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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2002
- **Citation:** 534 U.S. 1156

## Text

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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

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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.

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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).

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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

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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.

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0848%3A2. Public record. Not legal advice.