sort ofmoratorium agreement; the "pay and clear" agreement had been made more than a yearearlier; and what Management did in the period here in question was not consistent withwhat it did either before or after the period. Management opted to designate the particularperiod as one in which to go without job-related discipline. Moreover, at least in theUmpire’s experience, passivism in the face of sabotage is a novel approach. The Umpire isobviously not saying that Management cannot rightfully resort to such policies ortechniques. He is saying that the adoption here of the "no job-related discipline" policy wasa causative factor in the short-hour shifts and that this is material to the outcome of thecase as the adoption or non-adoption of the policy was a matter lying within Management’scontrol.

Second, there is the matter of the replacement operators. On the one hand, the evidencemust be taken to show that there was a substantial difference in the success of theoperations with the use of the replacement operators. And, on the other hand, the Umpirebelieves that the removal of the replacement operators must be held against Management.It is true that the Union, asserting a violation of the Local Seniority Agreement, asked forthe removal of the replacement operators and the return of the regular operators. Oncemore, however, the Umpire does not believe that the otherwise appealing point can bemade determinative. It is far less than clear that the use of the replacement operatorsviolated the particular provision of the Local Seniority Agreement, and no contention wasmade at the hearing that the use of the replacement operators in fact had breached theterms of the provision. Assuming a state of uncertainty as to the propriety of the use of thereplacement operators (which is the most which can properly be assumed), the point mustbe that it would hardly have been the first time that a Management would have stood fast,insisting on its right of administrative initiative and letting the Union grieve the matter if itwished. Again, Management had every right to accede to the Union’s request. Also again,however, there is the two-fold fact that the use of the replacement operators could havebeen continued by the simple exercise of managerial authority and that this is of clear anddirect bearing on the "within or beyond Management’s control" question here raised. It isnoteworthy—in terms of this question, not in terms of any broad obligation of one LocalManagement to do as has another—that a very similar situation (reference is to the caseson which there was an aborted arbitration hearing earlier this year) was successfully dealtwith by the Norwood Management by yanking, and keeping yanked, the obstructingemployees.



Last, there is the fact of the complete absence of overtime work as a matter of policydirective. It is to be understood that the Umpire is by no means saying that overtime workmust be permitted wherever that is the necessary price for providing 4 hours’ work on anyparticular shift. Here, however, there was a firm decision, laid down in advance andinvariably to be applied, to work no overtime whatever. It was an inflexible rule; and it wasso pat as to produce a wholly abnormal condition. Such a departure from the normal waysof doing things, where it is of adverse influence on the availability of work on a shift whichbecomes a short-hour shift, must be held against Management. An artificiality which iserected by Management and which contributes to the abbreviation of a shift below the 4-hour mark cannot be disregarded in considering Management’s assertion that it was facedwith a condition beyond its control.

DECISION

The grievance is upheld as given in the Opinion. The Company is directed to pay thegrievants on the two shifts on April 17 the difference between the time for which they werepaid and the 4 hours’ minimum provided for in Paragraph (80) of the National Agreement.

December 9, 1973

/S/Rolf Valtin





No. N-83

June 25, 1974

DISCHARGE;

ASSERTED ABSENCE WITHOUT REASONABLE CAUSE

COUPLED WITH PRIOR DISCIPLINARY RECORD;

EVIDENCE

GRIEVANCE:

Grievance 394307

"Charge Management with assessing me an unjust and unfair Discharge. Request thisunjust and unfair Discharge be removed from my records and I be reinstated with fullseniority and all monies lost." S/D.H. Jr.


The grievance is upheld. Grievant H. is to be reinstated with restoration of seniority rightsand with reimbursement for the wages lost since the time of his discharge. (Entire decisionshould be read.)

In the Matter of:

United Automobile, Aerospace, and Agricultural Implement Workers of America -- LocalUnion No. 34

and

General Motors Corporation, GM Assembly Division Lakewood Plant, Atlanta, Georgia --



Appeal Case N-582-A

OPINION

At the time of his discharge—May 1, 1972 -- grievant H. was an Assembler in the TruckDepartment. His seniority dates from mid-1965. He was absent from work on February 16,1972 and was subsequently discharged under Shop Rules 6 and 42, respectively"Absence without reasonable cause" and "Repeated violations of shop or safety rules".The issue is whether the February 16 absence should or should not be taken to have been"without reasonable cause."

The following is the factual framework:

The grievant has a history of many absences and instances of lateness, both excused andunexcused. Though they were all excused absences, H. was absent on seventeenoccasions in the first six weeks of 1972. And his prior disciplinary record is composedexclusively of violations of the already-quoted Shop Rule 6 and of Shop Rule 7 --"Reporting late for work". H.’s prior disciplinary record has eight entries, the first onecovering a Written Reprimand incurred on March 2, 1970, and the last one covering a 30-day DLO incurred on January 13, 1972.

H. came to work on February 17, 1972 -- i.e., the day following the day which is here atissue. Questioned by his foreman concerning the absence on the day before, H. gave theforeman a doctor’s statement. The physician, Dr. Y., had made use of a form-type sliprequiring the filling-out of blank spaces. The statement reads as follows:

"D----H---- has been under my care from 2-16-72 to and is able toreturn to school/work on 2-17-72. Limitations/Remarks: Diagnosis:

Insomnia."

Upon receipt of the statement, H.’s foreman told H. that Management would check thestatement and that he (the foreman) would get back to H.

Management ran the check on the same day (February 17, 1972), getting in touch with Dr.Y. by telephone. The latter told Management’s representative that the insomnia diagnosiswas based on H.’s subjective complaints and that he (Dr. Y.) could not assert that H. hadbeen unable to come to work on the day in question. Management’s representative askedDr. Y. whether he would be willing to confirm the statement in writing. Dr. Y.’s answer wasin the affirmative. Management thereupon (still on the same day) prepared the followingletter and mailed it to Dr. Y.:

"Dear Dr. Y----:

On Thursday, February 17, 1972, I discussed Mr. D---- H----‘sabsence from work on Wednesday, February 16, 1972, with you.You stated to me that you would not stipulate that Mr. H---- was



unable to work. You did say that the statement given to Mr. H---- byyou was based upon his subjective complaint.

I appreciate your candid answer to my questions regarding Mr. H----. Please indicate your concurrence with the above by affixing yoursignature to the space provided below."

Dr. Y. did provide his concurring signature, but it was not until late on February 28, 1972 --due to Dr. Y’s failure earlier to act on the letter -- that Management obtained a confirmedcopy of the letter. H. had been at work on that day but had left the plant by the time theconfirmed copy of the letter was in Management’s hands.

Thereafter, beginning with February 29, H. was on sick leave for an approximately 2-monthperiod. On May 1, H. was interviewed concerning his absence on February 16. He statedthat he had suffered from loss of sleep; that he had felt that there was something wrongwith him; and that he had believed that he should go to a doctor. H. was informed of Dr.Y’s unwillingness to attest to his (H.’s) need to be absent on February 16. H. stated that"All I can tell you is I had a problem with my sleeping" and in effect reiterated his stance asto why he had gone to Dr. Y.’s office. H. also stated that, sometime following February 16,he had gone under the care of a psychiatrist "to get my nerves straightened out". In thelate stages of the interview, Management asked questions of H. concerning how he hadgotten to Dr. Y.’s office on February 16 and who the person was who had allegedly drivenhim there. Management believed H. to have been evasive on these scores andunjustifiably to have refused to answer a particular question. H. was discharged at theconclusion of the interview.

The essence of the Company’s position is reflected by this recounting of the facts. TheCompany submits that H. was an employee with an extremely bad absenteeism record;that it is only natural with respect to such an employee for Management to run a check ona doctor’s statement, especially a statement which on its face does not declare that theemployee was unable to come to work on the day of the absence; that the check in thisinstance revealed what was legitimately suspected; that the evidence must be taken toshow that H., notwithstanding his visit to the doctor’s office, was not unable to come towork; and that, reasonable cause for the absence having been lacking and there simplybeing no proper question as to the meaning of H.’s prior disciplinary record, the dischargemust be upheld.

The Umpire finds himself in disagreement with the Company in this case. By virtue of avariety of his prior Decisions, little doubt should be left on where the Umpire stands when itcomes to: 1) weak excuses which seek to mask malingering (see, for example, DecisionM-46); 2) the notion that a doctor’s statement covering an absence is always to beaccepted as reliable and conclusive (see, for example, Decision M-84); and 3) the notionthat an employee’s own assertions if not directly contradicted by the testimony of someoneelse—reference here is to H.’s assertions concerning his sleeping difficulties—mustnecessarily be accepted as true and cannot be rejected by surrounding circumstancesstrongly suggesting a finding which goes contrary to the assertions (see, for example,Decision N-59). In the opinion of the Umpire, however, the present case is not one for theapplication of such skepticisms. Rather, he believes, the evidence is such as to require aholding that the absence here in question was not an absence without reasonable cause.



H’s testimony struck the Umpire as having the ring of truth to it. The story which H. toldwas not the kind of improbable one, accompanied by farfetched and implausibleassertions, which has had to be rejected in many another case. It was the story of a persongenuinely recounting, albeit not in the descriptive terms of someone trained in psychiatricterminology, a state of emotional difficulties bringing lack of sleep. Nor, contrary to whatthe Company suggested, did it seem to the Umpire that the grievant sought to paint apicture of catastrophic proportions or that he otherwise resorted to what so often becometell-tale exaggerations. Yielded, to the Umpire, was a picture which was real: of a personwhose upset state had led to a sleepless night, who went to a doctor and obtained aprescription for sleeping pills, who had the prescription filled, who went home and sleptwith the aid of the pills, and who came to work the next day.

The surrounding circumstances in this instance strongly tend to confirm the grievant’sstory. As shown, less than two weeks following the day here in question, H. went on sickleave and came under the care of a psychiatrist. H. was hospitalized in the first week ofMarch. It is true that the diagnosis included a variety of physical ailments. But it is no lesstrue that it included (indeed, headed the list of ailments): "anxiety and depression".Moreover, by virtue of the above-given sequence of events which resulted in the fact that itwas not until May 1 that H. was given a disciplinary interview, Management was inpossession of the information covering the hospitalization and diagnosis when itdischarged H. It did not have the psychiatrist’s full report until sometime in June. But it hadthe S&A forms, and they substantially mirrored that report. The Umpire agrees with theUnion’s point that this was a rare situation in which Management had the benefit ofhindsight, so to speak, before taking discharge action and nonetheless went ahead with it.

In the context of this case, it seems to the Umpire that the statement to which Dr. Y. affixedhis confirming signature cannot be given the weight which the Company seeks to give it.Dr. Y. neither denies that H. came to see him nor denies that he (Dr. Y.) prescribedsleeping pills. Dr. Y. does not even say that he thinks, in retrospect, he was misled by aperson making a phony claim and in good enough condition to go to work. All that Dr. Ysays is that his diagnosis was based on the patient’s subjective complaints (which ispresumably the ordinary source for a diagnosis of insomnia) and that he would notstipulate that H. was unable to work. The statement which Dr. Y. gave Management issimply not a retraction of the slip which he had filled out for H. and which H. brought to theplant on the next day. The Umpire repeats that it is in the context of this case that he hasaddressed himself to the statement on which the Company is relying. Different surroundingcircumstances might compel a different view of such a statement.

Given the grievant’s past attendance and lateness problems, one can understandManagement’s disinclination to give credence to the excuse which he advanced. But pastproblems cannot be permitted to blind one to a proper examination of the evidencerespecting the discharge-precipitating absence. In the opinion of the Umpire, the evidenceis that the grievant’s absence, though admittedly not a matter of literal inability to come towork, was just the same not a matter of malingering and was not an absence withoutreasonable cause.

DECISION



The grievance is upheld. Grievant H. is to be reinstated with restoration of seniority rightsand with reimbursement for the wages lost since the time of his discharge

June 25, 1974

/S/Rolf Valtin

Umpire





No. N-86

APRIL 23, 1975

DISCHARGE FOR TARDINESS

OF PROBATIONARY EMPLOYE

WITH MORE THAN 30 DAYS OF SERVICE;

EVIDENCE

GRIEVANCE:

GM ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION, LAKEWOOD PLANT,ATLANTA, GEORGIA—APPEAL CASE N-1550

Grievance 038659

"Charge Mgt. with issuing me and unjust & unfair Release. Request that the above releasebe clear from my records & I be paid for all time & all benefits be reinstated." S/B.D.H.


The grievance is sustained for the reasons and to the extent given in the Opinion. GrievantH. is to be reimbursed for the wages which she lost as a result of her July 16, 1973termination. (Entire decision should be read.)

In the Matter Of:

United Automobile, Aerospace and Agricultural Implement Workers of America, LocalUnion No. 34

and


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General Motors Corporation, GM Assembly Division Lakewood Plant, Atlanta, Georgia --Appeal Case N-1550

OPINION

Assembler H. was hired on April 27, 1973, and discharged eighty-two days later, on July16, 1973. The (76) Notice stated:

On Monday, 7-16-73, you reported late to your operation at 4:35P.M. Your excuse for your tardiness is unacceptable. You havepreviously been cautioned in regards to this same type action.

Based on the above you are being released as an unsatisfactorytemporary employee.

The Grievant, who was on the 4:30 p.m. to 1 a.m. shift, had been late in starting work onfour occasions during her first two weeks of employment:

Clocked Started

Date In Work

Tues. May 1 4:16 4:40

Thurs. May 3 4:13 4:35

Tues. May 8 4:17 4:38

Thurs. May 10 4:24 4:35

Testimony concerning the circumstances surrounding these late reports and relatedmatters, offered by the Grievant and E., her Foreman, is summarized below:

Foreman E.: H. was assigned to the taillight wire clip job on the middle frame line. He didnot see her on the morning of May 1 until she reported for duty ten minutes late. Heexplained to her the importance of being on the job when the whistle blows. She said shehad tried to get there on time. Although he probably told her on April 30 (his first day as hersupervisor) to wear coveralls, she made no reference to them on May 1, nor does he recallwhether she wore them. After their conversation he entered this notation on a form entitled"Attendance Record 1973": "Cautioned about not being on job at starting time 4:40;"however, he did not tell her about the entry on the form. He assigned a reliefman for tenminutes to replace H. but cannot recall who it was.

On May 3, when H. reported five minutes late (he had not seen her earlier), he asked foran explanation. She replied that she did not have time to change into coveralls. He told herthat she would have to get to the plant in time to change and be at work when the whistleblows. He could not recall whether she had changed clothes. He had a reliefman replace



her. He entered another notation on the "Attendance Record" form (without informing her):"Cautioned about being late on job at starting time 4:35."

On May 8 he asked H. about her eight minute lateness (she had not reported to himearlier). She said her ride had picked her up late. She did not complain about congestion inthe restroom. He told her that she would have to make arrangements to be at work whenthe whistle blows and entered a third notation on the "Attendance Record" form:"Cautioned about being late 4:38." He had replaced her temporarily with a reliefman.

Later that day, probably at her request, he issued a requisition for an exchange lockerwhich would provide her with three clean coveralls a week. This requisition was filled a fewdays later.

H. was five minutes late on May 10. He replaced her temporarily with a repairman. Henoted the tardiness on his "job jotter" and on the "Attendance Record" form but, beinginvolved in other matters, he neglected to ask her for an explanation.

On July 16, when asked why she was five minutes late on the Job, H. merely replied thatshe had tried to get there on time. E. placed her on notice and a disciplinary interview wasconducted by Labor Relations Representative C. During the interview H. explained that herride had failed to pick her up and she had to get a taxi. Arriving at 4:23 p.m. (her clock-in-time), she had to change into coveralls and go to the restroom. She acknowledged thatshe had been late on prior occasions and had been "talked to" on those occasions.

E. did not consider H.’s explanation of her July 16 lateness acceptable since (1) she hadbeen cautioned several times before, (2) her explanation was different from the one sheinitially gave, (3) it takes only about three minutes to walk from the time clock to theassembly line. He concluded that she should be terminated.

When asked, on cross-examination, why he had decided to act on July 16 since H.’srecord had been good since her second week of employment, the Foreman explained thatH. had been absent on Saturday, July 7, and that he had cautioned her on Monday, July 9,that he would take corrective action if there was another attendance infraction (absence orlateness). Moreover, he recorded this incident, as he had the others, on his "AttendanceRecord" form.

According to the Foreman, H. had generally donned her coveralls right on the job, not inthe locker-room (i.e., she put them on over her street clothes). She had not mentioned acoverall problem, nor had he been aware of any claims regarding coveralls until just beforethe Umpire hearing. Sometimes, E. stated, employees borrow coveralls from each other.

Grievant H.: She was not given coveralls when hired. It was not until late in May that shewas assigned a coverall locker. During the interim she asked Foreman E. to requisitionthem as needed. Her job was especially dirty and greasy; she never worked without them.She never worked in her street clothes (since the grease seeped through the coveralls)and she never donned coveralls at her work station.

On each of the four days in May when she was late in starting work the sequence ofevents was similar: She arrived at the assembly line before 4:30 p.m.; she asked Foreman



E. to requisition clean coveralls (sometimes having to wait a few minutes for him); shewent to the stock room (where she sometimes had to wait), got her coveralls, changedclothes, and returned to her work location. (The Foreman estimated that it would takeabout 25 minutes to accomplish this.) One day she was additionally delayed because therestroom was being cleaned. On none of these occasions did the Foreman say anything toher about her lateness; nor does she recall finding a repairman at her station.

On July 16, H. testified, she was delayed because she had to call a cab when her ride didnot turn up. She changed her clothes in the restroom and heard the whistle blow as shecrossed the line. She is quite sure she missed no work and that no one had replaced her.At the interview, when accused of having been "late" on May 1, 3, 8 and 10 and July 16,she replied that she had not been late before and was only a minute or so on that day. Shedenied that she had admitted being "cautioned" by Foreman E.

The Union claims that H. was treated unfairly in comparison with male employees becausemales had several areas in which to change coveralls and females did not. At the SecondStep the Union contended that "the second shift Truck line female employees are beinggrossly discriminated against because of over-crowding in one restroom." Managementdenied the charge. The same claim was reiterated and denied in the parties’ Statements ofUnadjusted Grievance.

No evidence to support this Union claim was adduced at the Umpire hearing. Further, theclaim was not initially supported by written evidence as required under Paragraph (6a).Accordingly, this claim will be denied.

The evaluation in this case must start with Paragraph (56), which declares in part:

Employees shall be regarded as temporary employees until their names have been placedon the seniority list......... However, any claim by a temporary employee made after 30 daysof employment that his layoff or discharge is not for cause may be taken up as agrievance.

The Union urges, initially, that the term "for cause" in Paragraph (56) has the samemeaning as it does in Paragraph (8). This contention, however, was considered andrejected in the case which led to Decision N-67. In that Decision the Umpire dealt with thesame cases which have been cited here—E-115, E-165, K-75 and L-102 -- and others aswell. No persuasive arguments have been offered in the present controversy as to whyDecision N-67 should be reversed or modified. Accordingly, this Union contention will berejected.

In another aspect of the Paragraph (56) -- Paragraph (8) relationship, the Corporationcontended at the hearing that the Umpire has no discretion under Paragraph (47) to modify(as distinguished from reversing) a termination action taken under Paragraph (56). It statesthat support for this position may be found in Decision N-67. The Union demurs, noting thatParagraph (47) makes no exceptions on this score for probationary employees.

While there are dissimilarities between Paragraph (8) and (56) actions, there are alsosimilarities, as Decision N-67 makes abundantly clear. One of those similarities is therequirement that "cause" be demonstrated, thus placing the burden of proof on the



Corporation. Moreover, there is no indication in this record that the parties, during theirbargaining, contemplated that the Umpire would be restricted in his authority to rule ondisciplinary-action disputes involving a Paragraph (56) employee. The Agreement itselfdoes not so provide. Paragraph (47) declares simply that "The Corporation delegates tothe Umpire full discretion in cases of discipline for violation of shop rules....."

The Corporation also suggests that "all that is required is a showing that the discharge (ofa probationary employee with more than thirty days of employment) was ‘for cause’ andthat it was not arbitrary or capricious."

It is true that in Decision K-75 (which Management cites in this connection) the Umpirefound that Management’s action was "not discriminatory or capricious nor an unreasonableapplication of Paragraph 56.....". It does not follow, however, that there is a fixed "arbitraryor capricious" standard by which all Paragraph (56) terminations are to be judged. To thecontrary, in his discussion of the subject in Decision N-67, the Umpire noted in part that"not every reason advanced in support of the discharge of a probationary employee—evena reason which does not have the defect of being plain arbitrary or capricious—can becountenanced as adding up to ‘cause’ under Paragraph (56)."

I have gone into some discussion of these matters because my ultimate conclusion in thecase is that H. was deserving of an official warning, not discharge. However, because shewould have been laid off in early 1974 and thereafter have lost her recall rights pursuant toParagraph (64), I can only direct reimbursement for wages lost—i.e., I cannot direct herreinstatement.

My judgment is that the evidence fails to make out a "cause" case for H.’s termination as apoor employment risk even if consideration is given to the May incidents (whichconsideration the Union opposes under Paragraph (76b)). My principal findings, based onthe testimonies of the Grievant, her Foreman, and Labor Relations Representative C., areas follows:

1. The grievant was late in starting work during her initial two weeks ofemployment. On three occasions this lateness was discussed with her.Notwithstanding her denial, the Foreman’s contemporaneous record supportshis testimony. Moreover, both the Foreman and the Labor RelationsRepresentative testified that H. acknowledged at the July 16 interview that suchdiscussions had been held. While H. denied this, her Steward, who was presentwhen her statements were reviewed at the Disciplinary Interview, was notcalled to rebut the testimony of the two Management witnesses.

2. There is reason to believe H.’s explanations of these May latenesses. Icannot, without further corroboration, give weight to the speculation that sheprobably found coveralls lying around or borrowed them from other employees.Rather, I am persuaded that she spent considerable time in obtaining them. It issignificant, in my judgment, that the Foreman issued H. an exchange lockerrequisition on May 8 (at her request, he acknowledged); that the requisition wasnot filled until several days later; and, of clear relevance, that after that she wasnot late again until mid-July.



3. In light of these facts the five-minute lateness on July 16 cannot be given theimportance which Management attached to it. It was not a part or a continuationof the early May syndrome. Rather, it was a relatively isolated incident caused,presumably, by the failure of H.’s regular ride to appear. I agree withManagement that she should have been able to get to her work station on timeeven though she had only seven minutes to change since, on prior occasions,she had made it with only a few minutes to spare. But this episode, taken eitherby itself or in conjunction with the May events, did not, in my opinion, justify theconclusion that H. was a poor employment risk.

There is an additional factor. As noted earlier, when asked on cross-examination why hedecided to terminate H. on July 16, the Foreman replied that he had warned her about herattendance after her absence on July 7. But there is no evidence that this fact wasrevealed to Management, the employee, or the Union; the (76) Notice mentioned onlytardiness. Under the circumstances it would be unfair to sustain a termination action which,although professedly based on tardiness, was actually based on an alleged improperabsence as well, which was never made part of the record or otherwise openly relied uponin discharging her.

DECISION

The grievance is sustained for the reasons and to the extent given in the Opinion. GrievantH. is to be reimbursed for the wages which she lost as a result of her July 16, 1973termination.

April 23, 1975

/S/Arthur Stark

Associate Umpire

/S/Rolf Valtin

Umpire





No. P-1

November 25, 1974

Holiday-Pay Question Involving Employee

on the Verge of Conversion

from Probationary to Seniority Employee

Under Particular Set of Circumstances

GRIEVANCE:

Filed Directly By The International Union Under Paragraph (55) Of The NationalAgreement At Gm Assembly Division, General Motors Corporation, Tarrytown Plant,Tarrytown, New York—International Union Appeal Case P-1

"A substantial number of employees in various plants of the Corporation were affected bythe temporary shutdown of plant productive operations designed to reduce new carinventories. A typical example is GMAD - Tarrytown where such shutdown was for theweek of December 17, 1973. Because of that shutdown, Management has denied holidaypay for the Christmas Holiday Period to employees whose 90th day of their accumulatedcredited period fell within the Christmas Holiday Period. Examples which arerepresentative of all such similarly affected employees in General Motors are the followingfrom GMAD-Tarrytown:

A. I. Hired 9-19-73 G. J. A. Hired 9-19-73

R. J. M. Hired 9-19-73 D. H. B. Hired 9-19-73

All returned after the Christmas Holiday Period in accordance with identical instructionsissued to all employees of GMAD-Tarrytown prior to the shutdown.

The employees cited and all other similarly affected in General Motors are entitled toHoliday Pay for all or part of the Christmas Holiday Period. Pay is requested." S/I.B.

Page 1 of 10UMPIRE DECISION P-1

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For the reasons and to the extent given in the Opinion, the grievance is upheld. (Entiredecision should be read.)

In the Matter of:


and

General Motors Corporation, GMAD—Tarrytown, Tarrytown, New York -- Appeal Case P-1

OPINION

This case involves an interpretative question under the holiday-pay provisions andAppendix D of the National Agreement. The parties are agreed that the question is a novelone and that there are no prior GM-UAW Decisions which even bear on it. At issue is theproper holiday-pay application with respect to an employee whose 89th day for the purposeof acquiring seniority fell on a day which was succeeded by a certain set of circumstances.

The following is a summary of the facts.

Each of the grievants was hired on September 19, 1973, and each of them would have putin the 90th day of his accumulated credited period had he been scheduled to work onDecember 17, 1973 (a Monday). Pursuant to the notice about to be quoted, all of thegrievants were on layoff in the week of December 17, 1973, and none of them returned towork until January 2, 1973 (a Wednesday).

The notice, in its full text, was this:

"Date : December 13, 1973

To : All Employees

Subject: Production Schedule and Christmas Holidays

GM Assembly Division-Tarrytown will have no production scheduled for the week ofDecember 17, 1973.

The plant will close for the Christmas Holiday Period on Monday, December 24, 1973.

Operations will resume at the regular starting time on Wednesday, January 2, 1974.



Employees who are scheduled contrary to the above will be notified by their supervisors.

V. A. P.

General Supervisor

Labor Relations"

The exception noted in the last paragraph lay in some 600 employees who did mechanicalwork in connection with the installation of a new assembly line. These employees workedall of the week of December 17 but did not work in any part of the Christmas HolidayPeriod commencing on December 24.

Laid off during the week of December 17 were some 4,000 assembly employees, includingthe grievants. Also, none of these employees (the statement includes the grievants)worked in any part of the Christmas Holiday Period. All of them except the grievantsreceived holiday pay for the various days recognized under the National Agreement aspaid holidays in the Christmas Holiday Period. For the 1973 Agreement’s first year, thosedays were: December 24, December 25, December 26, December 27, December 28,December 31 and January 1. As will be elaborated upon below, the grievants were treatedas non-seniority employees and thus were denied holiday pay.

As the foundation for its case, the Company presented the testimony of the (Central Office)General Supervisor of Product Allocation and Scheduling. The essence of his testimony is:that, pursuant to the master schedule covering GMAD as a whole, the Tarrytown plant wasscheduled to produce 8,800 units in the month of December; that, with respect to"Standard Hours" (the equivalent of non-overtime hours), the schedule for the Tarrytownplant showed 120 hours together with a "(-- 40)" designation -- which meant that the 8,800units were to be produced in 80 standard hours; that, accordingly, the third week inDecember (the week of December 17) was scheduled as a week in which assemblyoperations would be shut down and assembly employees would be laid off; that individualplants are not free to depart from the master schedules—are not free to produce eithermore or fewer units than their designated quota; and that the upshot is that the Tarrytownplant had no assembly operations left to be performed after the completion of the first twoweeks in December.

The following is the contractual framework.

A portion of Paragraph (57) of the National Agreement provides that: "Employees mayacquire seniority by working ninety days during a period of six continuous months...".

Paragraph (203) of the National Agreement commences with: "Employees shall be paid forspecified holidays and the holidays in each of the Christmas holiday periods as providedhereinafter ..."

There follows a listing of the specified holidays for each for the three Agreement years.Paragraph (203) then goes on with: "... providing they meet all of the following eligibilityrules unless otherwise provided herein:



(1) The employee has seniority as of the date of each specified holiday and asof each of the holidays in each of the Christmas holiday periods, and

(2) The employee would otherwise have been scheduled to work on such day ifit had not been observed as a holiday, and

(3) The employee must have worked the last scheduled work day prior to andthe next scheduled work day after each specified holiday within the employee’sscheduled work week. For each Christmas holiday period, the employee musthave worked the last scheduled work day prior to each holiday period and thenext scheduled work day after each holiday period."

Paragraph (208) of the National Agreement reads as follows:

"A seniority employee who has been laid off in a reduction of force (except as providedbelow), or who has gone on sick leave, or on leave of absence for military service, duringthe work week prior to or during the week in which the holiday falls, shall receive pay forsuch holiday.

A seniority employee who works in the second work week prior to the week in which theChristmas holiday period begins, and who is laid off in a reduction in force during thatweek, or a seniority employee who is laid off in a reduction in force during the work weekprior to or during the work week in which the Christmas holiday period begins, shall receivepay for each of the holidays in the Christmas holiday period."

Appendix D of the National Agreement is titled "Interpretation of Paragraph (4) thru (4c)and Paragraph (57)". The sub-title reads: "Rules for Computing Seniority of EmployeesWho Acquire Seniority by Working 90 Days Within Six Continuous Months, and Computingthe Period Specified in Paragraph (4) thru (4c)." The Appendix has five numberedprovisions, the first four of which read as follows:

"1. Credit toward acquiring seniority will begin with the first day worked by thenew employee and will include the subsequent days of that pay period.

2. Thereafter during six consecutive months until he acquires seniority he willreceive credit for seven days for each pay period during which he works exceptthat credit will not be given for any days the employee is on layoff.

3. No credit will be given for any pay period during which for any reason, theemployee does not work except as provided in Paragraph (108).

4. Unless the employee is at work on the 90th day of his accumulated creditedperiod, he must work another day within his probationary period to acquireseniority. If the 90th day of his accumulated credited period falls on a holiday,the employee will be considered as having seniority as of the holiday. If the 90th

day of his accumulated credited period falls on his vacation pay eligibility date,the employee will be considered as having seniority as of his vacation payeligibility date."



The parties are in disagreement as to whether or not December 24 should have beencredited as the grievants’ 90th day of their accumulated credited period. Should theUmpire’s holding be in the affirmative, it would follow -- see "the employee will beconsidered as having seniority as of the holiday" in paragraph 4 of Appendix D—that thegrievants are entitled to holiday pay not only for December 24 but also for the otherspecified days in the Christmas Holiday Period. Similarly, should the Umpire’s holding onthe "90th day" issue be in the negative, it would follow that none of the grievants is entitledto holiday pay for any of the specified days in the Christmas Holiday Period. The partiesare not in dispute with respect to these consequences.

Both parties have submitted briefs of considerable length, and both have presented theirarguments with substantial elaboration. The Umpire will not attempt to provide acomprehensive review of what is before him. The essence of the parties’ respectivepositions is as follows.

Union

Granting that the week of December 17 was a week of layoff and that the grievants couldnot and did not in that week acquire credited service toward their attainment of the statusof seniority employees, the Union contends that the week of December 24 cannot correctlybe viewed as a week of layoff. It submits that a number of considerations—including thewording of the notice which Management itself posted—dictate the conclusion that theweek of December 24 was a period of holiday shutdown. This is not altered, the Unionasserts, either by the fact that the preceding week saw the cessation of assemblyoperations or by the fact that the Company now chooses to call the entire December 17 -January 1 period a period of layoff. It is indeed within Management’s power to determineboth the timing and the duration of layoffs. But the mere declaration by Management that aparticular period is a period of layoff cannot be accepted as determinative of the questionof the proper contractual status of employees—i.e., in this instance, whether theemployees were off by virtue of a layoff or by virtue of a holiday shutdown.

Once it is accepted, the Union continues, that the week of December 24 was a period ofholiday shutdown (rather than a period of layoff), the grievants’ entitlement to the claimedholiday pay emerges clearly and indisputably: the special "90th day" application providedfor in paragraph 4 of Appendix D brought the grievants the status of seniority employeesas of December 24; with the attainment of that status, the grievants met the requirement ofclause (1) of Paragraph (203) of the National Agreement; and they were eligible for theclaimed holiday pay under clauses (2) and (3) of that Paragraph.

Company

As can be surmised from the introduction of the testimony of the General Supervisor ofProduct Allocation and Scheduling, the Company’s fundamental contention is that theweek of December 24 must be viewed as a period of layoff. It happens that that week isrecognized under the Agreement as the Christmas Holiday Period. But a paid holiday is aday on which an employee would have worked but for the fact that the day is anAgreement-recognized holiday. And this was manifestly not the case with respect to thegrievants and the rest of the assembly employees in the week of December 24. For thefacts are that the Tarrytown plant was scheduled to produce 8,800 units and that this



production quota was fulfilled by the end of December 14. There simply were no furtherassembly operations to be performed at the plant in the remainder of December. Thus thelayoff in the week of December 17; and so it was, by proper view, in the week of December24. Surely, the Company adds, the particular choice of words in the notice cannot be madedeterminative. The facts themselves are far too clear and compelling to go that route.

On the correct premise that the week of December 24 was a period of layoff, the Companycontinues, there can be no question that the Union’s case must fall. For the meaning of it(the correct premise) is that the grievants were employees to whom the special "90th day"application of paragraph 4 of Appendix D was not operative with respect to December 24.The grievants were situated, just as they were in the week of December 17, ascontemplated at paragraph 3 of Appendix D—"No credit will be given for any pay periodduring which for any reason, the employee does not work...". And, the fact being that thegrievants did not reach the status of seniority employees, it simply follows that they havecorrectly been denied the claimed holiday pay. Attainment of the status of seniorityemployee is an eligibility requirement under both Paragraph (203) and Paragraph (208) ofthe National Agreement.

As to the rest of the assembly employees, the Company explains, they were paid for theholidays under Paragraph (208). They were foreclosed from receiving pay for the holidaysunder Paragraph (203) for they were not employees who "would otherwise have beenscheduled to work on such day if it had not been observed as a holiday", as laid down atclause (2) of Paragraph (203). But they were entitled to the holiday pay under Paragraph(208) -- which depicts the very situation which was here in being. Indeed, the Companynotes, if Paragraphs (203) and (208) could be applied as interchangeably as the Unionsuggests, one would have to wonder why the special "layoff" protection of Paragraph (208)was adopted.

The Company makes an additional argument. The argument proceeds from theassumption that the plant’s production quota would have been met, not by the end of thesecond week of December, but by the end of the first week of December—so that theassembly employees, rather than being laid off beginning on December 17, would havebeen laid off beginning on December 10. The special "layoff" protection of Paragraph(208), the Company submits, does not extend to that situation. Assume further, theCompany goes on, that there were some employees whose 89th day toward theacquisition of seniority status had been reached by the end of the first week of December.If the Union’s theory in the present case were accepted, the Company argues, the result inthe just-posed situation would be that the seniority employees would go without pay for thespecified days in the Christmas Holiday Period whereas the "89th day" employees—thosewho had not attained the status of seniority employees by the time the layoff began --would be entitled to the holiday pay. The Company contends that this would be an absurdresult and that the avoidance of absurdities is a proper concern in any arbitrationproceeding.

Finally, the Company presented a historical tracing of the Agreement’s holiday—payprovisions. What the Company sought to provide was an answer to the Union’s argumentthat pay for unworked holidays is a negotiated benefit arrived at as part of overalleconomic packages. Granting this much, the Company’s point is that pay for unworkedholidays, rather than ever having been an absolute right, has always been a conditional



right circumscribed by various eligibility requirements. Holiday pay is simply not due anemployee, the Company is saying, where the employee has not met one or another of theeligibility requirements.

It seems to the Umpire that the parties’ dispute and their accompanying assertions bringone into an elusive no-man’s-land area to which the Agreement provides no clear answer.The Umpire wants immediately to make it clear that he does not mean to make any sort ofbroad holding respecting the proper application of the Christmas-New Years period,irrespective of the nature or duration of layoffs which might precede or surround thatperiod. In his considered opinion, however, the Company has the weaker case in thepresent instance. He is thus upholding the grievance.

The Company has indeed demonstrated that December 14 marked the end of assemblyoperations at the Tarrytown plant for the rest of the month (and including January 1).Moreover, the Company has demonstrated not only that this was factually true but alsothat it was true by design and scheduling. For any other month, such a showing wouldpresumably require viewing the month’s last 2 or 2 ½ weeks as a period of layoff. But doesit necessarily follow from the showing which the Company has made that the remainder ofDecember is properly viewed as a period of layoff? Clearly, so it seems to the Umpire, itdoes not. For the last week of December (including January 1) has in recent years beentreated, and was here treated, as a period in which assembly plants are in any event not tobe operated. The Company noted at the hearing that the week can be used to assembleautomobiles. But, considering the facts that such scheduling would require the Union’sconsent, would require the payment of triple-time rates of pay, and has never beenresorted to since the inauguration (in 1971) of the Christmas-period holiday benefit, therejoinder is theoretical in the extreme. In every real sense, the Company’s showing that theDecember production quota for the plant had been met merely begs, rather than answer,the question of how the last week of December (including December 31 and January 1)should properly be viewed.

In relation to the evidence adduced in the present case, the Umpire believes that thesounder view is that the last week of December (including December 31 and January 1)was a holiday shutdown period. The Umpire has come to this conclusion by theCompany’s own evidence. Though true that that evidence inescapably shows that only8,800 units were to be produced and that only the first two weeks of December wereneeded and were to be used to produce those units, it also shows that the month ofDecember was designated differently as compared to other months in terms of theavailability of potentially productive hours. On the master schedule, shown are 168 hoursfor November, 176 hours for January, 160 hours for February, and 168 hours for March.These were the standard hours to the limit of their availability for each of the months (and itwas in relation to those hours that the subtractions and additions necessary to meet thevarious plants’ particular production requirements were shown). Contrarily, shown asavailable potentially productive hours for December were 120 hours (and it was in relationto this quantum that the 40-hour subtraction was shown). This represents the plain lopping-off of 48 hours -- in advance and by what clearly seems to have been a matter of firstassumption. It would obviously make no sense to link the lopping-off to anything other thanthe presence of the Christmas-New Years period. And what these things seem to theUmpire to come down to is that, if it is to be appreciated that the plant was to operate but80 hours to produce but 8,800 units by design and scheduling, it is equally to be



appreciated that the last week of December (including December 31 and January 1) wasdisqualified as operating time by prior design and scheduling.

The Company is on sound grounds in saying that the particular wording of a plant noticeshould not be made determinative of an interpretative Agreement question. It need not beoverlooked, however, that the wording of the notice in the present instance seems anythingbut accidental or erroneous. It is not surprising—and, indeed, it is wholly consistent withthe scheme of things revealed by the evidence—that the notice addresses the weeks ofDecember 17 and December 24 separately and under different shutdown designations.The week of December 17 was removed from potentially productive time in response tolowered output requirements.

With respect to the week of December 24 (together with December 31 and January 1), onthe other hand, the notice echoed that which had been uniformly done under the GMADmaster schedules since the inauguration of the Christmas-Holiday-Period benefit:designating December as a 120-hour month (except, in accordance with the number ofweek-days preceding Christmas, as it was a 128-hour or 136-hour month). The author ofthe notice, rather than confuse things, seems clearly to have done "what comes naturally".

Viewed in the light of the fact that the scheduled assembly operations were completed inthe first two weeks of December, there is of course insuperable difficulty in finding theeligibility requirement of clause (2) of Paragraph (203) to have been met ("The employeewould otherwise have been scheduled to work on such day if it had not been observed asa holiday..."). This, however, is not the only or necessary view. For the reasons given, theUmpire rejects it as myopic and misleading. He believes, again for the reasons given, thatthe last week of December (including December 31 and January 1) is here properly to beapplied as a period of shutdown owing to the presence of the Christmas Holiday Period.And by that application, the eligibility requirement of clause (2) of Paragraph (203) mustclearly be taken to be satisfied. For it could hardly be held that the Company can properlydisqualify the last week of December (including December 31 and January 1) as operatingtime by virtue of the presence of the Christmas Holiday Period and yet declare that it wasfor lack of work, rather than for the occurrence of the holidays, that the employees werenot scheduled to work. Such a holding would amount to sanctioning a bootstrap assertion.

By these conclusions, the special "90th day" provision of paragraph 4 of Appendix D isapplicable. The provision was clearly adopted to answer the question of what theapplication should be, both for holiday and for vacation purposes, in the specialcircumstance where the employee’s 90th day, though not worked by him and thus callingfor its treatment as non-credited time under paragraph 3 of the Appendix, coincides withthe day on which he would collect one or the other benefit were he considered a seniorityemployee. Manifestly, the parties having explicitly addressed themselves to the situationand having adopted language calling for the crediting of the day, the "90th day" provision ofparagraph 4 of Appendix D must be taken as an operative exception to the otherwise flatterms of paragraph 3 of the Appendix. Further, there is nothing in the provision ofparagraph 4 (nor has any such contention been placed before the Umpire) which wouldserve to vitiate the special "90th day" application by virtue of the one-week layoff whichpreceded the grievants’ 90th day. The upshot is that the grievants had attained the statusof seniority employees as of the December 24 holiday.



Once this is established, it seems to the Umpire not to matter whether one views thegrievants as entitled to the holiday pay under Paragraph (203) or under Paragraph (208).Literally read, given the facts that the assembly operations in their entirety were here shutdown in the week preceding the Christmas Holiday Period and that the grievantsadmittedly were at work both on December 14 and on January 2 (which days, literally,represented "the last scheduled work day prior to each holiday period and the nextscheduled work day after each holiday period"), the eligibility requirement of clause (3) ofParagraph (203) was met. Still, the Company is obviously on strong grounds in asking whythe parties would have gone to the trouble of adopting the "layoff" protection of Paragraph(208) if Paragraph (203) was of similar meaning to begin with. However, if Paragraph (208)was indeed the governing Paragraph for the rest of the assembly employees, it is theUmpire’s opinion that the grievants must likewise be taken as entitled to the holiday benefitunder that Paragraph. The grievants were not seniority employees at the time of the layoffin the week of December 17. But the holiday occurred in immediate succession to thelayoff. And, as the grievants were seniority employees as of the holiday and as the veryidea behind the "90th day" provision of paragraph 4 of Appendix D is to yield holiday-payentitlement in the particular 90th-day circumstance, it seems proper to the Umpire to applythe grievants’ seniority status in the week of December 17 in terms of their seniority statuson the holiday. Else, the special "90th day" holiday-pay entitlement would be renderedinferior when applied to paragraph (208) as compared to its application under Paragraph(203). The Umpire cannot believe that such a result was intended.

The Umpire has not sought to grapple with the situation which the Company poses and asto which it says an absurdity would be created if the Union’s position in the present casewere sustained. He notes that the Union disputes the validity of one of the assumptions inthe Company’s argument. Be that as it may, his answer to the Company’s argument goesback to what he said at the outset: his purpose, rather than to make a holding of broadimpact, is to determine the present case alone. If the case which the Company poses everarises (and is valid in all its assumptions), it might turn on different considerations and leadto a different result.

One final matter requires comment. In its brief, the Union notes that the case involves 23employees and that of these 23 employees: 1) twelve were hired on September 19, 1973,2) six were hired on September 25, 1973, and 3) five were hired on September 26, 1973.The Umpire has treated the case in terms of the twelve employees in the first category. Asa matter of proper coverage, however, the Union is legitimately including the employees inthe other two categories—for the grievance statement phrases the claim in terms of theemployees’ 90th day within the Christmas Holiday Period, rather than in terms ofDecember 24 to the exclusion of the other holidays in the period. With respect to theemployees in categories 2) and 3), the Union is saying that their case is in principle thesame as that of the employees in category 1). The difference, the Union submits, is merelythat the 90th day for the employees in categories 2) and 3) fell at a later point in theChristmas Holiday Period—December 31 for those in category 2), and January 1 for thosein category 3). The Union does not claim holiday pay for any of the holidays whichpreceded, respectively, December 31 and January 1. But it claims holiday pay forDecember 31 and January 1 for those in category 2), and for January 1 for those incategory 3).



