Opinion
No. 1D22-1427
06-07-2023
ORANGE COUNTY FIRE FIGHTERS ASSOCIATION, I.A.F.F. LOCAL 2057, Appellant, v. ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.
Richard P. Siwica of Egan, Lev, Lindstrom & Siwica, P.A., Orlando, for Appellant. Scott D. Shevenell, Assistant County Attorney, Orange County Attorney's Office, Orlando, for Appellee Orange County Board of County Commissioners; Gerald T. York, Staff Attorney, Public Employees Relations Commission, Tallahassee, for Appellee Public Employees Relations Commission.
Richard P. Siwica of Egan, Lev, Lindstrom & Siwica, P.A., Orlando, for Appellant.
Scott D. Shevenell, Assistant County Attorney, Orange County Attorney's Office, Orlando, for Appellee Orange County Board of County Commissioners; Gerald T. York, Staff Attorney, Public Employees Relations Commission, Tallahassee, for Appellee Public Employees Relations Commission.
Kelsey, J.
The Orange County Fire Fighters Association, I.A.F.F. Local 2057 (the Union) appeals a final order of the Public Employees Relations Commission (PERC). PERC's order affirmed its general counsel's summary dismissal of the Union's charge that the Orange County Board of County Commissioners (the County) violated Florida law by failing to comply with an arbitration award. We affirm.
Our standard of review is de novo. See Fla. A & M Univ. Bd. of Trs. v. Bruno , 198 So. 3d 1040, 1043 (Fla. 1st DCA 2016). We no longer defer to an agency's interpretation of law. Art. V, § 21, Fla. Const.; State, Dep't of Mgmt. Servs. v. AFSCME Fla. Council 79 of the Am. Fed'n of State, Cnty. & Mun. Emps., AFL-CIO , 353 So. 3d 1237, 1240 (Fla. 1st DCA 2022) (applying new constitutional standard to PERC orders). However, reviewing the order de novo in light of the record presented and the governing law, we agree with the reasoning and result of PERC's order.
The arbitration award at issue arose from a grievance filed by Louis Rodriguez, a Union member and County-employed firefighter in the rank-and-file unit. Rodriguez had worked as a Shift Lieutenant at fifty-six hours a week, then was promoted to Training Officer/Lieutenant working forty hours per week. While in the latter position in 2020, he was discharged for behavior that had occurred in 2015. The Grievance Adjustment Board rescinded the discharge and reinstated Rodriguez at the two-ranks-lower position of Firefighter.
The grievance entered arbitration challenging the demotion, and the resulting arbitration award directed the County as follows: "Rodriguez is to be returned to the rank of Lieutenant with full back pay and benefits effective May 30, 2020, the date on which his rank was reduced." The arbitration award expressly provided that the arbitrator "retain[ed] jurisdiction for 30 days from the date of this award to resolve any back pay or benefit disputes."
The County reinstated Rodriguez into a floating Lieutenant position working fifty-six hours per week. The Union did not seek further relief from the arbitrator within the 30-day window provided in the arbitration award. The Union did not seek relief in circuit court, although Article 17.14 of the Collective Bargaining Agreement between the Union and the County provides that an arbitrator's decision is final, "subject to any judicial relief available to either party under Florida law." See § 447.401, Fla. Stat. (providing that any CBA grievance procedure "shall have as its terminal step a final and binding disposition by an impartial neutral"). Chapter 682 of the Florida Statutes, the Florida Arbitration Code, authorizes arbitrators and courts to modify or correct an arbitral award "[t]o clarify the award." § 682.10(1)(c), (4)(c), Fla. Stat. (2021) ; see also AFSCME Fla. Council 79, Am. Fed'n of State, Cnty. & Mun. Emps. , AFL-CIO v. State, Dep't of Corr. , 23 So. 3d 748, 750-51 (Fla. 1st DCA 2009) (explaining circuit court had previously granted request to remand arbitral award to arbitrator for clarification). Rather than pursuing any such relief, the Union filed another unfair labor complaint with PERC, six months after Rodriguez's reinstatement. This complaint alleged that the County should have reinstated Rodriguez into a Training Lieutenant position working forty hours per week.
PERC's General Counsel summarily dismissed the new complaint, and PERC issued a final order affirming that dismissal. Key to the dismissal analysis was the Union's failure to seek relief from the arbitrator or the circuit court. This analysis was correct. The Union's claim rested first on interpreting the arbitration award: whether "returning [Rodriguez] to the rank of Lieutenant" meant training lieutenant or staff lieutenant (or any other variety of lieutenant). Without first establishing that the award mandated reinstating Rodriguez to the same position he occupied immediately prior to demotion, the Union could not establish the existence of an unfair labor practice within PERC's exclusive jurisdiction—that is, interference with a right guaranteed under Part II of chapter 447, refusing to bargain collectively and in good faith, or refusing to discuss grievances in good faith under the CBA. See § 447.501, Fla. Stat. (listing unfair labor practices within exclusive purview of PERC).
Although the Union argues that reinstatement to Training Officer/Lieutenant working 40 hours per week "is clearly what the arbitrator awarded," we disagree. The ambiguity was apparent in the award itself, yet the Union did not avail itself of the 30-day window to seek clarification from the arbitrator, nor did the Union seek relief in the circuit court. The Union could not establish that the County wrongfully refused to abide by the arbitration award without first establishing what the arbitration award required the County to do. The forum for establishing that foundational element was either before the arbitrator or in circuit court.
A failure to abide by an arbitration award, even if proven, is not a failure to arbitrate, and is not automatically an unfair labor practice within PERC's exclusive jurisdiction. The Union could not establish that PERC was required to hear its claim in the posture presented, unless the Union first successfully exhausted its remedies for the issues of post-arbitration interpretation and enforcement under chapter 682. Because the Union failed to take these steps toward establishing PERC's jurisdiction, PERC's final order was correct.
AFFIRMED .
Lewis and Bilbrey, JJ., concur.