CITY OF HOLLYWOOD v. EDWARD C. PERRIN ( 2020 )


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  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    CITY OF HOLLYWOOD,
    Appellant,
    v.
    EDWARD C. PERRIN,
    Appellee.
    No. 4D19-136
    [ March 25, 2020 ]
    Appeal of nonfinal order from the Circuit Court for the Seventeenth
    Judicial Circuit, Broward County; John B. Bowman, Judge; L.T. Case No.
    CACE 18-013878 (02).
    Paul T. Ryder, Jr., of Weiss Serota Helfman Cole & Bierman, P.L., Coral
    Gables, for appellant.
    Bruce H. Little of Bruce H. Little, P.A., Fort Lauderdale, for appellee.
    PER CURIAM.
    The City of Hollywood (“the City”) appeals an order compelling
    arbitration of a grievance filed by Edward C. Perrin (the “Employee”). We
    reverse for two reasons—first, because the trial court lacked jurisdiction
    to order the parties to arbitrate; and second, because the Employee’s union
    had the exclusive right to arbitrate his grievance.
    Edward C. Perrin (“the Employee”) filed a complaint in the trial court to
    compel arbitration. He alleged that he was employed by the City, and that
    he was covered by the collective bargaining agreement (“the CBA”) between
    the City and the City Employees Local 2432 of AFSCME, AFL-CIO a/k/a
    American Federation of State, County and Municipal Employees, Local
    2432 (“the Union”). He also alleged that he “individually” “filed a grievance
    seeking recalculation of his longevity and seniority pursuant to the CBA
    as well as adjustments of pay and benefits.” In addition, he alleged that
    he followed the grievance procedure, as outlined in Article 29 of the CBA,
    but as to the final step, arbitration, the City informed him that his “request
    to bring his individually filed contract interpretation grievance to
    arbitration [was] prohibited.”
    The Employee attached Article 29 to the complaint, titled: “Grievance
    Procedure and Arbitration.” Step 3 of Article 29 is at issue in this case,
    and states:
    If the Union, or the aggrieved employee if the Union is not
    processing the grievance which challenges a disciplinary action
    against that employee (but not a contract interpretation
    grievance), is not satisfied with the decision rendered at Step
    2, the Union, or the aggrieved employee if the Union is not
    processing the disciplinary grievance, may, within fourteen
    (14) calendar days from receipt of the City Manager’s decision,
    submit the grievance to arbitration, by requesting a list of
    arbitrators from the Federal Mediation and Conciliation
    Service (F.M.C.S.) or the American Arbitration Association
    (AAA), the choice of agency within the discretion of the Union.
    Only the Union is authorized to take contract interpretation
    grievances to arbitration. . . .
    (Emphasis added).
    In response, the City filed a motion to dismiss the complaint, arguing:
    (1) the trial court did not have jurisdiction over the action, because the
    conduct alleged in the complaint arguably constituted an unfair labor
    practice and therefore the Public Employees Relations Commission
    (“PERC”) had exclusive jurisdiction over the claim; and (2) the Union
    exclusively reserved the right to submit grievances involving contract
    interpretation under the CBA, and therefore, since the Employee was
    attempting to bring his grievance “individually,” the CBA did not require
    the City to arbitrate without the Union’s involvement.
    At a hearing on the motion to dismiss, the Employee argued that the
    only issue for the trial court to decide was whether the Employee has the
    right to arbitration and that the arbitrator must decide the ultimate issue
    of arbitrability. The trial court agreed, stating:
    I do not think this is a PERC issue at all. I happen to agree
    that if it is even available to arbitration that’s up to the
    arbitrator who may decide that they have no standing, they
    may not be worthy or whatever, but I leave that to them to
    decide if it falls within their province, and they can take it from
    there.
    2
    In its written order denying the City’s motion to dismiss and compelling
    arbitration, the trial court stated:
    1. The Court finds that the claim brought by [the Employee] in
    this Complaint is not within the exclusive jurisdiction of
    [PERC] and is not pre-empted under the Public Employees
    Relations Act, Chapter 447 Part II, and so this Court has
    subject matter jurisdiction over this claim. Accordingly, the
    Defendant’s Motion to Dismiss on those grounds is hereby
    DENIED.
