Let's Arbitrate! Seniority Vs Ability

[Music] let's arbitrate seniority versus ability your narrator today is the exit of vice president of the american arbitration association paul m herzog the world tournaments it is good to know that management in the united states are now resolving almost all their disputes over grievances by submitting them to voluntary arbitration the american arbitration association a non-profit educational agency brings you this living example of the arbitration process its purpose is to show how a dispute over an employee's grievance can be resolved by arbitration instead of through a test of economic strength you are about to see the reenactment of an actual arbitration case being tried before one of the association's labor tribunals the arbitrator is entering the hearing room where company and union is now being sworn in by a tribunal clerk of the american arbitration association this dispute arose out of a company's refusal to promote an employee it has already passed through several earlier steps of the grievance procedure in accordance with the existing contract between the company and the union no adjustment proved possible a demand of our arbitration was made by the union at the request of the arbitrator is now being read to the parties the hearing itself is about to begin mr kiel on august 4th the american arbitration association received a copy of a demand for arbitration from the union under a clause in their collective bargaining agreement providing that all disputes between the parties will be arbitrated under the rules for the american arbitration association the union claims that paramount metals violated the collective bargaining agreement by not promoting sam wilson to the position of materials handler the union demands that sam wilson be immediately promoted to this job and also that he received a differential in pay from june 20th the date of the grievance the company in a letter dated august 7th has denied that there was any contract violation fine thank you all right gentlemen let us proceed uh first uh have we noted the appearances for the record stephen c vardik for the union mr kiel this is mr brown who's the union president and sam wilson the agreed employee mr lynch my name is daniel a lynch i'm attorney for paramount metal products and i have with me mr benjamin hopkins who is a personnel director thank you well now mr vladick since the union is the moving party you've brought the case to arbitration i wish you would make a brief opening statement well this is a fairly simple case mr keel arising out of mr wilson's grievance on her about june 20th sam's a laborer in the pool spent a labor in the pool for about nine years management refused to promote him to a material handler in the polishing and buffing department the boys call the job an expediter's job a vacancy occurred the job was posted there were two applicants wilson who has had nine years in the company and a fellow by the name of joe safford who is also a laborer safford's been with the company for about three years safford got the job the grievance was then filed i think the date was june 20th requesting that the company promote wilson immediately and pay him the difference of eight cents an hour between his job and the expediter's job back to that date testimony will show that there's no question about wilson's ability to do the job he's done it can do it and that he's performed it to the satisfaction of the company but this job pays eight cents an hour more in addition it provides the opportunity for ultimate promotion to a higher pay job on incentive we therefore think that the award should be directed to a resolution of this you claim he was entitled to this promotion under the contract he was reasonably qualified to perform the work all right mr lynch would you make a statement on behalf of the company i'll be happy to sir i think uh maybe uh before i make my opinion opening statement it would be well to introduce fine as a joint exhibit the agreement between the company and the union now in effect is this a correct copy of the agreement mr vladimir yes and i join in its submission well we'll receive this as joint exhibit number one would you please mark that mr clerk all right you can proceed mr lynch well mr arbitrator as uh mr vladick has stated this is a simple case the facts are basically not in dispute wilson uh is a laborer has been with the company for nine years he applied for the expediter's job when it opened the company refused to give it to him instead gave it to a man some years junior to him and point of service it might be well for you to know a little bit about this job basically the expediter provides a service for polishers and buffers who work under an incentive plan which was negotiated with this union now if this service is not performed in an uninterrupted manner it can only result in the loss of wages to sam wilson's fellow employees an additional cost to the company now the job was not given to wilson because of the his bad attendance record direct evidence will be given uh on his precise uh record uh by my company witness in other words that's the specific reason he was rejected that's correct sir there's no question of his ability to do the job quest the problem is he's not there often enough to do it we submit that when this case is closed that the evidence will justify the company's action in turning down sam wilson's bid for the job all right fine now as i get the issue you contend that wilson should have been given this promotion while you say he was properly denied the promotion because of his bad attendance record that's correct that's why would you call your first witness mr vladick mr wilson would you raise your right hand please you swear that