The Umpire has decided that these are not valid claims. In order to bring the employees incategories 2) and 3) to their 90th day on December 31 and January 1, respectively, it isnecessary to credit them with seven days for the pay period which commenced onDecember 24. It is true that paragraph 2 of Appendix D provides for the crediting of sevendays so long as the employee works "during" the pay period. It is also true that, by theUmpire’s conclusions, the pay period of December 24 was a period of holiday shutdown.But it does not follow from what the Umpire has concluded that holidays other than theholiday which coincides with the employee’s 90th day are to be credited toward theattainment of seniority status. To the contrary, as he reads the "90th day" provision ofparagraph 4 of Appendix D, it constitutes a special application which attaches to that dayalone. It does not operate to bring crediting for an employee’s 86th or 87th day, even ifthose days are days on which the employee does not work by virtue of the occurrence ofholidays. Not having reached the point where their 90th day would have fallen in the payperiod of December 24, the employees in categories 2) and 3) cannot be given credittoward the attainment of seniority status in that pay period. Their situation in that payperiod was governed by paragraph 3 of Appendix D: "No credit will be given for any payperiod during which for any reason, the employee does not work...". And, absent thecrediting of the pay period of December 24, the employees in categories 2) and 3) had notreached their 90th day on December 31 or January 1, respectively. It follows that theholiday-pay claim on their behalf must be denied.

DECISION


Rolf Valtin

Umpire





No. P-10

July 22, 1975

TERMINATION OF EMPLOYE UNDER PARAGRAPH (64)(d) OF NATIONALAGREEMENT;

EVIDENCE AS TO "SATISFACTORY REASON"

GRIEVANCE:

GM ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION, SOUTH GATEPLANT, SOUTH GATE, CALIFORNIA—APPEAL CASE P-121

Grievance 006185

"Protest Mgt. issuing me a very unjust and unfair Termination for an alleged viol. ov 64(D)of the N.A. When in fact I had a satisfactory reason for my absence. Request Mgt. removethis termination from my record and that I be reinstated with full seniority and paid for allbenefits and money lost due to Mgts. error." S/J.R.S.

UMPIRE’S DECISION

The (64)(d) termination here in question is set aside. Grievant S. is to be reinstated withrestoration of seniority rights and reimbursement for the wages lost. (Entire decision shouldbe read.)

In the Matter of:

United Automobile, Aerospace, and Agricultural Implement Workers of America LocalUnion No. 216

and


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\p-010_13A48FD7.htm

General Motors Corporation, GM Assembly Division, South Gate Plant, South Gate,California -- Appeal Case P-121

OPINION

Grievant S. was hired in February, 1972. Before going on sick leave, in September, 1973,he was a second-shift Final Chassis Assembler in the Chassis Department. He wasreleased from sick-leave status on May 2, 1974. Owing to substantial layoffs, which hadbeen instituted in January, 1974, he could not come back to work when he came off sickleave. He was thus on layoff until recalled in the fall of 1974.

On Thursday, October 3, 1974, Management sent the following telegram to S.’s address ofrecord:

"Report to the personnel office ready for work at 6:12 A.M. Friday, October 4, 1974."

The home at S.’s address housed both S. and his grandmother. S., about three weeksearlier, had gone to San Francisco. He had arranged with his grandmother that he wouldcall her once a week or so but that she should call the plant to explain his whereaboutsshould he be notified to return to work. She did so both on Friday, October 4 and onMonday, October 7. She did not call the plant on Tuesday, October 8 or Wednesday,October 9. She again called the plant on Thursday, October 10. According toManagement, this was the first time that she stated that S. was out of town because of hisfather’s illness. (According to her, she mentioned this reason on at least one of the earliercalls.)

In the meantime, S. had not come to work either on Friday, October 4 or on any of theworkdays in the week commencing Monday, October 7. He returned to Los Angeles at theend of that week and he reported to the plant on the afternoon of Monday, October 14. Atthis stage, he had already been terminated under Paragraph (64)(d) of the NationalAgreement.

Paragraph (64) is titled "Loss of Seniority"; its opening portion states that "Seniority shallbe broken for the following reasons."; and it then goes on in subparagraph (d) with this:

"If the employee fails to return to work within three working daysafter being notified to report for work, and does not give asatisfactory reason..."

Both by way of their briefs and by way of their arguments at the hearing, the partiesengaged in a major debate as to whether a telephone call which indicates to Managementthat the particular employee intends to come back to work suffices to preserve theemployee’s seniority under Paragraph (64)(d). The Union asserts that it does, both on thegrounds of what it contends to be the GM-UAW precedent on the matter and on thegrounds that the clause, in design, goes to giving Management the chance to be in theknow as to whether the employee intends to retain his employment relationship with theCompany, not to allow Management mechanically to sever an employee’s seniority. The



Company, on the other hand, relies on the fact that the language expressly refers to "returnto work". With substantial elaboration, the Company argues that a telephone call indicatingan employee’s intention to return to work is not the equivalent of the employee’s in factreturning to work.

The question need not be determined. For, on the evidence presented, the Umpirebelieves that he must hold that S. had "a satisfactory reason" for not being at work on thethree particular days. It is true that Management can validly argue that the medicalsubstantiation which it sought in the period shortly following the grievant’s termination wassomewhat sketchy and confusing. But it appears equally true that Management startedfrom a posture of disbelief—a posture which it thereupon retained and which kept it frommaking a dispassionate assessment. In the opinion of the Umpire, the testimonies of thegrievant’s father, the grievant’s grandmother and the grievant himself yield a story whichhangs together and which shows: 1) that the grievant had gone to San Francisco to help afather beset by emotional difficulties (for which the father had been hospitalized for somesix weeks in the summer); 2) that the father lived alone—and also lived without atelephone in his apartment, so that the grandmother could not have initiated telephoniccontact; 3) that the father’s relationship with relatives in the San Francisco area wasstrained; and 4) that the financial state of both father and son was such that a telephonecall to the grandmother every day or every two or three days to determine whether a recallnotice might have been dispatched was not readily affordable. The Umpire is not sayingeither that the money for such phone calls could not have been found or that the father’ssurvival depended on the presence of the son. Rather, the Umpire does not believe thatthe test under Paragraph (64) (d) is of a stringency of that sort. The facts andcircumstances in the present case are such, he holds, as to add up to fulfillment of the"satisfactory reason" standard.

DECISION

The (64)(d) termination here in question is set aside. Grievant S. is to be reinstated withrestoration of seniority rights and reimbursement for the wages lost.

July 22, 1975

/S/Rolf Valtin

Umpire





No. P-19

JUNE 1, 1976

DISCHARGE;

THEFT;

EXTENT OF PENALTY;

PARAGRAPH (76a)

GRIEVANCE:

GENERAL MOTORS PARTS DIVISION, GENERAL MOTORS CORPORATION, DENVERPLANT, DENVER COLORADO—APPEAL CASE P-17

Grievance 731089

"I protest my suspension on 7-24-75 for alleged violation of Shop Rule #33. Request myrecord be cleared and I be made whole." S/J.B.

Grievance 731092

"I deny violation of S.R. #33. I protest unjust discharge on 8-1-75. I charge Managementwith violation of Paragraph #76-76A of N.A. Request I be made whole and reinstated."S/J.B.


Grievance Nos. 731089 and 731092 are denied. (Entire decision should be read.)

In the Matter of:


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\p-019_13A49E48.htm


and

General Motors Corporation, General Motors Parts Division, Denver Plant, Denver,Colorado -- Appeal Case P-17

OPINION

J. B., the grievant in this matter, was discharged on August 1, 1975, for an alleged violationof Shop Rule No. 33, which prohibits: theft or misappropriation of property of employees orof the Company.

The facts of this matter are, for the most part, undisputed. On July 24, 1975, the grievantwas working as a Receiving Checker, assigned to the second shift. At approximately 7:30that evening, she obtained from stock a box containing a new stereo receiver with eighttrack tape player, removed this item from the plant and placed it in the trunk of her car.Later, during the lunch break at approximately 8:45 p.m. the grievant apparently changedher mind about attempting to abscond with the property. Accompanied by anotheremployee, V.W., she removed the box from her car. Both employees then walked for ashort distance along the outside of the fence surrounding the plant perimeter. As theypassed a small trash container, the grievant reached over the fence and dropped the boxback inside. The box struck the end of the container and fell to the ground. The employeesthen returned to the plant premises.

Virtually all the above-mentioned actions were observed by members of supervision.Shortly thereafter, the grievant was asked to report to her supervisor’s office. At that point,she indicated she wished to have Union representation. As it happened, the Unioncommitteeman was V.W., the same individual she had consulted with over lunch and whohad subsequently accompanied her in moving the stolen merchandise. Management wasaware of this, having observed both persons and, indeed, intended to discipline V.W. aswell. This fact was not discussed at the beginning of the disciplinary interview, however.The questioning proceeded and the grievant was confronted with management’sobservations and accusations. J. B. flatly denied having stolen anything and fabricatedexplanations for going to her car. After several minutes, supervision removed the grievantto another room, indicating to her committeeman that they would not speak to her duringthe time she was away. Instead, members of supervision returned to the committeemanand asked him what he knew of the incident. He responded he knew only what he hadheard in the interview. At that point, V.W. was asked whether he desired Unionrepresentation. He said he did. The grievant, J.B. was then brought back into the room. Ashort period of questioning followed after which she was informed she would besuspended. Thereafter, V.W.’s committeeman arrived and he, too, was suspended. Bothemployees were subsequently discharged.

Some months later, the grievant acknowledged that the Company’s allegations were true.She maintained, however, that after taking the radio, she had decided to return it. She



further indicated that V.W.’s role was confined to advising her to return the item andhelping her to do so. At this point, V.W.’s discipline was reduced to a suspension. TheCompany’s position with respect to the grievant, however, remained unchanged.

The Union’s position in this case is twofold. First, it claims that the Company was remiss innot taking into account the grievant’s relatively rapid decision to return the stolen item.Additionally, it maintains there were serious procedural defects in the administration of thedisciplinary interview which would justify nullifying or modifying the penalty.

Assuming, without deciding, that grievant’s actions in this case should somehow be viewedas mitigating an unquestionably serious breach of the work rules, the critical questionconcerns her intent. On the one hand, one might characterize her actions asdemonstrating an abandonment of the original desire to keep the property, coupled withthe wish to restore it. On the other hand, the same efforts might reasonably be viewed asthe reactions of an individual increasingly concerned with detection and therefore seekingto divest herself of incriminating evidence. The latter case, of course, could hardly beviewed as circumstances favorable to the grievant. In both cases, the grievant undergoes achange of mind with respect to the initial plan. The issue, however, as noted by the Union,is whether there was a change of heart.

In such instances, the misconduct—stealing the goods—is a given. This was not a case ofunfulfilled intent. (See Case C-380). Absent more, there is little question that discharge isappropriate. If mitigating circumstances are to be found, the burden properly rests with thegrievant to prove that her efforts amounted to some clear, albeit late-blooming, indicationof good faith that might serve to support a less drastic penalty. The problem, of course, isthat the good intentions to restore may well be accompanied by the urge to do soundetected. Clearly, such was the case here. But, this being so, the problem ofconvincingly demonstrating good intent is, indeed, substantial.

Here, the facts are such that an objective observer may not reasonably conclude that theburden has been met. First, for whatever reasons, the stolen item was not returned.Instead, it was dropped over the plant fence, perilously close to a trash container. It is notclear from this, at least, that grievant was attempting to restore the item as opposed tomerely ‘ditching’ it. Moreover, the grievant’s actions subsequent to being discovered andaccused do not serve to support her claim of a change of heart. Her initial and continuingreaction was to deny any involvement with the theft. Indeed, she did not admit her role untilthe third step of the grievance procedure, some two months later. These actions not onlydeprived the Company of the opportunity to fully review and evaluate the overall facts atthe time of the incident but also undermined the vitality of her later explanation. Finally,while there is substantial dispute on the question, there is reason to believe that thegrievant knew she had been earlier observed. Among other things, at the time of the initialtaking, V.W. was standing next to and conversing with the foreman who was thenobserving her removing the radio. Additionally, according to the evidence, there was someactivity by the Denver Police on the premises just prior to J. B.’s decision to remove theitem from her car and drop it back inside the fence. It is, of course, unknown whether theforeman’s observations may have been known and conveyed to J.B. during lunch.Similarly, it is unclear whether the police activity at that time necessarily inspired heractions. At the same time, however, these circumstances raise serious questions as towhether grievant’s decision to divest herself of the stolen property was wholly grounded on



principled considerations. Under these circumstances, the difficulties of inferring grievant’sgood faith are manifest, for there is simply insufficient evidence to allow one to concludethat this employee’s activities clearly reflect an attempt to right her previous wrong.

The Union also maintains that it was a violation of Paragraph (76a) for the Company tohave separated the grievant from her committeeman during the interview. In analyzing thepropriety of this action, the question must be whether, under the circumstances, suchevent deprived the grievant of rights specifically expressed or clearly implied by thecontract and, in so doing, resulted in inequitable consideration of her case.

The right of Union representation is contractually guaranteed and should, in all cases, be"scrupulously observed." As stated by the Umpire in G-197:

If the right be abused, there are avenues for corrections. Though couched in language ofemployee or Union rights, the free exercise of the right of representation, particularly in theinitial stages of a grievance, operates to the advantage of Management as well as theUnion and the employees; interference with that right tends to magnify grievances andobstruct or delay settlements, thus hampering the orderly and efficient administration of theAgreement.

Pursuant to this, one may, as a general matter, conclude that it is not within the Company’sprerogatives to turn the representation process on and off according to its whims.Paragraph (76a) surely requires, for example, that when the grievant requests andreceives representation, the disciplinary interview not be carried on in the absence of thecommitteeman. Moreover, case precedent establishes that, if requested, the grievant isentitled to a private conference with the representative. (J-63).

In this case, however, there was no violation of J. B.’s contractual rights. First, the grievantdid not request a private conference with V.W., and none was denied. Moreover, since noquestioning of the grievant occurred while she was out of the presence of thecommitteeman, one may not find she was somehow disadvantaged by his temporaryabsence. Nor is there an apparent violation of J.B.’s rights inherent in the Company’squestioning the committeeman. The Union representative may well be apprised, in a givencase, of certain confidential facts, gained perhaps from consultation with the accused. Inthe usual case, to allow supervision to then obtain such information under threat ofdiscipline might well be contrary to the intent of Paragraph (76). This instance, however,differs meaningfully since the committeeman was himself suspected of complicity in theoffense. Under the circumstances, supervision was as much within its rights in questioninghim as it was in interrogating the grievant. It may be, of course, that disclosures whichmight have been made by V.W. in his own self-interest would stand as substantiallydetrimental to J.B.’s case. That would present a significant conflict. But the conflict, if therebe one, is most immediately apparent to the accused and the committeeman. It is not theCompany’s responsibility to monitor such possibilities, nor, in fact, is it the Company’s rightto so screen duly-appointed Union representatives. It is the representative and the grievantwho must be sensitive to such potentials.

The finding, then, is that the act of separating the grievant from her committeeman did not,in this instance, disadvantage the grievant or somehow serve to taint the disciplinaryinterview procedure or deny the due process requirements inherent therein.



Having carefully reviewed the facts and arguments concerning both the procedure andsubstance of this case, the conclusion must be that there is no cause to overturn thepenalty imposed. This being the case, the grievance must be denied.

DECISION

Grievance Nos. 731089 and 731092 are denied.

/S/Richard I. Bloch

Associate Umpire

June 1, 1976 /S/Arthur Stark

Umpire





No. P-22

July 29, 1976

EXCESSIVE ABSENTEEISM;

EXTENT OF DISCIPLINE

GRIEVANCE:

GM ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION, SOUTH GATEPLANT, SOUTH GATE, CALIFORNIA—APPEAL CASE P-292

Grievance 145798

"Protest Mgt. with issuing me an unjust Discharge for an alleged viol ov SR #6. Requestthat I be reinstated with Full Seniority and all Benefits due me and I be paid all monies dueme due to mgt. error."

S/R.G.


Grievance No. 145798 is sustained in part and denied in part in accordance with the abovefindings. (Entire decision should be read.)

In the Matter of:


and

General Motors Corporation, GM Assembly Division South Gate Plant, South Gate,


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California -- Appeal Case P-292

OPINION

Grievant R. G. was discharged on October 16, 1975, for violating Shop Rule #6, whichprohibits excessive absenteeism. The facts are not in dispute. In March of 1975, thegrievant was convicted of a felony. Part of the sentence required his serving one year inthe county jail. After his conviction, a representative of the Los Angeles County WorkFurlough and Parole Office contacted the Company to inquire about the possibility of R.G.’s being released during working hours as part of a statutory work-release arrangement.The Company declined to participate in the program. It indicated, however, that so far as itwas concerned, the grievant could return to work with no punitive action being takenagainst him by the Company. Apparently, this was not satisfactory to the County and, onSeptember 29, 1975, the grievant began serving a one year jail sentence. On October 3,the Company was again contacted by the Work Furlough Office and its participation in thefurlough program was once more solicited, but the Company still declined. On October 16,1975, the Company discharged R. G. for "continued absence without good cause." Thisgrievance resulted.

During the course of a Third Step Appeal meeting on January 29, 1976, Management wasinformed by the Union that whatever conditions had originally attended the Company’sparticipation in the furlough program had now been waived by the County and that the onlyqualification upon grievant’s release from jail would be the Company’s certification that hisjob was available. Management indicated it was willing to have the grievant return. In viewof the extent of the absence, however, it believed a two-week disciplinary layoff was inorder. The parties differed on that point; the grievance was not resolved; and the grievantremained in jail until has release in May of 1976.

The Union contends that since the Company rejected the work-release program, therebyforeclosing grievant’s availability, it should not be allowed to later claim his absence waswithout reasonable cause. The Union also claims that, even if the Company was within itsrights in deeming the absence to be without cause, the penalty was overly severe since itwas grievant’s first offense.

The Company denies any contractual obligation to cooperate with the furlough programand maintains the discipline imposed was justified under the circumstances.

Resolution of this dispute depends in part upon recognition of the highly uniquecircumstances. First, it should be recalled that incarceration may not be "good cause" forabsenteeism, and moreover, that management may take into consideration the actual orpotential length of the absence in imposing discipline. * For example, in E-262, the Umpirerejected the notion that confinement in jail necessarily amounts to reasonable cause forabsence. Otherwise, he said, "an employee given a long sentence for a serious crimewould retain full employment rights for many years despite his loss of ability to function asan employee." It was also noted that while principles of corrective discipline wereapplicable, discharge might be appropriate in the case of an employee sentenced to a longjail term.



This case arises in response to discipline for violating a shop rule and should bedistinguished, therefore, from cases involving contractual terminations under Paragraphs64© and 64(d) of the National Agreement.

Yet, despite the prospect of a lengthy sentence, the instant case presents reasons forfinding that the discharge penalty was inappropriate. The most compelling factor is that theunderlying dispute here was not over the grievant’s continued employment. As its severalresponses to the Parole Office indicate, there was never any question as to the Company’swillingness to continue the grievant’s employment—assuming he was available. Thus, theinitial question concerned the conditions attached to the furlough program. It is true that thegrievant could have returned but for the Company’s refusal to participate. Yet, theCompany was under no contractual obligation to comply with that release program and itsdecision not to do so may in no sense, therefore, be viewed as a violation of the terms ofthe National Agreement.

During the Third Step meeting, the nature of the underlying dispute changed significantly.For all intents and purposes, the question of R. G.’s return had been resolved; the penalauthorities had waived any conditions which might have previously attached to the furloughand the Company was willing to reinstate the grievant. But, considering the extendedabsence, Management was desirous of imposing a two-week disciplinary suspension.Under the circumstances, for the reasons stated earlier, discipline was not inappropriate,nor may it be viewed in this case as overly severe, considering, among other things, thelength of absence. Yet, the parties were still at odds. The two-week suspension was notacceptable to the Union and the Company, for its part, conditioned re-employment on theUnion’s agreeing to the two-week penalty.

It is always within the parties’ prerogatives to formulate offers and to bargain as theychoose, and it is neither necessary nor appropriate to comment here on the content ofvarious settlement attempts. However, the result of the continuing disagreement wasextremely harsh and this is relevant, for the propriety of the discharge must be evaluatedwith a reasonable view of the entire situation. The heart of the discussions at Third Stepwas not R. G.’s availability and reinstatement—that had been essentially resolved. Theissue now was whether the grievant deserved a two-week suspension. Normally, a disputeof that nature would cause the grievant no loss of working time beyond the contested twoweeks. But in this case, the extended dispute led to R. G.’s continued confinement and,therefore, to his unavailability for work. To allow this chain of circumstances to culminate inthe grievant’s discharge would be to ignore the specific nature of the real issue.

This is not to say grievant should not assume some of the burden for his extendedabsence. He was, after all, in jail due to his own activities. Considering, however, all thecircumstances peculiar to this unusual case, and without attempting to establish a formulafor relating length of absence to disciplinary penalties, the findings are that: (1) Thedischarge shall be set aside, (2) The grievant’s record shall include a notation that he hasreceived a two-week DLO under Shop Rule #6, a penalty which is appropriate given thefacts here, and (3) the grievant shall be reinstated with full seniority rights and back payfrom May 29, 1976 to the date of reinstatement.



DECISION

Grievance No. 145798 is sustained in part and denied in part in accordance with the abovefindings.

/S/Richard I. Bloch

Associate Umpire

July 29, 1976

/S/Arthur Stark

Umpire





No. P-38

March 9, 1978

TERMINATION UNDER PARAGRAPH (64d);

EVIDENCE

GRIEVANCE:

GM ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION, DORAVILLE PLANT,

DORAVILLE, GEORGIA—APPEAL CASE Q-10

Grievance 262825

"Protest Mg’mt. with breaking my seniority. Request I be reinstated. Paid all monies, andCreated other Benefits deprived of." S/J.L.D. (Grievant)


Grievance No. 262825 is denied. (Entire decision should be read.)

In the Matter of:

United Automobile, Aerospace, and Agriculture Implement Workers of America LocalUnion No. 10

and

General Motors Corporation, GM Assembly Division, Doraville, Georgia -- Appeal Case Q-10


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OPINION

The grievance in this case, which arose under the terms of the 1973 Agreement,challenges the contractual termination of J. L. D.

Paragraph (64d) of the 1973 Agreement states:

(64) Seniority shall be broken for the following reasons:

(d) if the employee fails to return to work within three working daysafter being notified to report for work, and does not give asatisfactory reason...

D. was scheduled to return from a disciplinary layoff on June 24, 1975. On that date, hecompleted a sickness and accident form on which his doctor indicated he could return insix weeks. The doctor also noted that D. would be referred to an orthopedic surgeon.

Grievant saw the surgeon, Doctor S., who, on August 5, prescribed medication, placed D.’sarm in a sling, and referred him to the GMAD doctor, with a letter stating that he was"being returned... for your evaluation for his return to work." By then, D. had also seen animpartial medical examiner as directed by the Company. He had also seen a nervespecialist, Doctor P., whose tests revealed no nerve injury.

On August 11, grievant reported to the Plant Medical Director, Doctor F., with his arm in asling. He had been suffering from elbow problems. Doctor F. concluded that D. was notincapacitated and told him to remove the sling and go to work. D., however, believedhimself unable to use his arm and therefore left the plant.

On November 17, 1975, and again on the 18th, the Company mailed D. a "Paragraph(64d)" letter, stating:

You are hereby instructed to report for work. Failure to do so withinthree (3) working days following delivery or attempted delivery ofthis letter will result in the loss of your seniority.

Very truly yours,

/s/ L. D. R. Supervisor-Employment

D. did not return and, on December 16, 1975, he was terminated. On January 6, 1976, hegrieved.

The union maintains that the Plant Medical Examiner’s ultimatum—‘work or leave’—violated grievant’s contractual rights and served to place him in a sort of ‘limbo’ thereafter.This being the case, it says, the Company was precluded from later invoking Paragraph(64).



The Company contends the termination was proper inasmuch as it had the right to requireD. to return, but he failed either to report within three working days after notification or togive a satisfactory reason.

The initial question in this case is whether management had the right to issue the ‘return towork’ letters. The Union says that as of August 11, D. should have been allowed either towork on some type of restricted duty or be placed on sick leave. Admittedly, D.’s statuswas not entirely clear following that visit—his sickness and accident benefits had been cutoff in July of 1975, for example. Yet, while questions may exist in this regard, it is at leastclear that D. was not terminated. Neither was he working, and there is no contractual orlogical reason why management could not have required him to return or to somehowdemonstrate why he could not.

The Union claims that Doctor F. relied solely on the report of an impartial medical examinerin concluding that grievant could work. But, as noted earlier, grievant had, by then, seen anumber of personal physicians as well, including Dr. S., who had sent him to the plant forDr. F.’s work evaluation. D. says the Company physician performed no examination onAugust 11, but one is not persuaded that the one and one-half hour meeting was devotedsolely to talking, as claimed by grievant.

In any event, even were it demonstrated that a restricted job was available (and there is nosuch evidence), and that it somehow should have been offered to the grievant, this in itselfcould hardly deprive management of the right to call him back at a later date, which it did.Similarly, whether D. should have been on sick leave or otherwise, one may not concludethat he was forever immune from the requirement of returning to work or showing why hecould not. The finding, therefore, is that there was no impropriety in sending the Novemberletters. The remaining question is whether grievant has demonstrated a "satisfactoryreason" for not returning.

In October of 1975, Doctor S. (the orthopedic surgeon to whom D. had been first referred)wrote the Company doctor stating, among other things, that his "impression" was "probablemild lateral epicondylitis, right elbow"; that the nerve conduction studies performed byDoctor B. were negative; that the patient had been seen on August 5, given a sling (to beworn for about three weeks) and told to report to GMAD for a "work evaluation"; that thepatient did not return to him subsequently and that, therefore, the doctor "assumed... that(grievant) was doing well."

Thus, at the time D. was terminated in December of 1975, the Company had before it thefollowing information:

(1) a sickness and accident form from June, stating hewould be disabled for about six weeks;

(2) a nerve specialist’s negative findings;

(3) the August letter from Doctor S., returning D. to theCompany doctor for his evaluation;

(4) Doctor F.’s conclusion that, in August, at least, D.



could have worked; and

(5) the October 28 letter from Doctor S. suggesting athree-week disability (in August) and indicating no follow-up.

The evidence suggests a potential conflict of opinion as to whether D. could have workedin August or whether, instead, he would be disabled for three weeks. But the significantquestion is whether D. was unable to report in November. While there is evidence that D.suffered continuing problems with his arm, there is none by which one may reasonablyconclude he was unable to return when notified to do so.

Evidence submitted at arbitration indicates that grievant saw his original doctor (Doctor J.)in Atlanta in November of 1975 and again in January of 1976. In April of 1977, heapparently saw another doctor in New York and subsequently visited a New York hospitalon an out-patient basis. However, with respect to disability, there is no evidencewhatsoever stemming from any of these visits.

In all, there is reason to find that this individual was experiencing, and continues toexperience, certain difficulties with his arm. But the critical question in this case is whetherthese problems prevented him from reporting for work in November of 1975. On this point,the evidence is substantially lacking. At most, the various medical opinions of D.’s ownphysicians show limited periods of disability—evidence which falls far short ofdemonstrating a satisfactory reason for failing to report for work when required to do so.For these reasons, the grievance will be denied.

DECISION

Grievance No. 262825 is denied.

March 9, 1978

/S/Richard I. Bloch

Associate Umpire

/S/Arthur Stark

Umpire





No. P-49

May 25, 1978

TERMINATION PURSUANT TO PARAGRAPH (64)(d);

EVIDENCE;

REMEDY

GRIEVANCE:

GM PARTS DIVISION, GENERAL MOTORS CORPORATION, DALLAS PLANT, DALLAS,TEXAS -- APPEAL CASE P-258

Grievance 313558

"I charge Mgmt. with refusing to let me return to work on Oct. 4, 1976. I demand that I beallowed to return to work immediately and I demand all lost monies due me." S/J.O.(Grievant)


The termination of O. under Paragraph (64)(d) was improper and shall be rescinded. Thematters of reinstatement and back pay are remanded to the parties. (Entire decision shouldbe read.)

In the Matter of:


and


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General Motors Corporation, GM Parts Division, Dallas, Texas -- Appeal Case P-258

OPINION

The issue here is whether Stock Handler O. was properly terminated pursuant toParagraph (64)(d) after she failed to report for work on April 26, 27 and 28, 1976; morespecifically, did she have a satisfactory reason for not reporting within the meaning of thatParagraph? The clause in question provides that seniority shall be broken:

(d) If the employee fails to return to work within three working days after being notified toreport for work, and does not give a satisfactory reason...

It is the Union’s position that O. was incapacitated on the days in question.

The grievant was hired on September 18, 1975. About three months later she was hit onthe head and shoulders by a falling panel. As a result she was off work about two weeks.

In February 1976 O. suffered a miscarriage and again lost about two weeks of work. Whenshe returned she was assigned for a time to light duty which consisted of picking smallparts.

On April 1, 1976, O. fell off a ladder at work. She was taken by ambulance to a hospitalwhere she was treated. The hospital referred her to Dr. W. an orthopedic surgeon, whoexamined her on April 5.

O. told Dr. W. that she had landed on the concrete floor after the fall and had re-injured herneck and lower back. She said that since her December injury she had had pain andtenderness in the upper spine and neck and had suffered memory lapses.

In a report of the examination to the Royal Globe Insurance Company dated April 6, Dr. W.noted a history of lumbo-sacral sprain with some evidence of acute cervical sprain and aconcussion. He recommended that she be seen by a neurologist. He also recommendedout-patient physical therapy and a recheck in a week.

O. was examined by a neurologist, Dr. B., on April 6. He diagnosed a "post-traumaticsyndrome" and had a brain scan done.

O. picked up a sickness and accident claim form (S & A) at the plant on April 8.

On April 12, O. was seen again by Dr. W. who, in an April 19 communication to theinsurance carrier, stated that she was still complaining about her neck and back and hadbeen advised to continue her exercise program and to return in a week.

Dr. W. examined O. again on April 19. His report to the insurance carrier (dated April 22)stated that she had reported "aches all over" but basically she "looks good". Hisconclusion:



I feel that she probably ought to go ahead and try going back towork which she feels that she probably can do as long as shedoesn’t do any heavy exercise routine. She is released to go aheadback to work, continue on her exercise program and return here in aweek for recheck.

On the S & A form which Dr. W. signed (but which O. did not submit to the Company) hespecified that O. had been totally disabled for the period April 1 through April 19, but hadrecovered sufficiently to return to work on the 19th.

Personnel Administrator R. learned of Dr. W.’s action on April 19 during a conversationwith a representative of the insurance carrier.

O. testified that she did not tell Dr. W. that she felt she could work if the work did notrequire "heavy exercise". Because of her disagreement with Dr. W.’s finding andrecommendation that she return to work, she cancelled her appointment for the followingweek and did not return to his office.

After waiting in vain for a copy of Dr. W.’s letter, Labor Relations Representative R. sent aParagraph (64)(d) letter to O. on April 23, notifying her to report for work on April 26 or riskthe loss of her seniority.

On April 26 the insurance carrier received Dr. W.’s letter and O. received the Company’scommunication. She did not call in or report to work, however. She testified that, while shewas concerned about the letter, her health concerned her more.

On April 27 the insurance carrier wrote to O.’s attorney to report that she had cancelled herappointment with Dr. W. the previous day and had indicated that she planned to seeanother physician. The claim representative asked for the name of the new doctor and hismedical reports, "... since Dr. W. had returned her to work on 4-19-76, we feel we will haveto terminate the compensation unless we have other medical to substantiate continuance."

The three Paragraph (64)(d) days, April 26, 27 and 28, elapsed, but O. did not report forwork.

On April 29, Personnel Administrator H. testified, O. phoned and asked for Labor RelationsRepresentative R. who was not available. She told H., he recalled, that she would not be inbecause she was not feeling well and she did not understand why her doctor had releasedher. She said that she was going to Florida to stay with her mother, planned to see adoctor there, and did not know when she might return. H. told her that if she had beeninstructed to report for work she should do so; she replied that she wanted to talk to R.

R. phoned O. on the morning of April 30. He recalls that she told him that she had beenreleased by Dr. W. but did not know why, that she was going to Florida to stay with hermother and was not sure she would return to the Dallas area, and that she planned to seeanother doctor. He read her the text of Paragraph (64)(d) and asked if she understood it.She replied that she did understand, but that she would let GM fire her. He explained thatshe would be considered to have voluntarily quit.



O. testified that she told R. that she was still unable to work and intended to see a differentdoctor, that she was going to Florida because she was in pain and could not afford to stayin her apartment. She did not recall saying that she no longer wanted to work for theCompany.

The Company released O. under the provisions of Paragraph (64)(d) on April 30 andnotified the Union.

O. later talked with a Union representative who advised her to seek medical treatment andsubmit a grievance. She did not file a grievance at that time, however, because, shetestified, she was absorbed in her health problem; nor did she see another doctor at once.She felt that she was unable physically, at the time, to perform any stock handler work inthe plant, although she was unaware whether there were any sitting jobs available.

On or about May 10, O. moved in with her mother in Florida. She testified that she wantedto get well before returning to Dallas. Soon after arriving in Florida she made anappointment with Dr. E., an orthopedic surgeon.

In the meantime, O.’s workmen’s compensation benefits had been stopped. In a letter toher attorney dated May 20, the insurance carrier authorized O. to see a physician inFlorida and stated that, upon receipt of a narrative report with a medical diagnosis andprognosis the carrier would decide whether to approve further treatment.

Dr. E.’s report to the insurance carrier, following an examination of O. on May 26, specifiedApril 1, 1976 as the date disability began, and "unknown" as the date patient would be ableto return to work. The X-ray examinations were all negative, he reported, but the patientcomplained of pain in the posterior aspect of her neck when bending forward at the hips,mild pain to percussion over the cervical vertebrae, and pain during extremes of motion inforward flexion and extension and in right and left lateral bending and rotation. Examinationalso showed that low back range of motion caused pain in the upper back. The doctorconcluded that O. had a cervical-lumbar sprain "by history" and a "definite overlyingfunctional problem". He prescribed medication and suggested that she apply heat to theneck. Although "a short course of hospitalization and traction may be of benefit", heconcluded, O. may "just need some more time to improve".

Following receipt of Dr. E.’s report, the insurance carrier authorized the physician to treatO. as indicated in his report. It also reinstated her workmen’s compensation benefits,making them retroactive to April, so that payments were authorized, in effect, for the entireperiod, April 2 through May 13. Additional workmen’s compensation benefits weresubsequently authorized for the period between June 3 and July 6.

On July 7, O. obtained work as a cashier with Greyhound Rent-A-Car in Miami. She left onJuly 27, she testified, because she was to be transferred to a position which would requireher to be on her feet most of the time.

On August 6, Dr. E. reported that, while O. still had some symptoms, she was definitelyimproving with physical therapy. On September 10 he noted that she had reportedcontinuing pain in her neck without the physical therapy treatment, which had been halted.He could find no organic pathology, however, and he indicated that there would be no



further treatment since she was returning to Dallas.

On September 27, Dr. E. released O. for light duty, starting October 4, with "no heavylifting, no climbing, twisting, or prolonged walking, no pushing objects or bending."

When O. returned to Dallas on October 4 she was denied employment on the ground thather seniority had been terminated pursuant to Paragraph (64)(d). She submitted agrievance the same day.

Was O. disabled from working on April 26, 27 and 28, 1976? If so, she had a satisfactoryreason for not reporting under the terms of Paragraph (64)(d).

The medical evidence is in conflict. On April 19 Dr. W. released O. to return to work, whileon May 26 Dr. E. found that she had been disabled since April 1 and that it was not knownwhen she would be able to return to work. Both physicians are presumably reputableorthopedic surgeons.

While the Umpire is not bound by the insurance carrier’s determinations, it is of somesignificance in this dispute that the carrier, when faced with the very same conflictingmedical opinions, ultimately accepted that of Dr. E. The Umpire is not privy to any superiormedical knowledge that would justify an opposite conclusion.

It is clear that O. did receive an in-plant injury on April 1 and that thereafter she reportedpain and discomfort and was diagnosed on April 5 as having suffered a lumbo-sacral andacute cervical sprain. A similar finding was made on May 26. Both doctors found the samecondition; both traced it to the April 1 injury and reported similar symptoms and findings.There is no indication of any intervening event which would have influenced the secondevaluation.

It may also be noted that Dr. W. stated, in his April 19 report, that O. continued to sufferpain. His release, perhaps as a consequence, was worded in a guarded manner: "I feelthat she probably ought to go ahead and try going back to work..." And he prescribed acontinuation of her exercise program and a recheck in a week. It is not clear, furthermore,whether Dr. W. was releasing O. for full or limited duty. He stated, "... she feels that sheprobably can do (work) as long as she doesn’t do any heavy exercise routine."

In any event, a reasonable interpretation of the medical findings, conflicting as they are, isthat O. was indeed disabled from work on the three days in question. Accordingly, andnotwithstanding her failure to keep in touch with the Company for some five months, hertermination under Paragraph (64)(d) will not be sustained.

While the grievance is upheld, what might constitute an appropriate remedy is not readilyapparent. Thus, O.’s last medical release, insofar as the record reveals, confined her tolight duty—no heavy lifting, climbing, twisting, prolonged walking, pushing objects orbending. But evidence before the Umpire does not show whether such a light duty job wasavailable on October 4, 1976. Nor does the record show whether, and when, O. becamephysically able to perform regular duty after that date. Additionally, the Company’s brief tothe Umpire indicates that the Union has waived monetary liability for the period, April 14,1977 to February 17, 1978.



In these circumstances the matters of reinstatement and back pay will be remanded to theparties.

DECISION

The termination of O. under Paragraph (64)(d) was improper and shall be rescinded. Thematters of reinstatement and back pay are remanded to the parties.

May 25, 1978

/S/Arthur Stark

Umpire





No. Q-3

June 8, 1978

TERMINATION UNDER PARAGRAPH (64)(d);

EVIDENCE

GRIEVANCE:

GM ASSEMBLY DIVISION, GENERAL MOTORS CORPORATION, ARLINGTON PLANT,

ARLINGTON, TEXAS—APPEAL CASE Q-63

Grievance No. 249572

"I chg. mgt. with viol. of par. 64D N.A. Request I be reinstated at once & receive all monies& benefits lost." S/C.R.K. (Grievant)


The grievance is sustained. K. shall be reinstated and made whole for wages and benefitslost since the date of the grievance. (Entire decision should be read.)

In the Matter of:


and

General Motors Corporation, GM Assembly Division, Arlington, Texas -- Appeal Case Q-63

Page 1 of 5UMPIRE DECISION Q-3

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OPINION

The issue here is whether Assembler K. was properly terminated pursuant to Paragraph(64)(d) after he failed to report for work on October 21, 22 and 23, 1976. Paragraph (64)declares that seniority shall be broken:

(d) If the employee fails to return to work within three working daysafter being notified to report for work, and does not give asatisfactory reason....

The Union contends that K. was ill on the days in question.

K. was hired on July 7, 1973, at the age of 18. He began to drink excessively in early 1975.

On June 21, 1976, K. entered the Schick Memorial Hospital in Fort Worth, whichspecializes in the treatment of alcohol and other drug addiction and emotionaldisturbances. He was detoxified but, against medical advice, left the hospital on June 25after receiving only part of the behaviorally oriented treatment.

K. resumed drinking, but returned to the hospital for a continuation of the treatment onJune 28. He was released on July 9. Dr. D.’s "final diagnosis": "1. Alcohol addiction nowcontrolled with abstinence. 2. Sociopathic immature acting out personality disorder. 3.Intermittent hypertension, essential. 4. Alcoholic gastritis. 5. Hepatomegaly and hepaticdysfunction secondary to alcoholism."

K. was given a kit consisting of Antabuse and Tranxene and told to consider usingAntabuse on a regular basis and to use Valium as needed. He was also instructed toreturn in one month for "routine reinforcement for alcohol abstinence," and to see Mr. S., apsychologist at the hospital, on a weekly basis.

Dr. D.’s prognosis was "very guarded" because, although the patient had improved, hewas unable to accept total abstinence as a way of life.

K. received sickness and accident benefits during his June-July hospitalization. Hereturned to work on or about July 12, 1976, and started to drink regularly about two weekslater.

Apparently some of K.’s drinking occurred in the plant, although he was not disciplined.The record does not contain any information concerning his attendance during the ensuingthree months.

On October 6, 1976, K. received permission to leave work early for "personal reasons". Hedid not return on October 7 or 8. On the following Monday, October 11, he phoned theplant employment office and reported that he would not be in because his wife had left him.He phoned again on Wednesday, October 13, to say that he would be absent because ofpersonal reasons.



On Tuesday, October 19, the Company sent a letter to K.’s address of record notifying himto report for work or furnish Management with satisfactory evidence that he was unable towork. The letter specified that his failure to comply with this instruction would result in hisrelease as a "contractual quit". The letter was returned to the plant, marked "unclaimed,"with a postmark date of October 20.

On Friday, October 22, the second of the three Paragraph (64)(d) days, K. phoned theplant to report that he was absent because of sickness and family problems, but wouldreturn on October 23.

When K. did not report on the third day, Saturday, October 23, Management consideredhis seniority to have been broken in accordance with Paragraph (64)(d) and, on October28, it sent him a notice to that effect to his address of record. This letter, too was returnedby the post office as "unclaimed."

In early 1977 K. attempted to return to work. He explained that he had been suffering fromalcoholism on the three days in question. The Union submitted statements in support of hisclaim on February 7, but Management was not persuaded to return him to work. He filedthe instant Grievance on March 28, 1977.

The grievant testified substantially as follows with respect to the events of October 1976:He left the plant early on October 6 so that he could talk things over with his wife withwhom he had been having "separation" problems. They argued that night; on the followingday she left him. He had been drinking "moderately" until then but, with her departure, hebegan to drink heavily. Soon thereafter, he is not sure on which day, he left his home andwent to a motel where he stayed and drank. He did not tell anyone where he was and leftno forwarding address.

K. remembers his first phone call to the plant, but does not remember the day or date. Hedoes not remember making the subsequent calls on October 13 and 22. He probably madethem though, he stated, because he felt that he should: "I was under enough control toknow I was making a mistake, but not under enough control to do anything about it."During this period he consumed a quart of whisky and at least a six-pack of beer each day.He continued this heavy drinking until October 26, when he made the decision to return tothe Schick Hospital.

Since his release from the hospital in November 1976, the grievant testified, he has had nodrinks.

The Corporation contends that, if K. was in sufficient control of his faculties to makeseveral telephone calls to the plant, he could have come to work. The calls demonstratethat he was not under the influence of alcohol during the entire period in question. In anyevent, the Corporation emphasizes, being under the influence of alcohol does notconstitute a satisfactory reason for absence, and it cites prior decisions in whichdischarges have been sustained (1) for continued absence due to a "preference foralcohol" (Umpire Decision G-44), and (2) for "habitual absence without reasonablecause" (Umpire Decision C-389). It also cites a decision upholding the assessment of aone-week DLO where the evidence showed that "drunkeness" was the basic reason for theabsence (Umpire Decision C-305).



Management notes further that, although K. had been on a sick leave of absence foralcoholism between June 22 and July 12, 1976, he made no effort to seek another leaveduring October, although he knew it was available if he was in fact in need of help at thattime. It was not until October 26, after his termination, that K. sought attention at SchickHospital.

Management is concerned that if this grievance is sustained, Paragraph (64)(d) couldnever be made applicable to an employee who fails to report and who subsequently claimsto be an alcoholic. The concern is understandable. But the parties have recognized that"alcoholism" is a disease. That is why a sick leave of absence is available to an employeewho voluntarily obtains medical treatment.

The causes of alcoholism are not well understood, as the parties are aware, and cures arefrequently difficult. But the question of whether an individual is an alcoholic is not resolvedby a mere claim. It is possible to distinguish between an employee who is indeed sufferingfrom the disease of alcoholism over which he has little control, and the employee whoseover-indulgences reflect a lack of responsibility. And among those afflicted with the diseaseof alcoholism one can distinguish between an employee who acknowledges his conditionand affirmatively seeks a cure, and one who denies his illness and cannot face up totreatment.

Disciplinary action can certainly be justified in cases of improper behavior or excessiveabsences resulting from alcoholic addiction or alcoholic overindulgence, as noted in themany Umpire decisions sustaining such discipline. Disciplinary action may in fact serve toinduce an employee to seek a cure. But obviously each dispute, whether it concerns adisciplinary action or a Paragraph (64)(d) termination, must be decided on its own facts.

In the instant case the evidence clearly establishes that K. was a chronic and uncuredalcoholic at the time in question who, because of deep-seated problems, could not controlhis drinking. The records of Schick Hospital show that he had three acute episodes in1976. The record covering the June 28-July 9 admission refers to his "underlying anxietytension relieved by excessive drinking and excessive use of Valium." It also reports"intermittent hypertension most probably related to high anxiety levels, and to pepticsymptoms."