    2. Based upon the fact that this Action is brought pursuant to
    Florida Statute 682.03 (2018), the Motion to Dismiss on the
    grounds related to the language of the grievance process in
    the [CBA] is denied and the parties are hereby ordered to
    proceed to Step 3 in the [CBA] and arbitrate the issues of this
    case as required by the [CBA], including the questions raised
    by Defendant as to whether [the Employee] has the right to
    take the contract interpretation grievance he filed as an
    individual employee (without the Union) to arbitration under
    the terms of the [CBA].
    The City appealed the order denying the motion to dismiss and
    compelling arbitration.
    Standard of Review
    “The standard of review of a trial court’s order on a motion to compel
    arbitration is de novo.” Northport Health Servs. of Fla., LLC v. Louis, 
    240 So. 3d 120
    , 122 (Fla. 5th DCA 2018).
    Issues on Appeal
    We combine two of the City’s arguments on appeal and address the
    following two issues: (1) whether the trial court had jurisdiction to order
    the parties to arbitrate; and (2) whether the Union had the exclusive right
    to arbitrate the Employee’s grievance, thereby prohibiting the Employee
    from attempting to arbitrate individually.
    Whether the Trial Court Had Jurisdiction to Order the Parties to Arbitrate
    “Chapter 447, Part II, Florida Statutes (2009), which is commonly
    referred to as the Public Employees Relations Act (‘PERA’), governs labor
    relations and collective bargaining activities between public employees,
    3
    public employers, and employee organizations (unions) representing
    employees in Florida.” Amato v. City of Miami Beach, 
    208 So. 3d 235
    , 237
    (Fla. 3d DCA 2016). “Under PERA, the Florida Legislature created [PERC],
    and empowered PERC ‘to settle disputes regarding alleged unfair labor
    practices.’”
    Id. (quoting §
    447.503, Fla. Stat. (2009)). If a subject matter
    falls within PERC’s exclusive jurisdiction, “[a] party may not bypass
    PERC’s jurisdiction and proceed directly to arbitration.” State v. Int’l Union
    of Police Ass’ns, 
    927 So. 2d 946
    , 947 (Fla. 1st DCA 2006). “Case law
    interpreting the jurisdictional scope of [PERA] has broadly included, as
    falling within PERC’s exclusive jurisdiction, those activities which
    ‘arguably’ constitute unfair labor practices as defined by section 447.501
    ‘or the type of labor matter or dispute within the contemplation of Part II,
    Chapter 447.’” Browning v. Brody, 
    796 So. 2d 1191
    , 1192–93 (Fla. 5th
    DCA 2001) (quoting Maxwell v. School Bd. of Broward Cty., 
    330 So. 2d 177
    ,
    180 (Fla. 4th DCA 1976)). We conclude that the Employee’s grievance
    satisfies this requirement and that PERC has exclusive jurisdiction.
    The Employee’s grievance, in its entirety, states:
    The City . . . is misapplying Articles 36 and 42 of the [CBA]
    between the City . . . and the employees covered by the
    Agreement in calculation of longevity and seniority, thereby
    causing loss of pay and other benefits. Grievant, herein, is a
    member of the bargaining unit and has raised the issue with
    the employer without resolution. Grievant seeks recalculation
    of his longevity and seniority pursuant to the Agreement, as
    well as adjustments of pay and benefits. Grievant was last
    paid on February 11, 2018.
    The City argues that the Employee’s claim arguably constitutes an unfair
    labor practice in violation of subsections (a) and (f) of section 447.501(1),
    Florida Statutes (2018), which state:
    (1) Public employers or their agents or representatives are
    prohibited from:
    (a) Interfering with, restraining, or coercing public employees
    in the exercise of any rights guaranteed them under this part.
    ...
    (f) Refusing to discuss grievances in good faith pursuant to the
    terms of the collective bargaining agreement with either the
    4
    certified bargaining agent for the public employee or the
    employee involved.
    Neither party explicitly discuses section 447.401, Florida Statutes
    (2018), which provides that “[e]ach public employer and bargaining agent
    shall negotiate a grievance procedure to be used for the settlement of
    disputes between employer and employee, or group of employees, involving
    the interpretation or application of a collective bargaining agreement.” §
    447.401, Fla. Stat. The statute requires that the procedure “shall have as
    its terminal step a final and binding disposition by an impartial neutral,
    mutually selected by the parties.”
