George Jones was a level 1 assembler in the heavy-components assembly department. He worked with six other assemblers of the same grade, constructing cabs for the power shovels. The supervisor, Ralph Barnes, was in charge of three of these heavy-assembly crews. George Jones had been with GMFC for about four years. Over the past six months, he had spent all of his time with his present work crew. His work record had been unremarkable. He had two unexcused absences but no problems with supervision.. On May 6, Jones struck a co-worker, Elliot Johnson, with his fist, rendering him unconscious. As soon as Barnes arrived on the scene and gave first aid, he asked the work crew what happened. They had only seen Jones strike Johnson. After Johnson regained consciousness, Barnes asked him what happened. Johnson stated he and Jones had been talking when Jones suddenly turned and swung at him. Barnes then asked Jones what happened. Jones, who is the only African American employee in his work group, said Johnson had been making racial slurs toward him ever since he joined the crew, and his morning he had been pushed over the brink when Johnson said.” If it weren’t for affirmative action, welfare would be the only thing that would keep a shirt on you back.” From his supervisor training course, Barnes knew it was company policy to discharge anyone it was company policy to discharge anyone who struck another employee or started a fight. Thus, he called Jones to the HR department for termination. When Jones arrived there, he demanded to see Ralph Murphy, the union steward in his area. After conferring, Murphy filed a grievance on Jones’ behalf, alleging the company had violated Section 4.02 of the contract by discharging him without case. His grievance stated the attack on Johnson was justified given his past harassment and punching him seemed to be the “only way to get him off my back.” When Murphy gave the grievance to Barnes, it was immediately denied. Barnes said,” The rule is ironclad, as far as I’m concerned. They said we supervisors didn’t have any latitude on this issue.’ Murphy then presented copies of the grievance to the shift IR representative, Carolyn Foster, and the general supervisor, Neal Young. In her examination of the grievance, Foster called Johnson and Cronholm, Jensen and Albers (three other employees in the work group) to her office separately. When questioned, Johnson repeated his allegation that Jones’s attack was unprovoked and adamantly denied ever making racial slurs toward him. Information from Jensen and Albers supported Johnson’s denial of racial slurs, but Cronholm said he had repeatedly heard Johnson make disparaging remarks to Jones and Jones had asked him to stop. After weighing this information and considering company policy on fighting, she upheld Barnes’s action. The union continued to demand Jones’s reinstatement with full back pay, and management adamantly refused. When the case was heard, the union’s grievance alleged not only that had Jones been discharged without cause (section4.02) but also that the discharge had been racially motivated, violating the EEO section (12.16a). In its opening argument, the company asked you to find the grievance nonarbitrable because Jones could file a charge with the EEOC under Title VII if your award upheld the discharge. The company also said the discrimination issue was not arbitrable because it had not been raised in Step 3 as provided in EEO Section 12.16b. You noted the arguments but reserved your ruling on arbitrability for the decision you would prepare, Both sides presented their evidence. All of it was in substantial agreement with what Barnes and Foster had found in their investigation. Jones and Johnson held to their stories, as did Jenson, Albers, and Cronholm. The company introduced evidence to show that without exception employees had been terminated for fighting. It also provided statistics showing that 12 percent of the eight employees discharged for fighting over the past three years were African American and 14 percent of the production labor force was African American.
1. Your ruling on the arbitrability of the grievance
2. Your rationale in finding on the merits of the case (if arbitrable)
3. If arbitrable, the degree to which you would grant the relief Jones is asking or uphold management.