KENNETH ALDERMAN, APPELLANT,
v.
CITY OF JACKSONVILLE, FIRE AND RESCUE DIVISION, APPELLEE
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Alderman, a firefighter, challenged a summary judgment order denying his request to compel arbitration of a grievance. The court reversed, holding that procedural questions regarding timeliness and whether a prior grievance is binding must be decided by an arbitrator, not a trial court.
Questions of timeliness and whether a prior grievance is binding or precedential to a subsequent grievance are procedural matters that must be decided by an arbitrator, not a trial court. Mere delay creating untimeliness is distinct from active participation creating waiver.
[1] Procedural issues associated with a grievance must be decided by an arbitrator.
[2] Mere delay in requesting arbitration is distinct from active participation that creates waiver.
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Join FLexlaw to unlock all legal intelligence“Mere delay creating untimeliness is distinct from the active participation that creates waiver.”
Establishes the critical distinction preventing the trial court from treating untimeliness as waiver
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Join FLexlaw to unlock all legal intelligenceIn 2001, Alderman filed a grievance alleging the City failed to administer a promotional exam for Fire Captain within six months as required by the co…
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BROWNING, J.
Appellant challenges an order entering summary judgment against him oh the ground that he waived his right to arbitrate a grievance. Because we agree with Appellant that the procedural issues associated with his grievance must be decided by an arbitrator, we reverse.
The facts leading up to this litigation are these. In 2001, Appellant filed a grievance against Appellee through his union, alleging Appellee had failed to administer a promotional examination for the position of Fire Captain (Rescue) within six months of a position’s becoming vacant, as required by Article 14.7 of the collective bargaining agreement between the City and the Jacksonville Association of Firefighters; The hearing officer found Article 14.7 had been violated, but denied Appellant’s request for seniority credit. Appellant sought no review of this decision. In 2002, Appellant applied to take a promotional examination for the position of District Chief (Rescue). His application was denied on the ground that he had not served for one year in the position of Fire Captain (Rescue).
Thereafter, Appellant submitted a grievance alleging that the prior' violation of Article 14.7 directly resulted in the denial of his application to take the District Chief exam. The City ultimately denied this grievance without submitting it to arbitration, claiming that it was untimely filed and that it had already been addressed on the merits in that it duplicated Appellant’s 2001 complaint. In 2003, Appellant filed an action to compel arbitration on the ground that the bases of denial are procedural matters that can be addressed only by an arbitrator. Appellee’s motion for summary judgment was granted on the ground that Appellant had waived the right to arbitrate by failing to timely request arbitration; the trial court reasoned that a timely request was a condition prec edent to arbitration and that it was “bound by the holding of White Construction Co., Inc. v. State of Florida, 860 So. 2d 1064 (Fla. 1st DCA 2003).”
The trial court erred because it combined timeliness and waiver. Mere delay creating untimeliness is distinct from the active participation that creates waiver. Pub. Health Trust of Dade County v. M.R. Harrison Constr. Corp., 415 So. 2d 756, 758 (Fla. 3d DCA 1982). Because the facts of this case suggest only delay, a waiver analysis is improper. And questions of timeliness are to be decided by an arbitrator, not a trial court. Piercy v. Sch. Bd. of Washington, 576 So. 2d 806 (Fla. 1st DCA 1991). This is true even if the time requirement for arbitration is labeled a condition precedent. See Executive Life Ins. Co. v. John Hammer & Assoc., Inc., 569 So. 2d 855 (Fla. 2d DCA 1990). White Construction is distinguishable because, there, the arbitration board ruled on the timeliness issue, whereas, in the instant ease, the issue was never submitted to the arbitration board but decided by the City and then by the trial court.
The trial court did not explicitly rule on the City’s second reason for denial of arbitration, that the merits of Appellant’s second grievance had previously been addressed in his first grievance. However, remand is required on this point as well, because a comparison of the merits of Appellant’s two grievances, particularly as to whether the resolution of a prior grievance is binding or precedential as to a subsequent grievance, must also be conducted by an arbitrator. See Dist. 37 of Int’l Ass’n of Machinist & Aerospace Workers v. Lockheed Eng’g & Mgmt. Servs. Co., Inc., 897 F. 2d 768 (5th Cir. 1990) (citing W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983)).
Accordingly, we REVERSE the order entering summary judgment against Appellant and REMAND for referral to arbitration.
WOLF, C.J.; and VAN NORTWICK, J., concur.
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O'Keefe Architects, Inc. v. CED Constr. P'rs, Ltd., 944 So. 2d 181 (Fla. 2006)…Stinsorir-Head is consistent with decisions by the First and Third District Courts of Appeal, which have also held that in general, issues of timeliness are to be decided by the arbitrator. See Alderman v. City of Jacksonville, Fire and Rescue Div., 902 So. 2d 885, 887 (Fla. 1st DCA 2005) (“[Qjuestions of timeliness are to be decided by an arbitrator, not a trial court.”); Pembroke Indus. Park P’ship v. Jazayri Constr., Inc., 682 So. 2d 226, 227 (Fla. 3d DCA 1996) (“[TJhe issue of whether the demand for arbit…1 / 2
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Strominger v. AmSOUTH Bank, 991 So. 2d 1030 (Fla. 2d DCA 2008)…sts that a mere delay in filing a motion to compel arbitration is a matter of inaction rather than action and is not necessarily evidence of active litigation that results in a waiver. See, e.g., Alderman v. City of Jacksonville, Fire & Rescue Div., 902 So. 2d 885, 887 (Fla. 1st DCA 2005); Pub. Health Trust of Dade County v. M.R. Harrison Constr. Corp., 415 So. 2d 756, 758 (Fla. 3d DCA 1982). In this case, the period of delay was also a period in which the litigation was procedurally active. . Because AmSout…
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Thierry Albert Thenet v. Jenne, 968 So. 2d 46 (Fla. 4th DCA 2007)…bitration. The circuit court granted the sheriffs motion to dismiss, holding that Thenet’s request was untimely- We reverse because the issue of timeliness was a question for an arbitrator. See Alderman v. City of Jacksonville, Fire & Rescue Div., 902 So. 2d 885, 887 (Fla. 1st DCA 2005) (“[QJuestions of timeliness are to be decided by an arbitrator, not a trial court. This is true even if the time requirement for arbitration is labeled a con [*47] dition precedent”); Pembroke Indus. Park P’ship v. Jazayri C…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- W. R. Grace & Co. v. Local Union 759, 461 U.S. 757 (U.S. 1983)
- The Pub. Health Tr. OF Dade Cnty. v. M.R. Harrison Constr. Corp., 415 So. 2d 756 (Fla. 3d DCA 1982)
- Piercy v. The Sch. Bd. OF Wash. Cnty., 576 So. 2d 806 (Fla. 1st DCA 1991)
- Executive Life Ins. Co. v. John Hammer & Assocs., Inc., 569 So. 2d 855 (Fla. 2d DCA 1990)
- Leonel Bayas v. S. Fla. Plastering OF Dade Cnty. & Aries Ins. Co., 860 So. 2d 1064 (Fla. 1st DCA 2003)
- White Constr. Co., Inc. v. State, 860 So. 2d 1064 (Fla. 1st DCA 2003)
- Dist. 37 OF the Int'l Ass'n OF MacHinist & Aerospace Workers v. Lockheed Eng'g & Mgmt. Servs. Co., Inc., 897 F.2d 768 (5th Cir. 1990)