the testimony you're about to give to be the truth the whole truth and nothing but the truth so help you god please be saved sam would you give the arbitrator your name your job title and the rate of pay which you're currently receiving my name is sam wilson i'm a laborer in the labor pool and i received a dollar sixty-five cents an hour how long have you been with the company i've been working there for nine years and what sort of a job does a laborer in the labor pool do well the labor in a labor pool and in the morning when you come into work the supervisor generally assigns you to various jobs that have to be done now he puts you into whatever job he thinks is necessary have you ever been assigned to work as an expediter in the polishing and buffing department yes he's assigned me to that job on occasions any complaint about the way you did the job never complained to me about any has it been any complaint about the way you've done the job anywhere in the plant no nobody's ever complained to me about it have you ever been disciplined or warned or in any way charged with violating any of the company rules never now would you tell the arbitrator about the bid on the expedited job well according to the operation there if a job is open and somebody wants it uh you've got to put in a bid for it so i put in a bid because i knew that the expediter's job was open and uh that's what i did and that's all i know of it but when did that happen excuse me mister about when did that happen oh about a month ago june 20th about the date about that time we'll stipulate june 20th today fine thank you now what happened did you get the job no the next thing i know somebody else got it then can you do it can you before yes i've done it there uh on occasions i said before that's all i have with mr wilson mr keough mr lynch any cross-examination if you please sir uh sam uh does anybody for the company ever complain to you about your absentee record i'm going to object mr arbitrator this is a promotion case not a case dealing with whether or not he ought to be disciplined for his absenteeism or lateness mr arbitrators discipline is not involved in this situation at all she wouldn't give him the promotion and that's correct and for the reason that he has just doesn't show up regularly enough well your question goes to your defense now whether it's a valid defense we'll decide in connection with the determination of this arbitration but i'll allow you to go ahead with those questions have uh you ever received any complaints from anybody in the company about your absentee record well i've been told once by the uh personnel supervisor there that uh i ought to watch my latenesses and absences and that's what i've been doing i've been watching them well now you have a problem at home with your wife do you not yes my wife is sick she's got dramatic fever and uh have your medical advisors give you given you any idea about uh how long this it have to continue well the doctor told me that uh this is going to be for a long time you know romantic fever she's been sick for a long time and he knows that i've got a problem with the family i've got a couple of kids i've got to take care of them i got to see them off to school i got to handle some of the problems at home those sharks a guy can just do so much and that's been the reason for your absenteeism yeah well now haven't there been occasions as a matter of fact when you have been absent from work four reasons totally unconnected with your wife's illness i don't recall honey well do you recall uh on one occasion when you failed a report from for work because you've been drunk the night before oh i'm good huh well let this is all right mr arbitrator this is where you go we'll we'll let him now whether it's relevant we'll decide at a later time but i'll on cross-examination we allow wide latitude go ahead now will you answer the question please i don't remember you have no recollection now isn't it a fact that uh you have been absent on more occasion than any of the other laborers in the laborers pool i don't know about that you don't know oh it's not all right now you say on occasion you have uh uh done the expediting job is that correct yeah now on occasions when you have done that work haven't the men been required polishes and buffers been required to wait for you to bring a materials to work on yeah and uh doesn't that as a matter of fact result in a loss in wages to the polishes and buffers i don't know but look i'm not doing that job all the time well that's precisely the point and if you were given the job and your absence and lateness record continued wouldn't we have to continuously replace you with another laborer from the pool that i don't know that you don't know i think if i noted mr vladick's look that that was uh argumentative mr lynch i think it's speculative in addition to argumentative well i think it's completely relevant to this proceeding well we'll save the argument for later thank you they well can you answer this question if you fail to bring materials to the polishes and buffers to work on it will result in increased cost to the company for production they do not receive oh now i'm going to object to that this is pure speculation well i think he can answer that question if he knows well it's close but i'll allow the question those questions the question is when you fail to bring work to the polishes and buffers on time of necessity it's going to result in increased cost to the company for which they get no production i don't know about that you don't know i don't yet i i have no further questions any redirect mr flatic yes mr kill mr wilson would it refresh your recollection if i reminded you of a company party after which you and your supervisor went out