DETROIT ARBITRATION WIN

Desire for new blood can’t justify age discrimination

01 Dec 2009

The Guild Reporter

The Detroit Newspaper Guild has won an age-discrimination arbitration—not that unusual, perhaps, were it not for the fact that the defendant was another union, the United Auto Workers. But what makes the grievance noteworthy is that UAW’s leadership was acting in accordance with a constitutional requirement calling for the “voluntary” retirement of staff members at age 65, ostensibly “to assure the vigorous leadership to which our membership is entitled.”

The Oct. 26 decision, written by arbitrator Michael P. Long, concluded that the UAW had violated the non-discrimination clause of its collective bargaining agreement with the Guild when it reassigned an 18-year employee to lesser duties and a smaller office a day after he turned 65. The reassignment followed the employee’s statement that he intended to continue working an additional 16 months, despite a manager’s pointed reminder that union policy required him to move along.

Hired in 1991 to develop a television studio and associated facilities for the UAW, John Hammond had seen his job evolve to include video production at all conventions as well as other productions for internal and external distribution. Ironically, his video on the life of Walter Reuther—who championed the 65-year retirement rule—received an Emmy after airing on Detroit Public Television. He also did some writing and other work related to the union’s Solidarity magazine and its efforts to establish an internet presence.

What Hammond did not do was collect and edit “regional inserts” in the magazine, a job that had been performed by an employee who left in August of 2008 and hadn’t been replaced. Nor did he have any experience in website design. Yet on Jan. 16 of this year, the day after Hammond responded to management’s inquiry about his retirement plans, the UAW posted a job opening for someone with audio, visual and web production skills—for Hammond’s job, in other words. And on March 1, the day after he turned 65, Hammond was told he’d be moved from his studio office and would be assigned the work of the departed employee, as well as web design duties.

The UAW argued that it did nothing unusual, moderately altering an employee’s job responsibilities to conform to its changing needs. Hammond had not been disciplined, continued to make the same salary and kept all the same benefits. The union “acted based on a sensible business rationale,” while Hammond had in no way been subject “to any materially adverse action.”

The Guild, on the other hand, charged that the UAW attempted to make Hammond “miserable” for “the sole reason of encouraging him to resign.” The magazine job, argued the Guild, was “considerably less challenging and less interesting” and “much less desirable” than television production. Nor had Hammond been provided with any web development training.

What was really at stake, the Guild argued, was an attempt by the UAW to enforce an illegal, decades-old retirement policy. Indeed, a UAW manager had pointedly referred to the policy when asking Hammond about his intentions. As UAW President Walter Reuther—who died in a 1970 plane crash at the age of 63, before he had a chance to test the limit—explained at the 1964 constitutional convention, “I know that one of the problems in the labor movement is that sometimes people don’t realize that they grow old, and that they tend to slow up the labor movement when young leadership is needed.”

A look at labor’s ranks suggests there’s merit to Reuther’s observation, but Congress nonetheless concluded just three years later that it would be illegal to fire anyone because of his or her age. Nonetheless, it took more than a decade after passage of the Age Discrimination in Employment Act of 1967 before the UAW grudgingly amended its constitution to be in compliance, all the while asserting that its 65-and-out requirement had “reflected the right policy.”

“We, the 1980 Convention, reaffirm the soundness of that policy,” convention delegates declared, calling on their officers and staff members “to voluntarily practice that policy in the future.” Until Hammond took the “voluntarily” part of that statement to heart, apparently no UAW employee had interpreted the word as meaningful.

Whatever the merits of UAW’s philosophical position, arbitrator Long concluded that it clearly had violated the contractual prohibition on discriminatory behavior. “The question to be answered in this case is whether a reasonable person in Grievant’s position [would] feel strongly pressured to resign,” Long wrote. “The answer is yes. Was age a factor in the bringing of this pressure? The answer is yes.” Therefore, he ruled, Hammond should be put “back into the situation he would have been in if the contract violation had not occurred.”

And, presumably, be allowed to retire when he’s good and ready.