    Id. Almost this
    exact language is found
    in section 1 of Article 29 of the CBA.
    Section 447.401 clearly indicates a path to arbitration, and PERC has
    stated:
    An employer’s refusal to discuss a grievance in good faith
    pursuant to the terms of a collective bargaining agreement
    with either the certified bargaining agent or the public
    employee involved is clearly and expressly prohibited by
    Section 447.501(1)(f). Moreover, such a refusal inherently
    interferes with a public employee’s Section 447.401 right,
    thereby    constituting conduct   prohibited   by   Section
    447.501(1)(a).
    Westfall v. Orange Cty. Bd. of Cty. Comm’rs, 8 F.P.E.R. ¶ 13367 at 648
    (1982) (emphasis added). Here, the Employee’s complaint alleged that he
    had a right to proceed with his grievance under the multistep process
    articulated in Article 29 of the CBA, that he contacted the City to
    participate in arbitration, and that the City declined to arbitrate. In his
    prayer for relief, the Employee asked the trial court to compel arbitration
    pursuant to the CBA and to retain jurisdiction to ensure the City complied
    with the CBA.
    Referring to his original grievance, the Employee argues that it did not
    involve a charge of an unfair labor practice. However, “[w]hether a claim
    is within PERC’s exclusive jurisdiction depends of the nature and
    substance of the claim, not on how the plaintiff labels the claim.” 
    Amato, 208 So. 3d at 237
    . Here, the Employee’s claim alleges the City refused to
    discuss the grievance in good faith, which is an inherent interference with
    section 447.401, and “constitut[es] conduct prohibited by Section
    447.501(1)(a).” Westfall, 8 F.P.E.R. ¶ 13367 at 648; see also City of Miami
    v. Fraternal Order of Police, Miami Lodge 20, 
    511 So. 2d 549
    , 552 (Fla.
    1987) (“[PERC’s] policy of deferral represents a reasonable method for
    5
    PERC to give effect to all of its statutory duties, particularly the mandatory
    requirements of section 447.401.” (emphasis added)).                 Thus, the
    Employee’s complaint arguably contained an unfair labor practice charge
    under the exclusive jurisdiction of PERC. 1
    Additionally, we have previously found that this type of determination
    is within the exclusive jurisdiction of PERC. See Bd. of Trs. of City v. City
    of Hollywood, Fla., No. 4D13-15, 
    2014 WL 2526855
    (Fla 4th DCA May 7,
    2014) (“[S]uch matters – including whether the [appellants] have standing
    to be heard by PERC – are subject to PERC’s exclusive and preemptory
    jurisdiction.”).
    Therefore, the trial court erred in denying the City’s motion to dismiss
    and compelling arbitration.
    Whether the Union Has the Exclusive Right to Bring the Employee’s Claim
    The City also argues that the trial court erred in compelling arbitration
    because the CBA dictates that only the Union can bring the type of claim
    filed by the Employee. We thus examine: (1) whether the CBA states that
    the Union has the exclusive right to bring a certain claim; and (2) whether
    the Employee’s claim fits into that category. Notably, for the trial court to
    order arbitration pursuant to section 682.03, Florida Statutes (2018),
    there must be an enforceable agreement to arbitrate. See § 682.03(3), Fla.
    Stat. (2018) (“If the court finds that there is no enforceable agreement to
    arbitrate, it may not order the parties to arbitrate pursuant to subsection
    (1) or subsection (2).”).
    Step 3 of Article 29 of the CBA states:
    If the Union, or the aggrieved employee if the Union is not
    processing the grievance which challenges a disciplinary action
    against that employee (but not a contract interpretation
    grievance), is not satisfied with the decision rendered at Step
    2, the Union, or the aggrieved employee if the Union is not
    processing the disciplinary grievance, may, within fourteen
    (14) calendar days from receipt of the City Manager’s decision,
    1 The City also argues that we should apply Robshaw v. Israel, 
    260 So. 3d 269
    (Fla. 4th DCA 2018), to this case. However, the per curiam affirmance in
    Robshaw lacks precedential value. See St. Fort v. Post, Buckley, Schuh &
    Jernigan, 
    902 So. 2d 244
    , 248–49 (Fla. 4th DCA 2005) (“[A] per curiam affirmance
    decision without written opinion has no precedential value and should not be
    relied on for anything other than res judicata.” (quoting State v. Swartz, 
    734 So. 2d
    448, 448 (Fla. 4th DCA 1999))).