It is significant, however, that K. recognized that he was ill and sought treatment. When heentered the hospital in October he required a day of detoxification. He was also given four"aversion" and three "pentothal" sessions. Such treatments would not have beenprescribed for mild or intermittent drinking.

The medical director of Schick Hospital confirmed that "... oftentimes until one becomesabstinent from alcohol, he is not responsible for his own behavior. These circumstanceswere responsible for Mr. (K.’s) being absent from his job at General Motors during theperiod from October 7, 1976 through October 25, 1976 when he entered this facility fortreatment of his addiction."

Additionally, Mr. S., a clinical psychologist affiliated with the hospital, who had served asthe grievant’s counselor, testified that, in his professional judgment and on the basis of hisfamiliarity with K., the grievant was unable to control his drinking during the week in



question. There were undoubtedly moments of lucidity, S. testified, during which K. mademomentary efforts to assuage his feelings by attempting to act responsibly—bytelephoning the plant, for example. But because of his severe problems, K. was unable tocarry through or to control his drinking; in short, he was effectively incapacitated.

This testimony and the medical records from the hospital, in the Umpire’s judgment,confirm the grievant’s report with respect to his condition on the three days in question.

In sum, and without in any way implying that drunkenness is "an accepted standard" ofconduct or one to be condoned, it is the Umpire’s decision here that K. was suffering froman illness known as acute alcoholism during the period covered by the Paragraph (64)(d)notice, and that this Paragraph was therefore inappropriately applied.

DECISION

The grievance is sustained. K. shall be reinstated and made whole for wages and benefitslost since the date of the grievance.

June 8, 1978

/S/Arthur Stark

Umpire





No. Q-13

January 11, 1979

DISCHARGE FOR EXCESSIVE ABSENTEEISM;

EFFECT OF GRIEVANCE SETTLEMENT;

EXTENT OF PENALTY

GRIEVANCE:

DETROIT DIESEL ALLISON DIVISION, GENERAL MOTORS CORPORATION,INDIANAPOLIS PLANT, INDIANAPOLIS, INDIANA—APPEAL CASE Q-17


"I charge Management with giving me an unfair discharge on 1-31-77. I demand this becorrected at once and I be paid all time lost with full seniority and benefits for all time lostand my record cleared of the incident." S/R.O.B. (Grievant) S/G.M. (Committeeman)


Grievance No. 179036 is denied. (Entire decision should be read.)

In the Matter of:


and

General Motors Corporation, Detroit Diesel Allison Division, Indianapolis, Indiana -- AppealCase Q-17


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OPINION

Grievant B., seniority date, February 24, 1974, was discharged on January 31, 1977, forviolating Shop Rule #6: "Absence without reasonable cause". B. was classified as aGrinder Operator-Production at the time.

On June 26, 1975, B. was granted a sick leave of absence based upon a statement fromhis personal physician. The sick leave expired on January 30, 1976. B.’s failure to returncaused him to be released effective February 4, 1976, as a voluntary quit under Paragraph(111)(b) of the National Agreement. The notice of termination was forwarded to B. on April9, 1976, by registered mail, but returned on April 19, 1976, unclaimed.

On December 22, 1976, without any intervening communication from or concerning B., heappeared at the plant inquiring about his employment status. Personnel Representative D.informed and explained to B. that he had been released as a voluntary quit underParagraph (111)(b) of the National Agreement. B. informed D. that he was in anautomobile accident on August 5, 1975, and remained in the Veterans Hospital untilNovember 24, 1975. B. stated that he was sentenced to a term in the Indiana State Prisoncommencing on November 25, 1975 and ending on November 24, 1976. Proof of the oneyear sentence was submitted by B.; however he refused to divulge the reason for thesentencing. B. had not requested a leave of absence from the job for reasons of hisincarceration.

On December 23, 1976, Grievance No. 176767, Appeal Case Q-16, was filed protestingB.’s release as a voluntary quit under Paragraph (111)(b).

On January 24, 1977, Management decided to reinstate B. as though he had never beenterminated under Paragraph (111)(b) of the National Agreement. B. reported on January26, 1977, and was reinstated for work beginning Monday, January 31, 1977.

B. arrived at work as instructed on January 31, 1977. Shortly after his arrival he was givena disciplinary interview by General Foreman T. B. remained silent regarding the reason forhis sentence. On the same day he was discharged for violation of Shop Rule #6, Absencewithout reasonable cause, and given a Paragraph (76) Notice of Disciplinary Action whichstated:

You are being discharged for excessive absenteeism. You wereunavailable for regular employment for matters solely within yourcontrol from November 25, 1975 thru and including November 24,1976. Such action warrants discharge.

The instant grievance (Appeal Case Q-17) protesting the discharge was immediately filed.

B.’s reinstatement did not end Appeal Case Q-16 as the question of financial liabilityremained "unsettled" until September 9, 1977. The terms of that settlement read asfollows:



Disposition

This case is settled without precedent. Pay 40 hrs for each weekbeginning 12-27-77, 1-3-77, 1-10-77, 1-17-77, 1-24-77, for total of200 straight time hours minus one month (January, 1977) Uniondues.

On the same day a Third Step Meeting on the present grievance was conducted, but noagreement could be reached and the case was then appealed to the Umpire.

The Union contends that B.’s discharge for violation of Shop Rule #6 is a breach of theterms of settlement in Appeal Case Q-16, which concerned B.’s release under Paragraph(111)(b), i.e., the reinstatement of B. is alleged to have settled all matters. It argues that ifthe parties intended a temporary reinstatement, it would have been provided for in thesettlement. In the context of Paragraph (111)(b) of the National Agreement, thereinstatement here is viewed as the practical equivalent of a settlement, according to theUnion.

Additionally, there is a contention that the Corporation can not consider B. absent during atime he was not scheduled for work. The specific periods of reference are: the period ofdisability which extended from June 26, 1975, to January 30, 1976, and the period of B.’srelease as a voluntary quit under Paragraph (111)(b) of the National Agreement, namely,February 4, 1976, to his reinstatement on January 31, 1977.

Finally the Union argues B.’s prior disciplinary record as a basis for a lesser penalty for theviolation of Shop Rule #6, which, in its view is a minor shop rule requiring progressivediscipline.

The Corporation contends that B.’s release as a voluntary quit under Paragraph (111)(b) ofthe National Agreement was proper based upon information available to it at the time.However, it rescinded the release and assessed the discharge after investigating theinformation B. shared about his whereabouts when he appeared on December 22, 1976.

The Corporation further contends that B. caused himself to be absent without reasonablecause for an extensive period of time, when he engaged in illegal conduct the convictionfor which resulted in his incarceration and accordingly, his unavailability for work. Itconsiders the length of absence alone as cause for discharge. The concealment of hiswhereabouts and the circumstances of his absence until almost a month after his releasefrom the Indiana State Prison on November 24, 1976, is viewed as a breach of hisemployee responsibilities.

It is significant that neither the settlement of Appeal Case Q-16 nor the prior record in thismatter contains any statement that the settlement was intended to resolve the presentdischarge grievance. The Union, both in its Statement of Unadjusted Grievance and in itsargument at the third step, focused more on the extent of penalty than on the propriety ofdiscipline.

Moreover, the Union does not suggest that B.’s reinstatement on January 31, 1977, wasthe result of negotiations between the parties. Rather, it asserts that reinstatement, per se,



is tantamount to settlement. While that may sometimes be the case, it was not so here.The prior record leaves little doubt that Management’s reinstatement of B. was routine andunilateral; it was based on Paragraph (111)(b)’s "satisfactory reason" exception to thethree-day reporting rule.

I must, therefore, reject the Union’s contention that B.’s reinstatement was designed tosettle or did in fact settle all matters concerning his absence between November 25, 1975and November 24, 1976.

The Paragraph (76) Notice gives the reason for B.’s discharge as "excessive absenteeism"from November 25, 1975, through November 24, 1976. There is no dispute that B. wasincarcerated during this period; nor is there any dispute that the Corporation may disciplineand discharge an employee for "excessive absenteeism". There is a question, however, asto whether B.’s absence from work was due to matters within his control during this period.

The Union points out that B. was on approved disability leave through January 30, 1976,and was terminated, effective February 4, 1976, as a voluntary quit. Since thereafter B.was not scheduled for employment and had no obligation to be present, the Union argues,he cannot be considered to have been absent for the period charged by the Corporation.

This argument is not persuasive in the circumstances of this case. While the Union focuseson scheduling, the act of scheduling assumes employee availability to work. B. was clearlyunavailable.

The Union contends further that the Corporation has the burden of proving that B. wasabsent from November 25, 1975 through November 24, 1976 for reasons within hiscontrol. But to ask now that the Corporation prove that the basis for the incarceration waswithin B.’s control is tantamount to asking that it produce the information B. elected towithhold when questioned about it. If indeed the question of control is relevant, then it wasincumbent upon B. to come forward and explain what happened.

Was the discharge penalty too severe? During his first thirteen months of employment B.was disciplined twice for violation of Shop Rule #6: he was reprimanded in September1974, and given a Balance of Shift DLO in March 1975. As already noted, he was absentwithout leave and without explanation from January 30 to December 22, 1976, asubstantial period of time. He has provided no reason for his failure to notify Managementof his confinement or to report for work promptly upon his release. Accordingly, under allthe circumstances the Corporation was justified in terminating B.’s employment.

DECISION


January 11, 1979

/S/John Paul Simpkins



Associate Umpire

/S/Arthur Stark

Umpire





DECISION R-11

APRIL 17, 1984

Discharge;

Falsification of S&A Form;

Extent of Penalty;

Evidence

GRIEVANCE:


"I protest discharge dated 11-18-81 as unfair and unjust and much to severe. I demandmanage. remove this discharge and I be brought back to work immediately and I becompensated all lost monies and economics benefits immediately."

/s/ C.R. (Grievant)

/s/ B.J. Committeeman

In the Matter of:

UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERSOF AMERICA -- Local Union No. 686

and

Appeal Case R-60

GENERAL MOTORS CORPORATION, HARRISON RADIATOR DIVISION, Lockport, NewYork

Page 1 of 8UMPIRE DECISION R-11

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OPINION

Grievant R., seniority date January 4, 1971, was discharged for violation of Plant Rule 23,"Falsification of personnel or other records." At the time, R. was classified as Assembler-Light and employed on the second shift in Department 862 (2:30 p.m.-11:00 p.m.).Previous to her discharge on November 18, 1981, R. was disciplined on October 29, 1981for directing abusive language to her supervisor in violation of the Plant Rule prohibitingsuch conduct. At that time she was suspended for the balance of the shift and threeworking days - until November 4, 1981. The reason for Grievant’s discharge surrounds thisNovember 4, 1981 date as it appeared on a Statement of Claim For Sickness and AccidentBenefits (S&A) form prepared by R. and her physician, Dr. C. and presented to theManagement of Harrison Radiator.

By way of background, on November 16, 1981, Labor Relations Representative T. wasshown a S&A form submitted by R. The form was shown to him by Benefit Supervisor, G.because it appeared to be altered in two critical places. The date that was written in ItemNo. 7 on the front side of the form (the employee’s side) gave the appearance of beingchanged from November 3, 1981 to November 4, 1981. The same irregularity wasapparent on the reverse side of the form in Item No. 7(d), which is a part of the physician’sstatement prepared by Dr. C.

According to the testimony of T., Management felt that the S&A form should beinvestigated. He and G. visited Dr. C. the next day and showed him the S&A form. Dr. C.checked his records and advised T. and G. that the return to work date was November 3,1981 and that the alteration of the form was not in his handwriting. Upon request, he wrotea statement on the bottom of the form confirming what he said. He also did not believeanyone on his staff made the alteration because they were instructed not to make changesto S&A forms.

T. returned to the office before R.’s shift ended in order to interview her concerning theS&A form. He showed the form to R. who recognized it as the S&A form she submitted.She denied making the changes that appeared in the section prepared by her. While sheacknowledged that there was also a change made in the return to work date that is a partof the physician’s statement, she denied making the change and suggested to T. that itmight have been made by Dr. C. T. then shared with R. the comments of Dr. C. andshowed her the note he wrote on the bottom of the S&A form, under his signature. R.’sresponse was that the change may have been made by the doctor’s secretary but she didnot see the change being made.

According to T., R. explained that she delivered the form to Dr. C. on Saturday, November7, 1981. When she arrived she put it on his secretary’s desk for completion by Dr. C. andstated that she would return later to pick it up. About 1:00 p.m. she returned. Dr. C.’ssecretary, N., arranged for her to see the doctor. R. had completed her portion of the S&Aform and Dr. C. completed his section. While with the doctor she mentioned that herdaughter was outside and asked if he would examine her finger. Leaving the form on thesecretary’s desk, R. went to get her daughter who was waiting in the car. After Dr. C.examined her daughter’s finger she left, picking up the S&A form on the way out. N. was



not at her desk at the time but the form was in plain view so she picked it up and left. WhenT. asked R. how the S&A form was turned in R. stated that she personally delivered it.

T. concluded the interview and informed R. that the matter would remain open pendingfurther investigation. He attempted to contact Dr. C.’s secretary but learned that sherelocated to Vancouver, British Columbia. Dr. C. reiterated that no one in his office waspermitted to make changes to S&A forms and that all changes to such forms are initialedby him.

Another interview was arranged with R. for November 18, 1981. At that time, T. informedR. that N. no longer worked with Dr. C. and he reaffirmed that no one in his office wouldhave made the changes. R. denied making the alterations again and stated that N. hadample opportunity to alter the form. She also stated that he (T.) could not rely on thedoctor’s statement that N. did not make any changes to the S&A form. R. was dischargedafter the interview.

Later, T. was able to speak to N. by telephone. She vaguely recalled the day R. came tothe office with the S&A form. N. mentioned that the doctor’s secretaries do not makechanges to S&A forms and that she did not make any alteration to R.’s form. The sameday T. verbally informed Shop Committeeman G. about the telephone conversation he hadwith N.

Testifying further, T. stated that he had been to Dr. C.’s office to verify information aboutemployees on several previous occasions. Some of those occasions concerned changesmade to medical excuses that were in the doctor’s handwriting. On previous occasions thechanges were not initialed but he was able to satisfy the inquiries made by Management.

T. acknowledged that he did not examine Dr. C.’s records and that Dr. C. and his secretaryhad possession of the form and an opportunity to make changes to it. He alsoacknowledged that people in the plant benefits office had possession of it and anopportunity to change it as well.

At the time R. was an employee with ten (10) years and ten (10) months service. She wasemployed on the second shift. In her testimony, R. stated that she first visited Dr. C. forillness on October 29, 1981. She became ill from fumes inhaled while at work. She nextvisited Dr. C. on November 3, 1981 arriving at about 4:45 p.m. and leaving at about 6:30p.m. She was instructed to report back to work on the next scheduled workday, November4, 1981.

R.’s next visit to Dr. C. was on November 7, 1981. This was when she took the S&A formfor him to fill out the Doctor’s Statement. R. further stated that she did not make anychanges to the form and when she got it back, she mailed it to the Company.

On cross examination R. stated that she completed her portion of the form in the doctor’soffice before she gave it to him for completion of his section. She acknowledged that therewas an alteration to Item No. 7 in her section of the form but had no present recollection ofwhat she originally stated. Whereas she admits to answering Item No. 12 she deniesaltering the form.



R. explained in more detail what occurred on November 7, 1981, relative to the handling ofthe S&A form. She stated that she arrived at the doctor’s office at about 11:45 a.m. andrequested to see Dr. C. She was told that she could but that she would have to wait. Whileshe waited she filled out her portion of the S&A form. When she finished, she left the formwith the secretary and went home to check on her daughter, who was 11 years old at thetime. She did not take the form with her because she had to return to be examined. Dr. C.would not complete his section of the S&A form in her absence.

At 12:45 p.m. R. returned to Dr. C.’s office and waited until she could see him. When shedid, Dr. C. filled out the form sitting at his desk while she was on the examining table in thenext room. When he finished, she went out to get her daughter who was waiting in the car.The S&A form was placed on the secretary’s desk on the way out. She did not pick it upupon returning with her daughter. After her daughter’s hand was examined she left thedoctor’s office, picking up the form at the receptionist’s desk on the way out. The S&A formwas placed on her dining room table when she arrived home. It remained there until it wasmailed to the Company on Sunday evening.

R. further acknowledged that she signed the S&A form and that certain responsesappeared to be in her handwriting. She had no recollection of answering any of thequestions on the form. With respect to at least two (2) responses indicated on the form shewas not sure it was in her handwriting.

Lastly, when asked why she did not confront Dr. C. about his comments to Managementand the statement he wrote on the S&A form, R.’s reply was that there was no need to doso. She further stated that by giving Management the statement he must have realized theeffect it could have on her. She did not believe she was in any position to question Dr. C.since he had decided to go along with the Company. No attempt was made on her part topoint out to him that he made a mistake despite her anger at what he had stated.

The Corporation contends that R. had an opportunity and motive to alter the S&A form,which was to receive S&A benefits for November 3, 1981. It maintains that no one else hada reason to make any changes to the form and that no wages would be paid for November3, 1981 if the return to work date was not changed to November 4, 1981. Thus, thegrievant stood to gain an additional day’s pay that would result in no loss of pay during theperiod of her suspension.

The Union contends that the evidence offered by the Corporation will not support R.’sdischarge. It points to the doctor’s statement that the S&A form "appears" to have beenchanged and argues that there is no unequivocal statement by Dr. C. that he did not makethe change to the form. The Union also argues that there has been alterations to previousmedical certificates from Dr. C. and that this was well known to the Union andManagement. The opportunity was available for Management to get a copy of the doctor’srecords that would show what was on the form when he signed it, but no effort was madeto do so. Since the best evidence was the doctor’s records, Management’s failure torequest them will not justify the introduction of hearsay evidence to support R.’s discharge.Additionally, in the Union’s view, it has the right to cross examine the doctor and hissecretary about their involvement with R. and the S&A form.

Initially it should be observed that the instant grievance was withdrawn by the International



Union without prejudice at the Third Step on January 29, 1982. Grievant, R., challengedthat decision within the Union and it was determined that the grievance would be reinstatedin the grievance procedure. By agreement of the parties the grievance was reinstated atThird Step on July 19, 1983, pursuant to the terms of Document No. 52, "Reinstatement ofGrievances." On July 25, 1983, the grievance was appealed to the Umpire.

The testimony at the Umpire hearing closely tracked the account of the events contained inthe parties’ respective Statements of Unadjusted Grievance and shows no significantvariation. The evidence as a whole demonstrates that Management investigated theobviously altered S&A form with an open mind. It first consulted with Dr. C. about hispreparation of the form and when assured that it was materially altered the matter wastaken up with R. in the presence of the Union at a Paragraph (76a) interview.

During the interview R. acknowledged the S&A form as the one she signed, dated andgave to Dr. C. for completion on November 7, 1981. Her denial then was the same as itwas at the Umpire hearing regarding the alteration of the form. She suggested that thedoctor or his secretary might have changed the form. But when confronted with thedoctor’s comments and written statement she focused on his secretary, N., as the personwho altered the form. At the Umpire hearing R. places the S&A form in N.’s possessionbefore and after Dr. C. completed it, but she did not state that N. altered it. She testifiedthat she did not look at the form after picking it up from the receptionist’s desk and shemailed it without ever reading it. Her testimony on this point was to the effect that theCorporation needed the form, not her. While she denies changing the form she offered notestimony as to who might have altered it and for what purpose it might have been altered.

The corrections on the front and back side of the S&A form cannot escape notice with eventhe most casual glance at the form. Other eye catching characteristics are the differentcolors of ink used in its preparation; blue and black. The dates scratched out and insertedon the side prepared by the employee is in blue ink the same as the response to Item No.12 on that side. R. admits that she wrote the response to Item No. 12. This fact aloneestablishes that R. used black and blue ink in the preparation of the S&A form.

The alteration made to the date on the employee’s side of the S&A form was also made toa date on the doctor’s side. The date, written to indicate when the employee could resumeusual work activities, was obviously altered to reflect November 4, 1981. Unlike thealterations of the same date on the front side of the form this alteration was not made inblue ink. With the exception of something written in blue ink that was crossed out in blackpencil concerning the diagnosis, all other writing on the page is in black ink andcharacteristically different.

Closer examination of the employee’s side of the form reveals that the number "4" iswritten eleven (11) different times. It first appears at the top of the page over the printedbox containing the CISCO Code Number. In Item No. 1 it is one of the digits that make upR.’s clock No. (12493) and it is two (2) of the first three numbers of R.’s telephone number(434-...). In Item Nos. 2 and 8 it is written twice as a part of the zip code for Lockport, NewYork (14094). R.’s date of birth is written as 11/20/47 in Item No. 3. Finally, it appears twicein Item No. 7 as a part of the date (Nov. 4, 1981) which is written twice in blue ink - the lasttime more legible than the first. Curiously, there is a resemblance in how the number "4" iswritten. Especially striking is the identical formation of the number written in blue ink in Item



No. 7 as compared with Item Nos. 1, 3 and the top of the page. Although R. denies makingany alterations to this page there is no doubt that she did when these figures are closelyexamined in relation to what she admits to writing.

Another equally significant clue to R.’s blameworthiness is the abbreviation for November.At the bottom of the page it is written as "Nov" in black ink. R. acknowledges this to be herwriting. It is written the same way in blue ink in Item No. 7. The blue writing the last time itis written is identical in every detail to the way it is written in black ink at the bottom of thepage.

The alteration of Item No. 7 is significant in relation to the corresponding change in ItemNo. 7 (d) on the reverse side of the form. The date in Item No. 7 is the employee’s opinionas to when he/she is able to return to work. It is not considered to be the operative date forthe payment of disability benefits. Rather, payment of S&A benefits are made for theperiod of disability certified by an attending physician based on treatment given during theperiod. The operative date, therefore, is provided by the employee’s doctor in Item No. 7(d). In the instant case there is absolutely no disagreement between the parties and thegrievant that the return to work date marked in Item No. 7(d) has been altered and made toindicate November 4, 1981.

R. and Dr. C. maintain that they did not alter or change the date originally written in ItemNo. 7(d). Dr. C. had absolutely nothing to gain by admitting to making the change. Hecould have simply dismissed it as an error which he immediately corrected. If this was thetrue manner and reason for the alteration then Item No. 7 on the front side would not havebeen materially altered insofar as the payments of S&A benefits are concerned. By Dr. C.not admitting to the alteration it may reasonably be viewed as fraudulent. The alterationsthen become irrefutably material to the payment of S&A benefits. Thus, whether Dr. C.admitted to the alteration or not his office records would have to corroborate the admissionor denial that November 3, or 4, 1981, was the date he released R. to return to work.

It stands to reason, therefore, that Dr. C.’s records would confirm his representations toManagement that November 3, 1981 was the date he entered on the S&A form. His verbaland written representation of this was shared with R. and the Union almost immediately, intime for R., as the patient, to authorize Dr. C. to provide and make available to the Union,information concerning her disability that would include and not be limited to the necessaryand appropriate medical records. For sure, she had an equal if not a greater right to theinformation than Management. Her failure to challenge the accuracy of her doctor’srepresentations anytime during the course of the grievance procedure when hiswhereabouts were known cannot be cavalierly dismissed by stating that there was no needto do so because he had already made his representations and sided with Management. Ifthe doctor’s representation was false and R. truly believed that he was aware of the effecthis statement would have on her employment, there was every reason to grieve herdischarge focusing her challenge on the sole individual responsible for her predicament.

Accordingly, it is apparent that R. had as much of a reason to challenge the doctor’sveracity as Management had to challenge the integrity of the S&A form. Should thechallenge produce an error in what Management was informed, Dr. C. gains nothing andR.’s honesty and truthfulness are ratified; Dr. C. is not harmed but R. is vindicated.Seemingly, the doctor’s records could have been used to establish the falsity of his



representations. Even if he was being investigated at the time by the authoritiesconcerning his policy and procedures regarding medical certifications, it reinforces theconclusion that his records of R.’s treatment and release to return to work corroborated hisrepresentations to Management. R.’s failure to challenge her doctor’s representationsreinforces the conclusion that she knew her medical records would corroborate Dr. C.’srepresentations.

Lastly, in response to the Union’s argument about the evidence against R. there are a fewpoints to be made. The first is that R. did not present herself as a believable witness. Shewas argumentative, evasive and conveniently had no recollection of preparing the S&Aform other than dating and signing it, and her recollection could not be refreshed. Yet, shehad no difficulty remembering and tracing her steps getting to see the doctor while she wasin his office. Her loss of memory only relates to the S&A form, curiously. While shebelieves the doctor and Management conspired to cause her discharge she neither offersa reason for the collaboration nor permits the Union to inquire into her medical records togather the evidence to vindicate her innocence. Clearly, at the Umpire hearing R. was nota convincing witness.

While some of the evidence against R. may be hearsay the Union is reminded that duringthe critical stages of this matter Dr. C. was as available to R. as he was to Management.Although he no longer practices in the area and his address was not known at the time ofthe Umpire hearing the hearsay character of his statement does not impair its admissibilityfor the following reasons:

1. The preparation of the statement was observed by T.

2. T. testified about the circumstances that produced the statement.

3. The kind of investigation that produced the written statement was routinelyconducted in such circumstances.

4. The statement was given and received in the regular course of business as itrelates to the responsibilities of T. and G.

5. The statement was not sought nor given for the purpose of being presentedat the Umpire hearing.

6. The statement does not contain any subjective assertions.

7. There was no motive for falsification.

8. Dr. C. had every reason to know what his records contained about histreatment of R.

Undoubtedly, R.’s denial of making the alterations in the face of compelling evidence to thecontrary weighed as heavily in Management’s decision as it does here. All the evidencepoints convincingly to R. as the wrongdoer and removes any doubt as to her guilt. Thepurpose and motive for the falsification is clear. R.’s steadfast denial of her involvement inthe falsification coupled with her failure to question the source of the critical evidence



against her are inconsistent positions that confirm her attempted deception. Finally, underthe circumstances there is no evidence that warrants serious consideration of a lesserpenalty. The discharge will, therefore, be affirmed.

DECISION


JOHN PAUL SIMPKINS,

Umpire





No. T-2

OCTOBER 2, 1985

Discharge;

Theft or Misappropriation of Company Property;

Evidence

Grievance:


"Chg. mgt. with vios. of paras. 76A & 29 of the N.A. Further chg. mgt. with giving me anunjust discharge for alleged vio. of S.R. #33. Demand full redress."

/s/ A.P. (Grievant)

/s/ J.M. (Committeeman)

In the Matter of:


and

GENERAL MOTORS CORPORATION, CHEVROLET-PONTIAC-CANADA GROUP,FLINT ENGINE PLANT, Flint, Michigan -- Appeal Case T-84

OPINION

Grievant, plant seniority date November 11, 1969 and a skilled trades seniority date of July

Page 1 of 8UMPIRE DECISION T-2

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25, 1971, was classified as an Electrician at the time of his discharge on December 3,1982. He was disciplined and discharged for violation of Shop Rule #33: "Theft ormisappropriation of property of employees or of the Company." The incidents which gaverise to P.'s discharge occurred during the third shift on December 1, 1982. His account ofhis activities and that of Plant Security Officer B., the only witness to testify on behalf ofManagement at the Umpire Hearing, are summarized below.

In his testimony B. stated that he was making security checks walking the Zone 2 key tourat about 4:10 a.m. on December 1, 1982. As he was walking on an elevated catwalk atBay H-24 in the plant, he noticed a black male placing a cardboard box on a gon. Theperson observed was at Bay H-23 and appeared to be looking for someone. The area waswell lit and there was nothing to obstruct B.'s view of the individual with the box who worecoveralls and whose height was about 5'10". His line of sight distance was approximately60' and he could see the person's front and left side from the waist up. He could not seefrom the waist down because the person was standing behind and leaning over into thegon. Neither could B. determine what was in the gon from the point of his observation onthe catwalk. He did, however, recognize the person as someone he had seen occasionallybut whose name was not known at the time.

B.'s observation of the individual at the gon was about 35 – 45 seconds. He becamesuspicious when the person took the box out of the gon and walked away carrying it underhis right arm as he looked down the aisles. When he arrived at the gon B. noticed that itcontained pink high performance connecting rods and was one-third (1/3) full.

B. saw the person leave by aisle 18, so he proceeded to that north-south aisle and startedwalking north. The lighting was good on aisle 18. At a distance of approximately 60', hesaw the individual exit Bay K-18 on a three (3) wheel electric cart and turn right to travelnorth. B. followed on foot as quickly as he could. At the intersection of Bay N and aisle 18he turned west following the direction of the person driving the cart. When he reached aisle20 the person was observed south of the aisle facing him sitting on the cart at a distance ofapproximately 60'.

The person B. stopped in aisle 20 was P. Not more than three (3) minutes had passedfrom his initial observations and stopping P. on the electric cart. On the back of the cartwas a box. B. requested P. to produce his badge. When he could not, he provided hisname and the name of his supervisor at B.'s request. When asked what he was doing withthe box of rods P. replied, "What rods?" B. responded, "The rods on the back of this cart."The box was upside down on the back of the cart when B. asked the question. It was thenopened and it contained pink rods. P. then stated that he borrowed the cart and did notknow what was on it. He also stated that he would go to his locker to get his badge.

B. initially decided to go along with P. to the locker room but changed his mind. He stoppedand called his supervisor, Sergeant C. to explain what had occurred. C. instructed him toremain where he was until his arrival. P. continued on to the locker room and B. waited forC.

C. arrived with another security officer to pick up the cart. Upon returning to theManufacturing and Engineering Office they saw P. and picked him up before continuing tothe office to speak to P.'s supervisor. When they arrived P. remained outside on the cart



while B. and C. went inside and explained what had happened to Assistant SuperintendentV. and P.'s supervisor, G. They then got the box of rods and called P. into the office. B.briefly explained what he observed in P.'s presence and then departed to open the NorthGate.

On cross examination B. acknowledged that he may have told Management that he madehis observation at 4:10 a.m. and a Union Committeeman 4:05 a.m. In his view these timesare in the approximate range of 4:00 a.m. The key box was not working that morning sothere is no record of the time he was in the area. He also acknowledged that the boxexhibited at the Umpire Hearing was less than the dimensions he previously described, butit was the one he marked on the day in question. It was the same box he saw P. place inthe gon, then take out of the gon and put under his arm and walk away. He did not see P.touch any rods and assumes that the box was empty when placed into the gon. Thecontents of the box was first observed when it was turned over and opened on the back ofthe cart P. was using.

During the time of his observation and pursuit of the person he observed, B. saw no otheremployee except P. He has walked the area many times and did not specifically recallseeing employee M. in the area.

In testifying about the morning in question, P. stated that he took his first break between12:00 a.m. and 12:30 a.m. He got a vehicle and rode around picking up bottles and cans.At 4:00 a.m. he took his second break and went to get a three (3) wheel cart atMaintenance Crib #1. P. wanted a cart so that he would not have to walk. It also provided aplace on the back of it to put any bottles that were found. Nobody was present when hearrived so he got a cart and drove it west on Bay K to aisle 18. He then proceeded north byturning right at aisle 18. At Bay N. he turned left to go west again and at aisle 20 he turnedleft or south into the rod department. About 20' into the aisle he checked a coat rack forbottles and cans. Then, after turning around to exit the aisle in the direction he entered, hesaw B. who stopped him at the intersection of Bay N and aisle 20.

P. was asked his name and the name of his supervisor by B. who also asked for hisbadge. P. answered B.'s questions. When asked about his badge P. stated that it was inhis locker and offered to go get it. B. then asked what he (P.) was doing with a box of pinkrods. According to P. he did not respond. P. went to the back of the cart, picked up a boxand the rods fell out. P. testified that he did not see the box on the back of the cart beforeB. pointed it out.

P. and B. departed the area together leaving the cart behind at Bay N-20. When theyreached Bay P-18 they parted company; P. went up the stairs and he does not know whichdirection B. walked. However, after leaving his locker and returning to Bay N-20, P. wasapproached by B. again. This time B. was in the company of two (2) other security officersriding a four (4) person golf cart. C. asked him to get on and they all went to the PlantEngineering Office.

Upon arrival at the Plant Engineering Office, C. requested P. to remain outside while heand B. went inside. At no time did anyone accuse him of any wrong doing, according to P.Later, C. invited P. to come into the office. As he entered, P. noticed that severalsupervisors and security personnel were in the office. B. then accused him of placing rods



into a box which at that point was brought into the room. V. asked P. to respond to theaccusation.

Accompanied by G., P. attempted to examine the box containing the rods. In the processhe touched one and was instructed not to touch them because they would be examined forfinger prints. P. informed those present that he did not put the rods into the box and that hewas not at Bay HJ-23 after 4:00 a.m.

P. also recalled that V. requested him to go to another office to give a statement to C. P.inquired of V. as to whether he needed a committeeman and was told that he did not if hedid not do anything. As a former supervisory employee, P. understood the procedure torequire cessation of all questioning when a committeeman is requested and that therequest was to be granted.

On cross examination P. stated that he went immediately to Crib #1 at break time to get acart. The area was well lit and there was one (1) cart there in a ready position so heapproached it from the front, got on at the left side and drove off. The cart was notexamined before getting on and driving off. Its cargo area was as wide as the cart itselfand situated about a foot below the seat which is also as wide as the cart.

P. also stated that he intended to look for a co-worker M. during his break, but did not seehim that morning.

The Corporation contends that P. is guilty of misappropriation of its property and thatevents and circumstances giving rise to this charge substantiates it. In this connection theCorporation argues that security officer B. observed P. removing pink rods from a gonlocated at Bay HJ-23 at approximately 4:10 a.m.; that the lighting conditions facilitatedrecognition of P., someone B. had seen in the plant; that he pursued and caught up with P.within minutes after the observation; that P. had possession of a box containing pink rodsand that P.'s explanation of his possession of the rods was unsatisfactory. In theCorporation's view it has met its burden of proof regarding P.'s act of misappropriation.

In response to the Union's claim that Management violated P.'s rights under Paragraph(76a) of the 1982 National Agreement by not advising P. that discipline was beingcontemplated at the interview conducted at the Plant Security Office, the Corporationcontends that P. made no demand for Union representation and was aware of his right tobe represented if that was his desire. There was no violation of the Agreement in anycontext, but particularly in relation to the interview conducted in the Plant Security Officewhich does not, in the Corporation's view, automatically trigger the application ofParagraph (76a) of the National Agreement.

The Union contends that P. was deprived of due process in violation of Paragraph (76a) ofthe 1982 National Agreement which provides:

"When a suspension, layoff or discharge of an employee iscontemplated, the employee, where circumstances permit, will beoffered an interview to allow him to answer the charges involved inthe situation for which such discipline is being considered before heis required to leave the plant. An employee who, for the purpose of



being interviewed concerning discipline, is called to the plant, orremoved from his work to the foreman's desk or to an office, orcalled to an office, may, if he so desires, request the presence of hisdistrict committeeman to represent him during such interview."

The Union argues that this provision of the National Agreement became involved when B.informed Plant Security supervision (C.) and Plant Management (V.) that he saw thegrievant engaged in misconduct and P. was questioned by them about the allegedmisconduct. It argues that discipline was contemplated at that stage. Thus, the Unionmaintains that P. had a right to know why he was prevented from continuing an approvedbreak and directed to accompany Plant Security personnel to the Manufacturing andEngineering Office and detained. Its position is that P. was obligated to accompany thePlant Security personnel which is considered supervisory and not exempt from theapplication of Paragraph (76a). P., therefore, had a right to know the reason for hisdetention, what charge was being made against him and why.

The same contention and argument is made by the International Union in relation to thestatement given by P. at the Plant Security Office in the presence of V. and C. Thus, theUnion charges that Management did not adhere to the demands of the National Agreementand that it has been misinterpreted and misapplied.

On the merits the Union contends that B.'s description of the individual and the box heobserved was not sufficient to identify P. as the person. In this connection emphasis isplaced on P.'s facial and hair characteristics as well as his clothing, style of dress, time ofobservation, dimensions of the box and distance from the subject.

Grievant's discharge was predicated on Management's belief that he had misappropriated21 high performance connecting rods belonging to the Corporation. Its belief is not ill-founded given the fact that B. observed someone engaged in what he considered to be asuspicious activity at a gondola supply container. The lighting conditions were suitableenough to recognize the person as an employee and someone he had seen at the plantbut whose name was unknown to him. When the person observed moved away from thecontainer with a cardboard box under his arm, B. investigated its contents and found that itcontained a supply of high performance connecting rods each marked with a splash of pinkpaint.

B. decided to locate the person he observed at the gon and proceeded to follow in thedirection the employee had walked. As he followed he saw the person come out of anintersecting aisle driving an electric cart and turn in the same direction he was walking.However, within a short period later he was standing face-to-face with the person he waspursuing. This encounter occurred about three (3) minutes after B.'s initial observations.

B. confronted P. and requested him to identify himself. He then asked P. why he had a boxof pink rods on the cart. There is no dispute that a small cardboard box containing 21 pinkhigh performance connecting rods was in the cargo tray of the cart. The Umpire finds itsignificant that the grievant was questioned about his possession of the rods before thebox was examined. In fact, the grievant's claim of ignorance about the box and its contentsis what caused it to be turned over and opened. P. admits to being approached andquestioned in this manner. P.'s possession of a small cardboard box containing the same



type of rods found in the gon, coupled with him matching the general description of theperson B. observed minutes earlier filling the box at the gon, is enough to call for anexplanation on his part.

The International Union concedes that B. may have observed someone in the finish end ofthe Connecting Rod Department on the day and time in question. It contends that P. wasnot the person observed, however, and suggests that there may have been another personand another box. While the possibility of this surely exists the probability or likelihood of itis too remote for serious consideration. Being caught with the goods – so to speak --required P. to explain his possession of them.

P.'s explanation has remained unchanged; namely, that he was on a "bottle run" and wasnot aware of the box or its contents on the back of the electric cart he borrowed for hissearch of empty bottles and cans. The evidence demonstrates that P. was in the roddepartment at the approximate time of B.'s initial observation -- an area of the plant whereneither production was in progress nor employees present at the time. He did not work inthe area and the rods in question were stored in close proximity to where he was stoppedby B.

When stopped and questioned by B., P. had no cans or bottles on the cart. Neither did hehave a container to store them in if any were found. Someone engaged in this type ofactivity would seemingly have a bag or container of some sort to put the bottles and cansinto. P. did not have anything and testified that he intended to place anything he found inthe open cargo tray located behind the seat of the cart. He claims that he approached thecart from the front and did not notice or examine the cargo space before mounting it fromthe left side and driving off.

The practical and reasonable approach would have been to be sure the cargo space wasempty so that there was a place to put any bottles and cans that may have been found.Even if P. was going to get an empty bag or box to use, the logical thing to do is toexamine the space where the container would be placed on the cart. Thus, it is whollyunreasonable to believe that P. was unaware of the box on the back of the cart heborrowed, the size of the back rest notwithstanding. This is reinforced by his statedintention to use the cargo tray of the cart.

Accordingly, given the persuasive evidence pointing to P.'s culpability, the Umpire sharesthe opinion of Management and rejects his disavowed knowledge of the box and itscontents as being sufficient to clear him from the compelling evidence of his guilt. There isno doubt in the Umpire's mind that P. was the person observed by B. placing a box in agon containing high performance rods and removing it and walking away. Suchunauthorized and unexplained behavior constitutes misappropriation of Company propertyfor which discipline and discharge is an appropriate penalty.

Violations of the National Agreement have traditionally been regarded by the parties'Umpires as a serious breach of the basic fabric of the relationship. Any breach no matterhow slight, must be seriously considered and addressed in order to prevent an erosion ofthe underlying understanding upon which the entire National Agreement is based.

The claimed breach of the National Agreement here merits such treatment. However, in



the opinion of the Umpire there has been no breach of Paragraph (76a) of the NationalAgreement.

The questions B. asked P. at Bay N-20 in no way involved an application of Paragraph(76a). It was investigatory in nature and conducted by a non-supervisory security officer.When C. became involved he also had every right to conduct a reasonable investigationbased on what B. informed him. C., therefore, committed no wrong when he stopped thecart to pick up P. in route back to the Manufacturing and Engineering Office to begin hisphase of the investigation.

Without being specifically told, P. knew full well that he was being detained pending furtherinvestigation by Plant Security of the reason he had possession of the box of connectingrods on the back of the cart he was operating. Accordingly, detaining P. outside of theoffice while B. explained to C. and V. what he observed and learned from P. was squarelywithin reasonable limits of a Plant Security investigation.

There is no evidence that B. accused P. of any misconduct or that V. was contemplatingdiscipline based upon what he learned from B. at that time. Neither is there any concreteevidence that his opinion had changed in this regard after he had an opportunity to hearP.'s account of his involvement with the box of connecting rods.

The International Union submits that Paragraph (76a) of the National Agreement wasviolated by the conference held at the Plant Security Office following the investigationwhich took place at the Manufacturing and Engineering Office. The claim is that it was inessence an interview within the meaning of Paragraph (76a), thereby entitling P. to Unionrepresentation which Management failed to provide.

The evidence is clear that P. was familiar with the scope and extent of his contractualrights as well as the limitation and obligation of Management at the time he was asked togive a statement at the Plant Security Office. By asking V. whether he needed acommitteeman P. was in actuality asking V. whether he was contemplating any discipline.(Note that he had already disavowed any knowledge of the box containing the rods until itwas called to his attention by B.) V.'s answer in no way suggested a disciplinary purposefor the statement C. sought from P. Indeed, the evidence here does not in the slightestfashion indicate that P. was obligated to cooperate. Rather, given his supervisoryexperience and training in addition to his direct involvement with the disciplinary procedureof Paragraph (76a) of the National Agreement, it is reasonable to conclude that P.voluntarily participated in giving a statement to C. without the presence of acommitteeman. Clearly, representation was not denied. More importantly, however, it is notrequired to be offered by Management under circumstances, where as here, the evidencewill not support a finding that the purpose for providing the statement was in contemplationof discipline.

In this connection, it is noteworthy that the agenda for the session in the Plant SecurityOffice was controlled by C. and that C. had no supervisory responsibility for P. and couldnot assess any discipline based on anything he learned or did not learn from P. Althoughhe is a Management representative, V.'s presence at the Plant Security Office does not inand of itself change the purpose and character of the gathering. He was little more than abystander and his involvement by asking the last question contributed insignificantly to the



exchange which took place between C. and P. The Umpire can not, therefore, agree withthe Union that that meeting was an "interview" within the intendment of Paragraph (76a)thereby entitling P. to representation as a matter of right. But, even if it was, an employeewith P.'s knowledge of his rights under the National Agreement must unequivocally assertthem.

The procedural contention of the Union is accordingly rejected and the grievance is denied.

DECISION


JOHN PAUL SIMPKINS

Umpire





No. T-3

NOVEMBER 12, 1985

Discharge for Fraud

Paragraph (76a) of the National Agreement

Evidence

GRIEVANCES:


"Charge Management with giving me an unjust release. Request full redress."

/s/ M.McG. (Grievant)

In the Matter of:


and

Appeal Case T-89

GENERAL MOTORS CORPORATION, CHEVROLET-PONTIAC-CANADA GROUP,FLINT ENGINE PLANT, Flint, Michigan

SUMMARY

The basic circumstances which gave rise to the grievant's discharge are undisputed andare summarized below. This summary has largely been developed from the prior record


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since the Corporation elected not to offer any direct testimony at the Umpire Hearing. Atthat time the Corporation rested its case on the prior record and its brief. The Union offeredone (1) witness in support of its procedural contentions. That testimony is considered inrelation to the prior record and the argument contained in the Union's brief.

OPINION

Grievant McG. has no prior disciplinary record and a seniority date of August 23, 1965. Hewas discharged for the following reason which was stated in the Paragraph (76) noticedated September 23, 1982:

"You are being discharged for fraud. You admittedly received three(3) paychecks from Supervisor (W.) drafted in your name and youcashed them for your personal benefit, even though you knew andunderstood that you did not work during the period of time for whichthe pay was for. Your receipt of monies for which you knew youwere not entitled constitutes fraud."

On August 16, 1982 McG. got a form from the personnel office to be used to request thirty(30) days leave of absence. This was his first request for a leave of this kind and afterindicating on the form the period of time he wanted to be off he gave it to his foreman W. topresent to the superintendent for final approval. McG. did not retain a copy of the form but,with the assurance of his foreman that it would be approved, he commenced the leave ofabsence on Monday, August 23, 1982, and left the area.

