Appendix — Tamko Roofing Products, Inc. v. United Steelworkers, Local 1071L

la

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-15168-DD

+

D.C. Docket No. 98-02534-CV-C-W

TAMKO ROOFING PRODUCTS, INC., Plaintiff-Counter-

defendant-Appellee,

versus

LOCAL 10711 UNITED STEELWORKERS OF AMERICA,

Defendant-Counter-claimant-Appellant.

On Appeal from the United States District Court for the

Northern District of Alabama

Before: CARNES and MARCUS, Circuit Judges, and

PROPST™, District Judge.

(July 3, 2001)

* Honorable Robert P. Propst, U.S. District Judge for the

Northern District of Alabama, sitting by designation.

PER CURIAM:

United Steelworkers of America (“Union”) appeals the district

court’s grant of summary judgment in favor of Tamko Roofing

Products, Inc., refusing to enforce an arbitral award. [R 12] The

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award ordered that Bobby Campbell, a former employee of

Tamko who was discharged for making a racially offensive

comment to an employee of another company while Campbell was

at work, be reinstated to his previous position with backpay.

[R 12:8]

One of the exceptions to the rule that courts defer to the

judgment of labor arbitrators, see Paperworkers v. Misco, Inc.,

484 US. 29, 36, 108, S. Ct. 364, 370 (1987), is the well-

established principle that an arbitral award which is contrary to

public policy is unenforceable, see W.R. Grace & Co. v. Local

Union 759, 461 U.S. 757, 766, 103 S. Ct. 2177, 2183 (1983).

In Eastern Associated Coal Corp. v. United Mine Workers of

America, ___ U.S. ___, 121 S. Ct. 462 (2000, the Supreme

Court explained: )

In considering this [public policy exception] claim . . . we must _

treat the arbitrator’s award as if it represented an agreement

between [the parties] as to the proper meaning of the

contract[].... [T]he question to be answered is . . . does the

contractual agreement to reinstate [the grievant] with the

specified conditions run contrary to an explicit, well-defined,

and dominant policy, as ascertained by reference to positive law

and not from general considerations of supposed public

interest?

121 S. Ct. at 466-67 (citations omitted). We note that the

Eastern decision was not available to the district court at the time

it decided this case.

The district court refused to enforce the arbitral award because

it determined that Campbell’s work-related conduct violated the

public policy that prohibits racial harassment in the workplace. [R

12: 15-17] However, as the Supreme Court explained in

Eastern, “the question to be answered is not whether [the

grievant’s conduct] itself violates public policy, but whether the

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agreement to reinstate him does so.” Jd. at 467; see Grace, at

766, 103 S. C. at 2183. Applying Eastern, the issue in this case

is whether the arbitral award, which ordered that Campbell be

reinstated to his previous position with backpay, is contrary to an

explicit, well-defined, and dominant public policy. We hold that it

is not.

Tamko contends that the award is contrary to the public policy

in Title VII against racial harassment in the workplace. See 42

U.S.C. §§ 1981 & 2000e; Newsday, Inc. v. Long Island Typo.

Union, 915 F.2d 840, 844 (2d Cir. 1990). According to Tamko,

that public policy requires employers to voluntarily comply with

Title VII by exercising reasonable care to prevent and correct

promptly any harassing behavior. See Faragher v. City of Boca

Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 2293 (1998);

Grace, at 770-71, 103 S. Ct. at 2186; 29 C.F.R. § 1604(11)(d).

{Red. Br. 22-26]

But nothing in the award is inconsistent with such a policy. The

award simply orders Tamko to reinstate Campbell with backpay.

It does not condone his harassing behavior, nor does the arbitral

award itself preclude Tamko from imposing some form of

discipline on Campbell other than discharge. Reinstating with

backpay, i.e., not discharging, an employee who made the single

racially insensitive remark that Campbell did does not violate any

provision of Title VIL, or of any other law, including decisional law,

or any regulation. Therefore, we concluded that the award does

not run contrary to an explicit, well-defined, and dominant public

policy. See Eastern, 121 S. Ct. at 468-69 (award.does not

violate public policy because reinstatement with specified

conditions “violates no specific provision of any law or regulation”);

Int'l Broth. of Elec. Workers v. Niagara Mohawk Power

Corp., 196 F.3d 117, 131 (2d Cir. 1999) (upholding arbitral

award to reinstate employee with back pay because no clear and

unequivocal public policy precluded reinstatement); Stead Motors

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v. Auto Machinists, 886 F.2d 1200, 1212 (9th Cir. 1989) (en

banc) (“Ifa court relies on a public policy to vacate an arbitral

award reinstating an employee, it must be a policy that bars

reinstatement.”) (emphasis in original).

Tamko may decide that Campbell’s harassing conduct should

not go unaddressed and, upon reinstating him, may chose to

impose some form of discipline other than discharge (which is

precluded by the arbitral award). If Campbell and the Union

believe that a new discipline imposed by Tamko is inconsistent with

the terms of the collective bargaining agreement, then he is free to

file a grievance, and eventually pursue his claim to arbitration. We

recognize that it is conceivable that the validity of the result in any

future arbitration could end up in court, but it may not.' In any

event, we express no opinion here as to the validity under the

collective bargaining agreement, or under public policy, of any

disciplinary action — short of discharge, which is precluded by the

arbitral award — that Tamko may chose to take regarding

Campbell.

Because the arbitral award in this case is not contrary to any

explicit, well-defined, and dominant public policy, we uphold the

arbitrator’s decision to reinstate Campbell with back pay.’

REVERSED

' We remind the parties that public policy does not prohibit them from

working out amicably any remaining disagreements they may have.

? Tamko also contends that the award should be set aside because “it is

arbitrary and capricious,-is without any rational basis, and constitutes a

dispensing of the arbitrator’s own brand of industrial justice.” [Red Br. 41-

49] It is clear to us that contention lacks merit, because the arbitrator was

“arguably construing” the Prevention of Harassment Policy, which was at

best ambiguous. See Misco, at 36, 108 S. Ct. at 370.

Sa

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

TAMKO ROOFING PRODUCTS, INC.,

Plaintiff,

VS.

UNITED STEEL WORKERS OF AMERICA,

LOCAL 10711.

Defendant.

CIVIL ACTION NO. 98-C-2534-W

Filed Aug. 31, 2000

MEMORANDUM OPINION GRANTING THE

PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

In this case, the parties have filed cross-motions for

summary judgment Plaintiff TAMKO Roofing Products, Inc.

(“TAMKO”) seeks to vacate an arbitrator’s award, Defendant

United Steelworkers of America, Local 1071L (“the Union”)

seeks to enforce it. Solely based on public policy considerations,

the Court concludes that it should not be enforced.

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I. The Undisputed Facts'

1. TAMCO is a manufacturer and distributor of commercial

and residential roofing products. The Company owns and

operates several manufacturing plants, including a plant in

Tuscaloosa, Alabama. The Tuscaloosa plant employs

approximately 180 hourly-paid production, maintenance, shipping

and receiving employees represented by United Steelworkers of

America, Local 1071L. About 25% of the work force employed

at the Tuscaloosa plant is African-American.

2. Bobby Campbell, a white employee of TAMCO, was a

lead man in the TAMCO’s Tuscaloosa plant’s Shipping

Department. Campbell was discharged by the Company on

October 30, 1997, for violating the Company’s business conduct

policy, which incorporates a prevention of workplace harassment.

Campbell was a long service employee of the Company at the

Tuscaloosa plant, having been first employed in 1979.

3. On October 27, 1997, at approximately 6:00A.M.,

Nathaniel Williams, an African-American employed by Cummings

Truck Line as a truck spotter, was standing outside the Tuscaloosa

plant’s shipping office located in the vicinity of the plant’s shipping

dock. |

4. Williams was assigned by his employer Cummings on a full-

time daily basis to spot Cummings trailers at the TAMCO’s

Tuscaloosa plant’s shipping dock. Williams had held this job

assignment for about three years.

