City Loses ‘Public Policy’ Challenge To Arbitrator’s Opinion Reinstating Fire Inspector

As the previous article indicates, the “public policy” exception to the finality of arbitrator’s opinions is a narrow one, and is usually unsuccessful. A recent case involving the San Jose Fire Department illustrates the narrow scope of the exception.

The case involved Michael Baldwin, a fire inspector. In April 2008, a co-worker complained about Baldwin’s inappropriate behavior toward herself and other female employees, prompting an investigation by the City. The investigation concluded with a 23-page report, issued in June 2008, which found that Baldwin had violated the City’s policy against harassment by engaging in inappropriate behavior toward female co-workers, including both verbal comments and physical touching.

In July 2008, the City fired Baldwin for sexual harassment. Baldwin’s labor organization, the International Association of Fire Fighters, challenged the termination in arbitration. The Arbitrator found that Baldwin had “committed two levels of offenses under the City’s sexual harassment policy.” The first level, while less serious, involved “repeated, multiple, and pervasive acts of sexual harassment, or otherwise inappropriate behavior, toward four different female employees. This inappropriate behavior included, inter alia, placing his hands on female (and male) employees without their permission, touching or caressing the shoulders or backs of female employees and/or giving unsolicited massages or back rubs to female employees, lurking around employees’ work spaces and scaring them, staring at female employees, asking women for their personal telephone numbers (in one case securing a female employee’s personal telephone number without her consent), implying that he had relationships with female employees (some of whom were married or had known relationships with other men), and engaging in non-work related banter which could be construed as being of a sexual nature.”

The second level of offenses involved Baldwin’s “more serious physical misconduct against one co-worker by administering birthday ‘spankings’ in the workplace without her consent, forcibly kissing her on the mouth without her consent, and inserting his hand between her legs and grabbing her right thigh near her crotch without her consent.”

Nonetheless, the Arbitrator overturned Baldwin’s discharge, finding that under the City’s progressive discipline policies, Baldwin should have received a 30-workday suspension. The City challenged the Arbitrator’s opinion in Court, arguing that the decision contravened well-established public policy against sexual harassment.

While the Court found that “the law recognizes an explicit, well-defined, and dominant public policy against sexual harassment in the workplace,” it did not find a public policy that all those guilty of sexual harassment should be fired.

As the Court put it, “nothing in the statute or regulations reflects a public policy mandating termination as a sanction for sexual harassment. Rather, employers are charged with addressing harassment by taking appropriate corrective action. Employers are charged with preventing harassment by such means as expressing strong disapproval and developing appropriate sanctions to discipline offending employees. As observed in persuasive federal case law: ‘Nowhere in this litany of prevention and correction is there the suggestion that every employee who makes a mistake must automatically lose his or her job.’

“In this case, the central question before the Arbitrator was whether the City had just cause to terminate Baldwin. In part, the Arbitrator’s negative answer to that question was based on the lack of progressive discipline, which City policy requires. The decision to reinstate Baldwin – with a 30-day suspension and a final warning – was within the scope of the Arbitrator’s authority.”

City of San Jose v. International Ass’n of Fire Fighters, 2010 WL 4380220 (Cal. App. 6 Dist. 2010).

This article appears in the January 2011 issue