to have a little party of your own oh yeah i mean that thing did you tell the arbitrator about it mr wilson yeah we sometimes have a party that's run in a department and some other guys sort of get together we have this in the plant yeah but uh it's all right i mean there's no monkey business there but after the party we a couple of guys got together and we went down to the bar on a corner we had our supervisor my supervisor was there and a couple of other followers and other supervisors and we were drinking and um maybe i had a little too much i got sick i got home i couldn't go into work the next day and i called up i told him i was sick i couldn't show and your supervisor knew where you had been and why you were saying he was with me he was drinking just as much as i was he must be better equipped for that thing uh i should move that that'd be stricken i will draw it mr wilson on these occasions when you were filling in in the polishing and buffing department was that because the expediter who was regularly there was absent yes it's the only reason i'd go in there and how often had you done this job in the polishing and buffing on various occasions i have nothing further but only occasionally isn't that so yeah now uh you wouldn't have the arbitrator believe that you were doing any drinking on the company premises would you oh no i told him he went to the bar and uh i never drank on the job and you reported in sick the next day because you had too many to drink too much to drink the night before yeah i called up and i told him i was sick now you say one of your supervisor was uh drinking with you at the salon yeah my supervisor the guy that tells me what to do how do you know whether or not he appeared for work on the next day i don't check in him i don't know i have no further questions all right um step down mr wilson would you call your next witness mr bladdick mr brown would you raise your right hand please you swear that the testimony you're about to give to be the truth the whole truth and nothing but the truth will help you god i do it's a time mr brown would you give the arbitrator your name and position my name president of local 100. and as president of the local did you negotiate and are you familiar with the agreement and evidence is joint exhibit one i am would you tell the arbitrator about the promotion section in that contract well when there's a better job opening up notice must be post for three days in advance there's three working days before the job's filled give the men a chance to bid on the job if they're qualified and the man with the most seniority gets the job provided he's qualified i wonder mr vladick if we shouldn't have the precise section before us could you tell me which one that is yeah i have the original here mr kiel it's on page 14 i think of that contract article seven yes i have it now when any vacancy occurs within the bargaining unit it shall be filled on the basis of seniority provided the senior employee is reasonably qualified to perform the duties of that position notice of such vacancy shall be posted on the bulletin board at least three working days before the vacancy is filled employees shall have the right to bid for the job within that period of time so the question is whether mr wilson the senior employee is reasonably qualified to perform the duties of the position that's our position exactly mister and ours too fine thank you now mr brown did the company comply with the contract when the vacancy occurred the material handler expedited john well he did as far as the posthumour notice is concerned but sam wilson didn't get the job uh even though he's got the seniority man with less senior already got the job as president of the union are you familiar with wilson's ability his work performance and his conduct on the plan sam is a good worker and any question about disciplining him in any way because of the lack of qualification he's never really been disciplined your witness mr lynch well mr brown uh in your capacity as president of the local union do you participate in grievance meetings with the company i do and uh on occasion uh have the have company representatives discuss with you various problems uh come up in the shop mostly major problems as anybody for the company ever discussed with you the question of sam wilson's attendance record well the matter has come up but everybody knows sam's a good and responsible worker he's got some family problems he may not always get into work on time but the company's never given him more than our warning i think that proves they're making too much out of this case but they have given him an oral warning occasionally and they have taken it uh to you and your capacity as president of the local yes now polishes and buffers can you tell us uh whether or not they are working under an incentive plan yes they are and uh isn't it true that if the materials do not flow smoothly into the polishes and buffers that they are bound to lose some of their earnings because of downtime to a certain extent they lose the first five minutes but if they lose more than five minutes of waiting time then they're paid at average earnings for the whole time and that means then that the company is required to pay for production it is not getting there's lynch testifying now i submit that that's a question well the question is on cross-examination it is a leading question but can you answer it well look the company assumes a certain amount of downtime on all the jobs and they take this into consideration whenever they're setting their wage rates on an incentive job well you'll be able to argue this point when we come to the summation well now as a matter of fact isn't it better for the polishes and buffers to have the work moved to