' Mindful that “[t]he parties did not bargain for the facts to be found by a

court, but by an arbitrator chosen by them” the court relies principally on

the factual findings of the arbitrator, hereinafter referred to as the

Arbitrator’s Award (“AA”). United Paperworkers Int'l Union v. Misco,

484 U.S. 29, 108 S. Ct. 364 (1987)(“Misco”).

Ta

5. As a truck spotter, one of Williams’ functions is to

communicate to TAMCO Shipping Department personnel the

trailer numbers of the Cummings trailers which Williams has

spotted in TAMKO’s truck bays and the order numbers for each

of the Cummings trailers which Williams has spotted. Williams

communicates such information periodically during the course of

each work day toa TAMKO shipping lead man stationed in the

shipping office.

6. On October 27, two Shipping Department lead men were

employed at the Tuscaloosa plant, Campbell and Andy Miles,

another white employee. At 6:00 A.M. on that day, both

Campbell and Miles were seated inside the shipping office.

Campbell was seated next to a sliding glass window which is

opened by the lead man whenever a truck spotter, truck driver, or

other person needs to communicate with the lead man inside the

office Campbell’s desk is at a right angle to the sliding glass

window and the desk occupied by miles faces directly toward the

sliding glass window. At 6:00 A.M. Williams was standing outside

the shipping office waiting for Campbell to open the window so

that Williams could communicate to Campbell the trailer numbers

of the trailers he had spotted that morning and the order numbers

for each trailer.

7. Campbell did not notice Williams standing outside waiting

for Campbell to open the window. After Williams had been

waiting for several minutes, Miles, who could see Williams through

the office window, said to Campbell, “Nate’s standing at the

window.” Campbell then opened the window and, according to

his testimony, said to Williams: “Hey, man, I’m sorry, I didn’t see

you. There’s not enough light. Maybe you need to paint your face

white.” Williams maintains that Campbell said, “You ought to paint

your face white so I can see you better.” Miles, the only other

person who was present when Campbell opened the window and

spoke to Williams, testified that Campbell’s statement to Williams

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was: “Man, you need to put some white shoe polish or something

on your face. I didn’t see you standing there.”

8. Williams contends that Campbell’s statement to him hurt

him and caused him to be both distraught and angry. Williams was

still “angry” when he talked to Miles a short time later. Miles told

Williams that he had overheard Campbell’s statement to Williams

and suggested to Williams that he report the occurrence to a

Shipping Department Supervisor, Ron Mitchell. Williams did so

the same morning. Mitchell then interviewed both Williams and

Campbell some time around 10:00 A.M. on that day and reported

the occurrence to the Shipping Department Manager, Mike White,

and to the Tuscaloosa plant General Manager, Tom Deloughery.

9. General Manager Deloughery, after receiving the report

from White and Mitchell, conducted an investigation of the matter.

Deloughery first interviewed Williams, and concluded that

Campbell’s statement to Williams had “embarrassed [Williams]

and had made him feel bad and it hurt him.” :

10. Following his interview of Williams, Deloughery interviewed

Campbell. Campbell admitted “No, I told him he should put white

shoe polish on his face so I could see him better, but I didn’t mean

anything by it, I was only kidding.”

11. Based upon his investigation of the occurrence, Deloughery

determined that Campbell had made one of two statements to

Williams on the morning of October 27. Campbell had either said

to Williams, “You should paint your face white” or “You should

put white shoe polish on your face.” Deloughery concluded, that,

whichever of the two statements Campbell had made to Williams,

the statement was racially demeaning and offensive.

12. Less than two weeks before October 27, Campbell had

attended a sensitivity training workshop conducted by TAMKO,

focusing on racial and sexual harassment in the workplace. The

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workshop, which was conducted on a department-by-department

basis, was attended by all employees at the Tuscaloosa plant,

including Bargaining Unit employees, non-unit employees,

supervisors and managers. The Company conducted the

workshop because of allegations of a racially hostile work

environment at the Tuscaloosa plant which was asserted in a race

discrimination lawsuit brought against the company by a former

African-American employee. In September 1997, the Company’ s

legal counsel had investigated the allegations and, as a result of that

investigation, recommended sensitivity training be conducted at the

Tuscaloosa plant regarding racial and sexual harassment.

13. Campbell, along with other Shipping Department

employees, attended the sensitivity training workshop held on

October 15, 1997. Miles also attended the workshop. The

workshop was conducted by the plant’s Human Resources

Manager, Dwight Wood. Wood, among other things, told the

workshop attendees, including Campbell, that racial jokes and

racial comments at the plant would not be tolerated by the

Company, and that TAMKO had “zero tolerance” for such

conduct. Wood also told the workshop attendees, including

Campbell, that “Tamko would not tolerate any type of racial

comments or racial slurs and that any violation of this policy would

be dealt with severely up to and including termination.”

15. On October 29, Dougherty advised Campbell that he was

suspended pending further investigation. Dougherty advised

Campbell and the Union’s Shop Steward that Campbell would

likely be discharged.

16. The decision to discharge Campbell was made by

Deloughery after consultation with the Company’s Vice President

of Manufacturing, Tom King, and the company’s in-house

attorney, Bob Bradley. Recognizing that Campbell was a long

service employee and that he had no prior disciplinary record,

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Deloughery, King and Bradley discussed and considered the

possibility of imposing a lesser penalty than discharge for

Campbell’s conduct on October 27. All three concurred,

however, that Campbell should be discharged. Deloughery

explained the basis of the decision:

“Several reasons, the first and foremost is the seriousness

of the offense. We have a situation where Mr. Campbell

directly confronted a black person and humiliated him

based on his race, and in talking with Nate (Williams) I

could see that he was hurt, he was upset, he wanted to

know — he asked me what I have done to cause this. As

far as I could see, he hadn’t done anything to cause it. And

he didn’t understand why people would humiliate him like

that and treat him like that, that is, why Bobby treated him

like that. I felt it was a very serious offense. It had resulted

in serious harm to a human being. Second reason is we had

just finished the training. I mean training wasn’t two weeks

old and already we had a situation where somebody had

disregarded the training that we had offered. And in the

training we had told the people, we had put them on notice,

this is not going to be tolerated. If you do it, you’re going

to be severely disciplined, and within two weeks it

happened. And the third reason is I felt that if 1 didn’t take

strong actions that I would be undermining the policy that

Tamko has, the fact that if] didn’t do something very strong

that I would be condoning that type of activity in the plant.”

17. Deloughery notified Campbell on October 30, 1997, that

he was discharged from the Company’s employment. The Union

grieved the discharge pursuant to the Grievance-Arbitration

procedures of the Union Agreement. The grievance was denied by

the Company and the Union.

lla

18. Thecollective bargaining agreement between TAMKO and

the Union provides, in relevant part,

“Art. V, Sec. 5. Limitations on Power of the Arbitrator,

Discharge and Disciplinary Cases. In discharge or

discipline cases, the arbitrator’s authority and function shall

be limited to answering the following questions: (1)

whether the conduct or actions of the grievant which led to

the discharge or discipline did, in fact, occur and, if so (2)

whether such conduct or actions by the grievant justified

disciplinary action by the Company. If the arbitrator

answers both of the foregoing questions in the affirmative,

he shall deny the grievance and sustain the discharge or

other discipline imposed by the Company. The arbitrator

shall have no authority in discharge or disciplinary cases to

substitute his judgment for that of the Company in respect

to the appropriate degree of discipline.”

19. Following the arbitration hearing, the Arbitrator sustained

| Campbell’s grievance and ordered him reinstated, with backpay.

20. The arbitrator found that Campbell had not violated

TAMKO’s Workplace Harassment Policy, which provides in

relevant part.

“No employee of TAMKO should harass others, be they

co-workers, subordinates or supervisors. Harassment can

interfere with any employee’s work, make the working

environment offensive and destroy teamwork. It is

TAMK0O’s policy that no form of harassment should be

present in the workplace.”

In reaching his conclusion, the Arbitrator reasoned that

If the Company had wished to prohibit harassment not only

of co-workers, subordinators or supervisors, it should have

provided that its Prevention of Harassment Policy wold also

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apply to other individuals as employees of the Company’s

customers or as individuals who were on the Company’s

premises with the Company’s permission. . . . It would not

be equitable in this Arbitrator’s opinion to stretch the

wording which is the Company’s wording in its Prevention

of Harassment Policy to cover the harassment of people not

co-workers, subordinates, or supervisors.

