Ariston v. Allied Building Crafts

• Decision Date: 01 July 2002
• Docket Number: No. 1D01-1208.,1D01-1208.
• Citation: 825 So.2d 435
• Parties: Jean ARISTON, Appellant, v. ALLIED BUILDING CRAFTS and Ulico Casualty Company, Appellees.
• Court: Florida District Court of Appeals

825 So.2d 435

Jean ARISTON, Appellant, v. ALLIED BUILDING CRAFTS and Ulico Casualty Company, Appellees.

No. 1D01-1208.

District Court of Appeal of Florida, First District.

July 1, 2002.

Rehearing Denied July 31, 2002.

Mark L. Zientz and Andrea Cox of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.

Steven P. Kronenberg and Lawrence E. Root of Kelley, Kronenberg, Gilmartin, Fichtel & Wander, P.A., Miami Lakes; John H. Lewis, Boca Raton, for Appellees.

ERVIN, J.

This is an appeal by claimant/appellant, Jean Ariston, from a final order dismissing his petition for workers' compensation benefits. The judge of compensation claims (JCC) concluded that she lacked jurisdiction over the petition, because a collective bargaining agreement (CBA) between Ariston's union and his employer, appellee Allied Building Crafts, created an alternative dispute resolution (ADR) system, which, pursuant to section 440.211, Florida Statutes (1997),¹ replaces the provisions afforded to appellee's employees under chapter 440, Florida Statutes. Ariston raises numerous issues directed to the order of dismissal. We affirm as to all.

Ariston first complains that the CBA is null and void because it is prohibited by 29 U.S.C. § 411(a)(4), which provides: "No labor organization shall limit the right of any member thereof to institute an action ... in a proceeding before any administrative agency[.]" Appellant cites no case, nor have we found any, wherein a court applied section 411 to a situation such as this. Section 411 is the "Bill of Rights of Members of Labor Organizations" within Title 29, chapter 11, of the U.S.Code, dealing with Labor Management Reporting and Disclosure Procedure. It guarantees union members equal rights in voting and participation, freedom of speech at union meetings and assembly with other members, imposition of union dues and assessments only upon a majority vote, access to courts to redress violations of such rights, and protection against improper discipline by the union. "The Bill of Rights section of the Act is designed to foster democratic governance within labor unions, and to encourage members freely to dissent from the policies and administration of the leadership or to discuss openly those policies and practices." Mallick v. Int'l Broth. of Elec. Workers, 644 F.2d 228, 235 (3d Cir.1981). Accord Ryan v. Int'l Broth. of Elec. Workers, 241 F.Supp. 489, 492 (N.D.Ill.1965)

(explaining that the purpose of the Bill of Rights is to protect the rights of union members by ensuring access to courts for redress of violations of the rights secured), aff'd, 361 F.2d 942 (7th Cir.1966); Stout v. Constr. & Gen'l Laborers Dist. Council of Chicago & Vicinity, 226 F.Supp. 673, 678 (N.D.Ill.1963) (stating that the Bill of Rights was intended to "preserve internal union democracy against assaults of autocratic union management"). Section 411 does not apply.

Ariston also contends that federal case law precluded his union and employer from bargaining away his rights under chapter 440, citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); and Air Line Pilots Ass'n International v. Northwest Airlines, Inc., 199 F.3d 477 (D.C.Cir. 1999) (granting rehearing en banc and vacating judgment). The Court in Gardner-Denver held that submitting to arbitration pursuant to a CBA on the issue of employment discrimination under the employment contract could not deprive a union member of his right afterward to bring a race discrimination action against his employer under Title VII of the Civil Rights Act of 1964. In Gilmer, the Court concluded that an individual could enter into an agreement with his employer to arbitrate any controversy arising out of his employment, and thus could be barred from bringing an age discrimination suit in federal court under the Age Discrimination in Employment Act and instead could be compelled to arbitrate. The D.C. Circuit construed the difference between the two cases as follows: "Unless the Congress has precluded his doing so, an individual may prospectively waive his own statutory right to a judicial forum, but his union may not prospectively waive that right for him." Air Line Pilots Ass'n,199 F.3d at 484.

This principle does not apply to the situation at bar, in that the legislature both established the workers' compensation system and enacted section 440.211 expressly approving the development by employers and unions of alternative systems of resolving compensation disputes. Ariston's union did not bargain away his inviolable right to utilize chapter 440; the legislature declared that it is not an inviolable right, and instead permitted the CBA mechanism to provide the only avenue for recovery of compensation benefits.

Next, Ariston complains that the CBA is null and void because, unlike section 440.13(5), Florida Statutes (1997), it makes no provision for an independent medical examination (IME), and it thereby diminishes his right to benefits, contrary to section 440.211(2), which states: "Nothing in this section shall allow any agreement that diminishes an employee's entitlement to benefits as otherwise set forth in this chapter. Any such agreement in violation of this provision shall be null and void." In her order, the JCC somewhat inconsistently ruled that because the CBA was silent regarding an employee's entitlement to an IME, the CBA does not replace the provisions of section 440.13(5) regarding such subjects; consequently, Ariston's entitlement to such benefit had not been diminished. The JCC appears to have implicitly concluded that Ariston could still pursue a claim for an IME under chapter 440; nevertheless, she dismissed the petition. We agree that the JCC reached the correct result, but for the wrong reason.

As we explained in Ulico Casualty Co. v. Fernandez, 825 So.2d 988 (Fla. 1st DCA 2002), a CBA which sufficiently complies with the provisions of section 440.211(1)(b), Florida Statutes,² does not diminish an employee's chapter 440 benefits by not including as well "a limited list of...