From Monday, August 23, 1982 through Sunday, September 19, 1982 McG. was absentfrom work. During the same period his time card was clocked in and payroll checks wereissued and cashed as follows:

Pay For

Check No. Date Issued Amount Week Ending Endorsed By

602630 8-27-82 8-26-82 $290.66 8-22-82 McG. & W.

608201 9-03-82 9-02-82 249.55 8-29-82 McG.

614028 9-10-82 9-09-82 241.65 9-05-82 McG.

620398 9-17-82 9-16-82 208.63 9-12-82 McG.

On Monday, September 20, 1982 McG. returned to work to perform his job duties as aRepairman-Mechanic. Then, on Thursday, September 23, 1982 when offered payroll checkNo. 626861 dated September 24, 1982 in the amount of $374.38, McG. refused to acceptit stating that there must have been a mistake because he had not worked the week forwhich the check was being presented, (the week ending September 19, 1982). Thereafter,on the same day, McG. was placed on notice and interviewed in accordance with



Paragraph (76a) of the National Agreement.

McG. admitted receiving from W. and cashing three (3) checks at the Paragraph (76a)interview which was conducted by Labor Relations Supervisor B. and attended bySuperintendent V. and District Shop Committeeman G. He stated that the last day heworked was August 20, 1982 when he started a personal leave of absence which wasapproved by his foreman, W. When asked whether he had received any checks sinceAugust 20, 1982, McG. replied:

"Not really. I want to get something off my shoulders. I came backfrom out west with three kids and no check in the mail. I called theforeman and asked where my check was. He said to come over tohis house because he wanted to talk to me. At his house he saidhe'd cashed it and gave me two (2) more checks and told me tokeep my mouth shut. I didn't know what the f___ to do or who to talkto and I've been scared ever since."

McG. later amended this statement to acknowledge receipt of three (3) checks from W.which he cashed or deposited because he needed the money and also because he "didn'tknow what the hell to do or who to talk to about it."

Later in the interview, B. asked the following questions to which McG. responded asfollows:

Question: "Did you understand what the implicationswere for you to accept money for which you did not workfor it?"

Answer: "Yes. I got mad at him about cashing the onethat was due me. I figured I was due one of the checksanyway. It bothered the hell out of me since then. Icouldn't go to Management, I'd get my ass fired to, if Iwent to the Union - well I figured I'd better just shut up."

Question: "So why did you take the other check if itbothered you so?"

Answer: "I don't know. What am I supposed to do with it?I needed the money."

Question: "You ever receive pay for not being at workbefore?"

Answer: "No."



Question: "So why this time?"

Answer: "I filled out personal leave papers and cameback and there was no check, I called (W.) and he saidcome and talk to him. I told you before."

Question: "Did (W.) ask for any pay to do this?"

Answer: "I didn't even know he was going to do it."

After a few more questions there was a recess then the questioning continued as follows:

Question: "I have sat here and heard you out. You'vemade some serious accusations about (W). In factextremely serious for (W). Therefore, I would like you totake some time and in (your) own words five me asigned statement of what you have said."

Answer: "Why?"

Question: "As I said, this is extremely serious. I (don't)want your story to change in a day or so."

Answer: "I've told you the truth."

Question: "Then just put it in writing."

Answer: "O.K."

McG. wrote the following statement and gave it to Management:

"On 8-16 I went to the employment office to get a form for 30 daypersonal leave, the female I talked to said my foreman would haveto get the form. My foreman got the form for me and I filled it out andreturned it to him and he said that it would be Ok'd by the Supt. andhim.

"I went on vacation and returned on Sept. 3. Upon my return I wentto the post office to pick up my mail and my check for the last week Iworked, it wasn't in the mail. I called information and got theforeman number and called him. I called him and asked him wheremy check was, then he told me he wanted to see me. I went to hishouse and he gave me a check and told me that he would haveanother one the following week. He had cashed my check for thelast week I had worked and told me to keep my mouth shut. I toldhim I didn't want any part of this, but I didn't know what else to do,so I kept my mouth shut.

"I met him at his place the following week and picked up another



check. I told him again I didn't like what he was doing, but he saidnot to worry he would take care of it.

"It was really bothering me about what was going on, but what couldI do. I was in the middle of this and wanted to tell someone, but Ididn't know who to talk to or how to go about doing something aboutit.

"This is a true statement given by me on Sept. 23, 82."

/s/ M.McG (Grievant)

Thereafter, at the request of the Union, W. prepared the following statement on September25, 1982, which was presented to Management on September 28, 1982:

"(Grievant) did file a paper for a 30 day leave in my office he doesnot get a copy of this and I forgot to turn it in and came up with theidea to do it for a little extra money because I have been under somuch pressure and stress."

/s/ R.W.

Union witness G. handled the grievance at Step 1. He was informed by Management thatW. had prepared a written statement. Requests for the statement, represented to be aconfession, as well as an opportunity to interview W., was refused at his stage of theprocedure and at other stages of the grievance procedure as well. He has always beenable to question individuals who make accusations but in this case he was not offered anopportunity. Management's position was that the Union was not entitled to it.

The Corporation contends that the grievant's admission of guilt and other evidence forms aprima facie case of fraud in support of his discharge. It argues that the grievant knowinglyand admittedly accepted paychecks for time not worked and to which he was not entitled.There are no mitigating circumstances that would lessen the penalty in the Corporation'sview.

In this connection the Corporation maintains that prior to his discharge Supervisor W.stated that the grievant was aware of the scheme before he began the leave of absence. Itargues that the grievant's denial is self-serving and that it does not appear that W. actedindependently in light of the seriousness of his behavior.

The Corporation further contends that it met its burden of proof in this matter while theUnion has failed to meet theirs. It asserts that the grievant knowingly and admittedlywrongfully received Corporation money making his discharge an appropriate penalty; thatonce the grievant admitted his involvement the burden of proof shifted to him to provide asatisfactory explanation of his conduct sufficient to mitigate the penalty of discharge; thatthere are no satisfactory mitigating circumstances; and, that it has sufficiently rebutted thevarious procedural irregularities advanced by the Union during the bargaining of thisgrievance. Lastly, the Corporation points out that fraud is a serious offense which calls fordischarge. The grievant's behavior, it maintains, was deceitful and repeated to receive



unearned payments under false pretense.

The Union's contentions may be summarized as follows:

The grievant's foreman was an agent of the Corporationand the grievant was obligated to follow his instructions.

Management is in violation of the requirement of full andcomplete disclosure of all facts at the earliest possiblestage in the disciplinary process.

Paragraph (45) gives the Union the right to examine anemployee's accuser.

The grievant was caught up in the scheme set in motionby his foreman to fulfill the financial needs of hisforeman.

The foreman initiated and authorized payment for thehours the grievant did not work without the grievant'sknowledge or consent.

The grievant took the three (3) checks given to him byhis foreman under the threat of discharge which hasmeaning in the plant.

The grievant exercised bad judgment in accepting andcashing the checks.

Based upon the evidence not disputed in the prior record the grievant's guilt is clear. Headmits to the receipt of paychecks for time not worked and to which he knew he was notentitled. He accepted the first two (2) checks -- one of which represented the wages for thelast week he worked -- under instructions to keep his mouth shut. He claims he did notknow what to do or whom to talk to and that he needed the money at the time. He wasaware that accepting the money would involve him in an illegal transaction and it frightenedhim. Yet he failed to report what had occurred to civil authorities, Management or hisUnion.

It is clear that the grievant did not consider all the alternatives available to him. Uponaccepting the first two (2) checks the grievant could have cashed the one he felt was duehim for the last week he worked and not cashed the other while he considered all of hisoptions, not the least of which was contacting Management to immediately return to work.Returning to work would have prevented further misrepresentation and falsification of histime card by his foreman and ended his involvement in his supervisor's plan. He evenreturned to his foreman's house and received and cashed a third check representingpayment to keep his mouth shut rather than for actual time worked; all of which was partand parcel of his supervisor's scheme. Acceptance of the third check underscores thegrievant's approval of the arrangement and establishes him as a willing participant in theplan to defraud the Corporation.



The Umpire is neither convinced that the grievant's behavior was based on fear nordoubtful that he willingly participated. The alleged fearful participation must be consideredwith his belief and awareness that his foreman was in a position and would prevent otherManagement officials from discovering the scheme. No amount of fear of discharge couldoutweigh the confidence the grievant had in the scheme not being discovered. There is noother explanation for his participation, allegedly out of fear, that makes any sense in theUmpire's opinion. If he did not believe it was an ironclad scheme impossible of detectionthere would be no reason to participate, allegedly out of fear, and every reason to informManagement or the Union for fear of detection and possible discipline. Thus, it is beyondquestion that the grievant believed that the risk of detection was removed and thateverything would be taken care of by the person who originated the scheme and who wasalso ostensibly in the position to protect everyone involved. The grievant's acceptance ofthe wages he wrongfully received must be viewed in this light. It serves to explain why hedid not seek the assistance of the Union to exonerate him from his foreman's plan and alsowhy he accepted yet a third check.

The Umpire's assessment of relevant portions of the prior record leaves no doubt that thegrievant was a knowledgeable and willing participant in the fraudulent transaction. Allowingit to continue and permitting himself to become a beneficiary of it is enough to establish hisintentional involvement in the scheme. When that intention is formulated is not assignificant a factor as its manifestation. Accordingly, under the circumstances, whether hewas involved in the initiation of the scheme to perpetrate a fraud on the Corporation isirrelevant. His complicity in the conspiracy is enough to warrant being disciplined. Hisdischarge was not an inappropriate penalty given the voluntary repeated nature of hisbehavior after he acquired knowledge of his foreman's conduct and intentions.

Having decided the appropriateness of the discharge penalty for the conduct underconsideration, it becomes necessary to treat the various contentions regarding mitigationof the penalty assessed. The Union asserts that Management breached the understandingof full disclosure regarding information it had in support of the discipline the grievantreceived. Specifically, it claims that G.'s statement in the prior record relative to beingdenied access to the written statement and other information provided by foreman W.which allegedly implicated the grievant is a sufficient basis for mitigation of the dischargepenalty. The Corporation supports Management's refusal to share W.'s statement andnotes of his interview on the basis that it imposed discipline and discharge on the grievantbased on his confession and admission at the Paragraph (76a) disciplinary interview andnot on any information it may have attained from W. before his discharge on September22, 1982.

The prior record contains evidence that Management focused on the grievant and staged afurther effort to entrap him in the scheme based on information it acquired from W. TheUnion's request to examine this information and its source was denied by Management ata critical stage of the Union's representation process. The scope and extent, indeed, thevery basis of its representation could very well hinge on the content and character of theevidence withheld by Management. The decision to deny the Union the information in amanner which permits an opportunity to evaluate its credibility is an apparent departurefrom the parties' long-standing custom and practice.

In this connection the parties need not be reminded of the precedental value of early



Umpire Decisions A-25, B-29, C-204, E-132, F-97 and F-98 regarding evidence and itsdisclosure during the bargaining stages of the grievance procedure. The Umpireunderstands that the Corporation and the Union equally agree on the application andviability of the principle to their relationship. Nevertheless, reference to some UmpireDecisions seem especially apropos under the circumstances of the instant case.

In Decision F-53, Umpire Gabriel N. Alexander stated:

"... each party should fairly disclose all the facts in its possessionand that neither participant should take advantage of theunawareness of the other." (underscore added)

Later, in Decision F-97, Umpire Alexander stated:

"The Corporation, the International Union, and the Umpire havemade clear time and time again that sound collective bargainingrequires frank and candid disclosure at the earliest opportunity of allthe facts known to each party. There will undoubtedly be time whenfacts are not discovered, and therefore not disclosed, until after thegrievance has been partially processed, and problem enough iscreated by those instances. There is not a scintilla of justification forthe withholding of information by either party from and after the timeit is discovered." (underscore added)

In Decision G-12 Umpire Alexander held that an employee's violation of a shop rule "doesnot automatically deprive him of his full right to representation in accordance with theNational Agreement, or deprive the Union of the right to full and candid disclosure of allfacts upon which Management bases disciplinary action." He went on to comment on theparamount significance of adhering to established bargaining procedures which do notdepend on the validity or error of the positions assumed by the parties on the main issue.

Thereafter, in Decision G-13, under circumstances where two employees were dischargedon the basis of statements of several other employees whose identities were neverdisclosed and whose statements were shared only with the Umpire in private interviewswithout the Union's ability to cross-examine, Umpire Alexander held as follows:

"There is no justification for taking secret testimony other than the fact that the possibility ofretaliation upon witnesses is lessened thereby. The practice is contrary to the fundamentalprinciples of a fair hearing and, unless the representatives of both parties are inattendance, violates Paragraph 45 of the National Agreement, which guarantees to eachparty the right to cross-examine all witnesses examined by the Umpire."

In considering the principles of full-and-immediate-disclosure under circumstances whereobservance entailed difficulties, Umpire Rolf Valtin stated in Decision M-36:

"The Umpire thinks it clear that this question must be decided infavor of the sanctity of the principle. Indeed, its standing as aprinciple is sorely thrown into question if it is abandoned where itsapplication 'hurts'. Moreover, though in a different context, the



matter of proceeding secretively for the sake of protecting witnesseshas long since been decided in favor of openness."

In its brief the Corporation responded to the Union's claim that W.'s confession and thetranscript of Management's questioning of him were documents requested but notdisclosed by local Management. It points out that Management shared the testimony fromW. by the following statement which appears in its Statement of Unadjusted Grievance andthe Third Step Minutes:

"First of all, Supervisor (W.), prior to his own termination from this location which occurredon September 22, 1982, admitted to Management that he and (McG.) had worked out theirscheme prior to the grievant beginning his period of absence from the plant."

At the Umpire Hearing the Corporation argued that there were no mitigating factors presentthat would affect the penalty for the grievant's wrongdoing. It argued that W. implicated thegrievant and that implication was shared with the Union. Further, the Corporationmaintained that it was not the implication of the grievant by W. that caused him to bedisciplined and discharged, but rather, the inculpatory statements of the grievant disclosedat the Paragraph (76a) interview. In the Corporation's view, therefore, disclosure was notnecessary in this case since Management did not rely on the statements of W. todischarge the grievant. The Umpire respectfully disagrees.

In the judgment of the Umpire the practice of full-and-immediate-disclosure requiresManagement, if requested, to share information acknowledged to be in its possessionwhich has a bearing on the decision to conduct a disciplinary interview. If known andavailable, the Paragraph (76a) interview is an appropriate time to disclose requestedinformation. This is especially true here, where Management came into possession ofcritical written information implicating an employee in a scheme to defraud the Corporation.Without the information obtained from W., Management would not have had a justifiablebasis to conduct the Paragraph (76a) interview at which the grievant admitted andattempted to explain his involvement in his foreman's plan. It seems only appropriate thatinformation used to decide whether a disciplinary interview should be conducted be viewedas falling within the principle of full-and-immediate-disclosure. The information can not beconsidered private and not falling within the policy merely because of what develops at theinterview. Its relevance is measured not by its use in a subsequent stage in the grievanceprocedure but, in its use to initiate the disciplinary process. To consider information for anypurpose at any stage of the disciplinary and grievance process subjects it to the availabilityof the parties for whatever purpose it can be made legitimately applicable. The Umpire'sacknowledged difficulty in reconciling Management's failure to produce the informationrequested with the principle and practice of full-and-immediate-disclosure causes him torule in favor of the principle.

Accordingly, in keeping with the precedent of prior Umpire decisions and in view ofManagement's breach of a fundamental principle in the parties' bargaining relationship todisclose pertinent information bearing on the matter at issue at the earliest possibleopportunity, the discharge penalty must be rescinded. In the opinion of the Umpire, thisruling is required under the circumstances in order to enforce a linchpin in the bargainingrelationship of the parties.



DECISION

Grievance No. 417543 is sustained. The Corporation shall reinstate the grievant to hisformer position but without back pay. As a condition for reinstatement the grievant shallagree to reimburse the Corporation the wages he received and to which he was notentitled under terms Management in its sole discretion may decide.

JOHN PAUL SIMPKINS

Umpire





No. T-7

JUNE 12, 1986

Termination Under Paragraph (64)(c) of the National Agreement;

Evidence

GRIEVANCE:


"I chg. Mgt. with an unjust contractual separation under Para. 64(c) of the Nat. Agree.Request immediate reinstatement & made whole with all applicable benefits."

/s/ A.E.S. (Grievant)

/s/ M.A. (Committeeman)

In the Matter of:


and

Appeal Case T-235

GENERAL MOTORS CORPORATION, CHEVROLET-PONTIAC-CANADA FRAMINGHAMASSEMBLY PLANT, Framingham, Massachusetts

OPINION

R. became General Supervisor of Labor Relations at the Framingham Assembly Plant


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during the spring of 1983. Safety, hourly benefits, labor relations, employment and sometraining activities came under his general supervision in the new position.

R. recalls becoming involved in the instant matter when an employment supervisorinformed him that the grievant (S.) had been absent for three (3) work days, August 24, 25and 26, 1983. On August 30, 1983, a letter was sent to S. in accordance with Paragraph(64)(c) of the National Agreement, informing him that he was regarded as a voluntary quitand that his seniority had been broken effective August 26, 1983. The letter was sent bycertified mail delivery and received by S. who signed for its delivery to him on September13, 1983. The three (3) days following S.'s receipt of the letter passed without a responsefrom him. R. interpreted the lack of a response as a contractual termination and took stepsto finalize it.

In June, 1984 R. became involved again as a result of a Sickness and Accident (S&A) formbeing received by the plant on behalf of S. Dr. R. was the attending physician whoprepared the doctor's portion of the form. After reading the form, R. determined that noadditional information was provided concerning the absences which gave rise to thetermination of S. The decision of Management regarding the contractual termination of S.was not changed. But despite disagreement, on the advice of the insurance carrier,Metropolitan Insurance Company, the S&A benefits were paid and the check for paymentwas sent from the plant. S.'s benefits would have terminated by the end of September,1983. A notice advising S. when his S&A and other insurance benefits would end wasincluded with the Paragraph (64)(c) notification he received.

Grievant S. had been employed by the Company for 18 1/2 years when he was terminatedin 1983. At the time of his termination he was classified Install Door Trim Panels andassigned to the Soft Trim Department on the first shift. He held various Union positions andwas familiar with the National Agreement and how Paragraph (64)(c) was to be applied.

S. recalls being at the Union Hall on September 1, 1983 inquiring of Committeemen B. andG. why he received a notice from the Company under Paragraph (111)(b) of the NationalAgreement. B. advised him that the notice was sent in error. S. then called the plant andwas connected with C., a supervisor in the Labor Relations Department. S. asked C. whyhe was sent the Paragraph (111)(b) letter and was advised that it was sent in error.According to S., C. further explained that he (S.) would be sent a Paragraph (64)(c) letter.S. then explained that he was ill and that he would be coming to the plant to pick up hischeck. Upon arrival at the plant S. spoke to C. who signed a form for him as acommitteeman to get his check. Otherwise, according to S., the signature of thesuperintendent would be necessary. The form was presented to the paymaster to receivehis paycheck after which S. left the plant. A week later S. made an appointment with Dr. S.After three (3) visits he stopped seeing Dr. S. but could not recall why.

When S. received the Paragraph (64)(c) letter he understood its significance but didnothing about it and gave the Company no other thoughts.

In April, 1984, S. came under the care and treatment of Dr. R. who continues to treat him.He recalls preparing an S&A form his attorney got from M., an employee in the BenefitsDepartment of the plant. The form was then taken to Dr. R. who prepared and signed theappropriate section of it before returning it to S. S. believes that he delivered the S&A form



to the plant sometime in June, 1984.

On cross examination S. stated that he did not recall receiving the Paragraph (64)(c) letteron September 13, 1983. He further stated that he must have received it if Managementsays he signed for it; he could not recall.

S. further stated that he was familiar with the call-in procedures to report absences andused them when he was a rational functioning individual; that he was never on sick leavebefore for psychological reasons; that he did not discuss his employment with Dr. S. whowould have covered him if he had; that at the time he knew he was ill but did not know thereason for his illness; that he was involved in the sale of his home; and, that F. was hisattorney.

Dr. R. was present and testified at the Umpire Hearing. He is board certified in psychiatry,a member of the American Academy of Psychiatry and the Law, and a member of theHarvard Medical School faculty. He studied at Harvard and Johns Hopkins Universities.

Dr. R. stated that he became aware of S. through another patient before be began to treathim. According to Dr. R., S. first visited his office for treatment on April 26, 1984. At thattime Dr. R. diagnosed S. as being in a major depressed state. His depression was severelyand totally debilitating. As a result S. lost the ability to concentrate, acuity of judgment,capacity to experience pleasure or satisfaction; psychological strength and the ability tocommunicate with familiar and immediate surroundings. The cause for S.'s condition was achemical imbalance of the central nervous system. He described S. as being a hollow shellas compared to a functioning individual. S. had a broken brain. From his perspective hissituation was hopeless and there was no prospect of being helped.

Dr. R. testified that he was able to ascertain how long S. had been in the state ofdepression and fixed August 22, 1983 as the on-set of the debilitating illness. According toDr. R. the date was determined by discussions with S. who described his reclusive, erraticand phobic behavior. August 22, 1983 was when his last defenses and functionalresponsiveness caved in. Thereafter, S. began staying in hotels, lost the ability to take careof his finances and could not have known what the rules of his employment were. Dr. R.described S.'s condition as "endogenous depression". In Dr. R.'s experience, he had neverknown anyone to have the recognition and guts to know and do something about what wasgoing on within them. S. fell apart. Fixing the date when this happened was not difficult;August 22, 1983 was the last time S. was all there as a total person. August 1, 1984 wasthe date Dr. R. released S. to return to work.

Zone Committeeman B. was excused from work at the plant on September 1, 1983 toattend to Union business. He recalls talking to the grievant and G. at the Union Hall on thatday. The conversation was triggered by a Paragraph (111)(b) notice S. had receivedrelative to his seniority being broken. B. inquired of S. whether he had called the plant and,thereafter, witnessed a call being made by S. which he (B.) presumes was placed to thelabor relations office at the plant. As he listened to S., B. heard him say he was ill. After thetelephone call S. left the Union Hall and went in the direction of the plant.

Shop Committeeman G. recalls seeing B. and S. at the Union Hall but could not be sure ofthe date. At that time S. made a telephone call. G. neither heard the conversation nor knew



to whom the call was placed.

G. further stated that a special card is used by Management to authorize the delivery of apaycheck by the Payroll Department after the checks are issued by the employee'sdepartment. The card is used to permit delivery of the check to the person named on it andit must be signed by the superintendent. If the employee is a committeeman the card issigned by R. In order for S. to get his check on September 1, 1983, someone had to signthe card. According to G., S. could not have gone to payroll and received his check withoutproper authorization.

Corporation witness C. testified on rebuttal. C. is Supervisor of Labor Relations and in thatcapacity, he last spoke to S. on July 29, 1983. The telephone conversation, initiated by S.,coincided with vacation checks being passed out and it was the same day S. was sent anotice pursuant to Paragraph (64)(d). S. requested permission to come in and pick up hischeck. He also stated that he would bring in satisfactory evidence in relation to theParagraph (64)(d) notice. C. was present and briefly spoke to S. upon his arrival at theemployment area. No information was provided by S. concerning his absence. After hisconversation with S., C. saw S. speaking to B. in the lobby.

C. continued by stating that he was sure he received no call from S. on September 1,1983. That was the day after he sent S. the Paragraph (64) (c) letter. If he had received acall from S. the Paragraph (64)(c) letter would have been voided in the same manner theParagraph (64)(d) letter was voided.

C. further stated that S. did not need his personal authorization to get his (S.'s) paycheck.Additionally, after the checks in his area were distributed, the check would be delivered toS. on his own signature by the paymaster with the showing of a plant entry pass andidentification by S. that he was a first shift employee. After the payroll is completed theauthorization card is not necessary and S. could sign for his own check. The payoff iscompleted by the end of lunch at 11:24 a.m. (During C.'s testimony the parties stipulatedthat S. came to the plant on September 1, 1983, picked up his check and signed adocument.)

The Corporation's position is that the grievant neither contacted the plant during the criticalperiod of his absence nor provided a satisfactory reason why he could not. It argues thatthe grievant was absent without notifying the plant for more than three (3) working days;that he was sent notification that his seniority had been broken; that he failed to respond tothe notice; and that about nine (9) months later he presented medical documentation ofdisability which was not sufficient to explain his failure to notify Management of hisabsence between August 23 and September 16, 1983. In this connection the Corporationrejects the claim that Management was notified by the grievant on September 1, 1983 thathe was ill. Similarly, the medical documents presented on the grievant's behalf were foundto be insufficient to convince Management that the grievant was so mentally incapacitatedthat he could not notify the plant of his absence.

The Union contends that Management engaged in a concerted effort to terminate thegrievant's seniority. The Paragraph (64)(d) letter of July 20, 1983, which was later resolvedand settled, the mistaken Paragraph (111)(b) letter and the Paragraph (64)(c) letter, areincidents that the Union argues in support of this contention. It maintains that the grievant



responded to the Paragraph (111)(b) letter by telephone on September 1, 1983. At thattime upon being informed of the mistake and the intention of Management to send anotherletter pursuant to Paragraph (64)(c), he informed C. -- the person to whom he wasspeaking -- that illness was the reason for his absence. That telephone conversationcomplied with the requirement of Paragraph (64)(c) in the Union's view.

Medical documentation attesting to the grievant's illness was presented to Managementand subsequent S&A benefits were paid. The diagnosis of the doctors who treated thegrievant must be accepted in the absence of evidence that they are arbitrary, capricious orunsupported by evidence, the Union argues.

The Corporation and Union agree that the question presented to the Umpire is whetherManagement was notified of the grievant's absence so as to void the application ofParagraph (64)(c) to break his seniority. The Union claims that the grievant informed C.that he was absent due to illness and that this occurred on September 1, 1983.Management contends that the grievant neither spoke to C. on the day in question noranyone else in Management relative to his absence. If the grievant informed C. or someother Management representative on September 1, 1983, the contractual terminationunder Paragraph (64)(c) must be set aside. If he did not, then other elements of Paragraph(64)(c) must be considered.

To the Umpire the following undisputed relevant factors have a bearing on the issue:

The grievant's last day worked was August 23, 1983.

The grievant was absent from work without notification toManagement on August 24, 25, 26 and 29, 1983.

On August 26, 1983 the grievant was mistakenly sent a letter underParagraph (111)(b) removing him from the hourly roll as a voluntaryquit and advising him that his seniority was broken effective thesame day.

On August 30, 1983 the grievant was sent a letter under Paragraph(64)(c) removing him from the hourly roll as a voluntary quit andbreaking his seniority as of August 26, 1983 for being absent forthree (3) working days without properly notifying Management.

The grievant arrived at the plant on September 1, 1983, picked uphis paycheck and signed a document.

The grievant received the Paragraph (64)(c) letter on September 13,1983 and did not respond to it by reporting for work or properlynotifying Management of his absence within the next three (3) daysafter receiving it.

On September 16, 23 and 30, 1983 the grievant was seen by Dr. S.,a psychiatrist, whose primary diagnosis of the grievant wasdepressive reaction.



The grievant's next contact with Management was in January, 1984regarding a grievance settlement check.

Umpire precedent is well established that in situations involving Paragraph (64)(c) of theNational Agreement the employee has the responsibility of notifying Management of anabsence of three (3) days or produce a satisfactory reason why notification could not begiven. The claim of the Union that notification was given here is refuted by Management.To the Umpire, however, whether the notice was or was not given reduces to a question ofcredibility. Reason and probability that notice was given seem to favor the Union's positionas opposed to Management's.

In reaching this conclusion the Umpire has considered the fact that the grievant was anexperienced committeeman who fully understood the significance and meaning ofParagraph (64)(c). He was fully aware that his failure to respond to the notice he receivedon September 13, 1983 within three (3) working days after its receipt, would break hisseniority as a voluntary quit. The grievant maintains that on September 1, 1983 he calledthe plant and spoke to C. about receiving a notice under Paragraph (111) (b). He was theninformed that it was a mistake and that he should expect notification under Paragraph (64)(c). If he considered himself to be ill, it is only natural for him to say so at that time and hedid. B. corroborates not only the telephone call which was made from the Union Hall in hispresence on September 1, 1983, but also the words spoken by the grievant to whomeverhe was speaking.

Note also that during the September 1, 1983 telephone conversation the grievant informedC. that he was going to report to the plant to pick up his paycheck. In doing so, he saw C.personally and signed a document to receive his check.

In view of what is expected of employees under Paragraph (64)(c) there would be noapparent need for the grievant to report for work or to notify Management of his absenceupon receipt of the notice if Management was already informed of the reason for theabsence. Clearly, advising C. that his absence was due to illness is sufficiently specific toavoid the application of a voluntary quit to break his seniority under Paragraph (64) (c).Notification on September 1, 1983, before the Paragraph (64)(c) notice was actuallyreceived, also avoided the necessity of further notification after receipt of the notice. Whilea reminder that he had previously communicated the reason for his absence toManagement would have been proper, the Corporation seems to agree that it isunnecessary upon a finding that notice was given on September 1, 1983 as contended bythe Union.

The events and circumstances of July 29, 1983 as recalled by C. are similar to those ofSeptember 1, 1983 as recalled by the grievant. The circumstances of the two (2) days: (1)involved a telephone conversation between the grievant and C., (2) the grievant wasabsent from work at the time and had been sent a Paragraph (64) notice by Management,(3) the grievant communicated that there were reasons for his absence and (4) thegrievant reported to the plant to pick up a check. On balance, the evidence favors thefinding that what took place on July 29, 1983 to which C. testified actually occurred onSeptember 1, 1983 as testified by the grievant and to the extent of his presence andinvolvement, corroborated by B.



Also bearing on the outcome of this matter is the treatment of the grievant by Dr. S. withinthree (3) days of his receipt of the Paragraph (64)(c) notice. Seeking medical assistanceserved to corroborate the grievant's assessment of his health and confirm the accuracy ofthat assessment which he had previously shared with C. in connection with his absence.

In view of the above findings, therefore, it is unnecessary to consider what if any effect thegrievant's illness had on his ability or inability to respond to the Paragraph (64)(c) notice.No opinion in this regard is expressed or implied. The grievance is, accordingly, sustained.

DECISION

Grievance No. 116292 is granted.

The Corporation shall reinstate the grievant with no loss of seniority, benefits and with backpay to August 1, 1984.

JOHN PAUL SIMPKINS

Umpire





No. U-2

FEBRUARY 17, 1986

Discharge Under Paragraph (8) of the National Agreement;

Selling Marijuana to Undercover Agent Assigned to Plant;

Concluding Transaction off Company Premises;

Evidence

GRIEVANCE


"I charge Mgt. with an unjust & unfair discharge. I demand that I be brought back to work atonce and be made whole on all lost money benefits & seniority at once."

/s/ S.P.S. (Grievant)

/s/ D.F. (Committeeman)

In the Matter of:

UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERSOF AMERICA, Local Union No. 1999

and

Appeal Case U-009

GENERAL MOTORS CORPORATION, CHEVROLET-PONTIAC-CANADA GROUP,OKLAHOMA CITY PLANT, Oklahoma City, Oklahoma

Page 1 of 11UMPIRE DECISION U-2

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OPINION

In an effort to probe plant drug trafficking the Management of the Oklahoma City Plant andthe Oklahoma Bureau of Narcotics (OBN) conducted an undercover investigation of thefacility with OBN agents J.H. and L. In his testimony, J.H. stated that he was placed in theplant as an employee and given instruction to make contact with employees trafficking innarcotics. The objective was to investigate and make a case for those involved if at allpossible. J.H. met the grievant, S.S., on July 26, 1984 at Don's Country Store located onthe interstate highway west of the plant. At the time, S.S. was sitting in the back seat of acar sharing a marijuana cigarette with a lady friend. J.H. introduced himself and let S.S.know he wanted to buy some marijuana. S.S. did not have any to sell so J.H. indicated thathe would be interested if he (S.S.) got any.

The next encounter J.H. had with S.S. was on July 30, 1984 near Column L-24 in the plantat 8:30 p.m. He and S.S. engaged in a casual conversation and S.S. asked if he was stillinterested in the purchase of some marijuana. Upon J.H. stating that he was stillinterested, S.S. responded that he could get a half (1/2) ounce for $35.00 and a full ouncefor $70.00. J.H. asked about the quality and was told that several employees at the planthad tried it and it was of good quality. J.H. told S.S. he would see him later and theyparted.

J.H. returned at 9:44 p.m. and gave S.S. $70.00 for a full ounce of marijuana. S.S. wantedto know where he (J.H.) could be reached for delivery and he was told that he would becontacted later to discuss the delivery.

The next day, July 31, 1984, J.H. met S.S. at Column L-24. J.H. was advised by S.S. thathe could not get a full ounce and that what he could get was more expensive. When askedif he had it with him, S.S. stated that he did not and that it was unsafe to have it in theplant; that it was in his car. Arrangements were then made for the delivery to take placeduring lunch at the Union Hall across the street from the plant.

Accompanied by L., J.H. drove into the Union Hall parking lot at approximately 9:24 p.m.and stopped next to S.S.'s car. J.H. was a passenger in the car and S.S. approached hisside and handed him a folded paper bag indicating that he was sorry he did not have a fullounce. J.H. inspected the contents of the bag at that time.

On cross examination, J.H. testified that he was not instructed to make cases in the plantbut to make contact with people in the plant. He also stated that he had seen S.S. beforeJuly 26, 1984 in the Union Hall's parking lot smoking marijuana in the company of othermen. He approached within ten (10) feet of them at the time but he did not speak toanyone in the group. Returning to the plant he identified S.S. as an employee byexamining Company records and photographs of employees. Then on July 30, 1984, heapproached the grievant near Column L-24.

Testifying further, on cross examination, J.H. stated that he was contacted twice to cometo the plant during the spring of 1985. Each time he was interviewed by Unionrepresentatives concerning S.S., but on one of the occasions another person was alsodiscussed. Management representative C. was present during the interviews.



L. testified that the undercover investigation started around July 1, 1984 and lasted aboutsix (6) weeks. He testified to seeing S.S. a couple of times prior to July 31, 1984 but thatwas the first time there was any contact between them. The first time he saw S.S. was atDon's Country Store on July 26, 1984, during the lunch period. He was in his car and heobserved J.H. talking to S.S. On July 30, 1984 he provided J.H. with protective surveillancein the plant while the payment was made in the narcotics transaction. He observed J.H.walk to Column L-24 and briefly converse with S.S. after which J.H. handed something toS.S. L. could not see what it was but had a good idea of what S.S. was handed. Then, onJuly 31, 1984, he was with J.H. in the Union Hall parking lot to consummate thetransaction. At that time S.S.'s car was parked on the north side of the lot. S.S. got out andcame over to his (L.'s) car, approaching J.H. on the passenger side. J.H. was handed abrown paper bag which contained marijuana. No money was exchanged at this time andS.S. apologized for not having a full ounce, stating that it would not happen again.

L. concluded his testimony by stating that the investigation ended in late August, 1984, andit took another month for the warrants to actually be issued. Overall, the investigation wasconcluded in September or October, 1984.

In his testimony S.S. stated that he had a seniority date of January 30, 1984 and that hewas terminated on November 2, 1984. At the time of his discharge he was classified as"Assembler" and worked on the second shift bolting down transmissions near Column L-24.

S.S. recalls being approached by someone on July 26, 1984 while in the parking lot ofDon's Country Store. He was smoking a marijuana cigarette at the time and he was askedwhere the marijuana could be purchased. S.S. told the person that he (S.S.) could be of nohelp and the conversation ended.

On July 30, 1984, near Column L-24, S.S. was again approached by the same person,J.H. and asked if he could get J.H. some marijuana. S.S. replied that it was not proper todiscuss it there, but if he wanted to talk about it, he (J.H.) could meet him at the Union Hallduring lunch. Later, at the Union Hall, S.S. recalls being approached by J.H. and askedabout the marijuana. S.S. stated that he was not sure if he could get it, but if he could, J.H.should return the next day at the same time.

The next day, July 31, 1984, S.S. was contacted by J.H. in the plant as he was on the jobnear Column L-24. He was asked by J.H. whether he (S.S.) could get the marijuana. S.S.informed J.H. that he would be at the parking lot. S.S. made a stop before going to theUnion Hall during lunch. He had been advised the day before that J.H. was interested in ahalf (1/2) ounce. When he arrived S.S. drove up next to J.H.'s car and got out. He thenwent over to the car and handed J.H. the marijuana. J.H. held it up and inspected it beforehanding over $35.00 in payment. After this exchange they both departed.

On November 1, 1984, S.S. was arrested and charged with two (2) counts of distributingmarijuana. He had not heard from Management or the police between the sale to J.H. onJuly 31, 1984 and his arrest. The next day, November 2, 1984, he reported to work but hewas relieved by his supervisor and instructed to report to plant security. There herequested a committeeman and was permitted to wait for his arrival in another room.



When Committeeman F. arrived S.S. was accused of selling marijuana on Companyproperty. He responded to the accusation by stating that he sold no marijuana onCompany property. Management indicated that J.H. was the person he sold the marijuanato on Company property. J.H. was not present at the interview.

On cross examination S.S. acknowledged that someone was in the car with J.H. when themarijuana was delivered. He could not be sure it was L.

Zone Committeeman G.S. was present at the grievant's interview on November 2, 1984.Also present were Sergeant G.H. of Plant Security and Labor Relations Representative,C., the person who accused S.S. of selling marijuana on Company property. WhenManagement was asked who accused S.S. of the activity, G.S. was informed that it wasJ.H. and L. C. further stated that he got the information from plant security which providedhim with a copy of the report prepared by the OBN agents. G.S. requested but was refuseda copy of the agents' report. He was advised that he was not authorized to receive it. Healso requested an opportunity to interview the agents and was advised by C. that he wouldget back in touch with him. Later in the interview he requested an opportunity to interviewthe OBN agents again and was told that their schedules made it difficult for them to cometo the plant. This request was renewed again at the Third Step Meeting.

G.S. interviewed J.H. on March 13, 1985 in reference to the grievance of S.S. On March27, 1985 he interviewed J.H. regarding another employee. That interview had nothing to dowith S.S.

During the interview conducted by G.S., J.H. responded to each question by reading froma report which he had previously prepared. At this time G.S. requested C. to provide acopy of the report signed by J.H. No request for the report was made of J.H.

The Corporation contends that the grievant was involved in trafficking narcotics onCompany property. In support of its position the Corporation contends that the agent gavethe grievant $70.00 on Company property for one (1) ounce of marijuana which wasdelivered the next day off Company property. It argues that the grievant was reluctant tobring the contraband into the plant for fear of being caught but willing to arrange for andreceive money for the drugs while on Company property. In the Corporation's view, there islittle that could occur that would be more adverse to the operational efficiency of the plantthan trafficking in drugs. Sales of this kind in the plant encourage drug use and underminethe relationship between employees and the employer. It maintains that automaticdischarge is the appropriate penalty for drug trafficking.

The Union's contentions are many. Firstly, it contends that the Corporation must establishthat the grievant committed the acts described in the Paragraph 76 Notice which mustcontain specific charges of activity coming within the scope of discipline "for cause", andthat the Umpire should hold the Corporation to the specific charge. In this connection, theUnion argues that the grievant was neither observed offering marijuana for sale onCompany property nor had any in his possession on Company property. The sale of a halfounce of marijuana off Company property to someone not employed by the Corporation isnot punishable under the "misconduct" charge "for cause" under Paragraphs 8 and 47 ofthe National Agreement, the Union argues. The sale of marijuana on the Union's parkinglot was handled within the civil court procedures and is not a basis for discipline within the



grievance procedure.

Secondly, the Union contends that Management's delay in imposing discipline from July30-31, 1984 to November 2, 1984 is violative of Umpire precedent.

Thirdly, the Union contends that Management's refusal to fairly disclose information in itspossession before the disciplinary interview on November 2, 1984 and its use of reportsprovided by the undercover agents as a basis for the grievant's discharge, is a violation ofthe Union's right to "full and immediate disclosure". Use of the reports at the disciplinaryinterview of the grievant and the refusal of Management to provide copies of them to theUnion bars the testimony of the OBN agents at the Umpire Hearing, in the opinion of theUnion.

Lastly, it is maintained that refusing the Union the right to interview the OBN agents is aviolation of due process. The Union's repeated requests to interview the Company'switnesses were not granted by the March 8, 1985 Third Step Meeting. Submitting thenames of its witnesses and denying the Union the right to interview them will not permitManagement to escape the secret witness rule, the Union argues.

The question before the Umpire is the propriety of the grievant's discharge for the followingreason stated in the Notice of Disciplinary Action - Unacceptable Behavior datedNovember 2, 1984:

"You are being discharged concerning your misconduct on thesecond shifts of Monday and Tuesday, July 30 and 31, 1984, whenyou were observed to be offering for sale, possession, distributionfor sale of marijuana on Company property."

The grievant does not deny that he sold some marijuana to J.H., but he denies that thetransaction took place on Company property. Certain facts are not disputed between theparties; namely,

1. That J.H. and L. were undercover agents of the OBN.

2. On July 26, 1984 at Don's Country Store, J.H. firstapproached the grievant about the purchase ofmarijuana.

3. Don's Country Store is not situated on Companyproperty.

4. On July 30, 1984 J.H. approached the grievant at ornear his work station in the plant for the purpose ofpurchasing marijuana.

5. On July 31, 1984, J.H. approached the grievant at ornear Column L-24 in the plant concerning the purchaseof marijuana and was told to meet him in the parking lotof the Union Hall.



6. The Union Hall is not situated on Company property.

7. The grievant delivered to J.H. a quantity of marijuanaon July 31, 1984 in the presence of L. at the parking lotof the Union Hall.

The Union's focus throughout the processing of this grievance has been directed towhether the transaction or any part of it occurred on Company property. Until the StepThree Meeting, Management's thrust was that the offer to sell and receipt of the moneywere essential elements of the transaction which occurred on Company property whichjustified the grievant's discharge. However, at that meeting Management introducedanother basis for the grievant's discharge. The next-to-last paragraph of the March 8, 1985Four-Man Appeal Meeting Minutes has the following language:

"... The conversations that were had between Agent (J.H.) and thegrievant that led to the exchange of money must also be weighed inthe process. These conversations and the exchange of money ledto the subsequent passing of marijuana between (J.H.) and thegrievant. Whether the marijuana was passed with the exchange ofmoney, inside the plant or outside the plant, or at a later date shouldhave no bearing whatsoever. What matters is that the grievantwillfully entered into an arrangement to sell marijuana. Because thepassing of this drug did not occur on General Motors property doesnot exonerate the grievant as the Union suggests." (Underscoringadded)

Although portions of this language are referenced in the Union's brief at two places, thereis no significant response to it apart from the following assertions:

1. "The notice must contain the specific charged actsthat fall in the scope of disciplinary action "for cause",especially since there is no posted shop rules coveringthe 'rules of conduct expected' of employees at thislocation.

2. "(T)he sale of the one-half ounce of marijuana to anon-General Motors person off company property is notpunishable under the 'misconduct' charge 'for cause'under Paragraphs 8 and 47 of the NationalAgreement." (Underscored in original text)

In the opinion of the Umpire the Corporation has struck the core of what must be decidedhere. The use of narcotics and the trafficking of them by employees is conduct that involvethe legitimate concern and interest of the Corporation. For sure, conduct of this sort isdetrimental to the basic fabric of industrial life. If allowed to persist it will engulf theindustrial community and destroy it significantly. Clearly, therefore, the concern here is notthe extent to which the transaction took place on Company property, but the extent towhich the Company and its employees and property may be affected by the conduct.Considered in this light it is instructive to weigh the evidence on a scale that measures the



impact of the conduct on the industrial environment and balance it with the legitimateinterests of the Corporation. Consider the following:

1. The purpose of the undercover agents was to helpManagement with the problem it had with drugtrafficking.

2. The agents conducted their investigation assumingthe roles of employees and were instructed to identifyemployees trafficking in drugs.

3. The grievant is an employee at the Oklahoma CityPlant and he was contacted by an undercover agent as ifhe was an employee and not in any connectionunassociated with his employment.

4. On July 30 and 31, 1984 the grievant dealt with anOBN agent as though the latter was an employee.

5. The grievant's discussions with agent J.H. on July 30and 31, 1984 concerned the subject of selling the latter aquantity of marijuana.