Arbitrator’s Award, pp. 14-15. The basis of the Arbitrator’s

award was that the Company had charged Campbell with “an

offensive which could only arise in harassment of a co-worker of

[Campbell].” Jd. at p. 16.

II. Applicable Legal Standards

Since the Steelworkers Trilogy, United Steelworkers of

America v. American Mfg. Co., 363 U.S. 564, 567, 80 S. Ct.

1343 (1960); United Steelworkers of America v. Warrior &

Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347; United

Steelworkers of America v. Enterprise Wheel & Car Co., 363

U.S. 593 (1960), the primacy of arbitration awards in the context

of labor disputes has been settled:

[t]he question of the interpretation of the collective

bargaining agreement is a question for the arbitrator. It is

the arbitrator’s construction which was bargained for, and

so far as the arbitrator’s decision concerns construction of

the contract, the courts have no business overruling him

because their interpretation of the contract is different from

his.

United Steelworkers of Am. v. Enterprise Wheel & Car Corp.,

363 U.S. 593, 599, 80 S. Ct. 1358, 1362 (1960). Unless the

award is merely the arbitrator’s “own brand of industrial justice” or

does not “dra[w] its essence form the collective bargaining

agreement,” a court is generally bound to enforce the award; it may

13a

not second-guess the decision. /d., at 597, 80 S. Ct. at 1361. It

is irrelevant that the basis of the decision is ambiguous, that the

arbitrator misread the contract, that the decision may appear to be

incorrect, or that the decision is wrong. The courts generally “have

no business weighing the merits” of the arbitration award.

Steelworkers v. American Mfg., 363 U.S. at 567-68, S. C. at

1346.

Eleventh Circuit jurisprudence requires that the party seeking to

vacate an arbitration “refute every reasonable basis upon which the

arbitrator may have acted.” Osram Sylvania, Inc. v. Teamsters

Local Union, 87 F.3d 1261, 1264 (11th Cir. 1996).

There is a narrow exception to the general judicial enforcibility

of arbitration awards an arbitration award that contravenes public

policy is unenforceable. W. R. Grace & Co. v. Local Union 759,

International Union of United Rubber, 461 U.S. 757, 103, S.

Ct. 2177 (1983), Professional Administrators Ltd. v. Kopper-

Glo Fuel, Inc., 819 F.2d 639, 643 (6th Cir. 1987). The Supreme

Court has described the public policy doctrine as follows.

A court’s refusal to enforce an arbitrator’s award under a

collective-bargaining agreement because it is contrary to

public policy is a specific application of the more general

doctrine, rooted in the common law, that a court may refuse

to enforce contracts that violate law or public policy. That

doctrine derives from the basic notion that no court will lend

its aid to one who founds a cause of action upon an

immoral or illegal act, and is further justified by the

observation that the public’s interest in confining the scope

of private agreements to which it is not a party will go

unrepresented unless the judiciary takes account of those

interests when it considers whether to enforce such

agreement.

l4a

Misco, 484 U.S. at 42.” (citations omitted).

The issue of whether an award violates “public policy” is to be

determined judicially. /d., at 43 (citing W.R. Grace, 461 U.S. at

766, 103 S. Ct. at 2183, Professional Administrators, 819 F.2d

at 644. But, a court may refuse to enforce and arbitral award only

in limited situations where the award would violate some explicit,

well-defined and dominant public policy. Public policy may not be

discerned from “general consideration of supposed public

interests,” but rather by reference to specific laws and legal

precedents. Misco, 484 U.S. at 43, 80S. Ct. at 373, citing W.R.

Grace, 461 U.S. at 766, 103 S. Ct. at 2183.

In the seminal case Delta Air Lines Inc. v. Air Lines Pilots

Assoc., Int’l., 861 F.2d 665 (11th Cir. 1988), the Eleventh Circuit

enunciated the standard for determining whether the rare public

policy exception will bar the judicial non-enforcement of an

arbitration award. That case involved an arbitration award which

reinstated a pilot discharged for having flown while drunk a

passenger-filled Boeing-727 from Boston to Bangor, Maine.’ The

district court had refused to enforce the award on public policy

grounds. Reversing the district court, the circuit held that the public

? In Misco, the Supreme Court overturned the Fifth Circuit’s declination to

enforce an arbitration award reinstating a discharged employee who had

violated the company’s drug policy.

> A few months before the Delta Airlines case was decided, the circuit had

dealt with a similar issue — one in which an arbitrator’s award reinstated an

employee in whose car cocaine and drug paraphernalia were found when

he was arrested, off company time, for driving while intoxicated. The

employee was discharged for violating the company’s drug policy, albeit

that the drug charges had been dismissed as part of a plea bargain. Relying

on Misco, the circuit held that “the district court exceeded its limited

authority to review arbitration awards,” and reversed the district court’s

failure to enforce the award. Florida Power Corp. v. International Broth.

Of Elec. Wkrs., 847 F.2d 680 (11th Cir. 1988).

1Sa

policy exception may be invoked only in the rare situation where

the offending conduct arises from the performance of employment

duties. The availability of the exception turns on whether the

wrongdoer “is the employee qua employee.” The court

distinguished Misco and Florida Power.

The employee in Misco appears to have smoked

manijuana in a car in the plant’s parking lot. The employee

in Florida Power was discovered to have drug

paraphernalia in his automobile. In these cases, the

apparent wrongdoing was serious and is seriously

condemned. However, in deciding to commit the wrong,

the wrongdoer was not making an employment decision.

The employer, on the other hand, may reasonably have

disliked furnishing employment to one who is committing

such wrongs. Yet, should the employer decide to continue

to employ such a wrongdoer, even though his actions are

condemned by public policy, that decision — to continue

employment — is not itself contrary to public policy.

Furthermore, the wrongdoing by an employee can be

ended without affecting his employment. The wrongdoing

and the employment are parallel but not intertwined. The

wrongful conduct is wrongful, in and of itself, and its

lawfulness vel non does not depend in any way on the

employment. If public policy is offended — as it seems to

have been — the performance of employment duties has

nothing to do with it.

861 F.2d at 670-71. The relevant inquiry, explained the court, is

this. “Does an established public policy condemn the performance

of employment activities in the manner engaged in by the

employee?” -

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The Eleventh Circuit’s approach in Delta Air Lines has been

rejected by two circuits, and followed by two others. The Ninth

Circuit, en banc, concluded that

the Eleventh Circuit’s opinion in Delta is, to a large extent,

simply inconsistent with the law was expressed in Grace

and Misco. The Eleventh Circuit did not rely on the FAA’s

determination, alluding to it only in passing in a footnote,

861 F.2d at 668 n.3. Instead, the Delta court reasoned

that, since what the pilot had done in flying drunk was

illegal, the “performance of his employment [was] the very

thing which offends public policy” and thus reinstatement

was impermissible. 816 F.2d at 674. As we have

explained, the critical inquiry is not whether the underlying

act for which the employee was disciplined violates public

policy, but whether there is a public policy barring

reinstatement of an individual who has committed a

wrongful act. [Citing Grace and Misco].

Stead Motors of Walnut Creek v. Automotive Machinists

Lodge No. 1173, 886 F.2d 1200, 1215 (9th Cir. 1989). Accord,

Interstate Brands v. Chauffeurs, Teamsters, Local Union 135,

—909 F.2d 885 (6th Cir. 1990).

Two circuits have held outright that the prevention of sexual

harassment is sufficient to invoke the public policy exception to the

general rule that courts should not set aside arbitration awards 1 ~-

which draw their essence from the contract. Jn Newsday v. Long

Island Typographical Union, No. 415, CWA, AFL-CIO, 915

F.2d 840 (2nd Cir. 1990), a grievant had been reinstated by an

arbitration award after having been discharged for sexually

harassing female co-workers. The Second Circuit affirmed the

district court vacatur of the arbitration award after reviewing the

federal statutes and regulations, and case law, concluding that

“there is an explicit, well-defined, and dominant public policy

(EELS OF er een ee are eee en

17a

against sexual harassment in the work place[,]” and that the

arbitration award “prevents Newsday from Carrying out its legal

duty to eliminate sexual harassment in the work place.” Jd. at 845.

