Chapter $15$ Grievance Arbitration $539$ Cases About six months after the new GMFC$$Local $384$ contract was ratified, four grievances were sent to arbitration by the union. The company and the union agreed that all four grievances would be heard on separate dates by the same arbitrator. Your name was on the panel the FMCS sent to the parties, and they selected you to arbitrate the grievances. You agreed and have heard all four grievances over the past three days. Now you have to prepare your awards. CASE $1$ George Jones was a level $1$ assembler in the heavy$-$components assembly department. He worked with six other assemblers of the same grade, constructing cabs for power shovels. The supervisor, Ralph Barnes, was in charge of three of these heavy$-$assembly crews. George Jones had been with GMFC for about four years. Over the past six months, he had spent all of his time with his present work crew. His work record had been unremarkable. He had two unexcused absences but no problems with supervision. On May $6,$ Jones struck a co$-$worker, Elliot Johnson, with his fist, rendering him uncon$-$scious. As soon as Barnes arrived on the scene and gave first aid, he asked the work crew what had happened. They had only seen Jones strike Johnson. After Johnson regained con$-$sciousness, Barnes asked him what happened. Johnson stated he and Jones had been talking when Jones suddenly turned and swung at him. Barnes then asked Jones what hap$-$pened. Jones, who is the only African Ameri$-$can employee in his work group, said Johnson had been making racial slurs toward him ever since he joined the crew, and this morning he had been pushed over the brink when Johnson said, $$If it weren$$t for affirmative action, welfare would be the only thing that would keep a shirt on your back.$$ From his supervisor training course, Barnes knew it was company policy to dis$-$charge anyone who struck another employee or started a fight. Thus, he called security to take Jones to the HR department for termina$-$tion. When Jones arrived there, he demanded to see Ralph Murphy, the union steward in his area. After conferring, Murphy filed a griev$-$ance on Jones$$s behalf, alleging the company had violated Section $4\mathrm{.}02$ of the contract by discharging him without cause. His griev$-$ance stated the attack on Johnson was justi$-$fied given his past harassment and punching him seemed to be the $$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$$m con$-$cerned. They said we supervisors didn$$t have any latitude on this issue.$$ Murphy then presented copies of the griev$-$ance to the shift IR representative, Carolyn Foster, and the general supervisor, Neal Young. In her examination of the grievance, Foster called Johnson and Cronholm, Jensen, and Albers $($three other employees in the work group$)$ to her office separately. When questioned, Johnson repeated his allegation that Jones$$s attack was unprovoked and ada$-$mantly denied ever making racial slurs toward him. Information from Jensen and Albers sup$-$ported Johnson$$s denial of racial slurs, but Cronholm said he had repeatedly heard John$-$son make disparaging remarks to Jones and Jones had asked him to stop. After weighing this information and considering company policy on fighting, she upheld Barnes$$s action. The union continued to demand Jones$$s $540$Labor Relations When the case was heard, the union$$s grievance alleged not only that had Jones been discharged without cause $($Section $4\mathrm{.}02)$ but also that the discharge had been racially moti$-$vated, violating the EEO section $(12\mathrm{.}16$a$).$ 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 $12\mathrm{.}16$b$.$ 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 investi$-$gation. Jones and Johnson held to their stories, as did Jensen, Albers, and Cronholm. The com$-$pany introduced evidence to show that with$-$out exception employees had been terminated for fighting. It also provided statistics showing that $12$ percent of the eight employees dis$-$charged for fighting over the past three years were African American and $14$ percent of thereinstatement with full back pay, and man$-$agement adamantly refused.