6. The transaction was finalized during the grievant'slunch period in the Union Hall parking lot which islocated near the plant.

7. The grievant entered a guilty plea in open court for"Unlawful Delivery-Marijuana", for his conduct in theUnion Hall parking lot and was sentenced to thirty (30)days in county jail and fined $500.00.

No Shop Rule violation is asserted as justification for the grievant's discharge. Accordingly,he was discharged pursuant to Management's authority under Paragraph (8) of theNational Agreement which is as follows:

"(8) The right to hire; promote; discharge or discipline for cause; and to maintain disciplineand efficiency of employees, is the sole responsibility of the Corporation except that Unionmembers shall not be discriminated against as such. In addition, the products to bemanufactured, the location of the plants, the schedules of production, the methods,processes and means of manufacturing are solely and exclusively the responsibility of theCorporation."

Management's right to discipline and discharge under this provision is so fundamental tothe parties' relationship as to require no elucidation here. The fact that an employee isdisciplined under Paragraph (8) or a Shop Rule does not lessen Management's burden toestablish an employee's guilt beyond a reasonable doubt in relation to the grounds fordiscipline.



The grievant was discharged for his conduct on July 31, 1984 as much as for his conductthe day before. In his testimony he contradicts the prior record by acknowledging that hetold J.H. in the plant to meet him at the Union Hall during lunch. He also concedes that thepurpose for the meeting was to deliver the marijuana to a location off Company property.

In Decision C-231, Umpire G. Allan Dash, Jr., held that Management's right to dischargefor cause is not limited entirely to matters happening within the confines of Companyproperty. Particularly noteworthy and pertinent here is the following language of thatdecision:

"Several previous decisions of the Umpire have ruled that matterswhich have occurred outside of Plant premises but which have anoticeable and significant effect upon employer-employeerelationships within the Plant, are rightly matters to be handled bydiscipline. ... In keeping with the principles enunciated in the noteddecisions, the Umpire is convinced that disciplinary action is properwithin the meaning of Paragraph 8 of the October 19, 1942Agreement when it is applied as a means of disposing of an incidentarising outside of the Plant premises which has a significant anddemonstrable impact upon employer-employee relationships withinthe Plant."

Commenting on the propriety of Management to discipline employees for behavior offCompany property Umpire, Ralph T. Seward, in Decision C-278, held that:

"... the mere fact that an event takes place off the Plant premisesand outside of working hours does not necessarily depriveManagement of all disciplinary authority to deal with it. Previousdecisions of this Office have already established that events outsideof a Plant which have a demonstrable injurious effect uponemployer-employee relationships within the Plant may rightly be thesubject of disciplinary action."

Umpire Decisions E-139 and G-120 reaffirmed the principle of Management's authority todiscipline for events occurring beyond its geographical boundaries and working hours. Itsauthority, however, is limited to conduct effecting employer-employee relationships soadversely as to impair its ability to maintain an efficient operation and discipline within theoperational structure. Conduct inimical to society at large which occurs off Companypremises is not punishable by the Corporation unless it can reasonably be viewed as"cause" for discipline pursuant to the "adverse impact" test of prior precedent.

Trafficking in narcotics by and among employees is as inimical to the employer-employeerelationship as the Umpire can imagine. It is perverse conduct for which no plant rule isnecessary in order to put employees on notice that it is regarded by Management asintolerable. For the protection of employees, the efficiency of its operations and controlwithin its premises, Management is justified to discipline employees under Paragraph (8) ofthe National Agreement for trafficking in drugs in a way that impacts on employer-employee relationships.



The proof that the grievant has engaged in trafficking marijuana is abundantly clear andhas been established beyond a reasonable doubt by his voluntary guilty plea to the chargeof "Unlawful Delivery - Marijuana" under the law of the State of Oklahoma. The chargerelates to a delivery of marijuana at 7125 South Air Depot Boulevard, the parking lot of theUnion Hall. The evidence is also clear that as background to the actual delivery, thegrievant, on Company property, arranged a meeting on Union property with someone hebelieved to be a fellow employee for the purpose of contracting for the sale of a quantity ofmarijuana. Making the arrangements to meet and discuss the transaction is so inextricablyconnected to the delivery of the goods as to be one continuous transaction having itsgenesis at the plant and involving someone believed to be an employee. From the momentin the plant when the grievant discussed the arrangements to later discuss the transactionwith another employee the legitimate interests of the Company were being jeopardized.Through it all, the grievant has demonstrated disrespect for the employer-employeerelationship, disregard for the employee-employee relationship and disinterest in hisrelationship with the Union. The attendant circumstances, therefore, support the conclusionthat on July 30 and 31, 1984 the grievant engaged in a series of related activities on andoff Company property which are properly characterized as trafficking in marijuana. Thematerial impact of his conduct whether on or off Company property is indistinguishable inview of the location of the contact and the employee-employee relationship involved.Management was manifestly within its authority to discipline the grievant under Paragraph(8) of the National Agreement.

At the outset of the Umpire Hearing the Union objected to any testimony from the OBNagents in relation to the grievant's discharge. The stated basis for the objection wasManagement's refusal to provide the Union copies of the reports received from the OBNagents and Management's alleged refusal to allow the Union to interview the agents whoprepared the reports. The Corporation maintained that the objection was lacking infoundation because it did not have any control over whether the Union could interviewpeople not in its employment. And, that in lieu of providing copies of the written reportsManagement provided the Union with the names of the OBN agents and their place ofemployment. Management contended further, that at no time did it interfere with theavailability of these individuals to the Union which had access to them by telephone orpersonal visitation to their place of employment. In the interest of time and also to allow theUmpire an opportunity to examine the prior record, OBN agents J.H. and L. were permittedto testify notwithstanding the Union's objection.

The prior record confirms the Union's testimony that requests were made at the Paragraph(76a) interview for information supporting Management's charge and also for anopportunity to interview the individuals making the charge that the grievant had beenengaged in conduct involving the sale of marijuana on Company property. The Union wasinformed that the charge was made in a report given to Management by OBN agents, butits request for a copy of the report was refused.

Additionally, the Union's request to interview the agents was only supported to the extentof providing their names and place of employment. The Union's position at that time wasthat the grievant did not engage in the conduct charged and that the agents neverapproached him on Company property. Whether a sale was consummated and, if so,whether it occurred on Company property, were serious concerns of the Union.



At the Umpire Hearing the Union argued that the testimony of the OBN agents should notbe received because their reports were not provided to the Union and also becauseManagement did not produce the agents for the Union to interview in connection with theirreports. Management's refusal to provide the reports must be distinguished from its failureto produce the agents as witnesses during the Paragraph (76a) interview.

In Umpire Decision T-3, the principle of "full-and-immediate-disclosure" was reviewed andreaffirmed as a viable linchpin in the parties' relationship in matters of discipline. Theprinciple is revisited here in view of the Union's threshold objection to Management'switnesses at the Umpire Hearing. The principle recognizes the fundamental obligation ofthe parties to make known all facts in its possession relative to a pending grievance. Anobvious purpose is to provide for an exchange of information so that neither participant tothe disciplinary procedure is disadvantaged through ignorance of information in thepossession of the other. The grievance procedure presents an opportunity for theinformational exchange. Each step short of appeal to the Umpire is a forum for disclosure.The failure to disclose prejudices both sides to a grievance and the process of collectivebargaining as well. In the case of the Union -- and a grievant -- it may be deprived ofcritical information and thereby prejudiced by not being able to construct an adequatedefense to the charge asserted by Management as justification for the discipline. Clearly,the ability to formulate a response to challenge the discipline is an interest affected by thedisclosure of information by Management or its failure to do so. Where the effect isconvincingly demonstrated the failure to disclose information relative to the reason fordiscipline has been regarded as a fundamental breach of the bargaining relationship whichcan affect the penalty imposed by Management.

The reports the Union were refused cannot be viewed as materially effecting its ability tochallenge the propriety of the decision to discharge the grievant. The Union has anobligation to pursue the acquisition of information at every opportunity prior to the appeal tothe Umpire. On March 13, 1985, before its April 19, 1985 Step Four Appeal, the Union hadan opportunity to interview the OBN agent with whom the grievant made the arrangementsand delivered the marijuana. The Union representative who conducted the interviewobserved that the agent referred to a report previously prepared by him to refresh hisrecollection of the circumstances before responding to questions. At no time during theinterrogation was a copy of the report requested from its author. The failure to do so isconsidered a waiver of any interest to see or have a copy of the document. In light of thisabandoned interest no error is found in Management's refusal to provide the Union with acopy of the report at an earlier stage in the disciplinary procedure.

The error asserted on the basis of not producing the agents at the Paragraph (76a)interview is rejected on other grounds. The Union was provided their names and place ofemployment which enabled it to pursue its interests directly with the agents as part of theUnion's investigation of the affair. While there is evidence that the agents did not attend thedisciplinary interview, there is no evidence that Management prevented their attendance ordid not seek their attendance. Similarly, no evidence has been produced which shows thatthe Union independently sought to interview the agents or that their efforts were frustratedby Management. As non-Company employees it cannot be concluded in the absence ofevidence that Management exercised any control or influence over whether the agentswould submit to an interview by the Union. On this basis the Union's claim is rejected.



The Umpire notes that the Union eventually conducted an interview of the agent withwhom the arrangements were made to traffic in marijuana. To the extent that it did, theUnion was provided an opportunity to explore the credibility of Management's source ofinformation in connection with the charges against the grievant. Lastly, there is noevidence that the Union's representation of the grievant was in any way materiallyprejudiced by information acquired during the exchange with the agent which was notdisclosed at the disciplinary interview.

The other contentions of the Union merit no treatment in view of their untimely assertion forthe first time at the Umpire Hearing. There are, accordingly, no mitigating factors that willwork to reduce the penalty of discharge assessed by Management. The grievance will,therefore, be denied.

DECISION


JOHN PAUL SIMPKINS

Umpire





No. U-4

JANUARY 5, 1987

Termination Under Paragraph (64)(c) of National Agreement;

Withholding of Information;

Evidence

GRIEVANCE:


I protest unjust termination under Parag. 64C of the N.A. I did not violate Par. 64C.Demand I be reinstated at once with all lost wages and benefits due to this unjust action.

/S/ R.B. (Grievant)


I protest Labor Relations M. withholding pertinent information on the 64(C) lettersupposedly sent to Employee R.B. Demand this information be produced at once.

/S/ A.C. (Committeeman)

In the Matter of:

UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERSOF AMERICA Local Union No. 25

and

Appeal Case U-10

GENERAL MOTORS CORPORATION, GM TRUCK & BUS ST. LOUIS ASSEMBLY


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\u-004_13BF5F46.htm

PLANT, St. Louis, Missouri

OPINION

Under Paragraph (64)(c) of the National Agreement an employee's seniority shall bebroken "if the employee is absent for three working days without properly notifying theManagement, unless a satisfactory reason is given." After the unreported absence, thisclause provides that:

... Management will send clear written notification to the employee'slast known address as shown on the Company records, that hisseniority has been broken and that it can be reinstated if, withinthree specified working days after delivery or attempted delivery ofsuch notice, he reports for work or properly notifies Management ofhis absence. A copy of such Management notification will befurnished promptly to the Chairman of the Shop Committee. If theemployee complies with the conditions set forth in the notification,his seniority will be reinstated if it has not otherwise been broken; ...

Grievant B., a second shift Assembler with a seniority date of November 6, 1959, wasabsent from work on August 22, 23, 24 and 27, 1984. On August 28 the Company sent hima certified letter in accordance with Paragraph (64)(c). He signed a receipt for it onSeptember 6.

On October 5 the Insurance Section of the plant Personnel Department received asickness and accident claim form signed by B. It was dated August 6, 1984. Dr. T., theattending physician, signed the appropriate part of the form and dated it September 21,1984. He reported that B. had been totally disabled from August 22 through October 8(estimated) and had received treatments on August 22 and 29, September 4, 7, 14 and 21.His diagnosis: "Dorsal myositis with outlet syndrome, lumbrosacral neurodynia causinginstability of the lumbar spine."

On October 8, B. returned to the plant with a disability certificate from Dr. T. dated October4 which stated that he was recovered and able to perform his regular duties. Thesupervisor of employment, however, advised him that his seniority had been terminatedunder Paragraph (64) (c). B. then met with Labor Relations Representative M. During theirconversation, M. recalled, B. said that he had disregarded the (64)(c) Notice because hehad already applied for sick leave and believed that Management was aware of the reasonfor his absence. M. thereupon checked with members of the insurance staff, but none hadreceived a request from B. for S&A forms or a report of his absence. M. therefore declinedto rescind the termination.

Later that day two Union committeemen asked M. to show them the documents pertainingto B.'s termination. M. replied that the material was locked in the files of the employmentoffice and he could not get it immediately. The two grievances here in issue were thensubmitted. They were subsequently combined for purposes of discussion and appeal.



In its April 1985 Statement of Unadjusted Grievance the Union affirmed in substance that:(1) In order to get S&L forms an employee had either to go to the Insurance Department orrequest them by telephone. (2) B. had requested the forms by telephone. (3) He hadreceived them in an envelope which, as it happened, bore no postage date stamp (not anunknown occurrence according to what a Union representative had learned from the PostOffice). (4) B. had given the forms to Dr. T. who, in turn, had filled them out and returnedthem to the Company. (5) Several Management representatives had commented that "B.got away from us last time but we got him now." (This, presumably, was a reference to thefact that B. had been discharged in 1981 because of excessive medical-related absencesbut, as a result of Umpire Decision R-3, dated April 5, 1982, had been reinstated.)

Management described the facts of the case in its Statement of Unadjusted Grievance asfollows: (1) B. failed to report his absence to the Employment or Security offices by August27. (2) B. did not notify Management of the reason for his absence after receiving the (64)(c) Notice on September 6. (3) On October 8 B. told Management that he had applied forsick leave soon after August 22 and, since he had received the forms, he assumed thatManagement was aware of the reason for his absence. A check of the appropriate offices,however, revealed that no one had sent insurance forms to B.

The envelope presented as evidence did not support the grievant's claim, according toManagement, because it was not date-stamped and there was no way of ascertainingwhen it was mailed or what was in it. B., moreover, could have obtained S&A forms from anumber of sources.

At the Appeal Meeting on May 29, 1985, the Union contended that B. had called the planton September 7, 1984, after receiving the (64)(c) letter, and had been told by anemployment clerk to disregard it because he had already applied for sick leave. He hadmade the telephone application on August 28 (but the minutes incorrectly recorded it asAugust 24, according to the Union). B. talked with a person in the Insurance Division whomhe presumed to be a black male. The Union also claimed that B. had told Labor RelationsRepresentative M. about the September 7 call when they conversed on October 8. It wasnot unusual for Management to lack records of calls from employees applying for suchleave, the Union contended. B., in fact, had previously experienced such an incident.

Management in reiterating its position that B. had not called the plant in August, noted thatwhen questioned on October 8, B. had not referred to any specific individual or date.Neither of the two insurance adjusters nor the two employment clerks reported having hadcontact with B.; nor had they corresponded with him during the period in question.Management, moreover, pointed out that the Union had failed to support by reference todates, time periods, or circumstances, its allegation concerning a prior instance when B.'sapplication for sick leave was not recorded.

Testimony at the Umpire hearing was offered by the grievant, by Shop Committeeman J.(concerning the envelope), by Shop Chairman C. (concerning the policy grievance), and byLabor Relations Representative M., two claims adjusters, an insurance support clerk and apersonnel clerk (with respect to the events of August-October 1984).

Grievant B. testified that, following his usual procedure, he called the Insurance Division onAugust 28. Although in all prior transactions since 1982 he had talked with S&A Insurance



Adjuster H. (who handles claims from persons whose names fall in the first part of thealphabet), this time he conversed with a person he could not identify, but who sounded likea black male. He stated that he was ill and asked for S&A papers. He answered specificquestions, among them, his last day of work, first day of his visit to the doctor, nature ofillness, and name of doctor.

He received the form in a hand-addressed envelope. The postmark, he stated, was blankas to day, year, or time. He signed his part of the form on September 6 (inadvertentlywriting August 6 instead) and presented it to his doctor on September 7.

He had received the (64)(c) Notice on September 6. Early the next morning (the 7th), hetestified, he called the Employment Department and talked with Personnel Clerk C.B.whom he knew well. He asked C.B. why a (64)(c) letter had been sent since he was onsick leave. When asked whether he had notified the S&A Division, he replied that he hadand that he had his sick leave papers. The personnel clerk then told him not to worry aboutthe (64)(c) notice.

When he went to work on October 8, the grievant testified, Labor Relations RepresentativeM. told him that he had been written off under (64)(c). He replied that he had called theplant and he described the conversation with C.B. He also said that he had previouslycalled the Insurance Office and obtained the S&A forms which M. now had. M. asked if hehad the envelope and he said he would look at home. He found the envelope the next dayand gave it to the Union.

Shop Committeeman J. testified that a Post Office supervisor, who declined to give hername, told him on the telephone that a letter could be delivered without a date on thecancellation stamp.

Personnel Clerk C.B. testified that he had sent the (64)(c) notice on August 28, uponreceipt of a seniority cancellation notice from B.'s department. Before acting, however, hehad checked the record of incoming calls and found none relating to B., nor was there anyrecord that B. had made a sick leave claim. C.B. was positive that he had not received acall from B. on September 7.

Claims Adjuster S., one of two black employees in the Insurance Division in 1984, testifiedthat he had received no call from B. on August 24 or 28. Insurance Support Clerk E., theother black employee, testified similarly.

Insurance Adjuster H., a former labor relations representative, corroborated the grievant'stestimony that, since 1982, he had been responsible for the handling of claims ofemployees with names from A through K and that he had processed all of the grievant'sclaims during that period. He also verified that he had not received a call from B. on August28. Had a call been received in the Insurance Division, H. stated, the person receiving itwould have recorded on an appropriate form all the pertinent information regarding theclaimant and his illness or injury. Copies of that form would then have been distributed tothe employee's department and to the payroll clerk for validation of the last day he workedand his wage rate. The call would also have been entered in the log.

When B.'s claim was received on October 5, H. recalled, Insurance Support Clerk E.



reported that the file contained no record of claim forms having been requested or sent.His own search of the files turned up no record of a claim request, nor was B.'s name onthe log sheet, although there had been a log entry for all other claims which he had madesince 1982. He (H.) reported his findings to W., the personnel supervisor.

H. acknowledged that the envelope turned in by the grievant contained B.'s name andaddress in his (H.'s) writing; but he had addressed many such letters to B. and there wasno way of telling what the contents of this particular envelope may have been. Blank claimforms are available outside the Insurance and Personnel offices, are kept in storagecabinets, and can be obtained from the insurance carrier.

Labor Relations Representative M. stated that the action to terminate B. under (64) (c) hadbeen initiated by the departmental foreman. His involvement started on October 8 whenthe employment supervisor asked him to speak to B. who had reported for work. On hisway to the lobby, M. recalled, he picked up the (64)(c) case file which included thesupervisor's Seniority Termination Request of August 27 (with the "Called In?" boxchecked "No"); a copy of the (64)(c) letter of August 28; and a return receipt date-stampedSeptember 6.

During their lobby conversation, M. testified, B. stated that he had become sick on August22 and had applied for S&A forms shortly thereafter - which he later received. B. said hecould not understand the reason for the termination since Management knew where hewas and that he was sick. Asked what he had done with the (64)(c) notice, B. said,"Nothing". He received these letters all the time, he added. At no time during thisdiscussion, M. stated, did B. refer to a conversation with C.B. in September or mention thathe had talked with a "black male" in the Insurance Division.

The labor relations representative then returned to the office where he inquired whether B.had, indeed, applied for sick leave as he had stated. Both W., the employment supervisor,and E., the insurance support clerk, told M. that the first word from B. had been receivedon October 5 (the mailed claim form); he had not called in to report his absence or to applyfor sick leave.

M. then returned to B. in the lobby, showed him the S&A claim form received on October 5,and said that there was no record of a prior application or call-in. B. protested, but M. toldhim that, based on the available information, the termination action would stand.

There are two key questions with respect to the propriety of the grievant's termination: (1)Did he inform Management of the reason for his absence in late August? (2) If not, did hepromptly respond to the (64)(c) Notice, as he asserts? If either question is answered in theaffirmative it is clear that he should not have been terminated under (64)(c). But if bothquestions are answered in the negative, it must be found that the termination was proper. Itshould be noted in this regard, that the grievant has not contended that he failed to notifyManagement but had a "satisfactory reason" for not doing so during the first three workingdays of his absence.

With respect to the (64)(c) Notice which B. received on September 6, 1984, he states thathe called on the very next day, talked with Personnel Clerk C.B., and was told to disregardit. But C.B. denies that any such conversation occurred. Who is to be believed?



Had this conversation taken place, in my estimation, B. would have reported it to M. onOctober 8, as soon as the question of his termination arose. And M., an experienced laborrelations representative, would have immediately checked with C.B. to ascertain whetherB., indeed, had been told to ignore the notice.

But M., as has been noted, denies that B. told him that he had called C.B. And, had B. infact had the alleged conversation with C.B., he and the Union would surely havementioned this critical piece of exonerating evidence at the initial steps of the grievanceprocedure. Yet even in the Union's Statement of Unadjusted Grievance, submitted someeight months later, there was no reference to a September 7 call. The Union, in fact,summarized the basis for its position that the requirements of (64) (c) had been satisfied bystating that "this employee did, in fact, apply for Sick Leave and received Sick LeavePapers... which Management cannot explain except to say that they did not give him thepapers..." And Management's Statement of Unadjusted Grievance confirmed that "theUnion also reiterated what the grievant had previously stated that he did not respond to thenotification which had been sent as Management was aware as to the reason for hisabsence." Note, furthermore, that C.B. was not queried about the September matter untilafter May 29, 1985, when the Union made the assertion for the first time at the AppealMeeting.

I must conclude, accordingly, that B. did not take any steps on September 7, 1984, torespond to the (64)(c) Notice. Did he, nevertheless, properly notify Management of thereason for his absence, as he claims?

There is no doubt that B. submitted S&L papers, signed by his physician, which the plantreceived on October 5. But he has no witness to support his assertion that he phoned theplant on August 28 or that he received S&L forms from the Insurance Office a few dayslater. The only documentary evidence he has presented is a company envelope containinga plant postage meter stamp, addressed to him in the handwriting of H., the insuranceadjuster who theretofore had processed all of his claims. This envelope, however, cannotbe accorded controlling weight since it is undated (apparently because of a malfunction ofthe postage meter), there is no way of determining what it contained, and H., whoaddressed it, had sent many similar envelopes to the grievant.

I have concluded, after carefully evaluating all the testimony regarding the earlier allegedcall, that B.'s version of the facts cannot be sustained. Some of the more importantconsiderations, in addition to those set forth above, are these:

- On October 8, when B. told M. that he had applied for S&A forms, he did not identify theperson with whom he had spoken. His subsequent identification of a "black male" wasnever explained.

- Although telephonic requests for S&A forms are normally logged and informationrecorded on forms which are distributed to various departments, there is no evidence thata notation of B.'s alleged request had been made anywhere; nor had anyone in theInsurance or Personnel offices any recollection of receiving a call from B. or a request forforms.

- A statement by a Management representative that "we got him now", or words to that



effect, does not necessarily mean more than what it literally says - that B. had been foundin a compromising situation. It certainly does not prove that a group of Managementpersonnel and clerks deliberately conspired to falsify or conceal or destroy records. Yet, ifB.'s report is accurate, either that is what happened or there was a breakdown of S&Aprocedures wherein an unknown person handled calls, processed requests for formsunbeknownst to H. using envelopes addressed by H., and failed to notify anyone of theactions he took. The evidence is not convincing that either of these situations actuallyoccurred.

With respect to the allegation in the second grievance - that M. withheld relevantinformation - the Union's position as set forth at the Umpire hearing was that: (1) LaborRelations Representative M. had access to the (64)(c) file and should have provided theUnion with papers from that file when requested. (2) His failure to do so constituted aviolation of due process. (3) When Management finally provided the requested informationit did so in an improper, unfair manner. (Nothing about this appears in the Union'sstatement of Unadjusted Grievance or in the Second or Third Step Minutes.)

The record reveals that Labor Relations Representative M. answered Committeeman C.'sgrievance of October 8, 1984 immediately. M. wrote that, "The information requested is notavailable at this time (6:25 p.m.) as it is secured in D.W.'s personnel files. It will be madeavailable to Z C/M C. on 10/9/84." Testifying at the Umpire hearing, M. confirmed that: (1)C. had come to him at about 6:20 p.m. and asked to see the (64)(c) folder; (2) the folderwas locked in W.'s files to which he had no key; (3) he reported this to C. but promised tohave the material made available the next day.

C., in his testimony, stated that he felt he was entitled to the material at once since itconcerned a termination and, although it was true that Personnel and InsuranceDepartment employees were not normally available on second shift, a Security Departmentemployee had sometimes unlocked the Personnel office.

I am not persuaded, on the basis of the above evidence, that the due process rights of B.or the Union were abridged. There is no indication that the persons with access to thefolder in question deliberately left the premises or locked the files because of B.'sgrievance; they were normally not present at 6:20 p.m. There is no evidence, moreover,that Security kept keys to the files, although evidently that department had keys to thePersonnel Office itself. Nor has it been shown that M. had any ulterior motive for delayingthe Union's investigation of B.'s grievance. It would appear from the wording of C.'sgrievance, in fact, that the Union believed at the time that no (64)(c) Notice had actuallybeen sent. "I protest Labor Relations M. withholding pertinent information on the 64C lettersupposedly sent to Employee R.B. ..." As it turned out, of course, there was no disputeabout that aspect of the case.

The Union's second contention, as explained at the Umpire hearing, was not that therequested information had not been provided (C. testified that he had received it onOctober 9) but, rather, that it had been furnished in a form difficult to understand. I agreewith that criticism. What happened, apparently, was that someone collected the variousdocuments in the (64)(c) file, positioned them on a reproduction machine, and ran offcopies. The result was that portions of five documents appeared on one page. While this isnot an appropriate way to provide documents, it was not a critical error in terms of the



Union's ability to investigate because, by further request, it was able to obtain copies ofeach document and, indeed, all of them are contained in the record. While such confusingoverlapping documentation is not to be condoned, this single example of carelessness orthoughtlessness cannot be translated into a contract violation, in my judgment.

DECISION

Grievances Nos. 033843 and 033844 are denied.

Arthur Stark

Umpire





No. U-7

October 2, 1987

Discharge;

Fraudulent Acceptance of Wages;

Erroneous Discharge Notice;

Extent of Penalty;

Evidence

GRIEVANCE:


I protest being discharged on June 20, 1986, as being unwarranted. I demand to bereturned to work immediately and made whole with all monies and economic adjustments.

/S/ M.N.S. (Grievant)

Amended to include violation of Paragraph 76A of the National Agreement.

Amended - The Union further charges Management with breach of a fundamental principlein the parties bargaining relationship to disclose pertinent information bearing on the othermatter at issue at the earliest possible opportunity.

/S/ T.D. (Shop Committeeman)

In the Matter of:



3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\u-007_13BF6C50.htm

and

Appeal Case U-98


OPINION

The Company inaugurated a third shift for the condenser core assembly line in Department874, Plant 4, in September 1985. In June 1986 Management uncovered what it believed tobe a series of fraudulent documents which had led to improper overtime payments to, andacceptance by, six employees, all of whom were then discharged. The resulting grievanceshave been submitted to the Umpire, one in this case and the other five in Umpire DecisionU-8 (Appeal Cases U-94, 95, 96, 97 and 99).

Management's suspicions were initially aroused on June 11, 1986. M.M., a first shiftDepartment 874 supervisor, was on his way to work at 7 a.m. when he observed J.R., athird shift employee from his Department, in downtown Lockport. Since the third shift didnot end until 7:30 a.m., M.M. made inquiries about J.R. at the plant. He was informed thatthe employee had not rung out (although he had rung in), but there was a supervisor's doorsheet authorizing J.R. to work 4 hours of overtime, that is, until 11:30 a.m.

On the following morning J.R. explained to Supervisor M.M. that he had left the plant onJune 11 to see his dentist. Temporary Supervisor J.N. confirmed to M.M. that he hadapproved J.R.'s absence, but retroactively (i.e., after J.R. had come to work the next day).Supervisor M.M. also learned that the door sheet in question, presumably signed bysecond shift Supervisor A.M., had also authorized four hours of overtime for four additionalemployees.

On June 13 second shift Supervisor A.M. informed first shift Supervisor M.M. that he hadnot authorized overtime for the five employees and that he had not prepared the doorsheet containing his name. This information was conveyed to D.S., Divisional Administratorof Labor Relations, who immediately initiated an investigation.

Initially, plant Personnel Director L.J. was asked to obtain the supervisors' log book andovertime charts; Payroll and Timekeeping Departments were asked to supply relevantdocuments. Then, on June 16, D.S. instructed second shift Supervisor R.W., who had justreturned from vacation, to interview the five men whose names appeared on the suspectJune 11 door sheet. At their interview each employee denied any knowledge of how hisname happened to appear on the document.

Administrator D.S. then asked the Timekeeping Department to search for additional doorsheets covering the week of June 11. Three more were found: for June 10, 13 and 17.Each contained the signature of Supervisor A.M. who, upon being questioned, stated thatthe writing was not his nor had he authorized the overtime. The scope of the inquiry wasthen expanded, first back to January 1 and then back to September 15, 1985, when the



third shift had been inaugurated. It was during this part of the investigation that three doorsheets with the name of M.S. were discovered; they covered January 23, January 31 andMarch 15, 1986. Two contained fake signatures of Supervisor R.W. (actually misspelled inone) and one of Supervisor A.M.

In the meantime clerical employees were assigned the task of obtaining information fromthe Payroll Department to ascertain whether the employees listed on the door sheets hadactually been paid for the hours specified. During this investigation some additional forgeddoor sheets turned up. No "legitimate" door sheets for the period April 1 - June 18, 1986duplicated the forged ones, according to Administrator D.S.

At this point a spread sheet analysis was begun to correlate dates of payment with thedates on the forged door sheets. A group of dates were found, each of which had thesecharacteristics (according to D.S.): (1) the employee had no out ring; (2) his nameappeared on a falsified door

sheet; (3) he was paid for the time. Additionally, the supervisors' attendance logs for thosedates revealed that the employees had worked fewer hours than they were paid for, D.S.testified.

The five employees whose names appeared on the original door sheet were interviewedagain on June 17 and again denied any knowledge of the matter. By June 18 theinvestigation was virtually completed; a total of 15 suspicious door sheets had been foundcovering the period January 21 – May 8. Three contained the name of M.S., who hadworked as a Material Handler - Heavy - Production on the third shift since September1985. His seniority date was August 26, 1976.

M.S. was given a disciplinary interview on June 19-20. Supervisor R.W. conducted it.According to the Union's notes, R.W. gave "falsification of Payroll Records (Door Sheets)"as the reason for the interview. R.W. testified, however, that he told M.S. that he (M.S.)had violated a plant rule since the door sheets indicated that he had worked 12 hours,while the foreman's log specified only 8 hours on each of the three days.

M.S. asserted that he had no knowledge of how or why his name got on the three doorsheets or who had signed the supervisor's name. When asked about the "no out ring," heasserted that he had rung out. He added that he had had problems with his badge and hadbeen given a new one in May. He testified at the hearing that he assumed that he had rungout because he customarily rang out; but he had no recollection of those particular rings.

Before the interview was adjourned, District Committeeman, H.N. asked for copies of theso-called forged door sheets, the foreman's log, and the payroll records for the days inquestion. According to the Union's notes, Supervisor R.W. said that the data would beprovided on the following day.

The interview was reconvened on the morning of June 20 with plant Personnel DirectorL.J. in charge. Also present were Supervisors R.W., J.N., two district committeemen (H.N.and H.P.) and an alternate district committeeman (F.W.). There are no notes of thismeeting. The Personnel Director testified in substance that: (1) M.S. acknowledged that heunderstood the seriousness of the situation. (2) When shown copies of the three door



sheets M.S. said he was unable to shed any light on them or explain how his namehappened to appear. (3) He (the Personnel Director) said that the door sheets indicatedthat M.S. had been paid for time not worked and asked for an explanation. M.S. repliedthat he did not recall that far back. (L.J. had examined the pertinent overtime authorizationsheets, time records and supervisors' logs, although they were not brought to thisinterview.)

Alternate Committeeman F.W. testified that L.J., after showing the three door sheets andmentioning "falsification of records," asked whether M.S. knew anything about them. M.S.replied that he did not. Committeeman H.N. testified that the subject of the meeting wasfalsification of records; there was no reference to the fraudulent acceptance of money forhours not worked.

Following a recess, Management issued M.S. a notice of discharge which stated:

During the extended period of time from September 15, 1985 toJune 17, 1986, the above named employee was repeatedly involvedin the fraudulent act of accepting wages, to which he had noentitlement, for time not worked. These monies were generatedthrough a series of forged door sheets. As a result of his actions, asdescribed above, Mr. S. is being disciplined by discharge.

Personnel Director L.J. testified that the dates in this Paragraph (76b) Notice referred tothe inauguration of the 3rd shift (September 15, 1985) and the start of the investigation(June 17, 1986).

Committeeman H.N. thought that Management referred for the first time to the fraudulentacceptance of wages on this Notice.

M.S. submitted his grievance after receiving the discharge notice. He testified, insubstance, that: (1) To his knowledge he had not accepted money for time not worked. (2)He did not forge any door sheets. (3) When he had become aware in April 1986 of anoverpayment for 7 hours, he reported it to his supervisor. (An exhibit in the record showsthat 7 hours' pay ($153.74) was deducted from M.S.'s check for April 13, 1986.) (4) Had hebeen aware of overpayments for January 23, January 31 and March 15, 1986, he wouldhave reported them. (5) He did not recall how many hours he worked on Saturday, March15, 1986. (6) The way he learned that his badge reader was not functioning (when thatoccasionally occurred) was through his supervisor's questioning as to why there was nobadge ring. (7) He knew the five other grievants, and, in fact, knew all of the third shiftemployees in his department.

M.S.'s grievance was denied on June 25 and 27, 1986 (Steps One and One and One-half).On July 2 the Union amended it to include a failure-to-promptly disclose claim.Management's Paragraph (77) answer was submitted on July 3 and Statements ofUnadjusted Grievance were exchanged on July 18. Step Three statements wereexchanged on September 16.

The Union contends that the grievance should be sustained on several grounds, somerelating to the "merits," others to procedural matters. It argues in substance as follows:



1. The Corporation has not proved that the grievant, who had an otherwise unblemishedrecord, either accepted pay for time not worked, or forged or caused to be forged any doorsheets. No one observed him sign a supervisor's name to any of the three sheets inquestion. No testimony from a handwriting expert has been produced to connect thewriting on the sheets with that of the grievant. There was no reason for him to have noticeda few overpayments of about $50 in his paycheck, particularly when he worked quite a lotof overtime.

2. In order to reach its decision the Corporation has piled inference on inference, contraryto the dictates of Umpire Decision J-1. If assumptions are to control, one could assumethat someone was out to get the grievant fired.

3. The Corporation relied on records which contained many errors, particularly SupervisorR.W.'s log sheets and overtime equalization sheets.

4. If Management made errors in payment, it should have utilized its Paragraph (49) rightto recapture the money. That provision declares that:

Deductions from an employee's wages to recover over-paymentsmade in error will not be made unless the employee is notified priorto the end of the month following the month in which the check (orpayroll order) in question was delivered to the employee.

5. Even were the grievant guilty of the alleged offenses he should not have beendischarged. Under similar circumstances Management has imposed 20-day DLOs underposted Shop Rule #4 which prohibits "Ringing the I.D. badge or signing the door sheet foranother, or permitting another to do so for you."

6. Management has committed several procedural irregularities, among them:

a. Initially charging the grievant with falsifying door sheets and thenchanging the charge, in the discharge notice, to acceptance of payfor time not worked. This represents a violation of Paragraph (76a).

b. Issuing an erroneous and misleading (76) Notice. Thus, while thegrievant was actually charged with improper actions on three days,the notice referred to an "extended period... from September 15,1985, to June 17, 1986" during which he allegedly "was repeatedlyinvolved" in fraudulent acts.

c. Improperly withholding relevant information from the Union anddelaying, until after the Third Step meeting, the providing of copiesof all of the information requested. This was a breach of theprinciple of full and immediate disclosure. (Umpire Decisions F-97and T-3)

It is likely, the Union affirms, that if one examined all of the grievant's records back toSeptember 1985 (which was not done) they would reveal many instances of failure to ringin or out and thus demonstrate that the three incidents in question were not unusual.



With respect to the "merits" the Corporation argues in essence that: (1) It is clear that thegrievant was not entitled to the overtime pay triggered by forged door sheets. (2) As anexperienced employee he must have realized that he was receiving funds to which he wasnot entitled: $87 gross on two occasions for four hours, and $142 for 6.5 hours. Moreover,his check stubs would have reflected the number of paid overtime hours. It is beyond beliefthat he would have overlooked three such overpayments. (3) If the grievant were innocenthe would have reported the overpayments. (4) As in Umpire Case M-88, there was presenthere a pattern of conduct which could not have been fortuitous and which showed specificintent to defraud the Company. (5) The circumstances here are different from those in thecases of two employees who were given 20-day DLOs under Rule #4: there were noforgeries and no repetitions in those cases and the violations were discovered before anypayments were made.

As for the Union's claims of procedural irregularities, the Corporation argues that:

1. Management did not change the "charge" or violate (76a) in anyway. At the initial disciplinary interview it was plain that theinvestigation concerned fraudulent payroll documents. Since therewas no evidence connecting the grievant to the forgery itself, hewas not charged with that act; rather he was charged with what theevidence disclosed which, in essence, was participation in ascheme whereby a group of third shift employees pocketed moneyto which they were not entitled. The charge was not ambiguous andspecifically addressed the nature of the misconduct.

2. Management did not use Plant Rule #4, which concerns ringingthe badge of another or signing a door sheet for another, because ithad no probative evidence as to who actually committed theforgeries. But the employee was entitled to, and received, a clearstatement of the reason for the discharge.

The Union was provided with appropriate information in a timely manner. Except for thesupervisor's daily attendance log, all relevant documents were in the Union's hands byJune 30. The information in the Daily Attendance Log was reviewed with two Unionrepresentatives on July 8 and copies were provided on July 14. On the night of thedischarge, in fact, the Union saw the three door sheets in question and was informed thatpayroll documents revealed no punch out on those days.

Assembly of the documents for reproduction was not simple. Fifteen counterfeit doorsheets, encompassing fifty overtime payments, had to be cross-checked against thesupervisor's daily attendance log, overtime equalization charts and weekly timekeepingsummaries. Some records were on microfilm. Irrelevant or confidential information had tobe purged. Many documents were difficult to reproduce.

The Union's ability to challenge the grievant's discipline was not impaired by whateverdelays occurred. (Umpire Decisions U-2 and U-5) Some of the material requested by theUnion, moreover, was not relevant, such as supervisors' logs for the period November1985 to January 1986, overtime authorizations for the period September 1986 to January1987, and handwriting analyses. Other documents, such as daily debit timekeeping sheets



and "corrected" door sheets covering the grievant, were not available, or were non-existent.

It is plain that no one observed Grievant M.S. in the act of violating a Company rule orcommitting a punishable offense. Since the evidence is circumstantial, the initial questionsmust concern the nature and reliability of that evidence.

Let us start with the documents that triggered Management's suspicion of the grievant, thethree door sheets. A Supervisor's Door Sheet (Form TKPG 1000) is a form which is used,as it states at the top, "for reporting of irregular hours and S.U.B. data." The printedinstructions direct the supervisor to:

PREPARE A SEPARATE DOOR SHEET FOR EACH DEPT. ANDSHIFT. PLACE ENTRIES FOR ANY PREVIOUS DAY ON ASEPARATE SHEET. USE TWO LINES WHEN MORE SPACE ISREQUIRED. ENTER EMPLOYE'S COMPLETE TIMEKEEPINGACTIVITY. WHEN RECORDING TIME ALWAYS REPORT THEEXACT TIME FOR WHICH YOU WANT THE EMPLOYE PAID.REPORT START IN AND STOP OUT TIMES IN TENTH-HOURINTERVALS ONLY. SIGN ON LINE IMMEDIATELY UNDER LASTORIGINAL ENTRY AND ANY ADDITIONAL ENTRIES. DEPOSITDOOR SHEETS AND OTHER TIMEKEEPING DATA AT THE ENDOF YOUR SHIFT IN: BOX AT PLANT SECURITY OFFICE.

Door sheets are used primarily to authorize overtime payments or enter badge rings notgenerated at the clock. They also may reflect absences, tardiness, scheduled days off, andthe like. Blank copies are kept at the supervisors' desks. Unauthorized persons might haveaccess to the forms. On rare occasions, according to the testimony of the Plant PersonnelDirector, a door sheet may be used to make up "shortages" in the previous week's record,for example, if an employee had previously worked overtime which was not recorded.

Each form contains seven columns headed Badge Number, Employee Name, Time ForWhich You Want Employee Paid (with four sub-columns for Start-In, Lunch Out and In,Stop-Out), Door Sheet Codes, No. of O.T. Hours Excused, Day Employee Notified of O.T.,and Remarks. Codes are numbered 1-9 and defined in a separate box. A specialinstruction on Overtime Notification specifies that "the day the employee was notified ofsuch O.T. must be reported in the appropriate column using the proper code from the "DayNumber Table."

The January 23, 1986 Door Sheet

As noted earlier, the name of Supervisor R.W. appears on this form although, as hetestified, the signature was not his, nor was any of the writing. In the first two columnsappear the names and badge numbers of the grievant and three other employees (who aregrievants in the companion case, Umpire Decision U-8). The data inserted in the remainingcolumns is identical for all four men:

Time For Which You Want Employee Paid



Start - In 11:00 p.m.

Lunch - Out 2:55 a.m.

- In 3:30 a.m.

Stop - Out 11:30 a.m.

Door Sheet Code(s) 7, 8

Remarks O.T.

There was no entry for "Day Employee Notified of O.T."

The January 31, 1986 Door Sheet

The names of the grievant and the five grievants in Umpire Decision U-8 appear on thisform. The data is identical with that on the January 23 form except that: The word"Overtime" is spelled out instead of abbreviated; the grievant's badge number, althoughcorrect for him, was also listed, incorrectly, as the badge number of one of the otheremployees; the supervisor's name, R.W., is misspelled; the signature is in a differenthandwriting from that on the earlier form. R.W. testified that the writing was not his.

The March 15, 1986 Door Sheet

The names of the grievant and three other employees (grievants in Umpire Decision U-8)appear on this form. The signature is that of Supervisor A.M., who testified that it was notgenuine. March 15 was a Saturday and all four men are listed as:

Start - In 11:00 p.m.

Lunch - Out 5:00 a.m.

- In 5:35 a.m.

Stop - Out 12:00 p.m.

The Codes are 7 and 8. The "Day Employee Notified of O.T." was "6" – or Saturday."Remarks" were "O.T."

What these forms reveal, then, is that: (1) Some unknown person filled them out. (2) He orshe reported that the grievant failed to ring his badge and worked overtime in the amountof four hours on two days and four and one-half hours on the third. (3) The forms wereturned in for processing. (4) The names of two other employees appear on each sheet, thenames of another two on two sheets and a sixth name appears on one sheet.

We turn next to the Supervisor's Attendance Log. This is a continuing record of the hoursworked by each employee in the department. The supervisor records by code numberspaid personal holidays, vacation, excused absence, and other circumstances such as



DLOs, transfers and the like.

Supervisor R.W.'s log for January 1986 with respect to the grievant contains the figure"8.0" on January 23 and 31. The other employees whose names appeared on the doorsheets are also listed for 8 hours on both days. (For reasons which are not clear,Management whited out the columns covering January 1 through 19.) R.W. believed thatthe Log with respect to M.S. for January 27 was wrong by one hour.

Supervisor R.W.'s log for March 15, 1986 (the days of March 16 through 23 were whitedout) indicates that M.S. and the other men whose names appeared on the door sheetworked "6" hours. R.W. testified that he customarily takes attendance about one hour afterthe shift starts and logs the names of those present on this form. He also notes in the logwhen an employee leaves early and records overtime hours offered (which he checks onhis overtime chart as well). Supervisor A.M. records overtime hours in the same log book.

Overtime Equalization Records are maintained by each supervisor. They contain, byemployee name, badge number, and classification, weekly recordings of overtime hoursworked (or offered) as well as cumulative figures.