The Third Circuit dealt with the same issue in Stroehmann

Bakeries, Inc. v. Local 776, Int’! Bro. of Teamsters, 969 F.2d

1436 (3rd Cir. 1992), holding that an arbitrator’s award reinstating

an employee accused of sexual harassment without a determination

on the merits of the allegation “violates well-established and

dominant public policies concerning sexual harassment in the

workplace.” Jd. at 1438. It reasoned

[A]n award which fully reinstates an employee accused of

sexual harassment without a determination that the

harassment did not occur violates public policy. Therefore,

[the arbitrator] construed the Agreement between the

parties in a manner that conflicts with the well-defined and

dominant policy concerning sexual harassment in the

workplace and its prevention. His award would allow a

person who may have committed sexual harassment to

continue in the workplace without a determination of

whether sexual harassment occurred. Certainly, it does not

discourage sexual harassment. Instead, it undermines the

employer’s ability to fulfil its obligation to prevent and

sanction sexual harassment in the workplace.

Id. at 1442.4

The Fourth and Tenth Circuits have held that the general public

policy against sexual harassment is not sufficient to supplant labor

“ There was a vigorous dissent by Judge Becker, but he did not quarrel with

the proposition that “a public policy against sexual harassment in the

workplace can readily be derived from the federal statutes and regulations

as well as from judicial decisions,” and that “if the public policy against

sexual harassment were offended by this arbitrator’s decision, the award

could not stand.” /d. at 1450.

18a

arbitration of employee disciplinary sanctions. Communications

Workers of Am. v. Southeastern Elec. Coop., 882 F.2d 467

(10th Cir. 1989), Westvaco Corp. v. United Paperworkers Int'l

Union, 171 F.3d 971 (4th Cir. 1999).

In Chrysler Motor Corp. v. International Union, 959 F.2d

685 (7th Cir. 1992), the Seventh Circuit noted the “well-

organized” public policy against sexual harassment in the

workplace arising from federal statutes and case law. Id. at 687-

88. But it declined to invoke the public policy exception to set

aside the arbitrator’s reinstatement award, deferring instead to the

arbitrator’s judgment that a 30-day suspension rather than

discharge would be “adequate to deter [the grievant] from further

misconduct and to demonstrate to all employees Chrysler’s

opposition to sexual harassment.” Jd. at 686.° Notably, the

arbitrator possessed the contractual authority to determine what

constitutes “good cause” for discharge.

Whatever the law in other circuits, this court is bound by the law

of the Eleventh Circuit. And in this circuit, the public policy

exception to the judicial enforcement of arbitration awards has two

elements: 1) law and legal precedents establishing a well-defined

and dominant public policy, and 2) violation of the public policy by

an employee while performing his duties as an employee. Unless

these elements are satisfied, the arbitral award must be enforced.

* The Chrysler court noted Delta Airlines but distinguished it on the basis

that the grievant was not performing the integral duties of his position as

a forklift operator when he sexually assaulted his female co-worker. /d., n.3

at p. 689.

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Ill. Analysis

Racial harassment in the workplace violates 42 U.S.C. § 2000e

(Title VII)’s ban prohibiting racial discrimination “against any

individual with respect to his compensation, terms, conditions, or

privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). The

Equal Employment Opportunity Commission (“EEOC”) has long

recognized that harassment on the basis of race is an unlawful

employment practice under Title VII. See 2 EEOC Compl. Man.

§ 615.7 (CCH). Harassment which is sufficiently severe or

pervasive to alter the terms and conditions of an employee’s

employment and create an abusive working environment is

generally condemned by Title VII. Meritor Savings Bank v.

Vinson, 477 U.S. 57, 65-66, 106 S. Ct. 2399, 2404-05 (1986).

Our circuit has repeatedly held that an employer violates Title VII

“simply by creating or condoning an environment at the workplace

which significantly and adversely affects (the psychological well-

being of) an employee because of his race or ethnicity.” Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982),

(citing Henson v. City of Dundee, 682 F.2d 897, 901 (11th Cir.

1982). See also, Rogers v. EEOC, 454 F.2d 234, 238 (Sth Cir.

1981).

Moreover, 42 U.S.C. § 1981, whose roots have grown and

developed over the last one and a third century, and particularly in

the last nine years, establishes a dominant national policy forbidding

racial discrimination and harassment in the workplace. In

Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct.

2363 (1989), a bitterly divided Supreme Court held that this

_ venerable statute 42 U.S.C. did not cover racial harassment in the

workplace. Two years later, the Congress overtumed this niggard

interpretation of § 1981 by enactment of The Civil Rights

Restoration Act of 1991, which makes it clear that the statute

cover “the enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship”. 42 U.S.C. § 1981(b).

20a

Certainly, freedom from a racially hostile work environment is a

“benefit, term, and condition” of the employment relationship.

And the national policy is binding on unions as well as

employees. See Goodman v. Lukens Steel Co., 482 U.S. 656

(1987), (union violated both Section 1981 and Title VII where it

chooses not to process racial grievance under the equal

employment clause of the union contract with the aim of enhancing

its probabilities of success on other issues), Terrell v. U.S. Pipe

& Foundry Co., 644 F.2d 1112, 1120 (Sth Cir. Unit B 1981),

vacated on other grounds, 456 U.S. 955 (1982), Howard v.

Int’l Moulders & Allied Wrkrs. Union, Local 100, 779 F.2d

1546 (11th Cir. 1986); (unions have an affirmative duty to

eliminate any form of racial discrimination).

Equally clear is that Bobby Campbell violated this public policy

while performing his duties as an employee of TAMKO. It was in

specific reference to Campbell and Williams’ performance of their

respective duties that Campbell made the racially offensive

statement.

Based on these considerations, the arbitrator’s award should

not be enforced by this court.

By separate order TAMKO’s motion for Summary Judgment

will be granted The Union motion will be denied.

DONE this 31st day of August, 2000.

ls/

UNITED STATES DISTRICT

JUDGE U.W. CLEMON

2la

29 U.S.C. § 185

UNITED STATES CODE

TITLE 29. LABOR

CHAPTER 7—LABOR-MANAGEMENT RELATIONS

SUBCHAPTER IV--LIABILITIES OF AND

RESTRICTIONS ON LABOR AND MANAGEMENT

§ 185. Suits by and against labor organizations

(a) Venue, amount, and citizenship

Suits for violation of contracts between an employer and a labor

organization representing employees in an industry affecting

commerce as defined in this chapter, or between any such labor

organizations, may be brought in any district court of the United

States having jurisdiction of the parties, without respect to the

amount in controversy or without regard to the citizenship of the

parties.

(b) Responsibility for acts of agent; entity for purposes of suit;

enforcement of money judgments

Any labor organization which represents employees in an

industry affecting commerce as defined in this chapter and any

employer whose activities affect commerce as defined in this

chapter shall be bound by the acts of its agents. Any such labor

organization may sue or be sued as an entity and in behalf of the

employees whom it represents in the courts of the United States.

Any money judgment against a labor organization in a district court

of the United States shall be enforceable only against the

organization as an entity and against its assets, and shall not be

enforceable against any individual member or his assets.

(c) Jurisdiction

For the purposes of actions and proceedings by or against labor

organizations in the district courts of the United States, district

22a

courts shall be deemed to have jurisdiction of a labor organization

(1) in the district in which such organization maintains its principal

office, or (2) in any district in which its duly authorized officers or

agents are engaged in representing or acting for employee

members.

(d) Service of process

The service of summons, subpoena, or other legal process of

any court of the United States upon an officer or agent of a labor

organization, in his capacity as such, shall constitute service upon

the labor organization.

(e) Determination of question of agency

For the purposes of this section, in determining whether any

person is acting as an “agent” of another person so as to make

such other person responsible for his acts, the question of whether

the specific acts performed were actually authorized or

subsequently ratified shall not be controlling.

23a

42 U.S.C. § 1981

UNITED STATES CODE ANNOTATED

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 21--CIVIL RIGHTS

SUBCHAPTER I-~GENERALLY

§ 1981. Equal rights under the law

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have

the same right in every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and to the full and

equal benefit of all laws and proceedings for the security of persons

and property as is enjoyed by white citizens, and shall be subject

to like punishment, pains, penalties, taxes, licenses, and exactions

of every kind, and to no other.