them smoothly in order to avoid loss of wages i agree with that and in order to avoid loss of uh in production costs to the company yeah i have no further questions subject to rebuttal on the closing statement in other words that completes your witnesses yes sir mr lynch would you proceed with your witnesses if you please i call benjamin hopkins stop let you raise your right hand please do you swear that the testimony you're about to give to be the truth the whole truth and nothing but the truth so help you god now uh mr hopkins will you give your name and your official position with paramount metal products coming uh benjamin hopkins personnel direction and among your duties are you required to pass upon such things as promotions and transfers and assignments to jobs yes in many instances foremen give recommendations but in the final analysis the decisions are mine now uh are you familiar with the sam wilson's record of employment with the company i'm questioning the little traffic uh would you please uh give me the record it's down to trader i offer this in evidence i object mr kim what's the basis for your objection this is not a disciplined case whether mr wilson's attendance record is good bad or indifferent isn't relevant here but even if it were relevant this record standing alone without comparison to the three or four hundred other employees is meaningless and i think that the company wants to introduce it let them introduce all of the records particularly those of people who have been promoted under article seven in the past mr lynch you have anything to add to that well sir i agree with uh mr vladick that discipline is not involved in this case nor do we offer that uh document uh for the purpose of sustaining any disciplinary action because we took none sole issue here is whether or not sam wilson is reasonably qualified to perform the expediter's job well you know in these arbitrations we don't follow the technical rules of evidence we try to get to the heart of the issue and on that basis i'm going to let it in as to whether his absence was relevant to the case that is a matter for argumentation as to the other records we'll see later whether they're necessary to be put in i'll accept this in evidence has this been marked would you please have this mark mr clerk this is mark's company exhibit number one now would you please tell the arbitrator what this record discloses the last 12 months sam wilson was scheduled to work 220 days he was absent a total of 30 days he was late more than 15 minutes on 45 other days 50 of his recorded latenesses were in excess of three hours we don't record absences we don't record latencies rather of less than 15 minutes now have you uh discussed this record with sam wilson and with the union yes on a number of occasions i have actually we've been uh i think somewhat lean it may be unwisely we realize that sam has a rather serious home problem uh however i have had to remind him that on occasions his absences weren't all together authorized well can you tell us how many of these absences have been totally unrelated to his wife's illness to my knowledge eight occasions now can you tell of any specific one of those that would be of interest to the arbitrator and jermaine to this proceed well the incident involving the track would you please tell us about that well i belong to a personnel association we had a days outing uh which happened to be at aqueduct racetrack and using the glasses and scanning the track i find our employee sam wilson on the rail in the bright sunlight enjoying the races as i was the next day on return to work i called sam in and confronted him with this information he didn't deny it he said that he had been there on the doctor's advice because he had a bad back and the doctor told him to get a day's rest and to get out in the sun this was his way of doing it now uh will you tell the arbitrator please the precise reason why you refuse to give sam wilson the promotion well simply because he's completely unreliable we feel that sam could probably do the job if he came to work or even when he came to work if he came to work on time uh we will not continually be put in a position where we're going to assign other laborers from the labor pool to this particular buffing and polishing department it causes too much lost time for the peace workers and loss and money for them and a result it's far too expensive for the company you may examine mr black was this day at the track uh a workday yes it wasn't and uh you were there i was soon yes with the permission of the company that is correct sir did you get paid for the day i did how'd you make out no i broke about even now did you check with uh sam's position as to the story that sam gave him i did what do you tell him he said that he'd advise sam because of this back ailment to take a day off rest and get a little sun he didn't specify the track sunny day at the track there was it happened to be but i wonder would he have been there where it raining well we won't know the answer to that was sam paid for the day he may have been i don't know how many employees do you have in the bargaining unit at your company 430 approximately and absenteeism is a problem on occasion just how do you handle it well in a variety of ways we often talk to the men about their problems we issue formal notices sometimes we may lay off and as i'm sure you're well aware last year we discharged a man for chronic absenteeism in other words you handle it as a disciplined problem by reason of the fact that the men are violating your rules that's right that's wrong but that's not the case here have you ever before denied anyone is this a a promotion or a vacation or time and a half for overtime or sick leave because of