How old must one be to claim age discrimination?
Utility Man Grade II Bernie Ratner was assigned to a group of employees who worked the day shift in Warehouse B. His performance rating was “Satisfactory.” The way he felt about his job, however, and the way he was treated by his boss and coworkers was, in his opinion, far from satisfactory.
Other workers in the five-member crew had nothing to do with him. They had lunch and snacked during break periods at a table in the employee cafeteria where Ratner was made to feel unwelcome. The utility man lunched and snacked alone and was miserable. The ultimate blow to his ego occurred when other crew members were recommended for merit increases by Group Leader Norman Sullivan, with Ratner bypassed. In the utility man’s opinion he was as well qualified, and performed as well, if not better, than most of his coworkers.
The problem, Ratner decided, was age. He felt this was the reason why he was being discriminated against.
When Ratner made known his intention to submit an age discrimination grievance to Maintenance Foreman Adam Creskin, the supervisor made no attempt to disguise his shock.
“For heaven’s sake,” he blurted, “you’re thirty-eight years old! That’s not exactly elderly.”
“Maybe not,” Ratner conceded, “but all of the guys in my group are in their twenties. As far as they’re concerned, I’m an old relic.”
Creskin shook his head. What next? The job was getting weirder every day. He made a beeline for Plant Engineer Tom Riley’s office.
Question: In Riley’s shoes, how would you respond to Ratner’s dilemma?
Riley’s response: The plant engineer agreed with Creskin about the job becoming weirder and weirder. “Age discrimination at 38. That’s a new one on me. According to the Age Discrimination Act, employees under 40 aren’t protected. Fortunately, the solution to Ratner’s problem is simple. Transfer him to the utility group in Warehouse A. Half the guys there are in their fifties. Case dismissed.”
Can you forbid a union steward’s investigation?
When Bill Nally, an electrician on probation, was discharged, Shop Steward Tony Molinaro felt the dismissal might have been unjustified. With that thought in mind he asked Maintenance Supervisor Jerry Glassner for a pass to leave his job station in order to investigate what had happened.
“Forget about it,” Glassner replied. “No special circumstances were involved. It was a routine dismissal and isn’t grievable.”
Molinaro refused to settle for this explanation. “As a representative of the union,” he insisted, “it’s my job to check it out.”
Glassner was quickly losing patience. “Get back to work or suffer the consequences.”
The steward refused and received a 2-week suspension for insubordination.
“Cancel the suspension,” Molinaro demanded, “or I’m filing a grievance.”
“File away. The suspension stands.”
Question: Is the supervisor within his rights in disallowing the steward to follow through with his investigation?
Durkin’s ruling: “Cancel the suspension,” Plant Engineer Fred Durkin ordered Glassner when informed of Molinaro’s threat. “Insubordination isn’t involved here. It’s one thing telling an employee to return to work under ordinary circumstances. But ordering a steward to stop his investigation which he is entitled to do is another matter entirely. In effect, it is issuing an order to the union. Had Molinaro been insulting or abusive, discipline might have been warranted.”
Loyal but unqualified: What to do with him?
Mechanic Joe Burton was a loyal and dependable employee. However, in Maintenance Supervisor Andy Grant’s opinion, although Joe, a 25-yr veteran, was a better than satisfactory employee, he was not sufficiently qualified to warrant the promotion to the unit leader job that had been recently posted.
The problem was not so much the mechanic’s technical abilities as the way he interacted with the crew. When Burton was teamed up with one or more coworkers on a job, as often as not a hassle of some kind developed. Joe’s style was bossy by nature. He rubbed people the wrong way. Coworkers resented being told what to do in a manner they considered offensive. With Joe as a line worker, Grant was able to work around his autocratic personality. But in the role of unit leader, he could see trouble erupting. For this reason Grant decided to pick Harry Cooper for the job.
The dilemma Grant faced was how to tell a loyal, conscientious employee he was rejected for a promotion for which he was otherwise qualified, but was turned down due to personality shortcomings.
Burton would clearly affirm he could handle the job and that he was in line for it from a seniority standpoint. Grant racked his brain but couldn’t figure out how to handle the situation.
Question: In the supervisor’s shoes how would you break the news to Joe?
Reemer’s counsel: Grant wisely sought his boss’s advice. Spelling out his dilemma to Plant Engineer Bert Reemer, his boss’s initial response was to sympathize with him. “Few supervisory tasks are tougher,” he said, “than having to tell a good and loyal employee he doesn’t measure up for the job. But you’re correct in your decision to reject Joe Burton. The situation is not unusual. A person could be the most skilled worker in the department, but that doesn’t make him a qualified leader.
“On the other hand, after all these years the guy is entitled to some kind of recognition. My suggestion is that you have a friendly chat with Joe. Explain that it was a close call, but in your judgment Harry Cooper would be best for the job. Offer him a small raise for which he is probably long overdue. And tell him that in Cooper’s absence or when he’s on vacation, you’d like to count on him to step in as unit leader.”
Can you promote and demote a month later?