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce

contracts” includes the making, performance, modification, and

termination of contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment

The rights protected by this section are protected against

impairment by nongovernmental discrimination and impairment

under color of State law.

24a

42 U.S.C. § 2000e-2

UNITED STATES CODE ANNOTATED

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 21-—-CIVIL RIGHTS

SUBCHAPTER VI—EQUAL EMPLOYMENT

OPPORTUNITIES

§ 2000e-2. Unlawful employment practices

(a) Employer practices

It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of

employment, because of such individual's race, color, religion,

sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants

for employment in any way which would deprive or tend to

deprive any individual of employment opportunities or otherwise

adversely affect his status as an employee, because of such

individual's race, color, religion, sex, or national origin.

(b) Employment agency practices

It shall be an unlawful employment practice for an employment

agency to fail or refuse to refer for employment, or otherwise to

discriminate against, any individual because of his race, color,

religion, sex, or national origin, or to classify or refer for

employment any individual on the basis of his race, color, religion,

sex, or national origin.

25a

(c) Labor organization practices

It shall be an unlawful employment practice for a labor

organization--

_ (1) to exclude or to expel from its membership, or otherwise

to discriminate against, any individual because of his race, color,

religion, sex, or national origin;

(2) to limit, segregate, or classify its membership or applicants

for membership, or to classify or fail or refuse to refer for

employment any individual, in any way which would deprive or

tend to deprive any individual of employment opportunities, or

would limit such employment opportunities or otherwise

adversely affect his status as an employee or as an applicant for

employment, because of such individual's race, color, religion,

sex, or national origin; or

(3) to cause or attempt to cause an employer to discriminate

against an individual in violation of this section.

(d) Training programs

It shall be an unlawful employment practice for any employer,

labor organization, or joint labor-management committee

controlling apprenticeship or other training or retraining, including

on-the-job training programs to discriminate against any individual

because of his race, color, religion, sex, or national origin in

admission to, or employment in, any program established to

provide apprenticeship or other training.

(¢) Businesses or enterprises with personnel qualified on basis of

religion, sex, or national origin; educational institutions with

personnel of particular religion

Notwithstanding any other provision of this subchapter, (1) it

shall not be an unlawful employment practice for an employer to

hire and employ employees, for an employment agency to classify,

ia ciaaaa aaa aa ai aie ee -

26a

or refer for employment any individual, for a labor organization to

classify its membership or to classify or refer for employment any

individual, or for an employer, labor organization, or joint

labor-management committee controlling apprenticeship or other

training or retraining programs to admit or employ any individual in

any such program, on the basis of his religion, sex, or national

origin in those certain instances where religion, sex, or national

origin is a bona fide occupational! qualification reasonably

necessary to the normal operation of that particular business or

enterprise, and (2) it shall not be an unlawful employment practice

for a school, college, university, or other educational institution or

institution of learning to hire and employ employees of a particular

religion if such school, college, university, or other educational

institution or institution of learning is, in whole or in substantial part,

owned, supported, controlled, or managed by a particular religion

or by a particular religious corporation, association, or society, or

if the curriculum of such school, college, university, or other

educational institution or institution of learning is directed toward

the propagation of a particular religion.

(f) Members of Communist Party or Communist-action or

Communist-front organizations

As used in this subchapter, the phrase “unlawful employment

practice” shall not be deemed to include any action or measure

taken by an employer, labor organization, joint labor-management

committee, or employment agency with respect to an individual

who is a member of the Communist Party of the United States or

of any other organization required to register as a

Communist-action or Communist-front organization by final order

of the Subversive Activities Control Board pursuant to the

Subversive Activities Control Act of 1950 [S50 U.S.C.A. § 781 et

seq. }.

(g) National security

Notwithstanding any other provision of this subchapter, it shall

not be an unlawful employment practice for an employer to fail or

refuse to hire and employ any individual for any position, for an

employer to discharge any individual from any position, or for an

employment agency to fail or refuse to refer any individual for

employment in any position, or for a labor organization to fail or

refuse to refer any individual for employment in any position, if--

(1) the occupancy of such position, or access to the premises

in or upon which any part of the duties of such position is

performed or is to be performed, is subject to any requirement

imposed in the interest of the national security of the United

States under any security program in effect pursuant to or

administered under any statute of the United States or any

Executive order of the President; and

(2) such individual has not fulfilled or has ceased to fulfill that

requirement. 7

(h) Seniority or merit system; quantity or quality of production;

ability tests; compensation based on sex and authorized by

minimum wage provisions

Notwithstanding any other provision of this subchapter, it shall

not be an unlawful employment practice for an employer to apply

different standards of compensation, or different terms, conditions,

or privileges of employment pursuant to a bona fide seniority or

merit system, or a system which measures earnings by quantity or

quality of production or to employees who work in different

locations, provided that such differences are not the result of an

intention to discriminate because of race, color, religion, sex, or

national origin, nor shall it be an unlawful employment practice for

an employer to give and to act upon the results of any

professionally developed ability test provided that such test, its

28a

administration or action upon the results is not designed, intended

or used to discriminate because of race, color, religion, sex or

national origin. It shall not be an unlawful employment practice

under this subchapter for any employer to differentiate upon the

basis of sex in determining the amount of the wages or

compensation paid or to be paid to employees of such employer

if such differentiation is authorized by the provisions of section

206(d) of Title 29.

(i) Businesses or enterprises extending preferential treatment to

Indians

Nothing contained in this subchapter shall apply to any business

or enterprise on or near an Indian reservation with respect to any

publicly announced employment practice of such business or

enterprise under which a preferential treatment is given to any

individual because he is an Indian living on or near a reservation.

(j) Preferential treatment not to be granted on account of existing

number or percentage imbalance

Nothing contained in this subchapter shall be interpreted to

require any employer, employment agency, labor organization, or

joint labor-management committee subject to this subchapter to

grant preferential treatment to any individual or to any group

because of the race, color, religion, sex, or national origin of such

individual or group on account of an imbalance which may exist

with respect to the total number or percentage of persons of any

race, color, religion, sex, or nationa! origin employed by any

employer, referred or classified for employment by any

| employment agency or labor organization, admitted to membership

or classified by any labor organization, or admitted to, or employed

in, any apprenticeship or other training program, in comparison

with the total number or percentage of persons of such race, color,

religion, sex, or national origin in any community, State, section, or

q

29a

other area, or in the available work force in any community, State,

section, or other area.

(k) Burden of proof in disparate impact cases

(1)(A) An unlawful employment practice based on disparate

impact is established under this subchapter only if--

(i) a complaining party demonstrates that a respondent uses a

particular employment practice that causes a disparate impact

on the basis of race, color, religion, sex, or national origin and

the respondent fails to demonstrate that the challenged practice

is job related for the position in question and consistent with

business necessity; or

(ii) the complaining party makes the demonstration described

in subparagraph (C) with respect to an alternative employment

practice and the respondent refuses to adopt such alternative

employment practice.

(B)(i) With respect to demonstrating that a particular

employment practice causes a disparate impact as described in

subparagraph (A)(i), the complaining party shall demonstrate that

each particular challenged employment practice causes a disparate

impact, except that if the complaining party can demonstrate to the

court that the elements of a respondent's decisionmaking process

are not capable of separation for analysis, the decisionmaking

process may be analyzed as one employment practice.

(ii) If the respondent demonstrates that a specific employment

practice does not cause the disparate impact, the respondent

shall not be required to demonstrate that such practice is

required by business necessity.

30a

(C) The demonstration referred to by subparagraph (A )ii) shall

be in accordance with the law as it existed on June 4, 1989, with

respect to the concept of “alternative employment practice”.

(2) A demonstration that an employment practice is required by

business necessity may not be used as a defense against a claim of

intentional discrimination under this subchapter.