The Overtime Equalization Record for January 1986 lists these hours for the grievant:

W/E Jan. 26 261.5

Feb. 2 279.5

For March, the form shows:

W/E March 9 288.5

March 16 297.5

March 23 297.5

Supervisor R.W. testified with respect to these records that: (1) His log of overtime hoursworked (or offered) is input into the computer which calculates the cumulative totals. Theresultant chart is posted weekly. (2) The March 1986 record in question here was done byhand by another supervisor while he (R.W.) was on vacation (although R.W.'s nameappears on the form). (3) There was a discrepancy with respect to the overtime hoursrecorded for M.S. during the week of March 10 (when R.W. was not in the plant); 9 hourswere added instead of 10.5. (4) At an Unemployment Compensation hearing subsequentto the discharge he had testified that he did not record overtime refusals (and he usuallydidn't), although his May 5 Log shows that 8 hours were refused. (5) He is not alwaysnotified by other supervisors when 3rd shift employees work into the 1st shift and theinformation is not always entered into the log. Whether door sheets are turned in by thosesupervisors he does not know.

The fourth record upon which Management relies is the Weekly Timekeeping Summary.This is a computerized record which, as explained by Divisional Labor RelationsAdministrator D.S., shows for each day all badge ring activity, actual hours paid, overtime



premium hours and straight time hours, shift premium, and total straight time hours paid.For January 23, D.S. testified, this Summary revealed that:

1. M.S.'s badge was rung in at 2287 on the night ofJanuary 22.

2. There was no out ring.

3. Codes 7 and 8 represented failure to ring badge andovertime worked (the codes from the door sheet).

4. 12.0 represented actual hours paid (including 4 hoursof overtime at time and one-half).

5. 2.00 represented overtime premium hours (4 hours at1/2 time).

6. 14.00 represented straight time hours paid (12 plus 2).

7. 1.4 represented 3rd shift premium (10% of 14).

8. 15.4 represented total straight time hours paid.

The Summary also showed that the grievant had recorded in and out badge rings on all sixdays of that week except for the out ring on the day in question and an in ring on Day 3(January 21). The 12 hours of work recorded for January 22 corresponded with the 12hours recorded in the Supervisor's Attendance Log. The 12 hours on January 23, however,were inconsistent with the 8 hours recorded in the Log for that day.

With respect to information concerning other employees contained in this WeeklyTimekeeping Summary, the evidence reveals that one employee's chart carried the 7 codealthough other boxes showed both in and out rings. Another employee who had rung inand out on Day 5 was coded 7 (failed to ring badge). The testimony indicates, additionally,that if a supervisor neglects to record overtime hours on a door sheet those hours will notappear on the Timekeeping Summary. Other errors may occur initially if a badge is notworking.

For the January 31 hours in question, Administrator D.S. testified, the Weekly TimekeepingSummary shows that the grievant did not ring out on Day 5. The Code, however, was "C"rather than 7. ("C" refers to a "correction.") The Summary specifies that M.S. was paid for12 hours which, with all the premiums, translated into 15.4 paid straight time hours. TheSupervisor recorded eight hours on the Attendance Log.

The grievant worked only 7 hours on Day 1 of that week (W/E 2-2-86), according to theTimekeeping Summary, although Supervisor R.W. had recorded 8 hours on hisAttendance Log. (Whether a door sheet exists for this irregular shift (coded "2" for tardy orleft early on the Timekeeping Summary) is not known.) Nor is it clear why the Equalizationof Overtime record for M.S. reported an increase for M.S. of 18 hours from the previousweek.



It may be noted at this point that Management crossed out the names of the other fiveemployees on the January 31 door sheet, indicating that they were not being charged withhaving accepted wages to which they were not entitled, although for each the same entryhad been made as was made for M.S. Administrator D.S. testified in this regard that:

1. Two of the five had out rings for the appropriate time.

2. The investigation for one was not complete.

3. A fourth had not been paid for the day. It was laterrealized that he had been given the wrong badgenumber on the door sheet (Grievant M.S.'s number,actually). Subsequently, a corrected door sheet wasfound in February 1987 and reviewed at theUnemployment Compensation hearing in the Union'spresence. He (D.S.) was persuaded that this man hadbeen paid for 8 hours.

4. D.S. did not comment on the circumstances of thesixth man.

In a similar vein, one of the other alleged falsified door sheets, this one for January 28,which appears to have been partially written by the same person who wrote the sheet forJanuary 23, includes the name of M.S. along with those of four other employees (grievantsin the companion case). But M.S., unlike the others, was not charged with this day (hisname was crossed out) because, as reported in the Union's Statement of UnadjustedGrievance, D.S. was uncertain as to whether M.S. had been overpaid for that day. (Whilethe door sheet authorized 12 hours of pay - 11 p.m. until 11:30 a.m. - and the WeeklyTimekeeping Summary indicated no out ring, that Summary showed that only 8 hours ofpay was authorized.)

For the March 15 (Saturday) hours in question the Weekly Timekeeping Summary,according to Administrator D.S., shows that M.S. did not ring out (he had rung in at 2293).The code indication was "C". This record indicated that he had worked 12.5 hours (ofwhich 6.25 were premium hours). This corresponded with the door sheet but not withSupervisor R.W.'s Attendance Log which specified 6 hours of overtime work. The 9 hoursof overtime recorded on the Equalization Record also corresponded with the hours notedin the Attendance Log.

Before evaluating this documentary evidence let us consider the Union's (76) and (76a)contentions. Pursuant to Paragraph (76) Management must provide a dischargedemployee with a "brief written statement... describing the misconduct for which he hasbeen... discharged..."

The Notice given M.S. referred to repeated fraudulent acts occurring between September15, 1985 and June 17, 1986. This was clearly an inaccurate statement. The period coveredby M.S.'s alleged improprieties was January 23 to March 15. That the longer periodrepresented the months covered by Management's investigation did not justify anexaggerated charge, particularly when Management was charging the grievant with just



three dates in question. Since the grievant and his representatives were not misled aboutthe specific dates, however, it does not appear that his position was prejudiced byManagement's inaccurate statement. In the future, certainly, care should be taken to avoidinaccuracies or exaggerations of this kind.

Paragraph (76a) entitles an employee to an interview in order to "answer the chargesinvolved in the situation for which such discipline is being considered..." As the evidencediscloses, M.S. was initially informed that the investigation concerned his allegedinvolvement with the falsification of door sheets. In the end, however, he was charged "withaccepting wages, to which he had no entitlement... (which) were generated through aseries of forged door sheets..." A distinction exists here, it is true, but a reading of theminutes of his first interview, as well as the testimony regarding the second one, showsconvincingly that both M.S. and his representatives were aware of the circumstancesgiving rise to Management's suspicions. It would have been pointless in this particularcase, in my judgment, to have set up a third interview for the purpose of revising thecharge.

In Decision M-88, as here, the evidence was circumstantial. The Umpire, in commentingon that kind of evidence, stated that several of the Union's arguments might loom large in adoubtful case, e.g., arguments that the grievant could not reasonably have been expectedto account for his whereabouts on twelve particular dates within a previous five-monthperiod; that there was no positive evidence that the grievant had left the plant or thatsomeone had rung him out; that because pay receipts were recorded in terms of payperiods rather than days, it could not be fairly assumed that the grievant had knowinglyaccepted wages not due him; and the like. Given the facts of the case, however, theUmpire rejected those arguments. The compelling facts, he stated, were that the grievant,a committeeman, on twelve different occasions within a five-month period was involved ina repetitious series of events which included a Paragraph (24) letter from the shopcommittee, the appointment of a substitute committeeman, the absence of an exit pass, afailure to punch out, and the collection of pay from both the Company and the Union for thesame time period.

In M-88 the Umpire also dealt with questions relating to the extent of penalty. He held, forexample, that the provision in the National Agreement which allows for the recovery ofover-payments made in error (then Paragraph (48a)) was not intended to be applied so asto excuse a gross act of fraud. He accepted the concept, however, that penalties shouldnot be imposed in a mechanical way, even in so-called fraud cases, citing such priordecisions as C-126, H-31, J-58, and M-49. In the particular case before him, the Umpirefound, discharge was appropriate because the grievant had repeatedly resorted to thescheme and thus displayed an unacceptable pattern of conduct.

The instant case has some aspects of M-88, as Management has pointed out. But thereare also some areas of question or doubt which were not present in the earlier case. Thus,notwithstanding the broad-gauged charge against M.S. ("extended period of nine months,""repeatedly involved"), the actual charge was narrowed to three occasions falling within aseven-week period. On one of those occasions, moreover, five of the men whose namesappeared on the door sheet were not charged with having received improper payments(i.e., it does not follow that having one's name on a forged door sheet automatically makesone guilty of accepting unearned money). Similarly, on another of the days two men whose



names appeared on the door sheet did have out rings recorded on the WeeklyTimekeeping Summary. It would therefore appear that at least some of those whosenames were on that door sheet actually worked twelve hours. (A fourth man, the evidenceindicates, was paid for eight hours although the door sheet specified that he was approvedfor twelve.)

It may also be noted that, although there is no cited rule with respect to an employee'sobligation to report wage overpayments, at the hearing the grievant acknowledged a moralobligation to do so - and he had done so. He reported an overpayment of about $154 inApril, shortly after the events here in issue had occurred.

There are, nevertheless, several perplexing and unanswered questions with respect to theevidence. For example: For what purpose were names placed on fraudulent door sheets, ifnot to obtain pay for time not worked? Is it credible that an employee's name would appearon a forged door sheet without his knowledge? If so, when did he find out? Was his namenot included after March 15 because he instructed whomever it was who was submittingthe sheets to leave him out - or for some other reason? It must be noted that the grievantwas not forthcoming with explanations.

These questions persist. Yet the evidence as to the grievant does not conclusivelydemonstrate the oft-repeated pattern which is typified by the evidence in M-88 and whichwould justify discharge. Accordingly, based on the entire record in the case at hand, Iconclude that the discharge should be rescinded and replaced by a 60-day DLO.

DECISION

The discharge of Grievant M.S. shall be rescinded and replaced by a 60-day DLO. M.S.shall be reinstated and be given back pay for the period commencing 60 days from histermination and extending until the date of his reinstatement.

Arthur Stark

Umpire





No. U-8

October 2, 1987

Discharges;

Fraudulent Acceptance of Wages;

Withholding of Information;

Wrong Rule;

Erroneous Discharge Notice;

Extent of Penalty; Evidence

GRIEVANCES:

Grievances Nos. 680801, 680802, 680803, 680804, 680805

I protest being discharged on June 20, 1986, as being unwarranted. I demand to bereturned to work immediately and made whole with all monies and economic adjustments.

/S/ J.J.B. (Grievant)

F.J.D. (Grievant)

K.L.P. (Grievant)

J.R. (Grievant)

R.W. (Grievant)

Amended to include violation of Paragraph 76A of the National Agreement.

Amended - The Union further charges Management with breach of a fundamental principlein the parties bargaining relationship to disclose pertinent information bearing on the othermatter at issue at the earliest possible opportunity. /S/ T.D. (Shop Committeeman)


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\u-008_13BF7EA8.htm

In the Matter of:


and

Appeal Cases U-94, 95, 96, 97 and 99


OPINION

This is a companion case to Umpire Decision U-7. The parties have agreed to combinethese five grievances because of their similarities. The grievants all were assigned to thethird shift (11 p.m. - 7:30 a.m.) in Department 874, Plant 4, Building 8 (as was GrievantM.S. in Decision U-7). Their classifications and seniority dates were as follows:

The events leading to these discharges have been set forth in the prior Umpire decision.To briefly recapitulate: On June 11, 1986 Management's suspicions were aroused when asupervisor observed J.R. in downtown Lockport at 7 a.m. when he should have been atwork. An initial investigation turned up a door sheet for that day which authorized fourhours of overtime for J.R., K.P., J.B., F.D. and R.W. The door sheet proved to have beenforged. Additional investigation revealed three more forged door sheets covering otherdays in June. By June 18 Management had found nineteen forged door sheets, datingback to January, each with the names of three or more (usually four) of the grievants.Unconvinced by the employees' disclaimers of any knowledge of the matter and relying onthe fact that they had accepted unearned wages in many instances, Managementdischarged the six men following disciplinary interviews on June 19. Grievances were

AppealCaseName

AppealCase#

Grievance#

Classification SeniorityDate

K.P. U-94 680803 Mat’l Handler – Heavy Prod. 8/23/76

J.R. U-95 680804 Serviceman – Department 1 1/11/65

F.D. U-96 680802 Mat’l Handler – Heavy Prod. 3/15/76

R.W. U-97 680805 Assembler – Light 8/19/68

J.B. U-99 680801 Mat’l Handler – Heavy Prod. 8/23/76



submitted and later amended.

In each of the five cases Management's Paragraph (76b) discharge notice read as follows:

During the extended period of time from September 15, 1985 toJune 17, 1986, the above named employee was repeatedly involvedin the fraudulent act of accepting wages, to which he had noentitlement, for time not worked. These monies were generatedthrough a series of forged door sheets. As a result of his actions, asdescribed above, Mr. (Grievant's name) is being disciplined bydischarge.

The table below summarizes the data collected by Management with respect to the fivegrievants.

TABLE 1

Overtime Hours on Forged Door Sheets

Date K.P. J.R. F.D. R.W. J.B.

1/21 4 4 4 4

1/22 4 4 4 4

1/23 4 4

1/28 4 4 4

1/31 4 4 4 4 4

3/8 4.5 4.5 4.5

3/15 4.5 4.5 4.5

3/24 4 4 4

4/25 4 4

4/29 4 4 4 4

4/30 4 4 4 4

5/2 4 4 4 4

5/6 4 4 4 4

5/7 4 4 4 4

5/8 4 4 4



As the above table reveals, the total overtime hours for which the grievants were allegedlypaid without having worked were:

K.P. - 39

J.R. - 48.5

F.D. - 36.5

R.W. - 53

J.B. - 28.5

Some additional information regarding timekeeping and pay procedures was provided atthe hearing by J.T., Administrator of Compensation. Thus:

Badges and Badge Readers.

Each employee's ID badge has a magnetic tape coded with hisnumber. When the badge is placed in the reader a green lightchanges to red, indicating that the ring has been recorded. Arecorded ring cannot be removed from the record.

Paychecks.

Each check is delivered with an accompanying pay stub which listshours worked, overtime hours, earnings and deductions.

Door Sheets.

These are used when the badge ring information is missing. Theyare the only documents which authorize payment of overtime.Sometimes, however, when overtime is scheduled in advance, thecomputer is programmed accordingly; but that rarely occurs withSaturday work.

If a ring is missing, the supervisor customarily submits a door sheet to allow the employeeto be paid. If the timekeeper does not receive one, he sends a "correction" door sheet tothe supervisor with an appropriate notation. Similarly, if a badge ring indicates that an

6/10 4 4

6/11 4 4 4 4 4

6/13 4 4 4 4 4

6/17 4 4 4 4 4



employee has worked overtime and no door sheet was submitted, the timekeeper sends a"correction" to the supervisor for approval. If there is no ring out, but a door sheet showsthat an employee worked overtime hours, the overtime will be paid because it wasapproved.

The Compensation Department does not double check the accuracy of door sheets. Theyare sorted and filed and used as references by the timekeeper. If all the necessaryinformation is on a door sheet it is processed for payment even if the supervisor's signatureis missing.

Daily Debit Report.

Issued after all data for the day has been cycled, this report lists allemployees by department and displays rings, information from doorsheets, actual hours, applicable premiums, and the like. The reportsare given to the plant manager each day; hard copies are retainedby the Timekeeping Department for a month. At the end of eachweek the information is entered on a Timekeeping Summary Formand microfilmed. These forms are retained for three years.

Efficiency Report.

This report, which goes to the plant manager (who sends copies tosupervisors in each department) compares the amount of moneyspent by a department with the amount which had been planned. Itprovides an indication of whether costs are out of line.

Labor Relations Administrator D.S. identified fifty sets of documents similar to the setsintroduced in Umpire Decision U-7, each containing a copy of the forged door sheet,Supervisor's Log, Overtime Equalization Sheet and Weekly Timekeeping summary. Thereis one packet for each day for which each grievant has been charged. D.S. testified thatManagement subsequently turned up a correction door sheet for two of the grievants. Itwas offered in evidence at the UC hearing in February 1987.

Supervisor A.M. testified that the signatures on the six door sheets attributed to him werenot his. He had approved overtime for the grievants on other occasions, however, althoughthey had stopped accepting it in May and June. To his recollection none had ever reportedan overpayment of wages to him.

Supervisor R.W. testified that the signatures on the thirteen remaining door sheets werenot his, nor did he have any clue as to who had filled them out. On one of the days -January 23 - he was on vacation; and his log for his vacation period had disappeared.None of the five grievants had ever reported having received overpayments, R.W. said.

Supervisor R.W. also testified that: (1) He did not know of any correction door sheets forthe days in question. (2) There was a discrepancy in the Weekly Time Summary recordsconcerning Grievant J.R. who should have been charged for 18.5 instead of 12 hours ofovertime for W/E February 2. (3) It was unlikely that he would notice an error on a DailyDebit Report indicating that five men had worked on a Saturday when they had not done



so. In fact, he seldom reviews those reports. (4) He is not always aware when a daysupervisor asks one of the employees in his group to work overtime. (5) During thedisciplinary interviews he did not specifically state that the grievants were subject todiscipline for accepting money to which they were not entitled. He did assure Unionrepresentatives that several documents would be provided the following day.

Each of the grievants testified that he did not knowingly accept money for time not workedon the days in question; he did not forge or sign the name of a supervisor on any doorsheets; he had denied the charges about specific dates at the disciplinary interviews; andhe had not been previously disciplined.

Summarized below is the information contained in the documents relating to the individualgrievants and their testimony.

Grievant K.P.

January 22, 23 and 28

The Documents.

The door sheets specify that he worked from 11 p.m.until 11:30 a.m. with a 35-minute off-the-clock lunchperiod (2:55 to 3:30 a.m.) on each of these days; thecodes are "7" (Failed to Ring Badge) and "8" (WorkedOvertime). The Attendance Logs specify 8.0 hours. TheTimekeeping Summaries reveal no out rings and 12hours of work, with codes "7" and "8".

The Grievant's Testimony.

He regularly rings his badge and is familiar with thegreen light-red light system. If the red light does not flashhe usually reports that to his supervisor.

On these days he worked 12.0 hours and probably rangout (since he usually does). He could not recall whetherhe worked overtime on any other days that week.

March 8, Saturday

The Documents.

The door sheet specifies work from 11 p.m. until 12 noonwith a 35-minute off-the-clock lunch period (5 to 5:35a.m.); the codes are "7" and "8". The Attendance Logspecifies 8.0 hours. The Overtime Equalization Recordspecifies 9 hours (either offered or worked) for W/EMarch 9 for K.P. and all six employees in the material-handler-heavy classification. The Timekeeping Summary



reveals an in ring at 2286, no out-ring, 12.5 hours ofwork, and the code "C" (corrected).


Supervisor R.W. (whose name was signed to thefalsified door sheet) asked him to work overtime. He didhis regular job for six hours and then moved cores for sixand one-half hours. His supervisor on that job was M.J.He probably did not ring out because he had beeninstructed not to ring out when he worked a double anddid not take lunch.

March 15 (Saturday)

The Documents.

The door sheet is similar to the one for March 8. TheAttendance Log specifies 6 hours work. The EqualizationSheet indicates no overtime hours during W/E March 17for anyone in the classification. The TimekeepingSummary contains no out ring (in ring was at 2299),reports 12.5 hours of work, and code "C".


He worked on the wash for the full time along withemployee R.Z. and two new men. M.J. was probably thesupervisor. He probably did not ring out.

March 24.

The Documents.

The door sheet is similar to the sheets for January 22, 23and 28. It reports twelve hours of work. The AttendanceLog specifies 8 hours. (However, Supervisor R.W.'sname appears on the Log, whereas the falsifiedsignature on the door sheet is that of Supervisor A.M.)The Timekeeping Summary contains no out ring (in ringwas at 2289), reports twelve hours of work and the code"7" and "8".


He worked 4 hours of overtime and probably rang out.

April 29



The Documents.

The door sheet specifies work from 11 p.m. to 11:30a.m. with a 30-minute off-the-clock lunch period (3 to3:30 a.m.). The Attendance Log reports 8.0 hours. TheEqualization Sheet indicates 229.5 hours for W/E April27 and 223.5 for W/E May 4. (For reasons which are notexplained everyone in the classification was reportedwith fewer hours for the same period.) The TimekeepingSummary shows 12 hours of work and both an in ringand out ring of 2291 (e.g., no out ring).


It is probable that he did not work overtime on this dayand was therefore overpaid. He does not recall anyovertime work in April. He did not report theoverpayment.

He had received three or four other overpaymentsbetween 1977 and 1985, none of which he repaid. Asupervisor told him, during his first year of employment,that it was foolish to report overpayments. He followedthat course without worrying about it.

May 7 and 8

The Documents.

The door sheets are similar to those for January 22, 23,28 and March 24. The attendance logs report 8.0 hours.The Equalization Sheet indicates that no overtime wasoffered or worked for W/E May 11. The TimekeepingSummary reveals no out rings on any day that weekexcept Thursday and no in ring on Sunday. Eight hoursof work is recorded for each day except May 7 and 8 forwhich 12 hours are shown.


He worked 12 hours on each of these days. He is notsure whether he rang out. He had been on vacation May1 and 2 and had no badge on Monday and Tuesday(which he reported to his supervisor).

June 10, 11, 13 and 17

The Documents.



A door sheet for each of these days, containing thefalsified signature of Supervisor A.M., indicates workfrom 11 p.m. until 11:30 a.m. with a 35-minute lunchperiod (2:55 to 3:30 a.m.) and Codes "7" and "8".


He did not work overtime on those days and assumesthat he did ring out.

Grievant J.R.

January 22, 23 and 28

The Documents.

These are the same door sheets, described above, onwhich the name of Grievant K.P. appears. They report 4hours of overtime on each of these days. TheAttendance Logs specify 8.0 hours. The TimekeepingSummaries contain the codes "7" and "8", no ring outsfor these days, and specify that the employee worked 12hours. (Ring ins were at 2242, 2251, and 2255.) TheOvertime Equalization Chart shows 189.0 hours for W/EFebruary 2 and 177.0 for W/E January 26. (TheTimekeeping Summary reflects 4 hours worked onFebruary 1; 12 on January 31; 11.3 on January 30; 6 onJanuary 29; 12 on January 28; and 8.5 on January 27.)


He always rings out. He is sure he worked because hewas paid for the time. He did not recall whether heworked other overtime that week.

March 8, Saturday

The Documents.

K.P.'s name also appears on this door sheet. It reports12 hours of work. The Attendance Log specifies 8.0hours. The Equalization Sheet indicates 13.5 hours ofovertime offered or worked during W/E March 9. TheTimekeeping Summary reveals no ring out (the only timethat week), 12.5 hours of work, and code "C."


If the sheet specified that he worked 12.5 hours of



overtime, he did. There should be a genuine door sheetfor this day.

March 24

The Documents.

The door sheet, which also contains the name of K.P.,authorizes 4 hours of overtime. The Attendance Logspecifies 8 hours of work. The Timekeeping Summaryshows an in ring of 2234. The next ring is 2236. Thehours worked are 12, the code, "C".


He rang out and he worked if the record said he did. Heworked additional overtime that week. (The TimekeepingSummary lists 7.9, 8.0 and 8.0 on Tuesday, Wednesdayand Thursday and no hours on Friday.)

April 25

The Documents.

The door sheet specifies work from 11 p.m. to 11:30a.m. with a 35-minute off-the-clock period (2:55 to 3:30a.m.); the codes are "7" and "8". The Attendance Logspecifies 8.0 hours. The Equalization Sheet shows 238.5hours for W/E April 27 and 237.0 for the previous week.The Timekeeping Summary reveals no in ring or out ring,12 hours worked, and code "C".


He did not think it worthwhile to discuss these or anyfurther records, particularly since some were forgeries.He had possibly been overpaid a few times over theyears, however, although not during 1986.

April 29

The Documents.

K.P.'s name also appears on this door sheet whichauthorizes 4 hours of overtime. The Attendance Logspecifies 8.0 hours. The Equalization Sheet shows 235.5hours for W/E May 4 and 238.5 for the previous week.(The other employee in the same classification alsoshowed a decrease.) The Timekeeping Summary shows



an in ring of 2284. The next ring is 2254 (e.g., there is noout ring). It also shows 12 hours worked and code "C".

April 30

The Documents.

The door sheet specifies work from 11 p.m. to 11:30a.m. with a 35-minute off-the-clock period from 2:55 to3:30 a.m. and codes "7" and "8". (The name of thesupervisor is misspelled.) The Attendance Log specifies8.0 hours. The Equalization Sheet lists 235.5 hours forW/E May 4, the same as the preceding week. TheTimekeeping Summary reveals no out ring (in ring was2254) and 12 hours worked.

May 2

The Documents.

The door sheet: work from 11 p.m. to 11:30 a.m. withlunch period 2:55 to 3:30 a.m. and codes "7" and "8".

Attendance Log: 8.0 hours.

Equalization Sheet: 235.5 hours on W/E May 4 and238.5 for the previous week. (A similar reduction wasnoted for the other employee in this classification.)

Timekeeping Summary: No out rings; 12 hours of work;code "C".

May 6

The Documents.

The door sheet: Work from 11 p.m. to 11:30 a.m. withlunch period 2:55 to 3:30 a.m. and codes "7" and "8".


Equalization Sheet: 237 hours for W/E May 11 and 235.5for previous week.

Timekeeping Summary: In ring at 2236, next ring at 2241(e.g., no out ring); 12.5 hours of work; Code "C".

May 7



The Documents.

The door sheet: Same as that described above for K.P.authorizing 12 hours of pay.


Equalization Sheet: 237 hours for W/E May 11 and 235.5for the previous week.

Timekeeping Summary: In ring at 2241, next ring at 2241(e.g., no out ring); 12 hours of work; code "C".

May 8

The Documents.

The door sheet: Same as that for K.P. authorizing 12hours.


Equalization Sheet: Same as for previous date.

Timekeeping Summary: In ring at 2241, next ring at 2240(e.g., no out ring); 12 hours of work; code "C".

June 10, 11, 13 and 17

The Documents.

The door sheets are the same as those described abovefor Grievant K.P.


With respect to June 11: He obtained the permission ofSupervisor J.N. before leaving the plant at about 7:05a.m. (The supervisor had testified that J.R. told him onJune 12 that he had left early for a dentist's appointmentthe previous day and he - J.N. - had therefore excusedhim. The supervisor also stated that he had not filled outa door sheet for J.R.)

Grievant F.D.

January 21

The Documents.



The door sheet: Showed work from 11 p.m. to 11:30a.m. with lunch period 2:55 to 3:30 a.m. and codes "7"and "8".


Timekeeping Summary: In ring at 2294, next ring 1932(e.g., no out ring); 12 hours of work; code "C".


He does not recall whether he worked overtime on thisday or on any of the other days on which his nameappeared on falsified door sheets. He does remember,however, that he did not work overtime in June. Heregularly rang his badge in and out. He was overpaidonce during the past ten years, possibly in May 1986. Hereported the overpayment to Supervisor R.W. but doesnot recall what became of the matter.

January 28, March 8 and 24, April 25 and 30 May 2, 6 and 8, June11, 13 and 17

The Documents.

The door sheets are the same as those described abovewith respect to Grievants K.P. and J.R. The informationon the other documents is summarized in the followingtable.

TABLE II

F.D.

Timekeeping Summary

Out-Ring

Hrs. Code

Jan. 28 12.0 8.0 +8.0 No 12.0 C

Mar. 8

24

12.5

12.0

8.0

8.0

+9.0

+9.0

No

No

12.5

12.5

C

8, 7

April 25 12.0 8.0 +6.0 No 12.0 C



Grievant R.W.

January 22, 23 and 28; March 8, 15 and 24; April 25, 29 and 30;

May 2, 6, 7 and 8; June 10, 11, 13 and 17

The Documents.

The door sheets have all been described above. Theinformation on the other documents is summarized in thefollowing table.

TABLE III

R.W.

30 12.0 8.0 -6.0 No 12.0 7, 8

May 2

6

8

12.0

12.0

12.0

8.0

8.0

8.0

-6.0

None

None

No

No

No

12.0

12.0

12.0

7, 8

8. 7

8, 7

June11

13

17

12.0

12.0

12.0

Timekeeping Summary

Out-Ring

Hrs. Code

Jan. 22

23

28

12.0

12.0

12.0

8.0

8.0

8.0

No

No

No

12.0

12.0

12.0

7, 8

8, 7

7, 8

Mar. 8

15

12.5

12.5

6.0

6.0

+12.0

None

No

No

12.5

12.5

C

C




He probably worked overtime on January 22 because heusually accepts overtime, but he has no particularrecollection of that date. He used to look at the postedEqualization Charts. He once was overpaid for fourhours. He told Supervisor A.M. about it the next weekbut, although A.M. said he would take care of it, he(R.W.) is not aware that anything was done. He regularlyrang in and out unless instructed not to ring out, whichhappened occasionally when he worked overtime.

In June he was called in to work early (7:30 p.m.) on oneof the days between June 15 and 19.

Grievant J.B.

January 22; March 15; April 29 and 30; May 2, 6 and 7; June 11, 13,17

The Documents.

The door sheets are the same as those described above.

24 12.0 8.0 +12.0 No 12.0 8, 7

April 25

29

30

12.0

12.0

12.0

8.0

8.0

8.0

None

None

None

No

No

No

12.0

12.0

12.0

C

C

8, 7

May 2

6

7

8

12.0

12.0

12.0

12.0

8.0

8.0

8.0

8.0

None

None

None

None

No

No

No

No

12.0

12.0

12.0

12.0

8, 7

7, 8

8, 7

8, 7

June11

13

17

12.0

12.0

12.0



The information on the other documents is summarizedin the following table.

TABLE IV

J.B.


He rang in and out every day. He could not recallwhether he worked overtime in April, May or June 1986.He would have recognized an overpayment of four hoursfor time not worked and would have reported it. He hadreported overpayments of 7 hours in January 1986 and 6hours in June 1986 to Supervisor R.W. who said hewould take care of it, and did for the first instance. (At theUC hearing he had testified to receiving oneoverpayment for 4 hours.)

It was his understanding that Management had hired a

Timekeeping Summary

Out-Ring

Hrs. Code

Jan. 22 12.0 8.0 No 12.0 C

Mar. 15 12.5 6.0 +9.0 No 12.5 C

April 29

30

12.0

12.0

8.0

8.0

-6.0

-6.0

No

No

12.0

12.0

C

C

May 2

6

7

12.0

12.0

12.0

8.0

8.0

8.0

-6.0

None

None

No

No

No

12.0

12.0

12.0

C

C

C

June11

13

17

12.0

12.0

12.0



graphologist who had determined that he - J.B. - hadwritten the door sheets in question. His attorney hadretained another handwriting expert who concluded thatthe writing was not his.

*

By agreement, the parties incorporated into this case their arguments, as well as aconsiderable part of the testimony in Umpire Decision U-7. In addition, the Union makesthese points:

1. The badge reading system is not foolproof, as the testimony of J.T. shows.

2. Had the grievants engaged in a conspiracy - which they did not – all theirnames would have appeared on all the forged door sheets. But that did notoccur. It is more likely, in fact, that the grievants were framed because offriction between the shifts. How else explain day shift Supervisor M.M.'s interestin investigating an employee from a different shift (the June 11 incident)?

3. It is not surprising that the grievants were unable to recall what happened onspecific days a year or more ago. Management's blanket charge, moreover,was defectively unspecific.

4. The Union was disadvantaged in its presentation because Management hadfailed to provide sufficient information. In any event, the records which wereprovided, such as Supervisor R.W.'s logs and Equalization Sheets, revealnumerous errors and are therefore not reliable. Moreover, Management did notgive any correction door sheets to the Union during the course of theinvestigation.

5. The Union was not shown any proof that Grievant J.B. had written any of thedoor sheets in question, notwithstanding Management's assertion in itsStatement of Unadjusted Grievance that "a qualified expert in criminalistics andhandwriting" had concluded that J.B. had forged all those sheets.

6. The penalty in similar cases has been a 20-day DLO.

7. Management stopped payment on the overtime reported for June 11, 13, and17; and it could have recovered the overtime payments for May 2, 6, 7 and 8pursuant to Paragraph (49). Why didn't it do so?

8. Supervisor R.W.'s logs and Overtime Equalization Sheets contain severalerrors and did not accord with payroll records. Some examples:

- Overtime sheets for four of the five grievants showfewer hours as of W/E May 4 than W/E April 27. Theyshould be the same because, according to the log, noovertime was offered or worked during the week endingMay 4.



- The log and payroll records differ in some instances asillustrated in the table below in which figures contained inthe Union's Umpire Brief have been compiled.

TABLE V

Hours In

Log Payroll

R.W. 3/6

3/7

3/8

3/24

3/28

3/30

4/22

5/1

10.0

10.0

6.0

12.0

4.0

4.0

8.0

8.0

8.0

7.9

7.9

12.0

12.0

4.0

4.0



*

Management adds these comments and arguments to those previously submitted:

1. The detailed testimony regarding the badge reading system reveals thatonce a ring has been entered it cannot be eliminated or changed. Had the

J.R 1/24

1/27

1/28

1/29

1/30

3/25

4/21

4/28

5/5

5/6

5/9

8.0

8.0

4.0 (R)

8.0 (R)

12.0

8.0

8.0

8.0

8.0

8.0

0.0

8.5

12.0

6.0

11.3

7.9

7.9

9.0

8.8

12.5

8.4

0.0 12.0

F.D. 4/29

5/1

5/5

5/9

8.0

8.0

8+8 (R)

8.0

7.9

7.9

4.0

0.0

J.B 1/27

1/30

5/5

5/9

8.0

12+4(R)

8+8 (R)

8.0 (R)

0.0

11.3

7.9

7.9

0.0

K.P. 5/5 8.0 (R) 0.0



grievants rung out on the days in question their rings would have beenrecorded. It must have been more than coincidence that none of the grievantsrang out on any day on which a forged door sheet was turned in.

2. The grievants' explanations are not credible and, to some extent, differ fromtheir responses at disciplinary interviews where no one asserted positively thathe had worked on the days in question. The dimensions of the scam were notinsubstantial, ranging from seven to thirteen occasions (and averaging ten pergrievant).

3. Discrepancies which might have occurred concerning other employees (oreven some of these) on other days have no bearing on the issue at hand. Asfor attendance logs, they are not used for pay purposes and, since thegrievants had good attendance records, it is likely that Supervisor R.W. did notfeel a compulsion to make them letter perfect. The Overtime Charts, similarly,were not used for pay purposes. Rather, they were informational documentswhich were posted for the constant scrutiny of employees.

4. Paragraph (49) relates to inadvertent errors, not to employee fraud.Moreover, it can be utilized only during a relatively short period following anoverpayment.

5. Although Management did not establish a foolproof system of double-checksto protect against a scheme of this kind - probably because of the high level oftrust in the community - that did not excuse the grievants, who wereappropriately disciplined for their misconduct.

*

The Union's (76) and (76a) contentions here are like its contentions in Umpire Decision U-7 and the facts are similar as well. My conclusions, therefore, are the same as those in thepreceding case.

One matter raised in both cases, however, was not previously discussed, namely, theUnion's "wrong rule" contention. As reported in Decision U-7, the Union has suggested thatManagement should have invoked Shop Rule #4 if it believed some improprieties hadoccurred. (Under that rule, which bars "ringing the I.D. badge or signing the door sheet foranother, or permitting another to do so for you", the evidence discloses that 20-day DLOshave been imposed at this plant.)

Interestingly, in Decision M-88, which has been referred to at some length in Decision U-7,the Umpire dealt with a similar contention. The facts there were also similar: severalemployees, who were found to be "ringing each other in and/or out", were not discharged.The Umpire, however, distinguished those instances, each of which apparently involved asingle act, from the pattern of conduct which was reflected in the case before him. It was"the repeated resort to the scheme" which, the Umpire emphasized, justified theemployee's termination. The same distinction is applicable in the case at hand if thedocumentary evidence stands up.



As noted in Decision U-7, the Umpire, in Decision M-88, dealt with the question ofcircumstantial evidence at some length. In that case, a committeeman had repeated thealleged fraudulent acts on twelve different occasions within a five-month period, thusestablishing what the Umpire concluded was a pattern of misconduct. The figures here arestrikingly similar, as shown in Table 1.

There is no reference in M-88 to the amount of pay the committeeman had improperlyobtained. But in the case at hand it is likely that the amounts were greater because of thepremium pay and the not insubstantial number of hours involved, which ranged from 28.5to 53 over a fifteen week period. And that does not include an additional 12 to 16 hours inJune for which no payment was made although the hours were "authorized" by falsifieddoor sheets.

A key element in this proceeding, certainly, is the badge ring procedure. As the testimonydiscloses, there may be 400 to 600 instances a day when no rings are recorded for variousreasons in a plant population of about 6,000. What is the likelihood, then, that anyemployee would have an in ring but no out ring on the very day that his name appeared ona falsified door sheet? And what is the probability that such combination would be repeatedon fifteen separate days for five persons for a total of approximately 50 instances withinfifteen weeks? One need not be a statistician to conclude that the chances that theseevents would occur by accident or sheer coincidence is infinitesimal.

Were additional analyses required, one might compare the no-out-ring days in questionwith other days during the same weeks. Some examples:

- For K.P., during the week which included January 22 and 23, those were the only dayson which he had no out rings; during the week which included January 28, that was theonly day for which there was no out ring and for which overtime was claimed; during theweek which included March 8, that was the only day (a Saturday) on which there was noout ring.

- For J.R., during the week which included January 22 and 23, those were the only days onwhich there were no out rings; the same held true for the week that included January 28;and once again for the week that included March 8.

- For R.W., during the week which included January 22 and 23 those were the only daysfor which there was no out ring; the same was true for the weeks that included March 8and March 15.

These types of relationships existed in the other grievants' records as well.

When this recorded information is added to the rest of the evidence, it is not possible toconclude that the grievants did not knowingly participate in a scheme designed to exploitone of the weaknesses in the payroll system in order to obtain additional pay.

It is true, as the Union has pointed out, that all of the Company records are not accurate.Table V shows some of the discrepancies which came to light. The supervisors' OvertimeEqualization Charts, in particular, appear to contain errors. There are other discrepancies,too, such as the record which shows that J.R. was paid overtime for 12.5 hours on May 6



although the door sheet (which was falsified) "authorized" only 12. There are also someunanswered questions, such as why J.R. and J.B. were not actually paid for January 21while F.D. was, although all of their names appeared on the falsified door sheet; or whyJ.R. was paid for 4.5 overtime hours for May 16 although the door sheet "authorized" 4hours.

But these errors and discrepancies do not constitute a sufficient basis for challenging theoverwhelming evidence which is reflected in Table I and described in detail in this Opinion.When consideration is given to the June door sheets - although payments were stopped - itbecomes even more evident that the grievants were engaging in their activities during theentire first half of 1986, except for February. Unlike the situation in the preceding case, theevidence here does demonstrate the kind of oft-repeated pattern which, as held inDecision M-88, justifies discharge.

The Union's Paragraph (49) contention is not persuasive. A similar argument, as ithappens, was made in M-88 (the provision was then Paragraph (48a)) and the Umpire'sfinding there is equally applicable here:

"... the Umpire is not disposed to treat this case as one involvingerroneous and recoverable wages. He sees it as a case involving agross act of fraud and he does not believe that Paragraph (48a) wasever intended to be applied as excusing such conduct."

The Union has suggested that the grievants may have been "framed" because of frictionbetween the third and first shifts. Farfetched as that may sound, I recognize that truth issometimes stranger than fiction. But I have carefully reviewed the voluminous record andthe evidence presented at two long days of hearings and can find no testimony ordocumentary evidence to support that theory.

Management's decision to withhold the findings of a handwriting analyst, whileunexplained, does not detract from the conclusions here which are in no way based oninformation as to who actually filled out and signed the door sheets in question. Nor hasManagement charged any individual grievant or grievants with that act.

In its Umpire Brief the Union asserts that Management breached fundamental principles offull disclosure and due process by "withholding this information from the Union and onlyafter the 'Third Step Meeting' was the Union given all copies of information requested."This was the claim, worded in a slightly different way, which was covered by theamendments to the grievances that were submitted on July 2, 1986.

In Decision M-36 the Umpire reviewed the line of cases upholding or explaining theprinciple of full and immediate disclosure, which included Decisions A-15, A-25, B-29, C-175, C-204, D-56, E-132, F-53, F-97, F-98, G-12, and G-13. More recent cases areDecisions T-3, U-2 and U-5.

The Union has referred to Decisions F-97 and T-3 as being particularly relevant. In F-97the local parties had refused to disclose to each other the names of witnesses to analtercation, prompting the Umpire to comment that there was no justification "for thewithholding of information by either party from and after the time it is discovered." In T-3



Local Management had obtained a written statement, represented to be a confession, froma supervisor who had allegedly participated with the aggrieved employee (whosedischarge was being appealed) in a scheme to collect pay for time not worked. At Step 1,and at all succeeding steps, Management refused to show the statement to the LocalUnion or to provide the Union with an opportunity to interview the supervisor.

The situation in the instant case is quite different, however. There was no absolutewithholding of information although, as the evidence discloses, assurances as to whencertain documents would be provided were not fulfilled. The irritation of Unionrepresentatives about delays in receiving information is certainly understandable, as istheir perturbance about the legibility of some documents. But, as the weight (severalpounds) of the material given to the Umpire shows, the documents in these five cases(along with the companion case) were voluminous, difficult to reproduce, and not easy toread or comprehend. It was not unreasonable, moreover, for Management to decline toproduce a batch of documents covering months prior to the 1986 period here in question.There is no evidence, finally, that Management withheld any genuine correction doorsheets covering the days in question. The testimony indicates that none had been founduntil February 1987 when preparations were being made for a hearing before anothertribunal (the UC Board); the records were re-examined at that time and two such sheetsturned up. Their contents were not withheld from the Union. Under all the circumstances,then, the grievances will be denied.

DECISION

Grievances Nos. 680801, 680802, 680803, 680804 and 680805 are denied.

Arthur Stark

Umpire





No. U-10

November 28, 1988

Discharge;

Paragraph 64(d) of the National Agreement

Decision U-10 is to be considered a Memorandum Decision under the provisions ofParagraph (46a) of the 1987 GM-UAW National Agreement.

T. E. Utter

ARBITRATION

GRIEVANCE:


I strongly protest mgmt contractually terminating me for alleged viol of Para 64D of theN/A. I am innocent of the above charge inasmuch I did have proper verification for all time Iwas absent from the plant. I therefore demand full redress.

Signed: Melvin Bell

Dated: 11-22-85

AMEND TO READ: Omit the word "contractually" from the body of the grievance.

In the Matter of:

General Motors Corporation, Truck & Bus Group, Baltimore, Maryland, Employer

and


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\u-010_13BF97A4.htm

Appeal Case U-298

International Union, United Automobile, Aerospace, and Agricultural Implement Workers ofAmerican, Local Union 239, Union.

I. APPEARANCES

On Behalf of the Employer On Behalf of the Union

Mr. Ronald E. Newton Mr. Henderson Slaughter

Mr. Carl V. Matzelle Mr. Jack Brown

Labor Relations Umpire and Review Section

9-146 GM Building United Automobile Workers

3044 W. Grand Blvd. 8000 East Jefferson

Detroit, MI 48202 Detroit, MI 48214

II. INTRODUCTION

This particular dispute arises due to the termination of the grievant under paragraph 64(d)of the Collective Bargaining Contract between the parties effective November 13, 1985. Atthe time, the grievant, with a seniority date of March 11, 1966, was assigned to theassembly classification on first shift in the Chassis Department 25 at the employer's Truckand Bus Plant in Baltimore, Maryland. A grievance was filed protesting this action. Despitethe diligence of the parties, this grievance was not able to be settled through the first threesteps of the grievance procedure. As a result, it was appealed to the impartial umpire inaccordance with Step 4 of the grievance procedure. Your undersigned umpire was jointlyselected by the parties in October of 1988, to hear evidence and render a final and bindingdecision. An evidentiary hearing was held on November 7, 1988, at a neutral site inBaltimore, Maryland. At that time, both parties were ably represented and had the fullopportunity of presenting testimony and exhibits. They presented hearing briefs andsummarized their respective positions. This matter is now ready for decision and award.