Twelve years as Carpenter Second Grade was enough for Andy Welch. When Maintenance Foreman George Perez finally promoted him to Grade One, he didn’t exactly get down on his knees, but he couldn’t have thanked his boss more heartily.
Unfortunately, despite Welch’s repeated claims that Grade One would be “a piece of cake” for him, it didn’t work out that way. His inability to work with drawings and blueprints was apparent from the start. He made errors, not only in calculations, but in the selection of tools and stock as well. As a grade two carpenter all of this had been spelled out for him. He was able to follow simple instructions adequately enough.
Perez went along with Welch’s bungling for as long as he felt was fair and reasonable. But by the end of a month he realized the carpenter’s career destiny did not include Grade One. He broke the bad news on a Friday.
Question: Do you think Welch is entitled to a longer trial period?
Jordan’s decision: “Enough is enough,” Plant Engineer Mel Jordan agreed. “You gave him a dubiously deserved break in the first place. If there was any question in your mind Welch could eventually qualify, I might see extending his trial period.”
Sometimes a job change is a smart decision
Project Manager Art Halloran had worked almost 9 years with Larry Greg, an engineer in his early forties. But the guy was making him prematurely gray. Greg wasn’t the same person he was five, or even two, years ago.
Halloran could recall back to the time when Greg was enthusiastic, energetic, and usually wore a bright smile on his face. He had welcomed challenging assignments, occasionally offered suggestions. He seemed to like his job and enjoyed coming to work in the morning. The project manager mused, those days, as they say, were gone forever. In recent months Greg appeared to be two other guys. Not depressed exactly, but no longer lively and upbeat either. Unhappy, restless, dissatisfied seemed to be the words that characterized him. His attitude had changed, and his performance reflected his attitude, from well above average to just a shade above marginal today.
Was the job getting him down? Did he have marital troubles, or problems with his kids? Did he have a health problem? The project manager decided to have a chat with him. Hopefully, he would learn something that might help the guy or provide guidance in dealing with him.
The chat produced no specific problems related to job, family, health or otherwise. But it did yield an admission from Greg that he was feeling burned out. “Same stuff day after day, week after week. I can’t complain about my assignments or the way I’m treated. But I feel like I’m spinning my wheels.”
“What can I do to help you get back on track?” Halloran asked.
Greg shook his head. “I wish I knew.”
Question: In the project manager’s place, what action would you take?
Dunkin’s advice: Halloran wisely discussed the situation with his boss, Plant Engineer Fred Dunkin. After meeting with Greg, Dunkin suggested that he take advantage of the company’s psychological counseling health benefit.
The testing was done and the engineer agreed with the psychologist that what he needed most was a change of venue. A few weeks passed by. One day Greg approached Halloran with the news that he had accepted employment at another plant doing a somewhat different kind of work.
“The job pays a bit less, but I like the operation, and the work sounds exciting.”
Halloran congratulated him on his decision and wished him luck.
Is failure to disclose a college degree grounds for dismissal?
Jobs were scarce in his area when engineer graduate Frank Molder set out to launch his career. Although qualified for an engineering job, or at the very least a trainee, his efforts were repeatedly met by a response of “Sorry, no openings.”
Engineering graduate or not, Molder needed a job. Frustrated by repeated turndowns, he wisely decided to defer trying for the career of his choice to a more propitious time. With this thought in mind he responded to an ad that called for an experienced drill press operator. Molder, who had a drill press in his basement workshop, was hired for the job.
A year passed with no improvement in the state of the economy. His job in the maintenance department was far short of what he had in mind as a career, but it did yield a steady income. At age 24, his ultimate career objective was still on hold.
Then one day labor problems erupted. Negotiations with a local union resulted in threats of a strike followed by a brief walkout. Molder was marked by management as an activist who campaigned for the union.
After the walkout he was approached by Maintenance Supervisor Ed Wiley. “Frank I heard some interesting scuttlebutt this morning.”
“About what?”
“That you’re a BS graduate with an engineering degree.”
Molder hesitated. “So what?”
“It could mean trouble,” Wiley replied. “The news came as a surprise so I checked your employment application. Under educational experience no mention was made of the degree.”
“That’s right,” Molder conceded. “I figured at the time if I had mentioned the degree I probably would have been considered over-qualified and would have lost out on the job.”
“That could be. But the fact is that you lied on the application, which leaves you liable for misrepresentation and subject to discharge.”
“No way!” Molder protested. “I can’t be fired for that.”
Question: Is Molder correct in stating that his omission was not a dischargeable offense?
Bernstein’s verdict: “Forget about it,” Plant Engineer Harold Bernstein instructed Wiley when informed of Molder’s alleged falsification. “For one thing, the company incurred no injury as a result of his omission. For another, if he was dismissed, management’s motivation to get rid of a union activist would be glaringly obvious.”
What constitutes an “abnormally dangerous condition?”
Maintenance Utility Worker George Blecker blanched when he was ordered by Foreman Adam Hartzfeld to replace a couple of flickering neon tubes at the ceiling of Building A.
“What’s the problem, George?”
The employee’s face flushed. “I’m ashamed to admit it.”
“What is that supposed to mean?