(3) Notwithstanding any other provision of this subchapter, a

rule barring the employment of an individual who currently and

knowingly uses or possesses a controlled substance, as defined in

schedules I and II of section 102(6) of the Controlled Substances

Act (21 U.S.C. 802(6)), other than the use or possession of a drug

taken under the supervision of a licensed health care professional,

or any other use or possession authorized by the Controlled

Substances Act [21 U.S.C.A. § 801 et seq.] or any other

provision of Federal law, shall be considered an unlawful

employment practice under this subchapter only if such rule is

adopted or applied with an intent to discriminate because of race,

color, religion, sex, or national origin.

(1) Prohibition of discriminatory use of test scores

It shall be an unlawful employment practice for a respondent, in

comrescties: with the selection or referral of applicants or candidates

for ernployment or promotion, to adjust the scores of, use different

cutof seores for, or otherwise alter the results of, employment

related tests on the basis of race, color, religion, sex, or national

(m) Impermissibie consideration of race, color, religion, sex, or

national origin in employment practices

Except as otherwise provided in this subchapter, an unlawful

employment practice is established when the complaining party

demonstrates that race, color, religion, sex, or national origin was

3la

a motivating factor for any employment practice, even though other

factors also motivated the practice.

(n) Resolution of challenges to employment practices implementing

litigated or consent judgments or orders

(1)(A) Notwithstanding any other provision of law, and except

as provided in paragraph (2), an employment practice that

implements and is within the scope of a litigated or consent

judgment or order that resolves a claim of employment

discrimination under the Constitution or Federal civil rights laws

may not be challenged under the circumstances described in

subparagraph (B).

(B) A practice described in subparagraph (A) may not be

challenged in a claim under the Constitution or Federal civil nights

laws-- -

(i) by a person who, prior to the entry of the judgment or

order described in subparagraph (A), had--

(I) actual notice of the proposed judgment or order

sufficient to apprise such person that such judgment or

order might adversely affect the interests and legal nghts of

such person and that an opportunity was available to

present objections to such judgment or order by a future

date certain; and

(IT) a reasonable opportunity to present objections to

such judgment or order; or

(ii) by a person whose interests were adequately

represented by another person who had previously challenged

the judgment or order on the same legal grounds and with a

similar factual situation, unless there has been an intervening

change in law or fact. |

(2) Nothing in this subsection shall be construed to--

32a

(A) alter the standards for intervention under rule 24 of the

Federal Rules of Civil Procedure or apply to the rights of parties

who have successfully intervened pursuant to such rule in the

proceeding in which the parties intervened;

(B) apply to the nghts of parties to the action in which a litigated

or consent judgment or order was entered, or of members of a

class represented or sought to be represented in such action, or of

members of a group on whose behalf relief was sought in such

action by the Federal Government;

(C) prevent challenges to a litigated or consent judgment or

order on the ground that such judgment or order was obtained

through collusion or fraud, or is transparently invalid or was

entered by a court lacking subject matter jurisdiction; or

(D) authorize or permit the denial to any person of the due

process of law required by the Constitution.

(3) Any action not precluded under this subsection that

challenges an employment consent judgment or order described in

paragraph (1) shall be brought in the court, and if possible before

the judge, that entered such judgment or order. Nothing in this

subsection shall preclude a transfer of such action pursuant to

section 1404 of Title 28.

33a

IN THE MATTER OF THE

ARBITRATION BETWEEN

TAMKO ROOFING ) GRIEVANT: Bobby Campbell

PRODUCTS, INC.,

AND

)

)

)

)

UNITED STEEL- )

WORKERS OF )

AMERICA, )

LOCAL 1071L ) PLACE: TUSCALOOSA, AL

) DATE: 7/23/98

SEEEEEEEEEE EEE EEE EEE EEE EEEEEEEEEEEEEEEEEEEEE EES

BEFORE: J. REESE JOHNSTON, JR.,

APPEARANCES: FOR THE COMPANY:

Allan L. Bioff

J. Randall Coffey

Bioff, Singer & Finucane

104 West 9th Street

Suite 400

Kansas City, MO 64105-1718

FOR THE UNION:

Billy McColeman

United Steelworkers of America

District 9

Suite 44 - Flintridge Building

6200 E. J. Oliver Boulevard

Fairfield, AL 35064

POST-HEARING

BRIEFS RECEIVED: August 29, 1998

34a

BACKGROUND

Tamko Roofing Products, Inc., is a manufacturer and distributor

of commercial and residential roofing products. The Company

owns and operates several manufacturing plants, including a plant

in Tuscaloosa, Alabama. The Tuscaloosa plant employs

approximately 180 hourly-paid production, maintenance, shipping

and receiving employees represented by United Steelworkers of

America, Local 1071L. About 25% of the work force employed

at the Tuscaloosa plant is African-American.

Bobby Campbell, the Grievant, was a lead man in the

Tuscaloosa plant’s Shipping Department, and was discharged by

the Company on October 30, 1997, for violating the Company’s

business conduct policy, which incorporates a prevention of

workplace harassment.. Grievant was a long service employee of

the Company at the Tuscaloosa plant, having been first employed

in 1979.

On October 27, 1997. at approximately 6:00 a.m., a truck

spotter named Nathaniel Williams, who is employed by Cummings

Truck Line, was standing outside the Tuscaloosa plants shipping

office located in the vicinity of the plant’s shipping dock.

Williams was assigned by his employer Cummings on a full-time,

daily basis to spot Cummings trailers at the Tamko Tuscaloosa

plant’s shipping dock. Williams had held this job assignment for

about three years. Williams is an African- American.

As a truck spotter, one of Williams’ functions is to communicate

to Tamko Shipping Department personne! the trailer numbers of

the Cummings trailers which Williams has spotted in Tamko’s truck

bays and the order numbers for each of the Cummings trailers

which Williams has spotted. Williams communicates such

information periodically during the course of each work day to a

Tamko shipping lead man stationed in the shipping office.

Tiina Ai

35a

On October 27 two Shipping Department lead men were

employed at the Tuscaloosa plant, the Grievant and Andy Miles

both non-minorities. At 6:00 a.m. on October 27, both Grievant

and Miles were seated inside the shipping office. Grievant was

seated next to a sliding glass window which is opened by the lead

man whenever a truck spotter, truck driver, or other person needs

to communicate with the lead man inside the office. The Grievant’s

desk is at a right angle to the sliding glass window and the desk

occupied by Miles faces directly toward the sliding glass window.

At 6:00 a.m. Williams was standing outside the shipping office

waiting for Grievant to open the window so that Williams could

communicate to the Grievant the trailer numbers of the trailers he

had spotted that morning and the order numbers for each trailer.

Grievant did not notice Williams standing outside waiting for

Grievant to open the window. After Williams had been waiting

several minutes, Miles, who could see Williams through the office

window, said to the Grievant, “Nate’s standing at the window.”

Grievant then opened the window and, according to his testimony,

said to Williams: “Hey, man, I’m sorry, I didn’t see you. There’s

not enough light. Maybe you need to paint your face white.”

Williams in his testimony testified that the Grievant said “You ought

to paint your face white so I can see you better.” Miles, the only

other person who was present when Grievant opened the window

and spoke to Williams. testified that Grievant’s statement to

Williams was: “Man, you need to put some white shoe polish or

something on your face. I didn’t see you standing there.”

Williams alleged that the Grievant’s statement to him hurt him

and caused him to be both distraught and angry. Williams was still

“angry” when he talked to Miles a short time later. Miles told

Williams that he had overheard Grievant’s statement to Williams

and suggested to Williams that he report the occurrence to a

Shipping Department Supervisor, Ron Mitchell. Williams did so the

same morning. Mitchell then interviewed both Williams and the

36a

Grievant some time around 10:00 a.m. on that day and reported

the occurrence to the Shipping Department Manager, Mike White,

and to the Tuscaloosa plant General Manager, Tom Deloughery.

General Manager Deloughery, after receiving the report from

Department Manager White and Supervisor Mitchell, that Grievant

had made a racially offensive statement to Williams. Deloughery

conducted an investigation of the matter. Deloughery first

interviewed Williams. This interview was conducted at about 10:30

a.m. on October 27. Deloughery asked Williams what had

occurred early that morning with regard to the Grievant, Bobby

Campbell. Williams responded that “Bobby Campbell hadn’t seen

him and that when Bobby opened the window Bobby said ‘you

should paint your face white so I can see you better.” During the

interview Deloughery observed that Williams was “very upset”,

and “agitated” by the statement that Grievant had made to him that

morning. Deloughery concluded that Grievant’s statement to

Williams had “embarrassed him and had made him feel bad and it

hurt him.”

