STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

LEROY C. SCHROEDER, Complainant

AC COMPRESSOR CORP, Respondent A

INTERNATIONAL ASSOCIATION OF MACHINISTS, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199800180, EEOC Case No. 26G981545

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed July 8, 1999
schrole.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case involves a claim by LeRoy Schroeder (hereafter Schroeder) that he was discriminated against by the respondent employer, AC Compressor, on the basis of his age with respect to promotion, and a claim that the respondent union, International Association of Machinists, discriminated against him with respect to his terms, conditions or privileges of labor organization membership on the basis of his age. A stipulation was entered into at the hearing that Schroeder's age was "over 40," although a number of exhibits entered as evidence state that he was age 58 at the time in question herein. The ALJ concluded that Schroeder failed to establish probable cause to believe that the employer or union had discriminated against him because of his age and dismissed his complaint. This appeal to the commission by Schroeder followed.

Schroeder's claims of age discrimination revolve around a new job classification called a "Skilled Technician" that came about near the end of negotiations for a 1997 collective bargaining agreement between the employer and union respondents. Schroeder, classified as a skilled mechanic, operated a manual machine in the machine shop. Schroeder claims that he was discriminated against by the employer because it promoted 3 individuals from the assembly shop who were under age 40 to the skilled technician position but turned down his requests for promotion to this position. It is Schroeder's position that the 3 individuals promoted, also classified as skilled mechanics, had less experience than he, and that he is more qualified than they are.

Schroeder appears to make the following assertions in support of his claim of age discrimination against the employer: 1) That the 3 individuals under age 40 in the assembly department were promoted to the skilled technician position while he was informed by way of answer to his grievance on November 3, 1997, that he was denied a promotion to the skilled technician position because qualifications were still being written for the skilled technician job; 2) that the employer had always used experience, productivity, versatility and years of service as a basis for promotion, and that he has been a machinist since 1968 and his performance evaluation substantiates his superior work performance; and 3) that sometime prior to December 19, 1997, the employer created a job description for the position "Skilled CNC/Technician (Manual Machines)," whose minimum qualifications required specific training in the function assigned (i.e., machine shop, assembly and weld shop), and that the 3 individuals under age 40 were promoted to the skilled technician position based on their ability to perform in their assembly jobs but he was denied the position on December 19, 1997 because he could not perform assembly functions.

The complainant's assertions fail to establish probable cause to believe that he is the victim of age discrimination. The underlying difficulty with the complainant's assertions is this: The employer had intended for the new skilled technician position to be only for highly skilled employes in the assembly and weld shops to allow those employes to be able to attain the equivalent higher pay already available to highly skilled machine employes through promotion to the position of Skilled CNC Operator. "CNC" refers to computer run machines versus manually run machines. Prior to the March 1997 effective date of the new collective bargaining agreement, assembly and weld shop employes could not earn the higher rate that machine shop employes could earn as CNC operators. Schroeder did not work in the assembly shop and did not have the assembly skills of the 3 individuals who worked in assembly. Schroeder worked in the machine shop. That is why the three individuals in the assembly shop, who happened to be under age 40, were promoted to the new skilled technician position and Schroeder was not. It was on August 4, 1997, that the 3 individuals in assembly were promoted to the skilled technician position.

There were job qualifications for the skilled technician position in existence long before Schroeder's grievance. (Tr. 152) However, since the employer had intended only for assembly and weld shop employes to become skilled technicians, job qualifications existed only for those employes. Machine shop employes, because they could already earn the higher rate of pay as CNC operators, continued to have CNC knowledge as a required qualification for promotion.