III. FACTS

The majority of facts in this case are not in dispute. The grievant was working in theAssembly classification on the first shift in the Chassis Department at the General Motors



Truck and Bus Section in Baltimore, Maryland. He had a seniority date of March 11, 1966.His last date of work was October 17, 1985. On the following day, October, 18, 1985, thegrievant reported to the Stem-Ross walk-in clinic and medical surgical center in Essex,Maryland. On that date, he received a disability certificate which was submitted to theemployer covering the period October 18, 1985, to October 21, 1985 (Exhibit A).

On October 21, 1985, the grievant returned to the clinic and received a second disabilitycertificate indicating treatment and noting that the grievant should be able to return to workon October 25, 1985 (Exhibit B). Both of these certificates were given to management ofthe employer on October 22, 1985.

The grievant did not report for work on October 25, 1985. Instead, on October 28, 1985,the grievant was treated by a Doctor Leopoldo Gruss, M.D., of Baltimore, Maryland, whosubmitted a disability certificate explaining that the grievant had been under Dr. Gruss'professional care from October 28, through October 31, 1985 (Exhibit C). This certificatewas given to management on October 29, 1985.

On November 1, 1985, the grievant did not return to work but, instead, was once againseen by the Stem-Ross walk-in clinic. The grievant presented the disability certificate tomanagement on November 4, 1985 (Exhibit D). That certificate indicated that the grievanthad been under professional care from November 1, 1985, and should be recoveredsufficiently to return to work on November 4, 1985.

On November 4, 1985, the grievant was, once again, seen by Dr. Leopoldo Gruss, M.D., ofBaltimore, Maryland. A disability certificate was given to management (Exhibit E) statingthat the grievant was under his professional care from November 4, extending toNovember 13, 1985, for "contusion of toes, left foot".

Dr. Gruss testified at the hearing. He said that the grievant had been an on and off patientof his since August of 1983. He testified that he examined the grievant on November 4,1985. One week prior to that time, the grievant had been complaining about stomachaches and diarrhea symptoms. On that particular day, the grievant indicated that he had hithis foot on a couch. Dr. Gruss taped the toes together. At that time, Gruss testified that hetold the grievant that he could go back to work "in a couple of days".

Dr. Gruss identified the certificate that was issued on November 4, 1985, (Exhibit E) ascoming from his office and having been prepared by his receptionist. Dr. Gruss testifiedthat up to November, 1985, the normal practice was for the patient to tell the receptionistthe dates to be inserted on the disability certificate. According to Gruss, he believed thatthe grievant had told her November 4, 1985, through November 13, 1985. Gruss testifiedthis was contrary to his statement to the grievant that he could go back to work "in a coupleof days".

Gruss explained that, subsequently he received a phone call from a General Motorsrepresentative who asked him about the disability certificate. He explained to the GMrepresentative that he had only authorized the grievant an additional couple of days ofleave, Gruss, at the GM representative's suggestion, wrote out a new disability certificateindicating that the grievant was incapacitated from November 4, 1985, only throughNovember 6, 1985 (Exhibit F). According to Gruss, the grievant should have been capable



of reporting to work on November 6, 1985. Gruss emphasized that, on past occasionswhen he had treated the grievant on ten different occasions, he had always told thegrievant when he could return to work. In turn, the grievant would tell the receptionist whoput the dates down on the disability certificate. Because of this particular incident, Grusssaid his present practice now is to go to the desk personally and tell the receptionistdirectly what is to be placed on the disability certificate.

On cross-examination, Dr. Gruss admitted that he did not call the grievant to tell him of thechange of disability certificates. Gruss says he did not do so because he was "mad andupset". According to Gruss, in speaking of the grievant, "he broke a trust we had". Grusssaid he asked his receptionist and she told him that the grievant had told her the dates tobe inserted. As a result, he felt the matter was in the care of General Motors to notify thegrievant. Dr. Gruss acknowledged that he treats a great number of patients for subjectiveillnesses. He further acknowledged that his receptionist had authority to sign the disabilitycertificates for him at the time they were executed.

With this development in the case, GM management attempted to contact the grievant bysending a Western Union telegram. The message read as follows:

THIS IS YOUR NOTIFICATION, TO REPORT TO WORK ON 11-6-85. FAILURE TO COMPLY WITH THIS NOTICE, OR PRESENT ASATISFACTORY REASON FOR NOT REPORTING ASINSTRUCTED, CAN RESULT IN YOUR LOSS OF SENIORITY.

A. G. CROCKETT

EMPLOYMENT SUPERVISOR

G.M. TRUCK AND BUS BALTIMORE

Apparently, Western Union was unsuccessful in delivering the telegram on November 5,1985. On November 6, however, it did communicate with the grievant's brother, William,who was staying at the grievant's home. The telegram message was read to William onthat date. The grievant did not report for work between November 6, and November 13.

On November 15, 1985, a disability certificate from the Stem-Ross clinic, on behalf of thegrievant, was received at the plant (Exhibit G). This certificate indicated that the patienthad been under professional care for the period from November 14, 1985 to continuethrough November 20, 1985.

Upon receipt of this certificate, a second telegram was dispatched to the grievant. It readas follows:

IN REGARDS TO THE DOCTOR'S SLIP SUBMITTED TO THE PLANT ON 11-15-85,PLEASE BE ADVISED YOU HAVE BEEN CONTRACTUALLY TERMINATED UNDERTHE PARAGRAPH 64-d PROVISION OF THE N.A., EFFECTIVE THE END OF THEPREVIOUS NOTIFICATION TO YOUR ADDRESS OF RECORD. YOU HAVE NOMEDICAL COVERAGE FROM 11-6-85 THROUGH 11/13/85; NOR DID YOU REPORTFOR WORK AS YOU WERE INSTRUCTED. IF YOU HAVE ANY QUESTIONS, YOU MAY



CONTACT THE LABOR RELATIONS SECTION. T. M. DEL BELLO, SR. PERSONNELADMINISTRATOR G. M. TRUCK AND BUS BALTIMORE

The telegram was never received because the grievant refused acceptance.

On November 22, 1985, the grievance, which is the subject matter of this proceeding, wasfiled on the grievant's behalf.

On November 21, 1985, the grievant was again seen by the Stem-Ross clinic. He receiveda disability certificate covering the period from November 14, 1985, through November 29,1985 (Exhibit H). This certificate was submitted to the Employer on November 25, 1985.

On December 2, 1985, the grievant was given a certificate from the Stem-Ross Clinicindicating that he was eligible to return to work on December 3, 1985 (Exhibit I). OnDecember 3, 1985, the grievant reported to the plant and turned in this disability certificate(Exhibit I). At that time, management representative, Tom Del Bello, explained to thegrievant that his seniority had been broken and his employment terminated. According tothe grievant, he told management that there was a mistake and that he had coverage forthe days in question from Dr. Gruss and later the Stem-Ross clinic and, as a result, he wasnot required to report for work.

The grievant, testified in this case that he saw Dr. Gruss on November 4, 1988. At thattime, he complained to Gruss about contusions of the toes. Dr. Gruss taped the toestogether and told him to keep his weight off his foot. According to the grievant, Dr. Grussdid not give him a specific return to work date. In the past, the nurse had always given himverification. Upon receiving the note, he read that he was off medically until November 13,1985.

The grievant emphasized that Dr. Gruss never contacted him after November 4, 1985.Moreover, he never got word from General Motors to report for work before November 11,1985. The grievant admitted that his brother told him around November 11, that a phonecall had come in from General Motors telling him to report for work. Later, a letter was sentfrom General Motors but the grievant said he refused to accept the receipt of thatdocument. According to the grievant, the contusion of the toes ailment continued forapproximately six days.

On cross-examination, after questioning, the grievant acknowledged that there were 17past occasions when he received notices concerning paragraph 64(d) of the laboragreement.

The grievant acknowledged filing a grievance dated November 22, 1985. After first statingthat he probably signed that grievance on December 3, 1985, the grievant later in histestimony recalled that it was probably signed on November 22, 1985, at the Union hall. Itwas on December 3, 1985, that he became aware of Dr. Gruss' statement concerning hisdisability certificate. The grievant said he had his attorney contact Dr. Gruss but that theDoctor ignored his phone calls. The grievant said he received official notification of histermination on December 3, 1985. Between November 13, and December 3, 1985, thegrievant said that he had virus and flu problems which kept him from working.



IV. RELEVANT CONTRACTUAL LANGUAGE

Loss of Seniority

(64) Seniority shall be broken for the following reasons:

A. If the employee quits.

B. If the employee is discharged.

D. If the employee fails to return to work within fiveworking days after being notified to report for work, anddoes not give a satisfactory reason, such notice shall beclear in intent and purpose. A copy of Management'snotification of such loss of seniority will be furnishedpromptly to the Chairman of the Shop Committee.

Sick Leave of Absence

(106) Any employee who is known to be ill supported by satisfactory evidence, will begranted sick leave automatically for the period of continuing disability. Except as otherwiseprovided in paragraph (111)(c), seniority of such employees shall accumulate during sickleave and shall be broken, figured from the date the sick leave started, on the same basisas provided in Paragraph (64)(e) for laid off employees breaking seniority. Not later than10 days prior to such loss of seniority, Management will send a letter to the employee's lastknown address as shown on the Company records reminding him of the fact that hisseniority is subject to being broken as provided above. A copy of such letter will befurnished promptly to the Chairman of the Shop Committee. However, failure throughoversight to send the letter to the employee or furnish a copy to the Chairman of the ShopCommittee will not be the basis for any claim.

Leave of Absence for Public Office

(111) All of the above leaves of absence including sick leaves aregranted subject to the following conditions:

(b) Any employee who fails to report for work within threeworking days after the date of expiration of the leave,shall be considered as having voluntarily quit unless hehas a satisfactory reason; provided, however, that in thecase of failure to report for work within three workingdays after the expiration of leaves of absence grantedunder Paragraphs (104), (105), (109), (109a), (110),(110a) and (113), and in the case of leaves of absencegranted under Paragraph (106) where Management hasrefused to grant a requested-renewal of the leave,Management will send clear written notification to the



employee's last known address as shown on theCompany records, that his seniority has been brokenand that it can be reinstated if, within three specifiedworking days after delivery or attempted delivery of suchnotice, he reports for work or properly notifiesManagement of his absence. A copy of suchManagement notification will be furnished promptly to theChairman of the Shop Committee. If the employeecomplies with the conditions set forth in the notification,his seniority will be reinstated if it has not otherwise beenbroken; however, such reinstatement shall not beconstrued as limiting the application to his case of theShop Rule regarding absence without reasonable cause.

V. CONTENTIONS OF THE PARTIES

A. For the Union

The Union first submits that the language of paragraph 64(d) of the Agreement is clear andthat the intent and purpose of this paragraph has been discussed between the parties onnumerous occasions. As a result, the Union submits that paragraph 64(d) is not applicablein the instant case. The purpose of this paragraph is to permit management to be aware ofthe composition of its inactive work force and removed from the rolls employees whoabandoned interest in employment with the Company. This certainly is not the case withthe present grievant.

The Union outlines a history of paragraph 64(d) beginning with its first appearance in the1940 National Agreement and continuing through 1967 when it was amended to requirethe prompt furnishing of copies of notices of loss of seniority to the chairman of the shopcommittee. In 1976 the contract and language was amended when the "three workingdays" period was increased to "five working days" and specifying that the notice to returnto work must be clear in intent and purpose. The Union points out that, since 1976,paragraph 64(d) has remained unchanged.

As a result of that contract language, before an employee's seniority can be severed,several conditions must be present:

There must be a clear written notice to report sent to the employee. This notice must besent to the employee's last known address. There must be delivery or attempted delivery ofthe notice. The five working day period only begins after the date of notification or deliveryattempt. Finally, the employee must not report for work within five working days and lastlya satisfactory reason is not provided for the employee's absence.

According to the Union, management did not meet these conditions. First and foremost, itpoints out that management had no grounds to send a 64(d) notice. The grievant had



submitted medical statements covering him from October 18, through December 2, 1985,with the only possible exception of November 13, 1985. These should have been acceptedby management. Yet, on November 5, 1985, management caused a notice to be sent thegrievant. At the very least, the matter should have been treated as management's refusalto extend the paragraph 106 leave and the procedures specified in paragraph 111(b)implemented.

Additionally, the Union submits that the notice was not a proper notice and was notproperly delivered. Instead, the message was given to the grievant's brother, William. TheUnion also points out that the notice must be clear in purpose and fulfill the requirements ofparagraph 64(d). That notice did not spell out that the grievant had five working days toreport. Instead, it told him to report to work on November 6, 1985. Any prior incidentsinvolving the grievant and 64(d) notices, is irrelevant to this notice.

The Union also argues that the grievant had a satisfactory reason for not reporting to work.He had submitted satisfactory medical evidence of his disability. The grievant had neverbeen advised by his doctor that this coverage had changed. Thus, as far as he was aware,he was covered.

In summarizing, the Union submits that management violated the National Agreementbetween the parties and that, by way of remedy, the grievant's seniority be reinstated alongwith all benefits and monies lost.

B. For the Employer

The Employer submits that the grievant's seniority was properly broken pursuant to theprovisions of paragraph 64(d) of the GM - UAW National Agreement. As a result, this is nota case involving discharge for misconduct, but instead, is a case involving loss of seniorityby reason of failure to comply with contractual obligations. As a result, the Arbitrator isprecluded from setting aside a contractual interpretation on the basis of equity. In makingthat determination, the Arbitrator must decide whether the grievant provided a "satisfactoryreason" for his failure to report for work from November 7, through November 13, 1985.

While acknowledging that a legitimate disabling illness or injury constitutes a satisfactoryreason for failing to report for work, the Employer in this case submits that the grievant hasnot demonstrated such a condition. It asserts that the Union has the responsibility to show,beyond a reasonable doubt, that the grievant was, in fact, disabled to the point where hewas physically prevented from complying with the notice to report for work. In this case, theemployer submits that the Union has not met that burden.

The employer mentions several umpire decisions defining the term "satisfactory reason"within the context of paragraph 64 and 111. In the cases cited, it is necessary for thegrievant to substantiate the claim of illness. Where that has not been accomplished, theumpires have dismissed the grievances. From all of these cases, the employer submitsthat the only question to be answered is whether the grievant was, in fact, disabled to thepoint where he could not reasonably have reported as instructed? In this case, the answerto that question is clearly no. The medical statement noting a return to work of November13, 1985, was issued in error and was corrected by Dr. Gruss. Gruss testified that he hadpersonally advised the grievant that he would be able to return to work on November 6,



1985.

The employer asks the umpire to give little weight to the Union argument that managementhas always accepted medical statements from employees on face value. In this case, andas in all others, local management has a legitimate right to verify the authenticity of anydocuments submitted. Each case should be dealt with on its own individual merits. In thepast, medical statements have not been mechanically accepted but have been questionedand investigated where appropriate. Indeed, one such case involves the same grievant.

In this case, the employer submits that paragraph 106 is not applicable inasmuch as thegrievant was not on a sick leave of absence. In addition, paragraph 106 speaks in terms ofany illness being supported by satisfactory evidence. In this case, no such satisfactoryevidence was submitted by the grievant.

In summary, the employer submits that the grievant has failed to demonstrate that he hada satisfactory reason for failing to report for work between November 7, and November 13,1985. As a result, paragraph 64(d) was properly applied. It, therefore, requests that thegrievance be dismissed.

VI. ISSUE

1. By applying paragraph 64(d) in this case to terminate the grievant's seniority, did theemployer violate the National Agreement between the parties?

VII. DISCUSSION AND DECISION

Both parties in this case have emphasized to the umpire the importance of precedent inapplying the terms and provisions of the National Agreement. Indeed, there appears to bean existence of some 2,600 umpire decisions which have been issued over the span of 19agreements between the parties since their first agreement included arbitration provisionsin 1940. Both parties agree, in particular, that, because of the force of precedent incontractual termination cases, the Umpire does not have the authority to set aside acontractual interpretation termination on the basis of equity. The facts determine theconsequence. Those facts necessary to make out such a termination must be clear. If thefacts are established, then the contractual consequence follows (Umpire Decision F13).With that background, let us now examine the facts in this case.

Up through November 4, 1985, it appears that the grievant had submitted disabilitycertificates in a timely manner and had documented his absences (Exhibits A through D).On November 5, 1985, the Employer received a certificate from Dr. Gruss dated November4, stating that the grievant had been under his professional care from November 4, throughNovember 13, 1985, for "contusion of toes, left foot" (Exhibit E). It appears that a numberof circumstances made local management curious and skeptical of the grievant's condition.These factors concerned the grievant's absence from work for a lengthy period of time, theambiguity of the medical documentation, the pattern of alternating statements from the



Stem-Ross walk-in clinic and Dr. Gruss' office, and the fact that the statements were beingdelivered by unknown, unidentified individuals. Dr. Sessoms, the employer's plant medicaldirector, also felt that a ten day period for "contusion of the toes" seemed to be excessive.

As has been stated by other umpires in past cases, a doctor certificate raises a certainpresumption of disability. At the same time, it is not to be applied mechanically.Surrounding circumstances can render a certificate suspicious (See Decisions F-8,Alexander, and M-84, Vultin) and subject them to investigation. Indeed, at this samelocation, the employer in other cases has investigated medical statements.

As a result of its investigation and the statements made by Dr. Gruss, the Employerconcluded that the grievant was malingering and sent a notification via Western Uniontelegram to the grievant "to report for work on 11-6-85". It appears that, after anunsuccessful attempt to deliver the telegram on 11-5-85, it was delivered to the grievant'saddress to his brother, William Bell who was staying there. Mr. Bell acknowledged that hereceipted for the telegram message but testified that it wasn't until four or five days laterthat he realized that he hadn't told his brother, the grievant. Hence, it was not untilapproximately November 11, 1985, that William Bell told the grievant the message toreport for work. Even at that date, the grievant did not report for work or even call theEmployer. Instead, he submitted another disability certificate from the Stem-Ross walk-inclinic for the period from November 14, 1985, through November 20, 1985, (Exhibit G).Upon receiving the certificate, the employer sent the grievant a notice of termination underparagraph 64(d). The grievant refused to accept this message.

In making factual determinations in this case, there obviously are differences andcontradictions in testimony between the various witnesses. In resolving this conflict intestimony, your umpire normally utilizes the same factors that a judge or jury would use inassessing credibility. For example, according to one authority:

Among the factors that may be considered in determining the creditto be given the testimony of a witness are the interests of thewitness in the outcome of the trial, his bias and prejudice, hisopportunity for knowing and recollective the facts about which hetestifies, the probability or improbability of his testimony, and hisdemeanor while a witness on the stand, including his appearance,condition, and attention, his bad memory or inability to recollect, thecharacter of his testimony, his motive, inconsistent or contradictorynature of his evidence, his manner of testifying intelligence or lack ofintelligence of the witness, candor or evasiveness of the witness,and his reputation for veracity. (Conrad, Modern Trial Evidence, Vol.2 section 1131 (1956).

The Federal Court of Appeals for the Ninth Circuit has also set forth factors that it utilizes inassessing credibility. According to that court:

In judging the credibility of a witness and determining the weight tobe given to his testimony, the trier of fact may consider the witness'demeanor and manner while on the stand, the character of histestimony as being probable or improbable, inconsistencies, patent



omissions and discrepancies in his testimony, or between thetestimony of different witnesses, contradictory testimony, his interestin the outcome of the case, his relationship to the litigants, andmany other factors bearing upon the truthfulness or untruthfulnessof the witness' testimony. As stated in Mitsugi Nishikawa v Dulles, 9Cir., 235 F.2d 135, at page 140, reversed on other grounds 356U.S. 129, 78 S. Ct. 612, 2 L.Ed2d 659:

The trier of fact need not accept the uncontradicted testimony of awitness who appears before it, and the demeanor of that witnessmay be such as to convince the trier that the truth lies directlyopposed to the statement of the witness. N.L.R.B. v HowellChevrolet Co., 9 Cir., 204 F.2d 79, 86 affirmed sub nom; HowellChevrolet Co., v N.L.R.B., 346 U.S. 482, 74 S.Ct. 214, 98 L.Ed. 215;Chow Sing v Brownell, 9 Cir. 217 F.2d 140, 142; Lew Wah Fook vBrownell, 9 Cir. 218 F.2d 924; Mar Gong v Brownell, 9 Cir. 209 F.2d448, 449, 450; Wigmore on Evidence, Third Ed., Vol. VII, section0234 n. 3; Zimmer v Acheson, 10 Cir. 191 F.2d 209, 212. This ruleis particularly true where the witness is interested in the outcome ofthe case, or where his testimony is improbable or contains patentomissions and inconsistencies. (270 F.2d 338 at 341 (9th Cir. 1959).

Consistency between earlier statements and those made during the hearing will tend tostrengthen credibility of a witness, while inconsistency will tend to weaken his credibility.(Patient Rights - Employee Rights: A Credibility Study "Who to Believe and Why"McDonald and Daniel, 1987, Detroit College of Law Review, at page 662).

In this case, your umpire had the opportunity to observe the witnesses as they testified.Frankly, I have some difficulty crediting Mr. William Bell and his testimony. Despitereceiving a message notifying his brother to report the following day and indicating thatfailure to comply with this notice could result in a loss of his seniority, Bell said it slipped hismind to give his brother the message. At the same time, he acknowledged, on cross-examination that he considered the message important. Yet, he further said he did noteven leave a note for his brother. I do not regard that testimony as being creditable. Inkeeping with the past precedent of the parties, November 6, 1985, is determined to be theeffective date of the notice to the grievant (Umpire Decisions F-8, Alexander, and E-140,Seward).

In this case, the Union, in effectively representing the grievant, raised several points to beconsidered. As the Union points out, its chief point is that management did not havegrounds to send out a 64(d) notice. The Union submits that, as the grievant had submittedsatisfactory evidence of his disability, for the period from November 4, 1985, throughNovember 13, 1985, management had no basis to send out the 64(d) notification. Itsubmits that the paragraph is only applicable in cases of employees who have abandonedwork or are inactive employees such as being on layoffs. It distinguishes this procedure atunder paragraph 111(b) of the National Agreement. In doing so, it cites the umpire toDecision M-62. In that decision, Umpire Valtin pointed out that paragraph 64(d) is mainlydirectly to layoff situations. In those situations, the employee has no advance knowledge ofwhen he will be coming back to work.



I have no difficulty with Umpire Valtin's decision. It appears that paragraph 64(d) is mainlydirected to layoff situations. At the same time, this is not exclusively the case. For example,in case Q-3, (Stark) the grievant, a recovering alcoholic, was absent for several days for"personal reasons". In that case, Umpire Stark said, "Each dispute, whether it concerns adisciplinary action or a paragraph 64 termination must be decided on its own facts". He diddecide in that case that the grievant was suffering from "acute alcoholism" during theperiod covered by paragraph 64(d) notice and that, as a result, that notice would not beapplied in that situation.

In Case P-49 (Stark) the grievant was on sick leave as a result of being hit on the headand shoulders by a falling panel. In that case, the same umpire ruled that the grievant wasdisabled from work on the three days in question that she received the 64(d) notice and,hence, had a satisfactory reason for not reporting. Umpire Stark significantly did not rulethat paragraph 64(d) was not applicable but that the grievant had a satisfactory reason fornot reporting.

In Decision G-193, (Alexander) the grievant had been given an indefinite disciplinarysuspension and went deer hunting. A 64(d) notice had been sent to the grievant orderinghim to report for work. In his decision, while the umpire concluded paragraph 64(d) to beapplicable, he found that the grievant reported to work within the allotted time.

The same Umpire Alexander, in case F-13, ruled that the grievant, by being confined to ajail, had a satisfactory reason for not reporting to work. Once again, the Umpire recognizedthat paragraph 64(d) was applicable but that the grievant had met the "satisfactory reason"basis for not reporting for work.

Finally, in Decision F-8, Arbitrator Alexander found that the grievant, who was on a sickleave of absence, was properly given a 64(d) notification to report for work inasmuch asthe sick leave did only extend to the point where the employee was, in fact, ill and unableto work.

These cases and others (Umpire Decision M-67) convince your Arbitrator to conclude that,while paragraph 64(d) is mainly used to notify employees on layoff status to report forwork, it can also be used for other situations including employees who are on sick or ondisability status. In such situations the Employer would have to demonstrate probablecause for notifying the employee to report to work.

While certainly the grievant's illness could be covered under paragraph 106 and histermination under paragraph 111, this does not appear to be the exclusive remedy open tothe employer in a circumstance such as the one presently before this umpire. Moreover, a"satisfactory reason" test is utilized in that situation as well.

Having concluded that paragraph 64(d) can be utilized in the factual situation in this case,the issue remains whether the grievant did provide a "satisfactory reason" for his failure toreport to work after receiving notification to report on November 6, 1985. The Unionsubmits that the doctors' certificates demonstrate satisfactory reason for the grievant notreporting to work in the days in question. Yet, the fact is that these disability certificatesonly raise a presumption of disability and are not conclusive on that point. Indeed, Dr.Gruss testified that the grievant should have been able to return to work on November 6,



1985. In keeping with past precedent, a grievant's leave would automatically be extendedonly where the employee is, in fact, ill and unable to work.

In this case, it appears that after November 6, 1985, the grievant should have been able towork. No evidence was submitted by the grievant demonstrating that he was, indeed,disabled or was unavailable to work. Obviously, he was ambulatory inasmuch as he wasnot home on several days when delivery of the telegram was attempted. The grievantcould provide no reason why he did not report for work or, at the very least, communicatewith his supervisor for the period from November 6, 1985, through November 13, 1985.Indeed, it seems incredulous that an employee, having received notification to report forwork, would not at least be curious enough to inquire as to why he received such anotification. Instead, it appears that the grievant was attempting to avoid any and allcontact with the employer except upon his terms. This is further substantiated by the factthat the grievant refused delivery of a later communication terminating his employment onNovember 15, 1985. Once again, no reason was given by the grievant for refusingacceptance of any messages from his employer. All of this occurs in the context of thegrievant being quite experienced with 64(d) notices.

At the arbitration hearing, the Union raised several other contentions. These included theallegation that the notice of November 5, 1985, was not a proper notice and was notproperly delivered. The Union submitted that the notice did not spell out clearly that thegrievant had five working days to report for work. The Employer objected to thesecontentions as being brand new and not being mentioned in the previous steps of thegrievance procedure. Your Umpire took this argument under advisement and indicated thata decision concerning that matter would be made in this written decision.

Both of the parties were in agreement that the case, which is submitted to the umpire, maynot properly contain issues which have not previously been discussed by the parties in theprevious steps of the grievance procedure. As Umpire Stark ruled in Decision P-52:

The fourth step evidence rule is designed to prevent last minutesurprises and to insure that each party has an opportunity toevaluate the other's facts and arguments and obtain and placerebuttal information in the record before coming to the umpirehearing.

In this case, I have carefully reviewed the previous steps of the grievance procedureincluding the minutes and each party's respective statement of the unadjusted grievances.With that review, I do agree with the employer that the Union did not raise either point thatthe notice of November 5, 1985, was improper as to form and content or was not properlydelivered to be sure.

The Union further argues, however, that language of paragraph 64(d) clearly indicates thatthe notice "... shall be clear in intent and purpose" and further mentions notification to theemployee. The language of paragraph 64(d) is clear and does mention those elements. Atthe same time, if the Union felt that the notice was improper or was not properly delivered,these points should have been specifically raised in the earlier steps of the grievanceprocedure. A review of those minutes does not demonstrate any discussion of thesematters at all. Your Umpire also notes that, approximately one month before the Umpire



hearing, the parties held a supplementary third step meeting on October 5, 1988, andagain on October 12, 1988. At that time, the Union did amend its "statement of an adjustedgrievance" to include additional information. That information, however, pertained to a pastpractice of the Employer accepting rubber stamped doctor verifications. Significantly,nothing was mentioned about either a proper notice being sent to the grievant or not beingproperly delivered. As a result, in keeping with past precedent, it is necessary for theumpire to sustain the objection raised by the employer. In this way, the fourth step rule willbe preserved (See Umpire's Decision E-303, Alexander, G-16, Alexander, and P-58,Stark).

The Union argues that, even assuming for argument purposes that paragraph 64(d) isapplicable, the grievant met the "satisfactory reason" aspect of that paragraph. It points tothe medical evidence submitted by the grievant in this case. Moreover, it mentions that thegrievant was never advised that his coverage was changed by the doctor.

Your Arbitrator has carefully considered these matters and arguments. Obviously, this is aserious matter involving a person's livelihood and 20 years of seniority. This fact is not tobe taken lightly. At the same time, the direct testimony of Dr. Gruss is quite telling in thiscase. Dr. Gruss testified that, when the grievant saw him on November 4, 1985, thegrievant had complained about stomach aches and diarrhea. Gruss said he told thegrievant that those symptoms did not appear to be of sufficient seriousness to prevent himfrom working. At that point, the grievant then switched to a different tact and told him aboutthe "contusions of the toes on his left foot". Dr. Gruss said he examined the toes, tapedthem, and told the grievant, unequivocally, that he could go back to work "in a couple ofdays". More specifically, Gruss told the grievant that he could go back to work November6, 1985.

Gruss further testified that, despite this direct communication to the grievant, it appearsthat the grievant told his receptionist to make out a slip extending his disability untilNovember 13, 1985. Gruss believed that this was a breaking of the trust "that we had".

Significantly, the grievant did not directly refute this statement of Dr. Gruss despite beingpresent and having the opportunity to do so. The grievant testified only that Dr. Gruss didnot give him a specific return to work date. By this statement, was the grievant agreeingthat Gruss told him a "couple of days"? Moreover, if no specific dates were mentioned howdid November 13, 1985, get on the disability slip (Exhibit E). Considering all of thesematters including credibility, I do not find that the grievant substantiated his claim that hecould not report to work as directed.

The Union makes the point, however, that the grievant was never advised of the change incoverage by his doctor. To be sure, this is quite true. I agree with the Union that Dr. Grussshould have notified his patient of this significant change. At the same time, this precisepoint appears to be a dispute between the grievant and his doctor's actions and not onedirectly involving the employer. Indeed, the employer in this case did notify the grievant toreturn to work or present a satisfactory reason for not reporting. Certainly, the grievantwould have learned of this change of events had he followed that direction and reported.Even if he had called, the grievant would have learned of the new or changed disabilitycertificate. Thus, the grievant must bear much of the responsibility through his own inactionfor this turn of events.



In summary, I do conclude that the grievant did not substantiate his claim of illness and didnot demonstrate a "satisfactory reason" for not reporting to work as instructed.

AWARD

The grievance, being without merit, is dismissed.

Respectfully submitted,

Patrick A. McDonald

Dated: November 28, 1988





No. U-11

March 24, 1989

Violation of Local and National Agreements

Paragraph 56

Improper Layoff of Seniority Employees

In the Matter of:

General Motors Corporation, Saginaw Division, Saginaw Plants, Employer,

and

Appeal Case: U-33

International Union United Automobile Aerospace and Agricultural Implement Workers ofAmerica, Local 699, Saginaw, Michigan, Union.

DECISION AND AWARD

I. STATEMENT OF THE GRIEVANCE

Grievance 084165

Charge management with violation of the Local and National Agreements. Managementlaid off employees with over 30 days seniority on Friday, 8/30/85 and hired otheremployees September 3rd, 1985. Demand management return all these employees with30 days or more to work and they be made whole in all respects including all benefits.

II. APPEARANCES

On Behalf of the On Behalf of the Union


3/22/2011file://C:\Users\bobology\AppData\Local\Temp\Framework\u-011_13BFA828.htm

III. INTRODUCTION

The grievance, which is the subject matter of this proceeding, was filed on September 6,1985, and alleges that the employer violated the Local and National Agreements by layingoff 189 employees with over 30 days seniority while hiring 168 employees between theperiod of September 3, 1985, through September 16, 1985. The third step meeting in thiscase was held on November 1, 1985, and Notice of Appeal of the case to the umpire wasdated November 22, 1985. The case was then referred back to the second step on May16, 1986. A new third step meeting was held on February 20, 1987. The matter was thenreappealed to the umpire on the date of March 24, 1987. On June 15, 1987, the partiesmutually agreed to refer the case back to the second step of the grievance procedure forrepair of the record. A third step appeal meeting was held on April 21, 1988, and the casewas reappealed, once again, to the umpire on May 27, 1988.

Thereafter, an evidentiary hearing was held before your undersigned Umpire on February27, 1989, at a neutral site in Saginaw, Michigan. At that time, both parties were ablyrepresented and had the full opportunity of presenting testimony and exhibits. In accordwith the practice of the parties, they submitted post-hearing briefs and thereaftersummarized their respective positions. This matter is now ready for decision and award.

IV. FACTS

The Saginaw Division of General Motors is engaged in the manufacture and sale ofautomotive components to General Motors divisions as well as to outside customers. Thedivisions headquarters are in Saginaw, Michigan, where it operates six plants throughout

Employer

James W. LaLonde, Esq. Mr. Norman Acord

Mr. Ronald E. Newton Mr. Jerry Coville

Mr. P.J. McDonald Mr. Jack Brown

Labor Relations

9-146 General MotorsBldg.

3044 West Grand Blvd.

Detroit, MI 48202

United AutomobileWorkers

8000 East Jefferson

Detroit, MI 48214



the City employing, at the time the grievance arose, approximately 8,000 employeesrepresented by the UAW. The division also operates facilities in Alabama, Detroit, NewYork, England and Spain.

Both parties agree that this case began in April and May of 1985. At that time, according tomanagement, it conducted an analysis of its workforce needs for the Saginaw area for theupcoming summer months. It considered such elements as increased employee vacations,projected volumes, and overtime. According to management, overtime levels were highand the peak summer vacation period was approaching. However, the vehicle buildrequirements that were forecast indicated an anticipated reduction in the level productionbeginning in late summer of that year. Management considered various options anddecided that employment should be increased for the summer months of 1985.

Both parties acknowledge that there were no General Motors employees on layoff from theSaginaw Division's bargaining unit and no employees on layoff within the Saginaw areahire pool as of May and June, 1985. The employer points out, however, that there wereapproximately 18,000 UAW represented GM employees on indefinite layoff across theUnited States. According to management, they felt that these openings were only to betemporary for the summer of 1985, Local UAW Region 1-D Servicing Representative, JackLaskowski, and Shop Chairman, Jack Campbell, were approached about hiring temporarysummer help at the Saginaw location for the summer of 1985. According to the Union,Laskowski and Campbell told GM management that they should look at the former GMemployees who had lost all contractual rehire rights at GM and who had been through theretraining program located at the UAW-GM training center in Saginaw, Michigan, aspossible hires.

On approximately May 24, 1985, John M. Schnepf, Saginaw Division's General Supervisorof Labor Relations, received a letter from Mr. B. P. Crane, Jr., entitled, "Employment ofFormer GM Employees" (Attachment 2). The May 24, 1985, communication indicated thatan understanding had been reached between GM and the UAW with respect toemployment of former GM employees. That understanding was spelled out in thatcommunication.

Hiring of the new employees began on June 3, 1985, with 24 employees being hired. Ofthat group, 21 were people who had lost their rehire rights. On June 10, 1985, 95 otheremployees were hired. Of these, 91 had no rehire rights. On June 17, 1985, 112 peoplewere hired. 110 had no rehire rights. Finally, on June 24, 1985, 62 people were hired with57 having no rehire rights. This totaled 293 with 279 being former GM employees withrehire rights having expired. Such new employees were hired at the "new hire" wage rateas provided in the May 24, Crane communication (Attachment 2).

According to management, all of the new hires were told by the Saginaw RegionalPersonnel Center representatives that the offer of employment was temporary only for 89days or less. This orientation occurred at a joint meeting conducted by employmentcoordinator Michael O. Clayton and various UAW Local 699 benefit representatives. As theemployees began work, however, the Union maintains that a number of employees weretold by management that they would be seniority employees if they worked hard andshowed up every day.



During the regular management-union shop committee meeting of June 20, 1985, attendedby both Messrs. Schnepf and Campbell, the parties discussed the status of the employeeswho had been hired for the summer months. The minutes of that meeting include inrelevant part the following:

Management then informed the Union that the 89th day for temporarily-hired hourlyemployees would be August 30, 1985, for those hired on June 3, 1985. Therefore, thelayoffs of all the temporaries will be no later than August 30, 1985. The Union stated thatManagement should not layoff those temporary employees with 89 days of seniority andthen hire new employees off the street to take their place.

Management informed the Union that the Appendix 'A' rehire pool will begin to fill upbeginning in late summer and early fall. CPC in Bay City intends to begin layoffs at thattime. The Union then suggested that Management inform the media of the fact that theseemployees are only temporary. This will avoid panic in the community when they are

subsequently laid off.

On Friday, June 21, 1985, the Saginaw Division's Newsletter (Attachment 6) carried anarticle with the following excerpt:

Summer Replacements

The 230 employees hired at SSG Saginaw Operations over the past three weeks; alongwith 50 production employees who will join the division Monday; are working as temporarysummer replacement help, according to SSG's Hourly Employment section.

Clarifying a Newsletter story published yesterday, section officials said these employeeswill work a maximum of 89 days as summer replacements, and will then return to theirformer status.

SSG employees hired over the past three weeks and those scheduled to be hired thissummer are former Saginaw area GM employees who have lost seniority and rehire rights.

In the late summer of 1985, Management experienced previously unforecasted increasesin vehicle built requirements for the September-November period.

On July 29, 1985, approximately 38 employees of the Chevrolet-Pontiac-Cadillac Group'sBay City plant were placed into the area hire pool for employment consideration by otherGeneral Motors facilities within the area including Saginaw Division-Saginaw Plants. Inaddition, other employees floated into the Saginaw area Appendix A pool.

The minutes of the Shop Committee meeting of August 29, 1985, received into evidence(Attachment 7) indicate that the parties discussed the layoff of the employees who hadbeen hired for the summer period. At that time, management also discussed the plannedhiring of employees from the area hire pool to fill the long-term employment needs of thedivision. Relevant excerpts from those minutes are quoted:



Rehires

Management informed the Union that it will soon terminate the employment of the 89-daytemporary employees and any further openings will be filled by rehires from the Appendix'A' pool. Management further informed the Union of the International Union's dissatisfactionwith this practice throughout the Corporation.

Rehires for 9/3/85

Management informed the Union that Bay City CPC did not layoff as many employees asthey earlier had anticipated, but the forecast from both CPC and the foundry is thatapproximately 220 layoffs will occur in the next few months (in addition to the 166employees recently laid off).

Between July 22, and August 26, 1985, 79 of the above-referenced employees were laidoff with the remaining 189 being laid off as of August 30, 1985. Those lay-offs occurred asfollows:

Date Employees Laid Off

7-22-85 1

7-26-85 22

7-27-85 35

7-29-85 2

8-2-85 1

8-4-85 12

8-5-85 2

8-24-85 2

8-25-85 1

8-26-85 1

8-30-85 189

At that time, the Union protested the fact that such summer employees, with over 30 daysseniority, were to be laid off while management, at the same time, was giving Appendix Aemployees physicals to begin working. Indeed, management acknowledges that betweenSeptember 3, and September 16, 1985, 168 employees were hired from the area hire poolaccording to the following schedule:

DATE NUMBER OF EMPLOYEES



9/3/85 73

9/9/85 17

9/16/85 78

TOTAL 168

___

The only witness at the hearing was Mr. Larry E. Knox, a Labor Relations Supervisor with23 years experience with General Motors. After testifying as to his extensive backgroundwith the Company in Labor Relations with various plants, Mr. Knox testified that he waspresent in national negotiations in 1984, and 1987. In addition, Saginaw was under hisresponsibility for liaison purposes with the Union.

During his testimony, Mr. Knox identified document 16 which was found in the 1984National Agreement Booklet (Attachment 4). According to Knox, document 16 enabled GMto leave employees with seniority at other plants and not have to bring such employees toa plant solely for temporary jobs.

Mr. Knox testified that in the spring of 1985, he reviewed with Mr. Robert Walker, theAdministrative Assistant to Vice President Donald Ephlin of the Union, a draft of what wasto become Mr. B. P. Crane, Jr.'s letter of May 24, 1985 (Attachment 2). Mr. Knox explainedthat, under usual circumstances, paragraph 98B of the National Agreement would berequired regarding higher wages. That paragraph was waived. Moreover, no GATB testingwould be required.

Mr. Knox also identified a letter from Mr. Walker from Mr. Byron P. Crane, Jr., dated May16, 1986, with an attached April 28, 1986, letter (Company Exhibits 1A and 1B). Identifiedduring the testimony was Company Exhibit 2 which was a memorandum of Agreementdated April 10, 1987, between Mr. Robert Walker and the witness Mr. Knox. According toKnox, this memorandum provided the groundwork for Appendix D-2 of the 1987 agreement(Attachment 8).

On cross-examination, Mr. Knox was asked whether paragraph 56 of the NationalAgreement was waived in either Attachment 8 or 9. Mr. Knox acknowledged that it was notmentioned or waived by those documents.

V. RELEVANT CONTRACTUAL LANGUAGE -- SENIORITY

Acquiring Seniority

(56) Employees shall be regarded as temporary employees until their names have beenplaced on the seniority list. There shall be no responsibility for the reemployment oftemporary employees if they are laid off or discharged during this period. However, anyclaim by a temporary employee hired with unbroken seniority at any other General Motors



plant covered by this Agreement, rehired pursuant to Paragraph (64)(e), or any claim byany other temporary employee made after 30 days of employment, that his layoff ordischarge is not for cause may be taken up as a grievance.

(57) Employees may acquire seniority by working ninety days during a period of sixcontinuous months in which event the employee's seniority will date back ninety days fromthe date seniority is acquired; provided, however, that employees hired with unbrokenseniority at any other General Motors Plant covered by this Agreement or rehired pursuantto Paragraph (64)(e) may acquire seniority by working thirty days during a period of sixcontinuous months in which event the employee's seniority will date back thirty days fromthe date seniority is acquired except as provided in Appendix D-1. (See Also Appendix D).

WAGES

(98b) New employees hired on or after the effective date of this Agreement, who do nothold a seniority date in any General Motors plant but were formerly employed and hadacquired seniority in a General Motors plant and who had broken such seniority pursuantto the provisions of Paragraph (64) (e) or (64) (f) (3), shall receive a base rate upon re-employment which has the same relative position to the maximum base rate of the jobclassification as had been attained by the employee in his prior General Motorsemployment. Such employee shall continue to be covered by the rate progressionprovisions in effect during his prior General Motors employment. Upon such re-employment, the credited rate progression period of the employee's prior period ofemployment at General Motors shall be applied toward his rate progression to themaximum base rate of the job classification.

VI. CONTENTIONS OF THE PARTIES

A. For General Motors

According to management, the facts regarding the merits of the case are not basically indispute. The employees in question were hired for 89 days or less. They were told this.These employees were laid off prior to completing 89 days of work. The employeracknowledges that there is some dispute as to whether some of these employees weretold they were permanent or temporary in duration. The fact is, however, that underparagraph 56, the employer contends that it has demonstrated "for cause" in laying offthese employees.

Contrary to the Union assertion that the only satisfactory "causes" for the layoff are 1)employee conduct or 2) decreases in production and associated work force reductions, theemployer submits that there are other basic reasons as well. First was the realization thatemployment to handle production requirements was projected to be long-term. As a result,there were economic benefits to the corporation to place employees back to work forwhom the corporation was incurring expenses associated with their layoff, and continuingbenefit coverages but receiving no work. This was an obviously better alternative than



continuing the temporary summer employees past their 89th work day. Thus, it was amajor economic benefit to the Corporation to lay off one group of temporary employeesand bring back to work another group of laid off employees. Between the two groups, theequities are obviously with the laid off employees who had seniority being brought back towork. Moreover, the Corporation had fulfilled its obligation and the legitimate expectationsof the temporarily hired summer employees as of August 30, 1985.

The Employer points out that Decision E-81 merely stands for the proposition that the sexof an employee by itself is not "cause" for layoff. It is clearly distinguishable from this set offacts.

The Employer asks the rhetorical question, why did the Union only object on the Locallevel and not on a corporate level? Was it because the International had an understandingwith the Corporation at that level?

The Employer also asks a second question and that is why the 1987 memorandums andagreements did not deal with the same paragraph 56 if this paragraph was not, indeed,waived. The negotiators were veterans and experienced and knew that they had coveredparagraph 56.