Following his interview of Williams, Deloughery interviewed

Grievant that same morning. Deloughery told Grievant that

Williams had reported to him that “you said to him that he should

paint his face white so you could see hun better.” Grievant

responded, “No, I told him he should put white shoe polish on his

face so I could see him better, but I didn’t mean anything by it, I

was only kidding.”

Based upon his investigation of the occurrence, including his

interview with Williams and Grievant, Deloughery determined that

Grievant had made one of two statements to Williams on the

moming of October 27. Grievant had either said to Williams, “You

should paint your face white” or “You should put white shoe polish

on your face”. Deloughery concluded that, whichever of the two

37a

statements Grievant had made to Williams. the statement was

racially demeaning and offensive.

The next morning, October 28, Deloughery, in the presence of

the Union Shop Steward, advised Grievant that he was suspended

pending further investigation. Deloughery further advised Grievant

and the Shop Steward that it was very probable that Grievant’s

employment with the Company would be terminated.

Less than two weeks before the date October 27 that Grievant

made the racially derogatory remark to Williams, Grievant had

attended a sensitivity training workshop conducted by the

Company, focusing on racial and sexual harassment in the

workplace. The workshop, which was conducted on a

department-by-department basis, was attended by all employees

at the Tuscaloosa plant, including Bargaining Unit employees, non-

unit employees, supervisors and managers. The Company

conducted the workshop because of allegations of a racially hostile

work environment at the Tuscaloosa plant which was asserted in

a race discrimination lawsuit brought against the Company by a

former African-American employee. In September 1997 the

Company’s legal counsel had investigated the allegations and, as

a result of that investigation, recommended that sensitivity training

be conducted at the Tuscaloosa plant regarding racial and sexual

harassment.

Grievant, along with other Shipping Department employees,

attended the sensitivity training workshop held on October 15,

1997. Fellow lead man Miles also attended the same workshop.

Each of the department workshops, including the one attended by

Grievant and Miles, was conducted by the plant’s Human

Resource Manager, Dwight Wood. Wood, among other things,

told the workshop attendees, including Grievant, that racial jokes

and racial comments at the plant would not be tolerated by the

Company, and that Tamko had “zero tolerance” for such conduct.

38a

Wood also told the workshop attendees, including Grievant, that

“Tamko would not tolerate any type of racial comments or racial

slurs and that any violation of this policy would be dealt with

severely up to and including termination”.

The decision to discharge the Grievant was made by General

Manager Deloughery after consultation with the Company’s Vice

President of Manufacturing, Tom King, and the Company’s in-

house attorney, Bob Bradley. Recognizing that Grievant was a long

service employee and that he had no prior disciplinary record,

Deloughery, King and Bradley discussed and considered the

possibility of imposing a lesser penalty than discharge for

Grievant’s conduct on October 27. All three concurred, however,

that Grievant should be discharged. Deloughery testified why he,

King and Bradley arrived at that decision;

“Several reasons, the first and foremost is the seriousness of the

offense. We have a situation where Mr. Campbell directly

confronted a black person and humiliated him based on his

race, and in talking with Nate.(Williams) I could see that he was

hurt, he was upset, he wanted to know — he asked me what I

have done to cause this. As far as I could see, he hadn’t done

anything to cause it. And he didn’t understand why people

would humiliate him like that and treat him like that, that is, why

Bobby treated him like that. I felt it was a very serious offense.

It had resulted in serious harm to a human being.”

Second reason is we had just finished the training. I mean

training wasn’t two weeks old and already we had a situation

where somebody had disregarded the training that we had

offered. And in the training we had told the people, we had put

them on notice, this is not going to be tolerated. If you do it,

you’ re going to be severely disciplined, and within two weeks

it happened. And the third reason is I felt that if I didn’t take

strong actions that I would be undermining the policy that

39a

Tamko has, the fact that if 1 didn’t do something very strong that

I would be condoning that type of activity in the plant.”

Deloughery notified the Grievant on October 30, 1997, that he

was discharged from the Company’s employment. The Union

grieved the discharge pursuant to the Grievance-Arbitration

procedures of the Union Agreement. The grievance was denied by

the Company, was appealed by the Union to arbitration and is now

before this Arbitrator for final solution.

APPLICABLE CONTRACT PROVISIONS

“ARTICLE VI

DISCHARGE AND SUSPENSION

“Employees shall not be discharged or suspended without just

cause. The discharge or suspension shall be considered final

unless the discharge or suspension is protested in writing to the

General Manager within three working days after the discharge

or suspension becomes effective. If so protested, the written

protest will be deemed to be a grievance under the grievance-

arbitration provisions of this Agreement provided, however, that

such grievance will be taken up directly in the second step of the

grievance procedure and the first step of the grievance

procedure will automatically be deemed waived by the parties.

Should the grievance be taken to arbitration, the limitations

contained in Article V, Section 5 (‘Limitations on Powers of the

Arbitrator; Discharge and Disciplinary Cases’) shall be

applicable.

Should it be determined in the grievance-arbitration procedure

that an employee discharged or suspended is entitled to back

pay, any such back pay award shall be reduced by the amount

of unemployment compensation benefits or compensation for

personal services which the employee may have received during

the period of separation (other thas: compensation for personal

40a

services received by the discharged or suspended employee

from a second job which the discharged or suspended

employee held and was compensated for, for a period of not

less than thirty days immediately prior to the beginning of his

separation from the Company). Federal, state or local taxes, or

dues and insurance premiums normally deducted from the

employee’s pay shall be withheld from any back pay award.

An employee suspended by the Company pending investi-

gation to determine if discharge or other disciplinary action is

justified, shall be notified by the Company not later than ten (10)

calendar days following the first day of such suspension as to

the conduct or actions of the employee which are under

investigation. Failure to so notify the suspended employee shall

not affect the Company’s right to discharge or discipline the

suspended employee for just cause.

An employee will be told when a written counseling report is to

be placed in his personnel file and, upon the employee’s

request, will be provided a copy of the written counseling

report.

When an employee is suspended or discharged, the Company

will notify the Union of such action. Failure to give or delay in

giving such notice shall not affect the propriety of the suspension

or discharge.”

“Art. V, Sec. 5. Limitations on Power of the Arbitrator;

Discharge and Disciplinary Cases. In discharge or discipline

cases, the arbitrator’s authority and function shall be limited to

answering the following questions: (1) whether the conduct or

actions of the grievant which led to the discharge or discipline

did, in fact, occur and, if so (2) whether such conduct or actions

by the grievant justified disciplinary action by the Company. If

the arbitrator answers both of the foregoing questions in the

affirmative, he shall deny the grievance and sustain the discharge

4la

or other discipline imposed by the Company. The arbitrator

shall have no authority in discharge or disciplinary cases to

substitute his judgment for that of the Company in respect to the

appropriate degree of discipline.

Attached hereto and marked Exhibit “A” is the prevention of

Harassment Policy of Tamko Roofing Products, Inc. This policy

was amended as of January 1, 1997.

ISSUE

Did the Company have just cause to discharge the Grievant,

Bobby Campbell? If not, what should the remedy be?

POSITION OF THE PARTIES

It is the position of the Company:

A. The conduct which led to the Grievant’s discharge did in fact

occur.

B. 1. Grievant’s statement to Williams was racially offensive and

violates the Company’s policies, which prohibit all forms of

workplace harassment, including the use of racially demeaning or

offensive language.

2. All Tuscaloosa plant employees, including Grievant, were

placed on clear notice shortly before Grievant’s racial statement (i)

that the Company would not tolerate the use of racially demeaning

or offensive language in violation of the Company’s policies

prohibiting all forms of workplace harassment, including racial

harassment; (ii) that violations of those policies would subject the

violator to severe discipline.

3. The Company has an absolute legal obligation under Title VII

of the Civil Rights Act of 1964 to prevent the use of racially

demeaning or offensive language in the workplace and to prohibit

a racially offensive work environment.

