City of Miami v. Fraternal Order of Police Lodge No. 20 of City of Miami

• Decision Date: 27 November 1979
• Docket Number: Nos. 79-517,79-491,s. 79-517
• Citation: 378 So.2d 20
• Parties: 103 L.R.R.M. (BNA) 2623 CITY OF MIAMI, a Municipal Corporation, Paul Andrews and Garland Watkins, Appellants, v. FRATERNAL ORDER OF POLICE LODGE NO. 20 OF the CITY OF MIAMI, a LaborOrganization; Robert Edmunds and Ernesto Ruiz, Appellees. FRATERNAL ORDER OF POLICE LODGE NO. 20 OF the CITY OF MIAMI, a LaborOrganization; Robert Edmunds and Ernesto Ruiz, Appellants, v. CITY OF MIAMI, a Municipal Corporation; Paul Andrews and Garland Watkins, Appellees.
• Court: Florida District Court of Appeals

Page 20

378 So.2d 20

103 L.R.R.M. (BNA) 2623

CITY OF MIAMI, a Municipal Corporation, Paul Andrews and Garland Watkins, Appellants, v. FRATERNAL ORDER OF POLICE LODGE NO. 20 OF the CITY OF MIAMI, a LaborOrganization; Robert Edmunds and Ernesto Ruiz, Appellees.

FRATERNAL ORDER OF POLICE LODGE NO. 20 OF the CITY OF MIAMI, a LaborOrganization; Robert Edmunds and Ernesto Ruiz, Appellants, v. CITY OF MIAMI, a Municipal Corporation; Paul Andrews and Garland Watkins, Appellees.

Nos. 79-517, 79-491.

District Court of Appeal of Florida, Third District.

Nov. 27, 1979.

Rehearing Denied Jan. 8, 1980.

George F. Knox, City Atty., and Nestor Cruz, Asst. City Atty., Seyfarth, Shaw, Fairweather & Geraldson and Peter J. Hurtgen, Miami, for City of Miami.

Weinsoff & Weinsoff and Irving Weinsoff, Miami, for Fraternal Order of Police, Lodge No. 20, Robert Edmunds and Ernesto Ruiz.

Before HENDRY, HUBBART and SCHWARTZ, JJ.

SCHWARTZ, Judge.

Edmunds and Ruiz were probationary police offices of the City of Miami when they were summarily discharged in 1975. There is no question but that, as probationers, they could be lawfully fired without cause and without assignment of reasons. Both officers, however, insisted to their superiors in the department that they were entitled to a pre-termination advisory hearing before the Departmental Disciplinary Review Board (DDRB), a panel established by a collective bargaining agreement between the city and the Fraternal Order of Police (F.O.P.), which represented both Edmunds and Ruiz. ¹ However, the acting chief of police and an assistant chief emphatically expressed to both men the department's position that the agreement did not afford such a right to probationary officers and refused to grant them DDRB hearings.

Without pursuing any of the grievance and arbitration procedures provided in the contract itself for the resolution of any disputes "arising out of the interpretation or application of this agreement," ² the "that the City is further estopped from asserting that the Plaintiffs Ruiz and Edmunds failed to exhaust their administrative remedies under the Agreement and they had a right to rely on their supervisor's instructions to the effect that they had no right to a hearing."

F.O.P., Edmunds and Ruiz, sued the city in the Dade County Circuit Court. The F.O.P. sought a declaratory judgment that all probationers were entitled to DDRB hearings prior to being disciplined; Edmunds and Ruiz each individually claimed the right to reinstatement and back pay, or, in the alternative, money damages because each had not been afforded such a hearing before his discharge. ³ After a non-jury trial, each was granted a money judgment against the city. The trial judge based this ruling on the grounds that (a) while a DDRB hearing was not required for probationers by the terms of the agreement itself, the city had "waived" or was estopped from making this claim by having granted such hearings to probationary personnel in prior cases; and (b) that the officers were entitled to damages for having been fired without such hearings, notwithstanding the city's admitted right to discharge them for any reason and at will. The lower court also rejected the city's contention that the action could not be maintained because of the plaintiffs' failure to exhaust the "administrative" remedies contained in the agreement, upon the finding

We find that the lower court erred in its determinations that the city was estopped from asserting the defense and thus that the action was not barred by the plaintiffs' failure to invoke the grievance procedures provided in the contract in question. We therefore reverse the judgment below. ⁴

