        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.



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   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,

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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


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      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.




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