City of Mount Dora v. Central Florida Police Benev. Ass'n, Inc.

• Decision Date: 12 June 1992
• Docket Number: No. 91-1507,91-1507
• Citation: 600 So.2d 520
• Parties: CITY OF MOUNT DORA, Appellant, v. CENTRAL FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Appellee. 600 So.2d 520, 17 Fla. L. Week. D1464
• Court: Florida District Court of Appeals

Page 520

600 So.2d 520

CITY OF MOUNT DORA, Appellant, v. CENTRAL FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Appellee.

No. 91-1507.

600 So.2d 520, 17 Fla. L. Week. D1464

District Court of Appeal of Florida Fifth District.

June 12, 1992.

Leo P. Rock, Jr., Gray, Harris & Robinson, P.A., Orlando, for appellant.

Joan Stewart, Tallahassee, for appellee.

DAUKSCH, Judge.

Appellant, City of Mount Dora, timely appeals a final order denying its application to vacate an arbitration award and an order denying its motion for rehearing.

The facts show that appellant entered into a collective bargaining agreement with appellee, Central Florida Police Benevolent Association, Inc., which pertained to its police personnel. The agreement provides for arbitration of unresolved grievances. Appellant terminated the employment of police officer Gregory Treon following an internal investigation. On March 19, 1990 appellee sent appellant written notice of its intent to arbitrate stating: "We shall submit a request to the F.M.C.S. for a list of arbitrators within the time limits set out in the Agreement." The notice indicated that a copy had been sent to Officer Treon and to the City Manager.

Article 29.1 of the arbitration agreement requires that the parties shall meet to select an arbitrator within seven working days of appellant's receipt of appellee's notice of arbitration. The agreement also provides that if they fail to agree upon an arbitrator, they shall, within seven working days, jointly request a list of seven qualified arbitrators from the Mediation and Conciliation Service. The person remaining after each party has struck three names from the list is the designated arbitrator. The parties in the present case didn't agree upon an arbitrator. Although article 28.5 of the grievance procedure requires strict compliance with the time limits set forth in the agreement, appellant argued below that appellee had failed to comply with the arbitration agreement by failing to submit its request for arbitrators until May 16, 1990, or forty-nine days following its notice of intent to arbitrate.

Appellant raised the procedural issue at the hearing but the arbitrator ruled against it reasoning, "While the letter of the Agreement may not have been followed due to the confusion at the time, certainly the spirit of the Agreement was followed." Because article 29.3 of the arbitration agreement specifically limits the arbitrator's authority to a determination and interpretation of the express terms of the agreement, appellant requested vacation of the arbitrator's award arguing to the trial court that the arbitrator in the present case exceeded his powers in violation of section 682.13(1)(c), Florida Statutes (1989).

Appellee argued in response that the parties agreed to waive steps one and two of the grievance procedure by not filing the grievance at step one and by failing to jointly request a list of seven qualified arbitrators within seven working days as they had done in prior arbitration cases. Appellee emphasized that appellant had not responded to its notice of intent to arbitrate nor had appellant contacted it regarding the joint request for arbitrators. Although appellee's president and counsel had both tried to contact appellant regarding the arbitration, appellant's officials, including its attorney and acting police chief, were not making arbitration decisions at the time. On May 16, 1990, however, the parties jointly submitted a request for a list of arbitrators.

The trial court denied appellant's motion to vacate the arbitrator's award finding that the parties' responsibility to submit a list of arbitrators was joint and that the arbitrator had not exceeded his powers by deciding the procedural issue. We agree with the trial court that the arbitrator in the present case did not exceed his powers by ruling upon the issue of procedural arbitrability. We rely upon John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). In that case the Supreme Court of the United States held that once it's determined that the parties to a dispute are obligated to submit the subject matter of the dispute to arbitration, procedural arbitrability or procedural issues which arise from the dispute and bear on its final disposition are to be resolved by the arbitrator.

In keeping with the primary purpose of an arbitration clause, the court said that procedural disagreements should be treated as aspects of the dispute which ignited the grievance procedure rather than as separate disputes. It reasoned that reservation of procedural questions for the courts would not only create the difficult task of separating related issues but would also result in frequent duplicated efforts. The court also found that separation of the substantive and procedural elements of a dispute could provide an opportunity for...