It is quite clear that the employer's November 3, 1997 answer to Schroeder's grievance (that qualifications were still being written for the skilled technician position) was nothing more than a response to his October 27, 1997 grievance claim that "I've been told the company is trying to find a way in which I can earn this position." The record supports this explanation for the employer's answer as the union had not been in agreement with the employer that the skilled technician position was to be limited to assembly and weld shop employes, but had taken the position that highly skilled employes in the machine shop who could not run computer-operated machines should also be able to obtain a promotion to the new skilled technician position. Schroeder could not run computer-operated machines. After Schroeder's grievance, first the employer acquiesced to opening up the skilled technician position to machine shop employes, and then the employer and union held several meetings to determine what qualifications not only Schroeder, but any machine shop employe, regardless of age, should possess in order to be promoted to the skilled technician position.

Schroeder's third assertion is also not in accord with the evidence. It is true that sometime prior to a December 19, 1997 meeting between the employer and union, apparently around December 8, 1997, a job description was created listing minimum qualifications for all 3 areas (machine, assembly and weld shop) to become skilled Technicians. Schroeder cites exhibit 8, a memo regarding the December 19, 1997 meeting, wherein the employer denied his grievance stating "Since LeRoy works in the machine shop and not assembly, and he can not perform assembly functions at the same level as those transferred.", as evidence that he was not considered for the skilled technician position based on his performance in the machine shop, whereas the 3 individuals in assembly had been considered for this position based on their performance in the assembly department. The evidence shows, however, that the reason for the language used by the employer in exhibit 8 was due to the manner in which Schroeder's grievance was written. (Tr. 150) Specifically, Ron Braun, the employer's human resources manager, testified that he understood Schroeder's grievance to be that "he wanted the skilled tech position instead of the three people who were promoted to that (position) in the assembly department." Id. (Emphasis added) Braun's testimony is supported by exhibit 8, the author of this exhibit. In exhibit 8, which is dated January 5, 1998, Braun related that the grievance had been "filed by LeRoy Schroeder as he felt he should be upgraded to a Skilled Tech classification before those in the assembly area." (Emphasis added) It is immediately after this reference to what Schroeder's grievance was understood to be about that Braun's memo states Schroeder's grievance was denied because he did not work in the assembly department and could not perform assembly functions at the same level as the three individuals from assembly who had been promoted. This same memo by Braun then goes on to relate that a discussion between the employer and union regarding machine shop employes' qualifications for the skilled technician followed, and that it was agreed to allow the Apprenticeship Committee to determine the amount of time required for machine shop employes to proficiently perform machine functions on the four machine classes in order to meet the requirements for the skilled technician position. Schroeder refused to get the further machine training that was established as necessary to obtain promotion to the skilled technician position.

Schroeder's claim against the union appears to be as follows: 1) That his grievance was not processed through the various steps in strict accordance with the time limits set under the collective bargaining agreement; 2) that the union never determined the eligibility qualifications for the 3 individuals in assembly or himself for purposes of determining their eligibility for promotion to the position of skilled technician, and that 2 of these individuals had not met the required qualification of possessing "a thorough knowledge of all 4 product line assembly procedures" as they were only proficient in 3 of the 4 company product lines; and 3) that "After allowing (the employer) to falsely deny (him) the position because he could not perform Assembly functions," the union "agreed to raising the requirements" for machine shop employes to become skilled technicians.

Schroeder's arguments regarding the union also fail to establish probable cause to believe that he was discriminated against by the union. With regard to processing Schroeder's grievance in accordance with the time limits set forth in the collective bargaining agreement, the record shows that it was common for the employer and union to extend the deadlines set for the grievance steps, and that at no time had either the employer or union refused to process the grievance on the ground that the other party had failed to meet a deadline set forth under the grievance procedure. Moreover, there was no evidence that grievances of younger employes were processed any differently or more quickly than that of older employes. Contrary to argument by Schroeder, the union's failure to hold the employer accountable to the contract time limits did not amount to a violation of the union's duty of fair representation. As noted by Ron Braun, the whole philosophy and theory behind the grievance procedure is to settle and resolve an issue, and many times there is background work that needs to be done and studied, and records and documents which need to be produced in order to resolve an issue.