absenteeism known as i said this is not a disciplinary matter with sam wilson you're familiar with the contract mr hopkins do you recall the first sentence of article seven i don't have it memorized but uh i i know basically what it says says reasonably quote it does and uh doesn't the contract the talk are reasonably qualified isn't it silent with regard to absenteeism for example well it doesn't specify absenteeism any more than it specifies that a man shall have two arms however we feel that lateness and absence certainly should be taken into consideration and promotion but when you negotiated the contract with the union it was your understanding the union's understanding that reasonably qualified meant the technical ability to do the job oh probably the exact words might be uh skill and efficiency but certainly a man can't do the job if he doesn't come to work he has to be there to perform and this is what we did in sanskrit that's true of everybody everybody has to be there in order to do the work was there ever a case before where you denied anyone a contract benefit like a promotion because of absenteeism no we've never had to we've never had a record like this that's all i have of this one do you have any other questions oh yes i have one if you please uh mr hopkins you heard uh sam wilson's testimony about the office party and the subsequent party he had in the neighboring saloon i did soon and you heard him testify that uh he had one or two too many to drink and as a result was unable to come to work the next day and he called in sick i do now uh do you know uh sam's supervisor i do uh the one who was with him that night yes sir do you know whether he reported for work the next day he did so do you know whether he reported on time he was ahead of time i haven't got another question up all night i have one more question that's right that completes your case well gentlemen you have now presented all of the evidence and i would call upon you to make your summations flatic you will go first mr keel as i stated at the opening this is a simple case the contract says that the senior man if he is reasonably qualified is entitled to the promotion there is no question about wilson's ability to perform the job he's done it in the past and the company concedes that he's qualified to perform and the promotion is a matter of right not a the company now says well he's been absent and we think that because he's been absent we're going to discipline him in effect by depriving him of eight cents an hour and the opportunity for future advancement if he has been absent too much the company can discipline and we can test that to determine whether or not just insufficient cause exists under the appropriate section of the contract but where we're talking of reasonable qualification neither the company nor the union intended the application which the company has placed upon those words here and they're seeking to have you construe the contract in a way not by either party agreed to at the bargaining table where such discussion should take place we submit to you that wilson was improperly denied a promotion that the company violated the contract and that wilson should be promoted retroactive to june 20th 1961 to the position of expedited material handler and paid the eight cents per hour differential which he's lost thank you mr lynch well sir in the first place i respectfully submit that you as the arbitrator have no power to substitute your judgment for the company's judgment unless you find that their company has violated one of the clauses of that contract and we submit that there hasn't been a scintilla of evidence presented here to indicate that we did i agree with mr vladic that this is a simple catch i also agree with them that discipline isn't involved this is just a clever twist on the part of the union to make this case theme make this case seem something different from what it actually is the contract requires us to give the job a promotion to the senior man provided he is reasonably qualified to do the work reasonable qualifications means more than just skill or ability to do the job of necessity it includes reliability of necessity it means that he is going the man who gets it is going to attended a job regularly we submit that it would be a travesty to have you order us to put them in on this job when it is certain that his fellow workers are thereby going to lose money and the company is going to be required to pay production costs for work it doesn't get we submit that this grievance should be dismissed thank you all right thank you gentlemen you have very succinctly presented the issue in dispute the facts are not in controversy you have given me an issue of interpretation of the seniority clause i will now declare the hearing closed and i will render my decision as quickly as possible thank you very much to see you again under the rules of the americas the arbitrator now has 38 at the most in which to write his award and his opinion he will base his award on the evidence presented to him upon the contract upon the documents presented and of course upon the oral testimony and also upon the arguments of opposing counsel you too have now heard all the evidence and heard all the argument you'll be the arbitrator how would you decide this case cast paul m herzog narrator theodore w keel arbitrator e robert krieger tribunal clerk for the union stephen c vladick of the new york bar sam kolonetsky president of local 1s retail wholesale department store workers half of lcio john j dillon education director region 9a united automobile worker zaf of lcio for the company daniel a lynch of the new york bar martin j quinn the industrial relations division of safeway stores incorporated [Music] foreign [Music] you