No principle is more firmly established than the requirement that, before resorting to the courts, one must pursue and exhaust any extrajudicial or administrative remedy which may provide the relief sought. DeCarlo v. Town of West Miami, 49 So.2d 596 (Fla.1950); Kaufman v. Machiedo, 357 So.2d 739 (Fla. 3d DCA 1978), cert. denied. 364 So.2d 888 (Fla.1978); General Electric Credit Corp. of Georgia v. Metropolitan Dade County, 346 So.2d 1049 (Fla. 3d DCA 1977); 1 Fla.Jur.2d Administrative Law, § 47 (1977). This doctrine finds frequent application in cases which allege the breach of a contract which itself provides for a means, typically through arbitration, in which such disputes are to be resolved. Cf., e. g., Oakdale Park, Ltd. v. Byrd, 346 So.2d 648 (Fla. 1st DCA 1977); Bohlmann v. Allstate Ins. Co., 171 So.2d 23 (Fla. 2d DCA 1965); Sections 682.01 et seq., Fla.Stat. (1977). Even more specifically, these cases which often also involve the correlative principle that a decision rendered through the method chosen by the parties to settle their contractual disputes is deemed final and binding apply the exhaustion doctrine to the interpretation of collective bargaining agreements such as the one involved in this case. See Koenig v. Tyler, 360 So.2d 104 (Fla. 3d DCA 1978); Fredericks v. School Board of Monroe County, 307 So.2d 463 (Fla. 3d DCA 1975); Heath v. Central Truck Lines, Inc., 195 So.2d 588 (Fla. 1st DCA 1967); Jacksonville Roofing & Sheet Metal Contractors Association v. Local 435, Sheet Metal Workers' Int'l. Assoc. of Jacksonville, 156 So.2d 416 (Fla. 1st DCA 1963); cf. Public Employees Relation Commission v. District School Board of DeSoto County, 374 So.2d 1005 (Fla. 2d DCA 1979); Lake County Education Assn. v. School Board of Lake County, 360 So.2d 1280 (Fla. 2d DCA 1978), cert. denied, 366 So.2d 882 (Fla.1978).

By far the most influential and important cases which so hold are those rendered by the Supreme Court in the so-called "Steelworkers Trilogy," United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co. That determination requires reversal. There is no doubt that (a) the dispute involved over whether Edmunds, Ruiz and other probationers were entitled to DDRB hearings was one "arising out of the interpretation or application" of the agreement and was therefore subject to the grievance-arbitration procedure provided by the contract itself ⁶ and that (b) the procedure was not invoked in any way either by the individuals or by the union acting on its own or on their behalf. ⁷ The plaintiffs' failure to do so precludes the present action. ⁸

363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1338, 4 L.Ed.2d 1424 (1960), and the subsequent decisions in Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965) ⁵ and Andrews v. Louisville & N. R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972). In these decisions, the high court applied the statutorily expressed federal police, as contained both in the Labor Management Relations Act, see 29 U.S.C. § 173(d) (1970), and (in the case of the Andrews opinion) in the Railway Labor Act, 45 U.S.C. § 153 First (i) (1970), to require that actions for breach of collective bargaining agreements governed by those laws may not be maintained unless the complaining employee, or his union, first attempts and exhausts the "use of the contract grievance procedure agreed upon by employer and union as the mode of redress." Republic Steel Corp. v. Maddox, supra, 379 U.S. at 652, 85 S.Ct. at 616, 13 L.Ed.2d at 583. Particularly since the Florida Public Employees Relations Act, which governs the agreement before us, similarly Requires the inclusion of a grievance procedure which terminates in final and binding arbitration, Sec. 447.401, Fla.Stat. (1977), we hold that these principles as enunciated by the Supreme Court are directly applicable to this case.

We do not agree with the determination below that under the circumstances disclosed in the record the city became estopped to raise the exhaustion defense. The plaintiffs argue, and the trial judge, by stating that "they had a right to rely upon their supervisor's instructions . . . that they had no right to a hearing," apparently found that the city officials in question had repudiated the grievance procedure The employer participated in the first three stages of the grievance process. At that point neither the employer nor the union sought the final step, arbitration. Rabalais argues that there was a repudiation because the employer did not consider the claim a proper subject of a grievance. This argument, however, clearly confuses repudiation of the grievance procedure and a refusal to accept an employee's position with respect to a grievance. An employer can obviously take a stance contrary to that of the employee during the grievance process without being deemed to have repudiated that process. (e. s.)

and therefore could not contend that the plaintiffs were required to pursue it. While the principle thus invoked is a well-recognized one, see Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870 (3d Cir. 1972), it does not apply to this case. It is true that their superiors told Edmunds and Ruiz in no uncertain terms that they had no right to a DDRB hearing and that, since they were probationers, they "had no grievance" because they were fired without one. But these statements were no more than expressions of the employer's position on the Merits of the issue in contention, concerning which the F.O.P., Edmunds and Ruiz obviously held the opposite view. At no time, did any representative of the city indicate that it would not submit the issue of who was right in that controversy to the grievance-arbitration procedure or would not abide by the resulting decision. Compare Vaca v. Sipes, supra. It would be a strange doctrine indeed under which an employee could relieve himself of engaging in the grievance process merely by supinely accepting an adverse decision of his employer as unchallengeable until the filing of an action in court....