    6
    submit the grievance to arbitration, by requesting a list of
    arbitrators from the Federal Mediation and Conciliation
    Service (F.M.C.S.) or the American Arbitration Association
    (AAA), the choice of agency within the discretion of the Union.
    Only the Union is authorized to take contract interpretation
    grievances to arbitration. . . .
    (Emphasis added). Without question, the CBA grants the Union exclusive
    authority to arbitrate issues of contract interpretation. For reasons
    explained below, we determine that the Employee’s grievance sought
    arbitration over an issue of “contract interpretation.”
    The Employee’s grievance alleged that the City was “misapplying” the
    CBA. Determining whether the CBA was misapplied would first require
    interpreting the CBA. Indeed, the trial court found in its order denying
    the City’s motion to dismiss and compelling arbitration that the
    Employee’s grievance involved an issue of contract interpretation. The
    trial court ordered:
    [T]he parties . . . to proceed to Step 3 in the [CBA] and arbitrate
    the issues of this case as required by the [CBA], including
    questions raised by [the City] as to whether [the Employee]
    has the right to take the contract interpretation grievance he
    filed as an individual employee (without the Union) to
    arbitration under the terms of the [CBA].
    (Emphasis added). Thus, the trial court did not find that the arbitrator
    should determine whether the Employee’s claim involved contract
    interpretation, but instead found that the arbitrator should determine
    whether the Employee had a right to take “the contract interpretation
    grievance” as an individual.
    Finally, we note that additional language in the CBA demonstrates that
    the Employee’s grievance, brought as an individual, was improper. Step 3
    of Article 29 states: “If the Union, or the aggrieved employee if the Union is
    not processing the grievance which challenges a disciplinary action against
    that employee (but not a contract interpretation grievance) . . . .” (Emphasis
    added). The City suggests that this language indicates that there are two
    categories of grievances: (1) ones regarding disciplinary action; and (2)
    ones regarding contract interpretation. The Employee’s claim clearly does
    not fit into the category of challenging a disciplinary action, and his
    grievance, brought as an individual, was improper under the CBA.
    The Employee also argues that the issue of arbitrability is arbitrable.
    7
    However, the two cases the Employee relies on do not support his position
    in this case. See Newman for Founding Partners Stable Value Fund, LP v.
    Ernst & Young, LLP, 
    231 So. 3d 464
    , 467 (Fla. 4th DCA 2017) (“We find
    that the delegation clause contained in the arbitration provision of the
    engagement agreement controls the determination of what issues are
    subject to arbitration. Generally speaking, when a delegation provision is
    included in an arbitration agreement, the court ‘only retain[s] jurisdiction
    to review a challenge to that particular provision. Absent a direct
    challenge, we must treat the delegation provision as valid and allow the
    arbitrator to determine the issue of arbitrability.’” (alteration in original)
    (quoting Angels Senior Living at Connerton Ct., LLC v. Gundry, 
    210 So. 3d 257
    , 258 (Fla. 2d DCA 2017))); Bank of Am., N.A. v. Beverly, 
    183 So. 3d 1099
    , 1101 (Fla. 4th DCA 2015) (“The question whether the parties have
    submitted a particular dispute to arbitration, i.e., the ‘question of
    arbitrability,’ is ‘an issue for judicial determination [u]nless the parties
    clearly and unmistakably provide otherwise.’” (alteration in original)
    (quoting Howsam v. Dean Witter Reynolds, Inc., 
    537 U.S. 79
    , 83 (2002))).
    The Employee has not pointed to any provision in the CBA allowing the
    parties to delegate the issue of arbitrability. Thus, the trial court also erred
    in compelling arbitration where the Employee could not arbitrate his
    grievance individually.
    Conclusion
    We reverse the order on appeal and remand with instructions for the
    trial court to dismiss the complaint.
    Reversed and Remanded.
    TAYLOR, MAY and KLINGENSMITH, JJ., concur.
    *         *         *
    Not final until disposition of timely filed motion for rehearing.
    8