Also, contrary to argument by Schroeder, the record shows that the union did question the employer regarding the qualifications of the 3 individuals in assembly that were promoted to the skilled technician position. The union was informed that those individuals, who had been promoted earlier in August 1997, were thoroughly cross-trained on the 3 company product lines in assembly and could assemble with assistance. See for example, Tr. pp. 187-188. John Rolbiecki, the International Association of Machinists' district representative, conceded that he did not personally discuss with Schroeder his qualifications because Schroeder's grievance claimed that he had more experience than the 3 assembly employes and that he (Rolbiecki) knew that was not the case because Schroeder did not work in the assembly department. Rolbiecki stated that he had, however, questioned the union bargaining committee about Schroeder's work experience.

Schroeder's assertion that 2 of the 3 assembly employes promoted had knowledge of only 3 of the employer's 4 assembly product lines also fails. The particular product line in question was called "Ro-Flo." While Schroeder cites testimony by a witness (Duane VandeBygt) who indicated a belief that Ro-Flo was a main product line, testimony by Braun established that Ro-Flo was a much smaller product line than the other product lines, that the company's Ro-Flo sales had been dropping consistently over the years, and that there had been a small group of employes dedicated to its manufacture, all of which had resulted in a limitation in the opportunity for employes to perform Ro-Flo work. Furthermore, Braun testified that the two assembly employes without Ro-Flo knowledge had other valuable skills identified as qualifications for promotion to the skilled technician position. Namely, that they were among only a very few employes in assembly with "IGV" knowledge, an important component of one of the employer's main assembly product lines, and were proficient in electrical assembly. Schroeder's attempts to minimize the importance of these additional qualifications is unavailing. The record fails to support a showing that the age of these individuals had anything to do with their selection.

Finally, there is no merit to Schroeder's apparent assertions that because of his age the union had allowed the employer to falsely deny him the skilled technician position because he could not perform assembly functions and agreed to raising the requirements for machine shop employes to become skilled technicians. The union did not allow the employer to falsely deny him the position of skilled technician because he could not perform assembly functions. The record clearly shows that the employer and union had agreed to create the skilled technician position near the very end of negotiations for the 1997 collective bargaining agreement, that due to the lateness of the proposal in the negotiations no specific criteria were designed for how to achieve this position, that afterwards it became obvious that the employer and union had vastly different understandings of what had been intended, and that it therefore became necessary for the employer and union to mutually resolve their conflicting intentions. As a result of further discussions, a settlement was reached which now allowed two ways for an employe to achieve the highest pay level in the machine shop: By learning to operate a CNC machine, or by learning to operate 3 manual machine types.

In the December 8, 1997 job description which listed minimum qualifications for machine shop employes, the following qualification was included: "Considerable trades training and experience in the set-up and operation of manual operated machine tools." Schroeder apparently claims that the union raised the requirements for machine shop employes to become skilled technicians because the employer and union ultimately agreed that machine shop employes at the skilled mechanic level were required to operate 3 of the 4 following machine groups to obtain the skilled technician position: Manual Boring Bar; Manual Vertical Boring Mill; Manual Lathes and Holroyds. The record completely fails to present any ground for belief that this requirement had anything to do with Schroeder's age. As noted by the union, the reason this was required was simply:

"Because the position immediately below Skilled Technician (namely the Skilled Mechanic) already required employes to know how to operate at least one production machine (boring bar, mill, lathe or Holroyd), a Skilled Technician would have to be required to know how to operate more machines, or otherwise there would be no difference between these two positions (Tr. 177). If there were no additional requirements, every Mechanic would automatically become a Technician, and both parties knew they had not agreed to eliminate the Mechanic position in bargaining."

(Respondent Machinists District 150 brief, pp. 6-7)

For all of the above-stated reasons, the commission affirms the ALJ's dismissal of the complaint in this matter.

cc:
Gregory B. Gill, Sr.
Frederick Perillo

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