42a

4. Court decisions and arbitral authority establish that Grevant’s

use of racially demeaning or offensive language in the workplace

provides just cause for disciplining even though directed at a non-

employee because such language pollutes the working environment

of other employees in violation of Title VII.

5. Prior to the hearing, the Union conceded that Grievant’s

conduct justified disciplinary action by the Company.

C. 1. The Company and the Union have contractually agreed

that the Arbitrator has no authority to modify the discharge penalty

imposed by the Company.

2. The Union’s contention that the Arbitrator has authority to

modify the discharge penalty ignores the clear and unambiguous

language of the Labor Agreement and seeks to obtain an

arbitration that the Union was unable to obtain in Collective

Bargaining.

3. The Arbitrator would not be warranted in modifying the

discharge even in the absence of the limitations on his authority

imposed by the contract in this case.

It is the Union’s position:

1. That the alleged racial remark was nothing more than shop

talk and as Campbell, the Grievant, stated, “I didn’t mean

anything by it. The Grievant and Williams had been friends for

years.

2. That the contract provides that the Company has to have just

cause to discharge an employee.

3. That the fact that Mr. Williams was not an employee of the

Company and not being a Company employee, the policy of the

Company would, under the law of Contracts, not have application

in this case since Mr. Williams was in fact not a co-employee

subordinate or superior to the Grievant, Bobby Campbell.

43a

DISCUSSION

I have reviewed the transcript of the testimony of the witnesses,

examined carefully the exhibits introduced into evidence by the

parties, and I have read and studied the excellent post-hearing

briefs filed by the representatives of the parties. I have also read

and studied the 14 Federal Court cases and the 16 arbitral cases

cited in support of said briefs. These post-hearing briefs were

received on August 29, 1998.

A careful reading of the Company’s Prevention of Harassment

Policy shows that policy by its own specific terms prohibits

harassment only to co-workers, subordinate or superior. It is

conceded that Mr. Williams, the person allegedly harassed, was

not an employee of the Company, but was in fact an employee of

Cummings Truck Lines.

The Company promulgated its Prevention of Harassment Policy

unilaterally. This Policy states in its introduction paragraph: “No

employee of Tamko should harass others, be they co-workers,

subordinates or supervisors.” If the Company had wished to

prohibit harassment not only of co-workers, subordinates or

supervisors, it should have provided that its Prevention of

Harassment Policy would also apply to other individuals as

employees of the Company’s customers or as individuals who

were on the Company premises with the Company’s permission.

This the Company in adopting and amending its Business Policy

and Prevention of Harassment Policy did not do.

It would not be equitable in this Arbitrator’s opinion to stretch

the wording which is the Company’s wording in its Prevention of

Harassment Policy to cover the harassment of people not co-

workers, subordinates or supervisors. In the company’s testimony

Mr. Deloughery at page 109 of the transcript was asked: “What

was the reason for Mr. Campbell’s discharge from the employment

of the Company?” His answer was “Violation of the Company’s

44a

Business Conduct Policy, specifically dealing with harassment and

discrimination.” Question; Workplace harassment policy? Answer;

Yes.

It would not, as stated above, in this Arbitrator’s opinion be

equitable to permit the Company to change the reason for

Mr. Campbell’s discharge at this late date. Based on the above, it

is my finding that the Workplace Harassment Policy specifically is

limited to harassment between an employee and other employees,

whether subordinates or supervisors. It is my finding that the word

“co-worker” means another employee of the Company. Therefore,

the Company has failed to prove a violation of the Workplace

Harassment Policy because Mr. Williaris was not an employee of

Tamko, but was instead an employee of Cummings Truck Lines.

In other words, the Company chose the reason for the discharge

of Mr. Campbell and so testified, and that basis for his discharge

cannot now be changed_or added to by alleging that his action

toward Mr. Williams was a violation of public policy, federal law,

or any other thing other than a violation of the Workplace

Harassment Policy.

The language of Article V, Section 5, hereinabove set out under

Applicable Contract Provisions, provides a limitation on the

Arbitrator’s authority and function to answering the following

questions: (1) Whether the conduct or actions of the Grievant

which led to the discharge or discipline did, in fact, occur, and, if

so, (2) whether such conduct or actions by the Grievant justified

disciplinary action by the Company. If the Arbitrator answers both

of the foregoing questions in the affirmative, he shall deny the

grievance and sustain the discharge or other discipline imposed by

the Company. As I have stated above, the Company charged the

Grievant with an offense that can only arise in harassment of a co-

worker of the Grievant. Therefore, the answer to questions (1) and

(2), above, are both in the negative.

45a

AWARD

The grievance of Bobby Campbell is sustained and the

Company is directed to compensate him for all lost wages and

other benefits and without a break in his seniority with the

Company. The Company is to retum Mr. Campbell to the position

he occupied prior to his termination and his. back pay will be

calculated based on the number of straight time hours and overtime

hours that the employee who replaced him actually worked from

the time Mr. Campbell ceased working to the date of his

reinstatement. From this figure there should be deducted any

compensation or payments received by Mr. Campbell from the

Alabama Unemployment Compensation bureau, plus any

compensation earned by Mr. Campbell at any other jobs he may

have worke j during the period of time he has been out of Tamko’s

employ. The amount of the back pay is subject, of course, to the

usual payroll deductions. Since there could be a dispute as to the

amount of back pay owed to Mr. Campbell, I will retain

jurisdiction of this matter for thirty (30) days and if either party

notifies me in writing with copy to the other party that the parties

cannot mutually agree as to the correct amount of back wages, I

will set that question down for hearing and determination of the

correct amount of back pay.

DATE OF AWARD;

September 10, 1998

- ls/

J. Reese Johnston, Jr.

Arbitrator

800 Shades Creek Parkway

Suite 325

Birmingham, AL 35209

. 46a

GRIEVANCE HEARING

ON BOBBY CAMPBELL

JULY 23, 1998

10:45 A.M.

WHEREUPON the following proceedings were taken before

Nancy Pannell, Commissioner and Notary Public, State of

Alabama at Large, at the Hampton Inn, Cottondale, Alabama on

the 23rd of July 1998.

* * *

Mr. Campbell and you told Deloughery and White and Mitchell

that there had been earlier times when Mr. Campbell had made,

had called you names before, did Mr. Deloughery ask you

specifically what Mr. Campbell had said to you?

A. Yes, he did.

Q. And when Mr. Deloughery asked that question how did

you respond, what did you say?

A. Well, I told him it was names like porch monkey, biscuit

lip.

Q. Porch monkey and what was the next one?

A. Biscuit lips, gig-a-boo.

Q. Gig-a-boo.

A. And I told them that I don’t know why this started the way

that it did. I also told them that the peoples at the office that I

work for they was aware of what was going on over here.

Q. You mean the people you worked for at Cummings Truck

Line?

47a

you told them about these names that Mr. Campbell had called you

in the past—biscuit lips and gig-a-boo and so on, did

Mr. Deloughery ask you how recently Mr. Campbell had used

those words in talking to you?

A. Well, I told them that it would happen often like once

every week or twice a week or just nearly every week.

Q. Did Mr. Deloughery ask you how long ago?

A. Yes.

Q. And what did you say to him?

A. I told them that it started eight months after I had been over

there the first year.

Q. You mean eight months after what?

A. Eight months after I took the job of spotter on the dock the

year that I started over there. I been there for three years and it’s

been going on for two years and some months.

48a

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-15168-DD

TAMKO ROOFING PRODUCTS, INC.,

Plaintiff-

Counter-defendant-

Appellee.

versus

LOCAL 1071L UNITED STEELWORKERS OF

AMERICA

Defendant-

Counter-claimant-

Appellant.

On Appeal from the United States District Court for the

Northern District of Alabama

September 4, 2001

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

(Opinion , 15a Cor. 19. ee )

f

49a

Before: CARNES and MARCUS, Circuit Judges, and PROPST’,

District Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member of this

panel nor other Judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-

5), the Petition(s) for Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/

UNITED STATES CIRCUIT JUDGE

' Honorable Robert P. Propst, U.S. District Judge for the Northern District

of Alabama, sitting by designation.