The Employer asks the Arbitrator to review paragraph 56 along with other documentsincluding Appendix D-1 and D-2 and other documents attached to that agreement. Theysubmit that paragraph 56 should not be taken in isolation.

The Employer points out that the Union in this case presented no witnesses. In theabsence of such evidence by the Union, it submits that it has presented a prima facie case.As a result, the rievance should be

dismissed if one looks at the total record.

B. For the UAW

The Union contends that it has demonstrated a clear violation of paragraph 56 in this case.In reviewing the various cases presented to umpires regarding "for cause" and paragraph56, they are reducible to basically two reasons. The first was that the layoffs were due to areduction in force or the need to cut manpower because of lack of consumer demand forthe products or parts. The second is that the grievants were severed from employmentbecause of a demonstrated incompetence to do the work. Neither has managementclaimed that the grievant's severance was disciplinary in action or in violation of some shoprule that would be serious enough to warrant discharge.

Instead, the Company submits that the layoff was solely due to favor one category ofemployees at the expense of another. Under the precedent of Umpire Decision E-81, thistype of decision violates the National Agreement. In that case, the Umpire directedreinstatement.

The Union also asks the Arbitrator to review Appendix A and documents 21 and 28. Theseprovisions, according to the Union, show that employees are hired to openings. Therewere no open positions in the present case. While the Company cites economic reasons



for making these decisions, the fact is that the Company must meet contractualrequirements before it can make legitimately make such decisions. The contractrequirements are important. Nowhere has the Union waived the requirement thatparagraph 56 not be followed. Hence, it must be enforced by the Arbitrator who isgoverned by the Contract. It is also clear that management cannot nullify the terms of theNational Agreement with the Union by statements or promises made to individualemployees at the time of their hire (Umpire Decision B-103).

The Union also disputes the contention that UAW, Region 1-D representative, JackLaskowski, and Shop Chairman, Jack Campbell, agreed to employees only being hired for89 days and waiving the provisions of the National Agreement. This simply didn't occur.Indeed, the document of May 24, 1985, does not waive paragraph 56 (Attachment 2). Evenif Campbell and Laskowski wished to do so, they would be prohibited from entering intoany agreement that supersedes or conflicts with a provision of the National Agreement.

Appendix A is quite clear. It states that such Appendix A employees will be given hiringpreference over other applicants. It does not give them bumping rights over lower seniorityemployees or non-seniority employees.

According to the Union, Umpire Decision R-2 is distinguishable. It arose in a state wheredays were holidays.

In summary, the Union submits that paragraph 56 of the National Agreement should beupheld and enforced. If the Employer had wished to have the parties waive paragraph 56,then certainly they would have made a determined effort to do so. This has not beendemonstrated. The Union, therefore, requests that the Arbitrator follow 50 years ofprecedent and sustain the grievance and grant the remedy as requested.

VII. ISSUES

1. Whether the August 30, 1985, layoffs of non-seniority employees at theSaginaw Division, Saginaw Plants was "for cause" within the meaning ofparagraph 56 of the 1984 GM-UAW National Agreement.

2. If not, what shall the remedy be.

VIII. DISCUSSION AND DECISION

As both parties acknowledge, most of the facts surrounding this grievance are not indispute. I say "most" as there are a few important matters that are still in dispute. However,both parties agree that paragraph 56 of the GM-UAW National Agreement is the languagebeing interpreted in this case.

By way of background, as stated at the evidentiary hearing, it appears that the language ofParagraph 56, presently in the National Agreement, first made its appearance in the



National Agreement in 1945 when the War Labor Board issued a directive to the partiesamending paragraph 56 to read as it now does. The phrase "for cause" was removed fromthe National Agreement for a seven year period from 1948 through 1955. However, in1955, the phrase was placed back into that section so that it read as it originally did when itwas inserted in the National Agreement in 1945.

This background is important because, in 1947, in Umpire Decision E-83, the Umpireinterpreted the "for cause" language in Section 56. Therefore, when this language wasplaced back into the National Agreement in 1955, both parties had a good indication as tohow it would be interpreted.

In Decision E-81, Umpire Seward concluded that the "for cause" language included notonly disciplinary discharges but also layoffs involving bona fide reductions in force andchanges in operating methods or processes.

In Decision E-81, a large number of temporary female employees were replaced by maleemployees. In that case, management claimed that the replacement of the females bymales would increase plant efficiency. The Umpire rejected that contention holding that"good cause" for the severance of those complainants did not exist.

A second opinion interpreting paragraph 56 was the Decision N-67 by Umpire Valtin in Julyof 1973. Umpire Valtin read Decision E-81 as standing for the proposition that, ... it was aholding that not every reason advanced in support of the discharge of a probationaryemployee - even a reason which does not have the defect of being plain arbitrary orcapricious - can be countenanced as adding up to 'cause' under paragraph 56.

At the same time, Umpire Valtin distinguished between "for cause" under paragraph 56and "for cause" under paragraph 8, the discharge or discipline "for cause" section of theagreement. Umpire Valtin used a balancing approach.

Basically, Valtin ruled that, once a probationary employee has reached the 30 day point,but before he has completed the 90 day probationary period, Management mustdemonstrate more "cause" than it did in Umpire Decision E-81 but less than it normallydoes in demonstrating "cause" under paragraph 8 of the Agreement for discipline anddischarge. He illustrated this by example as he stated:

The Umpire is holding for the Company in the present case. Heagrees with the Union that not every illness or other incapacitationwhich may be incurred by an employee during his or herprobationary period can serve to add up to 'cause' under paragraph(56) - consider such clearly one - shot afflictions as a broken leg oran appendectomy... in her (grievant's) case, there were a series ofailments... and even assuming no factual difficulties as to any of theasserted ailments, the ailments were so frequent as to reduce D to apractically on again, off again employee and as to legitimately causeManagement to believe that the reservation expressed by theMedical Department... should have been heeded.

As a result of this decision, (N-67), it would appear that the phrase "for cause", which



exists in paragraph 8, does not have the same exact meaning in paragraph 56. It wouldalso appear that there may be other "for cause" reasons than a layoff due to a reduction inforce, discipline for violation of a shop rule serious enough to warrant discharge ordemonstrated incompetence. Indeed, under Umpire Decision N-67, Management was notable to demonstrate any of those three categories. What it did do was demonstrate that thegrievant's attendance record, while not serious enough to be "just cause" under paragraph8, of the agreement was sufficient to demonstrate "for cause" under paragraph 56 as apoor employment risk.

Having said that, however, both Umpire Seward and Umpire Valtin agreed that the burdenof demonstrating "for cause" under paragraph 56 is still upon Management.

With this background, then, let us examine the arguments of the parties as applied to thisset of facts. First and foremost, Management contends that when the grievants were hired,they were told that their employment was only temporary. The Union is correct in statingthat, regardless of what Management told the individual employees, they could not,through this simple device, nullify the terms of the National Agreement which might be tothe contrary (See Umpire Decision B-103, Dash, 1942). By the same token, merelybecause some of the grievants were told that they were hired on a permanent basis wouldlikewise not nullify the terms of the National Agreement if such terms were contradictory.

The Employer emphasized that an agreement was reached with UAW Region 1-DServicing Representative Jack Laskowski and Shop Chairman Jack Campbell concerningthe hiring of such employees for a period of up to 89 days. No such written agreement wasmentioned in the earlier steps of the grievance procedure and none was forthcoming at theevidentiary hearing. Instead, a communication from Mr. B. P. Crane, Jr., dated May 24,1985, to all Personnel Directors, Labor Relations Directors, and Plant Personnel Directors,appeared to embody the basic understanding between the parties (Attachment 2). Thatcommunication indicated that directors were "... encouraged to hire former employees whoat one time acquired seniority at any GM plant and thereafter lost reemployment (rehire)rights...." In doing so, directors were told that, "No GATB testing will be required" and that"The provisions of paragraph (98b) are waived". Further, plants were encouraged to giveprimary consideration to "... such employees who have participated in joint GM-UAWtraining programs."

Significantly, paragraph 56 of the GM-UAW National Agreement is not mentioned orwaived. Your Umpire can, to some extent, understand how this occurred. As Managementindicated in its Step 3 statement, the level of overtime hours worked from January, 1985,through May, 1985, was one of the factors which, "... prompted management to reviewemployment requirements and to consider increasing the level of employment". At thattime, according to Management, the vehicle build schedules forecasting the buildrequirements for the August through November, 1985, period projected that the level ofbusiness would diminish at the end of the summer months....

The vehicle build forecast was attached as part of the record. The conclusion Managementdrew was this:

Because of the anticipated decline in vehicle build requirements,Management concluded employment levels should be increased



only for the summer months.

Hence, it would appear that Management felt, at that time, in accord with those buildforecasts, that a workforce reduction at the conclusion of the summer would be in order.With this occurring, management would be able to fulfill the "for cause" provisions inparagraph 56.

The forecasted vehicle schedule changed considerably, however, as the economy in 1985,began to rise. As a result of vehicle schedule forecast increases for the September throughNovember, 1985, time period, it appeared to Management that the Saginaw Division, ...had long-term employment opportunities which needed to be filled. Based on thecontractual requirements of Appendix A, Management offered employment to employeeswho had been placed in the Saginaw area hire pool. (Page 7 of Management's statement,Third Step)

Management, in this case, contends that the "for cause" requirements of paragraph 56were complied with because of the decision to handle production requirements wasprojected to be long-term. Moreover, the economic benefits to the corporation to bring backAppendix A employees and layoff employees who had not yet fulfilled 90 days of workwere considerable.

This argument appears to be quite similar to the one that the Company made in UmpireDecision E-81 when it claimed economic efficiency would be furthered by the replacementof employees in one group with those of another. As the Umpire stated in that decision, Ifmanagement desires to work toward increased efficiency by altering the composition of itsworking force, it must do so within the limits established by its Agreement with the Union.

While certainly there are definite factual differences between Case E-81 and the case athand, your Umpire believes that there are more similarities than there are distinguishingfactors. In both cases, Management is replacing one category of employees with anothercategory of employees. As Umpire Seward stated, that can be done so long as it is donewithin the parameters of the National Agreement. Was that done in this case? It does notappear so. Allow me to explain.

Under Appendix A, it is clear that the parties agreed that, Employees with seniority laid offfrom General Motors plants in a given community and who make application, will be givenpreference over other applicants provided their previous experience in General Motorsshows that they are qualified for the job. (Emphasis added).

Appendix A makes it clear that such employees within the so-called "Appendix A pool" areto be given preference over other applicants. In this case, however, such individuals weregiven preference over other "employees" who already were working at the SaginawDivision plants. In effect, it gave Appendix A individuals bumping rights over lower seniorityemployees.

It would appear that in 1987, the Company and the Union worked out an agreementextending the probationary period for up to 120 days. This agreement, while clarifyingmatters for 1987, does not appear to have been in force in 1985. At least insufficientevidence has been demonstrated to prove such an agreement between the parties of its



existence at that time. The Company had the burden of demonstrating such an agreementif paragraph 56 of the National Agreement was to be modified in any manner.

In summary, I do conclude that the layoffs of the non-seniority employees at the SaginawDivision, Saginaw plants, were not "for cause" within the meaning of paragraph 56 of the1984 GM-UAW National Agreement as that phrase has come to be interpreted throughUmpire Decisions. The close proximity of hiring of Appendix A employees, whilesimultaneously laying off probationary employees who have gone beyond the 30 day point,took away from the Company its anticipated reason for reducing the work force – lack ofconsumer demand for products or parts. It is not necessary to answer the question of whatduration of time there must be between the laying off of employees and the hiring of otheremployees for such a reduction in force to be legitimate. Suffice it so say that the facts inthis case, did not justify a need for reduction in force of present employees due to lack ofwork.

Having found a violation of paragraph 56 of the National Agreement between the parties,what shall the remedy be?

In this case, the Union requests that, having sustained the grievance, an order be issuedrestoring seniority, identifying those employees entitled to redress, and ordering theemployer to award such redress. It suggests that the case be remanded to the parties forcalculation with the right of re-appeal of any unresolved disputes.

On the other hand, the Company submits that the only appropriate remedy would be thereinstatement of seniority for the affected employees.

In resolving this issue, your Arbitrator agrees with the Company that this case represents acase of first impression in resolving this particular issue of "for cause" under paragraph 56.In reviewing the decisions brought to the attention of the Umpire, it appears that thiscontention is correct. As was stated by Umpire Seward in Decision E-81, heavily reliedupon by the Union, a case of such first instance normally does not result in backpay.

From an equitable standpoint, your Arbitrator also notes that the evidence indicates thatthe grievants in this case received basically what they had been told to expect. They weretold that they were being hired as temporary employees for up to 89 days. To be sure,some of the grievants may have been told to the contrary by Local supervision. However, itappears that most of them came back to work with the expectation that they would beworking only for the summer. Therefore, to award the grievants more than three yearsbackpay, would appear to be a huge windfall. As a result, in accord with the precedent andestablished principles of the parties, no backpay is being awarded.

In conclusion, this decision does the following:

1. Clarifies the term "for cause" as it is used in paragraph56 of the National Agreement.

2. Protects the integrity and past precedent of paragraph56 of the National Agreement.



3. While no back pay is ordered for the individualgrievants, their seniority rights are protected.

AWARD

The August 30, 1985, layoffs of non-seniority employees at the Saginaw Division, Saginawplants, were not "for cause" within the meaning of paragraph 56 of the 1984 GM-UAWNational Agreement.

As a result, the grievance is sustained. The Company is ordered to restore the seniority tothe 189 employees laid off on August 30, 1985, at the Saginaw plants. The case isremanded to the parties so that the individual grievants might be identified. The Companyis ordered to reinstate the grievants to employment in accord with their seniority datingfrom June of 1985.

Your Umpire will continue jurisdiction over this matter for a period s in the eventclarification of this award proves necessary.

Respectfully submitted,

Patrick A. McDonald

Dated: March 24, 1989





No. U-13

April 26, 1990

Arbitrability;Necessary Continuous Seven Day Operation.

Grievance:

The Union charges management with violation of paragraphs 5-A, 86, and 87 of N.A.Improper policy for powerhouse operators on a seven day operation. We demand thatpowerhouse operators be paid in accordance with paragraph 86 of N.A. and all back paydue.

In the Matter of:United Automobile Workers of America -- Local Union No. 2123andGeneral Motors Corporation, Delco Moraine New Departure Hyatt Division, FredericksburgPlant, Fredericksburg, Virginia --

I. ISSUE

Whether the powerhouse operators at the Delco Moraine NDH Fredericksburg, Virginia,facility properly fall under the guidelines of paragraph 87 of the UAW-GM NationalAgreement as being a necessary continuous operation?

II. FACTS

The Delco Moraine New Departure Hyatt Division in Fredericksburg, Virginia, commencedoperation in 1979 on 77 acres of land in Fredericksburg, Virginia. It employs approximately327 individuals who are responsible for the manufacture of torque converter clutches forautomatic transmissions. Such clutches provide for a more economic use of motor fuel.

It appears that the first employees were hired to work in the powerhouse in June of 1980.By the end of that same year, three additional employees had been hired as stationaryengineers or operators. Each of the four operators were scheduled Monday through Fridayon an eight hour shift. The powerhouse operated every weekend with each of the four


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operators being scheduled to work alternate weekends on 12 hour shifts. Thus, theoperators were paid time and one half for Saturday work and double time on Sunday aswell as any additional hours in excess of eight during each work day. During the Mondaythrough Friday schedule, two operators worked on the first shift and one operator each onthe second and third shifts. During late 1980, the waste water treatment plant was alsoadded to the powerhouse activities. Since late 1980 then, the following functions havebeen performed by the operators:

1. Generation of steam for space heating. During the five month period from Novemberthrough March of each year, (the so called winter months) boiler operations are generallymaintained at a proper heat level to heat the plant. During such operations, the operatorsmonitor pressure and water levels and visually check pressure, temperature, air steammixture, feed water and steam drum levels.

2. Steam is provided for processing operations. This operation occurs when production isoperating for washers and dryers. Steam lines are open and the boiler automaticallymanufactures steam and maintains the proper pressure.

3. River water system is operated. Operators start and stop the river water pump, add andcheck chemicals, monitor and inspect the sand filtering system and water level of themillion gallon process water storage tank. This water is primarily used for production andalso as a standby system for fire protection as well as operation of the rest rooms. Fireprotection is primarily provided by electrically pumping County water into the plant forstorage with a secondary system operating on a diesel fire pump for backup purposes.

4. operation of cooling towers. Three cooling towers are associated with the powerhouse.The air compressor cooling tower operates whenever production is scheduled and boilerwaste water treatment system or air supply houses are operating. The operator monitorsand maintains the levels in the oil reservoirs.

A chiller cooling tower is used for climate control during the so-called summer months fromApril through October. When the chiller runs, the cooling tower pipes must be operated toprovide a constant flow of cool water through the pipes.

The process cooling tower is used to operate the furnaces called AJAX. This towergenerates the water required to maintain the proper heat range in the furnace. The AJAX isa heat treating process used for a majority of the steel components assembled into thetorque converter. Each component is sent through at least one of four tanks containingliquefied salt. These tanks are kept in operating temperatures as follows:

Tank A - 850 degrees CelsiusTank B - 220 degrees CelsiusTank C - 450 degrees CelsiusTank D - 370 degrees Celsius

Temperatures must be held at the optimum standard. If they are not, either the parts will betoo soft and must be re-run or will become crispy and must be salvaged. Such equipmentmust be periodically "de-sludged". This involves setting the temperature "above" operatingstandards to boil off the sludge. As the sludge settles, it is removed by means of basket



and chill blocks. After de-sludging, temperatures are set at the lower settings of:

Tank A - 750 degrees CelsiusTank B - 220 degrees CelsiusTank C - 350 degrees CelsiusTank D - 220 degrees Celsius

The furnaces are never shut down completely. If the salt in the tanks solidify, the brick issubject to stress cracks and requires constant monitoring when it is re-heated.

Because of the nature of this process, there are two systems that are available to supplywater. The primary system is the processed water system from the reservoir. A secondone is county water that has been used frequently in the past. Water valves for theoperation are located in the catwalk near the AJAX heat treatment. The valves are markedand consist of shutting down a valve in use and switching to another valve. The coolingtowers for the processed water or reservoir have two automatic pumps pushing water tothe AJAX. If one pump fails, the other pump kicks on automatically so as to avoid losingwater pressure.

If water pressure does drop in the AJAX, an alarm sounds in the security office. Securitythen calls the appropriate maintenance personnel. Valves have been monitored andswitched by security officers in the past. Powerhouse operators do not do the switchingfrom one water system to the other. They are, however, responsible for monitoring thewater flow through the tower and to the AJAX. Abnormal conditions or readings are to bereported by operators or recorded in the daily log book.

Effective October 31, 1983, a fifth operator was hired and a seven day schedule initiated.With that schedule, the operators work several consecutive days with two days off but notnecessarily on weekends. The operation has three shifts with two operators on days, oneon second shift and one on the third shift and the fifth as a floater. When this scheduleinitially went into operation, the operators were told they would be paid time and one-half ifthey worked their first scheduled off day and double time if they worked on their secondscheduled off day. The parties agree they misinterpreted paragraph 87, of the NationalAgreement and their interpretation was not consistent with the pay provisions outlined inparagraph 87 of the National Agreement. After several months of paying the powerhouseoperators in this manner, the method of payment was changed in August of 1984.Management, however, continued the powerhouse operators on the seven day continuousoperation. Thereafter, the grievance, which is the subject matter of this proceeding, wasfiled. Despite their diligence and attempts to resolve the issue at each step of thegrievance procedure, the parties were unable to do so. Hence, this matter was presentedto the Umpire for final decision and award.

At the evidentiary hearing itself, a number of witnesses were presented. The first was Mr.M, a stationary engineer since 1980. He identified an operator's log which was compiled onan everyday basis during 1983. In it he noted various two day periods when thepowerhouse was "shut down". These included dates like January 8, and 9, 1983, January16, and 17, 1983, January 23, 1983, February 6, 1983, April 2, and April 3, 1983, May 28,29, 30, and 31, 1983, the Memorial day weekend (Union Exhibit 5). Mr. M also identifiedthe July 4, weekend,(July 2, 1983, through July 4, 1983,) when the plant was closed, as



well as August 7, and 8, 1983, and the Labor Day weekend on September 4, 5, and 6,1983. According to Mr. M, the plant used the County water system until 1984 when theplant was then put on reservoir tower processed water.

Mr. M also testified that operators are not directly involved with the operation of the AJAXmachinery. They are only concerned with the process cooling tower pump running tosupply the water to the AJAX. If the alarm goes off indicating a disruption of that system,an electrician is usually called and an alternate pump goes on automatically. If that systemis not working, then the County water is utilized.

Mr. M also testified that the number one fire protection pump is an electric pump thatpumps County water. This is housed in a separate house away from the powerhouse andsecurity has the key. The number two fire pump is a diesel stand-by pump that is used inthe event of County water failure. This pump would utilize reservoir processed water only ifthe County system fails. Likewise, the emergency response team that practices fireprotection on a regular basis, does not have powerhouse operators on the team. Mr. Mtestified that the operators pump water into the million gallon reservoir as needed. It isdone approximately every other day. on weekends, usually the reservoir is onlyreplenished on one of the two days.

Mr. M testified that one of the proper functions of a powerhouse operator is to generatesteam for space heating. However, that function is not required every day. Indeed, it is noteven required for most of the year. Even during the winter months, it does not occur unlessthe temperature drops below 40 degrees (See Exhibit 2).

A second witness presented was Mr. C, Chairman of the Union Committee. According toMr. C, the only reason given for the continuous seven day operation advocated bymanagement at the second step was that it was necessary to operate the powerhouse dueto the process cooling tower system supplying control water to the AJAX electrodes 24hours per day. It was only at the third step that management raised additional argumentsconcerning the continuous operation. This involved the use of the diesel fire pump whenwater is required from the storage tank to provide maximum fire protection for the plant.

The Company presented several witnesses as well. The first was Mr. S, the FacilitySupervisor at the plant for ten years. He was a former Construction Supervisor and did theinstallation of the AJAX equipment. He explained how the equipment operated and thevarious temperatures needed for its efficient operation. According to S, when the facilitywas first operating, the plant utilized river water. However, it was too polluted. As a result,correct temperatures were difficult to maintain. The plant then switched to County water.However, complaints were received from the County when the plant drew too much water.As a result, the plant then went to processed water from the reservoir. That system ispresently used. County water is used for emergencies and temporary situations. It is notused consistently. Mr. S stressed that water flow to the AJAX equipment must bemaintained 24 hours a day, 7 days a week.

On cross-examination, S acknowledged that either County water or processed tower watercan be utilized to cool the AJAX electrodes. The processed tower water system is a closedloop system. The utilization of County water is not a closed loop system.

Mr. S explained that, once an alarm goes off concerning interruption of the cooling



process, management has approximately two hours to remedy this situation for the "Alltank. Additional time is available for B, C, and D tanks. He indicated that approximately90% of the problems encountered would be electrical in nature and only 10% of a waternature. Mr. S indicated that he supervises the operators and, particularly in 1988,attempted to allow them time off at Christmas with their families. During that period of time,a security officer monitored the alarm system.

The second witness for the Company was Mr. H, currently the Environmental Engineer andformer Powerhouse Supervisor. Mr. H testified that the one boiler provides steam heat forthe five month period between November and March of each year. Steam is also providedfor production. He indicated that boilers can be shut down if heat is not needed for theplant and production does not occur. During the heating months, H stressed the fact thatboilers are running at all times. H confirmed the fact that, in 1988, he scheduled all of theoperators off at one time during the Christmas shut-down to allow them the maximum timewith their families.

He indicated that he took responsibility for monitoring the machinery during that period oftime (Union Exhibit 7). If the cooling is operating, then Security monitors the alarm system.

III. RELEVANT CONTRACTUAL LANGUAGE WORKING HOURS (For the purposes ofcomputing overtime premium pay)

(81) For the purpose of computing overtime premium pay, the regular working day is eighthours and the regular working week is forty hours.

(82) Employees will be compensated on the basis of the calendar day (midnight tomidnight) on which their shift starts working, for the regular working hours of that shift. Theemployee's working week shall be a calendar week beginning on Monday at the regularstarting time of the shift to which he is assigned.

(83) Hourly and piece-rate employees will be compensated as follows:

Straight Time

(84)(a) For the first eight hours worked in any continuous twenty-four hour period,beginning with the starting time of the employee's shift.

(b) For the first forty hours worked in the employee's working week, less all time for whichdaily, Saturday, Sunday or holiday overtime has been earned.

(c) For time worked during the regular working hours of any shift which starts on the daybefore and continues into a specified holiday or a Saturday.

Time and One-Half

(85) (a) For time worked in excess of eight hours in any continuous twenty-four hours,beginning with the starting time of the employee's shift, except is such time is worked on aSunday or holiday when double time will be paid as provided below.



(b) For time worked in excess of forty hours in the employee's working week, less all timefor which daily, Saturday, Sunday or holiday overtime has been earned.

(c) For time worked on any shift which starts on Saturday.

Double Time

(86) For time worked during the first eight (8) hours worked on any shifts that start onSundays and on each holiday specified in Paragraph (203); for time worked on thecalendar Sunday or specified holiday in excess of the first eight (8) hours worked on anyshift that starts on Sunday or one of the specified holidays; and for time worked on aSunday or specified holiday in excess of eight (8) hours worked on a shift which starts theprevious day and runs over into Sunday or one of the specified holidays.

Exceptions to Above Overtime Payment

(87) Employees working in necessary continuous seven-day operations whoseoccupations involve work on Saturdays and Sundays shall be paid time and one-half forwork on these days only for time worked in excess of eight hours per day or in excess offorty hours in the employee's working week, for which overtime has not already beenearned, except as otherwise provided:

in paragraph (1) below:

(1) Such employees shall be paid time and one-half for hours worked on the employee'ssixth work day in the week.

(2) Such employees shall be paid double time for hours worked on the 7th work day in thecalendar week if the 7th work day results from the employee being required to work on hisscheduled off day(s) in that calendar week, or for hours worked on a Sunday if that Sundayis his second scheduled off day in that calendar week.

(3) Such employees will be paid double time and one-half (2.50 times straight time) for thefirst eight (8) hours worked on any shift that starts on any of the holidays listed inParagraph (203) ; for time worked on the calendar holiday in excess of the first eight (8)hours worked on any shift that starts on any such holiday; and for time worked on thecalendar holiday in excess of eight (8) hours worked on a shift which starts the previousday and runs over into any such holiday; provided, however, that if the particular holidayfalls on the employee's regularly scheduled off day(s) and he receives holiday paypursuant to Paragraph (206) of the Agreement, he will be paid double time instead ofdouble time and one-half for such hours worked. In the case of the employees who work 6or 7 days during the work week, the first 8 hours worked at double time and one-half ordouble time, as the case may be, on shifts starting on such holidays shall be counted incomputing overtime for work in excess of 40 hours in the employee's working week.

(4) Such employees will be paid time and one-quarter (1.25 times straight time) for hoursworked on the 7th work day in the calendar week, unless such hours are payable at anovertime premium rate under any other provision of this Agreement.

(5) If such an employee receives holiday pay pursuant to Paragraph (206) for a particular



holiday on which he does not work, that holiday will be counted as a day worked for thepurpose of computing sixth or seventh day premium under sub-paragraphs (1), (2) , and(4) above.

(6) Such employees shall be paid an additional twenty-five cents (25) per hour for timeworked, which shall be included in computing vacation pay allowance, paid absenceallowance, holiday pay, bereavement pay, jury duty pay, short-term military duty pay,overtime and night shift premium. Premium payments shall not be duplicated for the samehours worked under any of the terms of this Section.

IV. CONTENTIONS OF THE PARTIES

A. For the Union

The Union submits that paragraphs 86 and 87 of the National Agreement were violated inthis case. It points to the definition of what constitutes a necessary continuous seven dayoperation as "one that must run continuously because of the inherent technical nature ofthe job and irrespective of production schedules or management's desires in the matter."The Union asserts that those are not the facts in this case. It emphasizes that, from 1981through 1983, the plant was run on a five day schedule and not on a continuous operationbasis. Moreover, from 1983 to the present, employees have been off on certain importantholidays.

In making this argument, the Union points out that equipment changes have not beenmade. That is, the technical nature of the plant is identical to when it opened as it is today.The only thing that has changed is that management has attempted to figure out that theycould do it cheaper in this manner. That is not sufficient justification to avoid a contractualviolation.

In supplying water systems for the AJAX, the Union points out that there are two watersystems for that purpose. one is County water that has and can be used frequently and isquite reliable. The other is the processed water that is stored in a one million gallonreservoir tank. That fact is, however, that the County water system is quite reliable and canbe used. There have been very few interruptions in supply of this source in the past.Indeed, management did not mention any limitations by the County until the hearing. Atthat time, it was only of a hearsay nature. As a result, it lacks credibility.

The operators in question in this case have nothing to do with the fire prevention or fireprotection system. Of the one million gallon reservoir, only the bottom 250,000 gallons isdesignated to be maintained for fire protection. The number one fire pump for theprotection system is an electric pump that pumps County water. It is housed in a separatehouse away from the powerhouse and only security personnel have the key. The numbertwo fire pump is a diesel stand-by pump in the event of a County water failure. Again, theoperators have nothing to do with that pump system. The pump is locked and only securityhas the key.

The Union submits that it is not necessary to pump water into the one million gallonreservoir every day. Indeed, from November 4, 1989, through March 7, 1990, a total of 114days, water was pumped into the million gallon tank only 58 of those days and not pumped



56 days (Exhibit 1).

The Union contends that the operation is not a true continuous one. It is shut down forcertain holidays. Indeed, the true reason was acknowledged by management during thecourse of the grievance procedure when management indicated that County water wasmore expensive than taking processed water from the reservoir (Union Exhibit 7).

In closing, the Union emphasizes that the operators in this case do not really operate theAJAX equipment and, as such, their presence is not necessary on a continuous basis. TheUnion cites the Arbitrator to several Umpire decisions including B-200, E-70, E-26, and E-161. It submits that, in accordance with the standards set by the Umpires, this Umpire willfind that the grievance is meritorious and should be sustained. It requests that theCompany be ordered to return the powerhouse to a five day operation with full back pay forthe grievants.

B. For the Employer

First, the Corporation challenges the timeliness of the grievance. In October of 1983, theoperation was changed to a seven day schedule. Despite the fact that the shop committeewas fully cognizant of the change, the Union did not protest and no grievances occurred. Itwas only after overtime premium pay corrections were made in accordance with theNational Agreement for seven day operators, did the Union grieve this particular case.

By its silence, in effect, the Union was agreeing that the job was a necessary continuousone. In 1984, and again in 1987, the local parties entered into negotiations. On neitheroccasion did the Union present objections to the seven day operation. Thus, the Union isequitably estopped from denying its consent and certainly its knowledge of theimplementation and continued existence of the seven day operation. The delay in thepresentation of the instant grievance is well beyond the realm of reasonableness. Thus,the corporation submits that it is untimely and should be dismissed.

Even should the Arbitrator find that the grievance is timely, back pay is not applicable andthe grievance should be denied based upon its untimely presentation.

The Company in this case submits that no violation of the National Agreement hasoccurred. it points out that the cooling tower operates at all times to support the AJAXequipment. This is due to the f act that it is necessary to comply with warranty and safetystandards.

During the winter months from November through March, the operators generate steam forspace heating. These boiler operations must be maintained at the proper heat levelirrespective of production schedules. Management has no discretion. A continual andreliable source of water is necessary. Failure in this area could result in damage to personsand to properties.

The Employer points out that, during 1981, and 1982, there was a de-bugging time. It wasa time of adjustment. The Company found out that the best source of water was thereservoir cooling tower. It only uses County water- as & backup. Yet, even though theexperimentation and de-bugging occurred, all the weekends were covered on a continuousbasis. Despite running a continuous operation, the Company tried to treat its employees



fairly. Hence, on holidays, the Supervisors assumed responsibility or had securitypersonnel monitoring the various equipment (See Umpire Decision E-218). The fact is thatthis amounts to a seven day schedule and operation. The employees did not protest thisparticular continuous operation between the years 1981 and 1983. They simply want to bepaid as though it were a five day period. That does not justify back pay.

Concerning information being supplied by the Employer, the Company points out that ithas not really changed its position. In accordance with Umpire Decision C-175, it is 11 ...entirely proper to present new information at the third step." See also Umpire Decisions338 and 240.

While management has some choices and options available to it, in terms of schedulingproduction, it does not have a choice in providing coverage. There is a seven daycontinuous operation. It is the operator that is important. Indeed, during the winter months,the operator must physically run the space heating whether he wants to or not.

In summary, the Employer submits that the job qualifies as a seven day operation and thatthe operators are being paid correctly according to the guidelines established in paragraph87 of the National Agreement. The Union has failed to carry its burden of proof in this caseand, as a result, the Corporation respectfully requests the Umpire to dismiss the grievance.

V. DISCUSSION AND DECISION

The first issue to be decided in this case is the challenge by the Corporation to thetimeliness of this grievance. In support of that assertion, the Employer indicated that, inOctober of 1983, the operation was changed to a seven day schedule. When this scheduleinitially went into operation, the operators were told they would be paid time-and-a-half ifthey worked their first scheduled off day and double time if they worked on their secondscheduled off day. The parties agreed at the hearing that they had misinterpretedparagraph 87 of the National Agreement in reaching this understanding. The method ofpayment was changed in August of 1984. The operators, however, continued on the sevenday continuous operation schedule. Hence, the grievance, which is the subject matter ofthis proceeding, was filed in September of 1985. Because of the delay in filing thegrievance, the Employer contends that the actions of the parties preclude the Union fromfiling a timely grievance. It cites Umpire Decision B-101 as covering this situation.

In that decision, Umpire Dash concluded that, because a Union committee failed to raiseany objection to the procedure followed accord with the method management followed.While I do not disagree with Umpire Dash's conclusion, in-this case at hand, the facts aresomewhat different. While the operator-grievants were being scheduled on a seven dayschedule in 1984, they were being paid as if they were working a five day schedule or atleast not in accord with paragraph 87 of the National Agreement. Under thesecircumstances, it does not follow that, because no grievances were filed in this interimperiod, that this should be interpreted that either the grievants or the shop committee werein accord with the method management was following.

Equally important, it appears that the nature of this alleged violation is one of a continuingnature. That is, the grievance is a continuing one and the time limit on the filing of agrievance recommences each day. While damages or back pay in such case would be



awarded normally only from the date the grievance was filed, the later filing of thegrievance does not preclude it being arbitrated. As a result, I do conclude that thechallenge of the Employer concerning the timeliness of the grievance to be without merit.

Before proceeding directly to the merits of the case, your Umpire notes that, at theevidentiary hearing, the Union protested management's action in submitting new facts andarguments that had not been presented in earlier stages of the grievance procedure. YourUmpire did sustain such objections on three different occasions. In doing so, I relied uponthe Umpire precedent set forth in Umpire Decisions C-240 and C-338. Both of those caseswere decided by Umpire Ralph Seward. As Umpire Seward pointed out, If the grievanceprocedure is to operate successfully and needless appeals to the Umpire are to beavoided, it is of the utmost importance that the basic contentions of both sides be madeknown to each other by the end of the third step meeting. That does not mean that no newarguments will be heard by the Umpire. It does mean, however, that the contentions towhich these arguments are directed, should have been explained at the third step meeting.Only with such a rule could either side properly weigh the strength of its position whendeciding whether to settle by agreement or bring the case to the Umpire.

In the three instances where the objections were sustained, your Umpire felt that new factsor evidence were being presented for the first time at the arbitration hearing. In two othersituations where objections were overruled, your Arbitrator concluded that thesecontentions had been alluded to at either the second or third step of the grievanceprocedure and new arguments were being developed based upon those same contentions.Under Decisions C240 and C-338, this is permissible. Hopefully, this explanation will provebeneficial to all concerned.

On the merits of the case I note that under paragraphs 85 and 86, employees are entitledto be paid one and one half times their normal rate for all work performed on shiftsbeginning on Saturday, and double time for all shifts worked on Sunday (Joint Exhibit 1).An exception to that overtime payment rate is set forth in paragraph 87. That paragraphspeaks in terms of:

Employees working in necessary continuous seven-day operations whose occupationsinvolve work on Saturdays and Sundays, shall be paid time and one half for work on thesedays only for time worked in excess of 8 hours per day or in excess of 40 hours in theemployee's work week....

Hence, as the parties agreed, the question is whether the Powerhouse operators, orgrievants in this case, work in a necessary continuous seven day operation so as to fallwithin the exception of paragraph 87 or whether they would be eligible for over-time ratesas set forth in paragraphs 85 and 86. According to past Umpire decisions, 11 ... the test ofa necessary continuous seven day operation is the inherent technical nature of theoperation itself and not the work schedule of the employees performing it." (See UmpireDecisions A-126, B-151 and E-Z18). With this test in mind, let us now examine the facts inthis case.

During the so-called winter period from November through March of each year, thePowerhouse operators maintained the boiler operations at the proper heat levels in orderto generate steam for space heating. When such heat is being generated, the operatorsare obligated to check the pressures, temperatures, air steam mixture, feed water and



steam drum levels. Any discrepancies are either corrected or reported to the maintenancedepartment or management. During this five month period when the Power plant providesspace heating during the winter months! it appears that the work of the Powerhouseoperators is a necessary continuous seven day operation (See Umpire Decision A-126).

What of the remaining seven months of the year, however, when temperatures in Virginiawould not mandate space heating? The issue remains for these seven months whether theoperations involve necessary continuous seven day manning of the positions.

During the course of the presentation of evidence in this case, witnesses testifiedconcerning the Powerhouse operators providing steam for processing operations. Now, itis clear that many times production will be run on Saturday and Sunday. The fact,however, that production may operate on Saturdays or Sundays during the summermonths and process steam and compressed air is necessary, does not make the operationa necessary continuous one. This is because production of the steam for processing isdependent upon the schedule of the production departments. Hence, that particularfunction of the Powerhouse operators would not make their job between April and Octoberof each year a necessary continuous seven day operation.

The Powerhouse operators also operate the river water system. In doing so, they start andstop river water pumps, add and check chemical levels and monitor and inspect the sandfiltering system and the water level of the million gallon water reservoir. This is not doneevery day. Once again, this operation is not one that is continuous in nature or would makethis operation a necessary continuous seven day operation.

Yet, another function of the Powerhouse operators is to treat processed water. In thissituation, water is pumped in from the river water system for use in fire protection,production and operation of the rest rooms. If the plant is not in production, however, thereis basically very little need to pump. Generally speaking, this would occur only if productionoperations were scheduled for weekend over-time. Again, the inherent nature of theoperation is not one that would be a necessary continuous seven day situation. Much thesame can be said for waste water treatment in which the Powerhouse operators check thelevel of the holding tanks and pumps are monitored each hour whenever production runsoccur. Again, because of the basic connection between production and this operation, I donot find it to be a "necessary continuous seven day operation."

This brings us, then, to the operation of the cooling towers by the Powerhouse operators.Three cooling towers are associated with the Powerhouse. The air compressor coolingtower is operated whenever production is scheduled. By its very nature, compressors arebasically only needed when production or maintenance personnel are working. If thecompressors are not run, there is no need for this cooling water. Obviously, then, this workis not a continuous necessary seven day operation.

The chiller cooling tower is the second tower operated by the grievants. It is used forclimate control during the so-called summer months from April through October. It,basically, provides air conditioning for the plant during the excessively hot days. It appearsfrom the testimony of the witnesses, that this tower would generally only be in operationwhen the plant is in production or operation. once again, this fails to meet the test set forthin past Umpire decisions as being a necessary continuous seven day operation.



This brings us, then, to the process water cooling tower. It is so-called because this towergenerates water required for an operation which maintains a proper heat range in thefurnaces which are called AJAX. Whether in production use or not, the AJAX furnaces aremaintained within rather narrow ranges of degrees. As set forth earlier in the facts, tank Ais to be kept at 850 degrees Celsius while tank B is to be kept at 220 degrees Celsius. Thesame goes for tanks C and D which are basically kept at 450 degrees and 370 degreesrespectively, while production is occurring. Temperatures are to be maintained within thesestandards so as to produce parts that are of a proper hardness. Most important, however,it appears from the testimony of witnesses in this case that the furnaces are never shutdown completely. When production is not occurring, the furnaces are kept in an "idling"mode. In that mode, tank A is kept at 750 degrees Celsius. Tank B would continue to bemaintained at 220 degrees Celsius. Tank C is kept at approximately 100 degrees less thanits normal operating temperature of 450 degrees. Tank D, which is normally kept at 370degrees Celsius, is idle at 220 degrees Celsius. Hence, the operation of the process watercooling tower by the Powerhouse operators, would appear to be a continuous necessaryseven day operation.

The Union, however, asserts two arguments that must be carefully considered. The first isthat the AJAX machinery could be switched to County water and, hence, there would be noneed to operate the cooling tower on weekends by Powerhouse operators. When thefacility was first- started, the Employer utilized river water. They found, however, that it wastoo polluted and did not provide correct temperatures. The operation was then switched toCounty water. Because of the large amounts of County water utilized, however, by thisPlant, it was found that even this source was not as reliable as the processed water fromthe Plant reservoir. The Facilities Supervisor at the Plant mentioned three examples whenCounty water could not be used consistently. Hence, it is now only used as a backupsource. By using processed tower water, a closed loop system is utilized which is muchmore uniform than would be the case if County water were used. Hence, water pressureand temperatures are much more consistent.

I do find this Employer explanation to be a reasonable one and, considering the cost of theAJAX furnaces, to be one that makes good common sense.

The Union points out correctly that the Powerhouse operators do not directly operate theAJAX equipment. They only operate the process water tower which generates the waterrequired for the operation of the AJAX furnace equipment. While the Employer's argumentswould be even stronger if the Powerhouse operators were directly involved with the AJAXequipment, the fact is that these employees supply the water cooling source which must bemonitored even when the AJAX equipment is not being operated but is in an "idle state".

One final point by the Union also deserves discussion. Witnesses testified that, from 1980through 1983, and on a few holiday occasions such as Christmas of 1988, all thePowerhouse operators were given such time off. The Union submits that this proves thattheir presence was not necessary and that the operation was not a necessary continuousseven day one. The response by the former Powerhouse Supervisor was that particularlyduring holiday situations, he did his best to allow the Powerhouse operators the maximumamount of time off to be with their families. During that holiday period of time, he took theresponsibility along with security personnel, to monitor the operations. In this case, it isimportant to keep in mind the test of a necessary continuous seven day operation is theinherent technical nature of the operation itself and not the work schedule of the



employees performing it. As Umpire Saul Wallen noted, the fact that the complainantspreviously did not work a schedule and were not paid in the manner typical of employeesworking in necessary continuous seven day operations, does not alter the fact that theoperation of this equipment is "necessarily" continuous (See Umpire Decision E-218).

I believe that is the case in this situation. The Powerhouse operators, even from 1980through 1983, while being paid on a five day basis, were still operating the Powerhousecontinuously. That is, each of the four operators were scheduled Monday through Fridayon eight hour shifts each day. The Powerhouse was also basically operated everyweekend with each of the four operators being scheduled to work alternate weekends on12 hour shifts. This provided 24 hour weekend coverage. These operators accepted thistype of scheduling even though it engendered a great amount of overtime. From 1983,onward, the Powerhouse has continued to be operated on a continuous seven day basis.From 1983, through 1985, the continuous operation did not result in grievances beingraised by the Powerhouse operators until the grievance in this case. This may well havebeen because the operators were being paid differently from that called for underparagraph 87 of the National Agreement. The fact is, however, that the inherent nature ofthis operation appears to have been one of a continuous necessary seven day operationand the employees appeared to recognize this. Since 1985, while there have been a fewoccasions such as Christmas, when management has attempted to accommodatePowerhouse operators to be home with their families, these have been rare. Again, suchan exception, by itself, would not change the technical nature of the operation. Finally, Ihave reviewed the Umpire decisions cited by the Union (B-200, E-70, E-26 and E-161) butdo not find them controlling in this fact situation. In summary, then, I do find that the workof the Powerhouse operators or grievants in this case, to be one of a necessary continuousseven day operation.

DECISION AND AWARD

1. The grievance is deemed arbitral.

2. The Employer did not violate the National Agreement because the Powerhouseoperators work is deemed a necessary continuous seven day operation, and therefore,falls within the exception of paragraph 87 of the Agreement.

3. As a result, the grievance is deemed without merit and is dismissed.

Respectfully submitted,Patrick A. McDonaldDated: April 26, 1990