“I’m deathly afraid of heights. That ceiling is more than twenty feet high. I’d be shaking like a leaf. It’s just too dangerous.”
“Our ladders are steady and secure. It’s as safe as working at the ground level.”
Blecker wasn’t convinced. “I can’t help it if I’m scared. Last time I climbed a ladder that high I almost fell from it.”
Hartzfeld was too busy and rushed to deal with a worker who refused a simple job assignment.
“I don’t have time for this nonsense. Either do what you’re told or clock out and get handed a suspension for insubordination.”
Blecker refused to comply. He stalked off in search of his unit representative and returned to the scene minutes later with Carl Herman in tow.
“Hey, come on,” Herman urged. “Give the guy a break and assign someone else. George is paralyzed with fear. That constitutes an ‘abnormally dangerous condition.’ Under the Labor Relations Act an employee is entitled to refuse the assignment.”
“No way!” Hartzfeld persisted. “If the next guy can do the job, he can do it, too.”
“We’ll see about that,” Herman threatened.
Question: Is Blecker within his right refusing the assignment?
Vincent’s verdict: Hartzfeld broached the matter to his boss, Plant Engineer Jerry Vincent. Blecker was a long-time employee. Vincent asked for a look at his personnel record and found it to be better than average.
“I’m not sure whether Blecker’s fear of heights constitutes an ‘abnormally dangerous condition’ or not. And I wouldn’t want to put it to the test. Nor would I want it on my conscience if the guy should climb that ladder and fall. Stop making a big deal of this thing and assign someone else to the job.”
Must a shift transfer request be given seniority preference?
Maintenance Department Repairman Grade I Henry Nadler was a highly skilled mechanic with 15 yrs of seniority. For the past nine years he had worked on the day shift. In recent months on the heels of increased fuel bills, dental braces for the Nadlers’ 8-year-old daughter Susan, and home repairs, the family had fallen on hard times. In response, Henry’s wife Edith took a job in town to help tide them over at least temporarily until their bank account built up a bit.
But life is never easy. Along with the solution Edith’s job created problems. One was that of chauffeuring Susan to school in the morning, a chore Edith could no longer perform now that she was working. Henry saw a way out of the dilemma and discussed it with his wife.
“If I got myself a transfer on the 4:00 pm to midnight shift, I’d be able to take Susie to school, and at the same time I’d cash in on the late shift premium pay. It’s the perfect solution. Edith wasn’t thrilled by the idea, but saw the sense in it.
First thing next day Henry put in for the shift transfer.
His boss, Maintenance Supervisor Al Link, frowned at the request. “I can’t do it, Henry. The day shift load has grown bigger and more complex in recent months. I can’t spare a man with your skills and experience.”
“There are a couple of Grade I’s on the swing shift,” Henry pointed out. “I could switch with them. Since I have the seniority I’m entitled to the preference.”
“Seniority isn’t the issue. Sorry, Henry, I need you here doing the job you’ve always done.”
Henry walked away grumbling. “I’ll see about that.”
Question: Does Henry’s seniority give him the right to bump to the swing shift?
Burton’s verdict: “Henry stays where he is,” Plant Engineer Frank Burton told Link. “The company has no responsibility to cater to the guy’s convenience much as we’d like to do so. And since there is no contractual restriction compelling us to make the transfer, it’s management’s right to schedule people in the most efficient and productive way possible. One thing you might do, however, is to give Henry an okay to start work a half hour or so later and make the time up at day’s end. That would allow him to work Susan’s chauffeuring into his schedule.”
Hanging around: Does he have to be paid?
The five o’clock buzzer had sounded, and he wanted to know:
“What’s the story, Nick? Am I on overtime or not?”
A special shaping machine was down and had to be repaired. Production needed the machine first thing in the morning. But the repair couldn’t be made until a part arrived from the manufacturer. Maintenance Supervisor Nick Borruso had been waiting all day for the shipment, and Maintenance Mechanic Grade I Harry Rosten had been assigned to the task. But there was no sign of the shipment as yet.
It was five minutes past five. “Tell you what,” Borruso said. “Production really needs that machine, and I was promised delivery this afternoon. Hang around for a while.”
“No problem,” Rosten said.
An-hour-and-a-half passed without delivery. Borruso called the manufacturer, which was closed for the day.
“Forget about the repair for now,” he told Rosten. “It’ll have to wait till tomorrow.”
With those words the mechanic punched out and went home. The machine part came first thing in the morning, and the repair was made.
When paychecks were handed out on Friday, Rosten was at his boss’s desk two minutes later. “I’ve been shorted an hour-and-a-half overtime,” he said.
“How so?” Borruso asked.
“The other night, waiting around for that part.”
“The part never came. You took off and went home.”
“I’m still entitled to be paid for the time,” the mechanic insisted.
Question: Must Rosten be paid?
Greenfield’s decision: Rosten is right. “Where waiting is an integral part of the job,” according to Personnel Policy Service, Inc., “the employee is engaged to wait, and the time spent waiting is compensable work time. The worker can be doing a crossword puzzle, sleeping, or whatever. He has to be paid.”
