Kresse v. City of Hialeah, 88-1071

• Decision Date: 07 March 1989
• Docket Number: No. 88-1071,88-1071
• Citation: 14 Fla. L. Weekly 627,539 So.2d 534
• Parties: 122 Lab.Cas. P 56,925, 4 IER Cases 607, 14 Fla. L. Weekly 627 Frank KRESSE, Appellant, v. CITY OF HIALEAH, a Florida municipal corporation, Appellee.
• Court: Florida District Court of Appeals

Page 534

539 So.2d 534

122 Lab.Cas. P 56,925, 4 IER Cases 607, 14 Fla. L. Weekly 627

Frank KRESSE, Appellant, v. CITY OF HIALEAH, a Florida municipal corporation, Appellee.

No. 88-1071.

District Court of Appeal of Florida Third District.

March 7, 1989.

Alan Eichenbaum, for appellant.

William Wetzel, Hialeah City Atty. and Melissa Volker, Asst. City Atty., and Richard Gross, Asst. City Atty., for appellee.

Before SCHWARTZ, C.J., and JORGENSON, J., and WILLIAM C. OWEN, Jr., Associate Judge.

SCHWARTZ, Chief Judge.

The plaintiff below appeals from a final order dismissing a complaint against his employer, the City of Hialeah, with prejudice. The action, brought under section 440.205, Florida Statutes (1987), ¹ claimed that the City had wrongfully terminated his employment because he had filed a valid workers' compensation claim several years before. The dismissal was based upon Kresse's admitted failure to exhaust the grievance process and other administrative remedies provided by the collective bargaining agreement entered into between his union and the city pursuant to section 447.201, Florida Statutes (1987), et. seq. We reverse.

In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), which, along with Southwest Gulfcoast, Inc. v. Allan, 513 So.2d 219 (Fla. 1st DCA 1987), is controlling here, the Supreme Court squarely held that an action under an Illinois statute virtually identical to section 440.205 is not precluded by the National Labor Management Relations Act nor the conflict resolution procedures provided by the applicable collective bargaining agreement. See also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). The essential basis of this conclusion, which was brilliantly anticipated by Judge Zehmer in Allan, 513 So.2d at 219, is that a determination of the issues arising under the statute--the motivation for the discharge and the like--are separate and distinct from those involving the construction or interpretation of the agreement with which the remedies provided by that contract are concerned. See Lingle, 486 U.S. at ----, 108 S.Ct. at 1882, 100 L.Ed.2d at 420 (" [The] resolution of the state-law claim does not require construing the collective-bargaining agreement.").

This reasoning directly applies to the present case. The remedies presumably provided by the collective bargaining agreement involve only issues which concern the agreement itself. § 447.401, Fla.Stat. (1987) ("Grievance procedures.--Each 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...