Court Reinstates Arbitrator’s Decision Reversing Discharge Of Firefighter For Sexual Harassment

In November 2000, several firefighters working for the South County Fire Protection Authority in San Mateo County, California were idling in the dayroom of the firehouse. Captain Ronald Doss walked up behind Firefighter Gregory Nave, who was sitting in a recliner.

Another firefighter said to Doss, “Why don’t you put your dick on his head?” Trouble ensued. While Doss claimed he placed his fingers on Nave’s head as a form of horseplay, Nave said he felt the touch of Doss’s penis.

Nave filed a complaint against Doss. When the Authority terminated Doss for violating its sexual harassment policy, the San Mateo County Fire Fighters challenged the termination in arbitration.

Following a hearing, Arbitrator Michael Prihar issued an opinion that held that there was no just cause to terminate Doss. Prihar’s award reinstated Doss to his position, but suspended him without pay for six months.

The Authority challenged Arbitrator Prihar’s decision in court. A trial court vacated Arbitrator Prihar’s decision, ordered a second arbitration to take place, and restricted the Arbitrator to deciding whether the Fire Chief’s decision to terminate Doss was an “abuse of discretion.”

After a second arbitration hearing, Arbitrator John Kagel ruled that the decision to terminate Doss was not an abuse of discretion. When a trial court refused to reinstate Prihar’s decision and upheld Kagel’s award, the matter wound up in the California Court of Appeals.

The Court upheld Arbitrator Prihar’s decision reinstating Doss. The Court found a strong policy of deference to the decision of arbitrators. As the Court described, “an arbitrator’s remedy does not exceed his or her powers if it bears a rational relationship to the underlying contract as interpreted, expressly or impliedly, by the arbitrator and to the breach of contract found, expressly or impliedly, by the arbitrator. With very narrow exceptions, the general rule is that an arbitrator’s decision cannot be reviewed for errors of fact or law.”

The Court then turned to the contract language interpreted by Prihar. Article 20 of the parties’ collective bargaining agreement required that all disciplinary decisions be for just cause. Article 21.6 provided that “in the event a dispute over termination is referred to arbitration and the arbitrator finds that the Authority had the right to take the action complained of, the Arbitrator may not substitute his/her judgment for the judgment of management.”

In his decision, Prihar addressed the interplay between Articles 20 and 21.6. Prihar reasoned that “Article 21.6 does not conflict with the just cause standard of Article 20, because Article 21.6’s prescription against the arbitrator’s substitution of his judgment is conditional upon the arbitrator’s determination that the Authority had the right to take the action complained of. Whether the Authority had such right can only be determined by deciding whether the discipline was for just cause.”

Prihar concluded that the conflicting evidence before him, including evidence of Nave’s credibility, precluded a finding that Doss engaged in sexual harassment. Even though the critical element of the charge had not been proven, Prihar found that Doss “touched Nave’s head in a manner intended to persuade Nave it was done with his penis,” and violated the Authority’s sexual harassment policy in another way. Thus, while Prihar concluded that Doss’s conduct did not warrant termination, he imposed a six-month suspension.

The Court found that Prihar’s analysis did not show a “manifest disregard of the Agreement” and was not “totally unsupported by principles of contract construction.” Given the general deference showed towards upholding arbitrators’ opinions, the Court upheld Prihar’s order reinstating Doss.

San Mateo County Fire Fighters v. South County Fire Protection Authority, 2006 WL 1000351 (Cal.App. 2006).

This article appears in the December 2006 issue