Florida/Georgia Personal Injury & Workers Compensation

...written charges and a hearing. Ch. 67-1149, § 17, Laws of Fla. In addition, appellant alleged that he was a "public employee" as defined by chapter 447, Florida Statutes (1976), and entitled as such to a fair and equitable grievance procedure under section 447.401, Florida Statutes (1976), to determine whether proper cause existed for his termination....

...in the determination of the wages, hours, and terms and conditions of employment of the public employees within the bargaining unit. It cannot be disputed that matters pertaining to the discharge of a teacher are terms and conditions of employment. Section 447.401 provides that each public employer and bargaining agent shall negotiate a grievance procedure to be used for the settlement of disputes involving the interpretation or application of a collective bargaining agreement and that such a p...

...nflicts with the Section 231.36(6) remedy of appeal or whether such an arbitration provision and Section 231.36(6) may peacefully coexist as alternative remedies available to the discharged teacher. Insofar as a career service employee is concerned, Section 447.401 specifically provides that such an employee shall have the option of utilizing the civil service appeal procedure or the grievance procedure in a collective bargaining agreement, but cannot use both the civil service appeal and the grievance procedure....

...The question, then, is whether, under the terms of the two agreements between the parties and applicable law, the arbitrator either lacked jurisdiction or exceeded his jurisdiction. Initially we note that the basic agreement between the City and the Association is sanctioned by statute. § 447.401 Fla....

...ignificant adverse impact on his job interests and employment record. For example, whether Lewis resigned or was dismissed may well have been dispositive of his right to grieve under the collective bargaining agreement in effect between the parties. § 447.401, Fla....

...Leon County School Board, 6 FPER ¶ 11001 (1979). Second, Lewis' right to appeal under civil service was likewise implicated, a right which may also have depended on whether Lewis attained permanent employee status by the time of the meeting with Chief Pitts. § 447.401, Fla....

...n could arise. Consequently, without an underlying contractual term concerning demotion and discharge, there could be no duty to agree to a grievance provision covering demotion and discharge. PERC stated that, while the PBA might have believed that section 447.401, Florida Statutes (1981), required every contract to contain a discharge and demotion provision, the statute did not in fact specifically compel the inclusion of such a term....

...right to establish its own civil service system. We shall begin by analyzing this constitutional ruling. Article I, section 6 of the Florida Constitution guarantees that the right of employees to bargain collectively shall not be denied or abridged. Section 447.401 provides that parties "shall negotiate a grievance procedure to be used for the settlement of disputes ... involving the interpretation or application of a collective bargaining agreement." Section 447.401 further requires that such procedure shall provide for binding arbitration as its final step....

...Fleetwood Hotel, Inc., 261 So.2d 801, 806 (Fla. 1972); Miami Shores Village v. Wm. N. Brockway Post No. 124 of American Legion, 156 Fla. 673, 678, 24 So.2d 33, 35 (1945). The instant case is no exception to that rule. Accordingly, any conflict arising between section 447.401 and the Civil Service Act of the City of Casselberry, Florida, [3] must be resolved in favor of section 447.401. Yet section 447.401 does not threaten to undermine local civil service systems statewide as the city suggests....

...[4] Only where the local machinery directly conflicts with a provision of general law would the local system be adversely affected. Moreover, a union and a public employer would be perfectly within their rights to voluntarily exclude some aspect of their collective bargaining agreement from section 447.401 and utilize exclusively the dispute resolution machinery of a civil service board....

...In re AFSCME, Local 1363, 8 FPER ¶ 13,278 at 489, aff'd, 430 So.2d 481 (Fla. 1st DCA 1983). See Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 475 So.2d 1221 (Fla. 1985). Therefore, the district court correctly concluded that section 447.401 and article I, section 6 do not unconstitutionally infringe on the city's civil service system....

...197 (Oct. 26, 1970) (Civil Service Act of the City of Casselberry). [4] The Florida Legislature clearly contemplated the dual existence of a grievance/arbitration procedure and a civil service appeal procedure when it included the following language in § 447.401: "A career service employee shall have the option of utilizing the civil service appeal procedure or a grievance procedure established under this section, but such employee cannot use both a civil service appeal and a grievance procedure." See Public Employees Relations Comm....

...e matters have the practical consequence of violating the terms and conditions of any collective bargaining agreement in force or any civil or career service regulation. § 447.209, Fla. Stat. (1981). Arbitration is guaranteed to public employees by § 447.401; there is no such provision in private sector labor law....

...ion (DOT). The crux of Mr. Bass's complaint is that he was wrongfully disciplined by DOT on the basis of errors or mistakes made, at least in part, by fellow employees. Because of the procedural history of this case, and because of the provisions of § 447.401, Fla....

...Bass sought the assistance of his union representative and filed an official grievance form authorizing the union to represent him in connection with his grievance. Only after the union representative was unable to work out a settlement of the dispute satisfactory *973 to Mr. Bass was the instant civil service appeal filed. Section 447.401, Fla....

...part: A career service employee shall have the option of utilizing the civil service appeal procedure or a grievance procedure established under this section, but such employee cannot use both a civil service appeal and a grievance procedure. Under § 447.401, a career service public employee who is also a union member may contest a disciplinary action taken by his or her employer either through the union or by filing a civil service appeal, but may not pursue both avenues for relief....

...Bass's case was the fact that Mr. Bass had previously sought relief using the grievance procedure established by collective bargaining contract, and thus was precluded from also prosecuting a civil service appeal. Given the above quoted provisions of § 447.401, PERC's determination that Mr....

...Appellant petitioned the trial court to vacate *290 the arbitrator's ruling. On cross-motions for summary judgement, the court entered a final summary judgment in favor of appellee. Appellant argues the arbitration award is precluded by the express language of section 447.401, Florida Statutes (1989), which provides in part: A career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure established under this sec...

...Here, the discharged employee utilized a civil service appeal procedure and then a grievance procedure. We conclude, as a matter of law, that the employee's appeal of his discharge through the civil service appeal procedure, forecloses him from seeking relief under the grievance procedure. § 447.401, Fla....

...ts, and the parties have adverse interests. As a result, the claim meets the standard enunciated by this court in Hialeah for an action properly brought seeking declaratory relief. We also find the trial court improperly dismissed the claim based on section 447.401, Florida Statutes. Section 447.401 provides in pertinent part: All public employees shall have the right to a fair and equitable grievance procedure administered without regard to membership or nonmembership in any organization, except that certified employee organizat...

...union member may contest a disciplinary action taken by his or her employer either through the union or by filing a civil service appeal, but may not pursue both avenues for relief." Bass v. Dep't of Transp., 516 So.2d 972, 973 (Fla. 1st DCA 1987). Section 447.401, Florida Statutes, provides that "[a]ll public employees shall have the right to a fair and equitable grievance procedure administered without regard to membership or nonmembership in any organization, except that certified employee organizations shall not be required to process grievances for employees who are not members of the organization." § 447.401, Fla....

...There were approximately ten negotiating sessions over the next ten months. From the inception, and throughout the period of negotiations, PBA contended that the contract's "grievance procedure culminating in binding arbitration," a provision required by Section 447.401, Florida Statutes (1981), [3] should include *1127 disputes involving discharge or demotion....

...II, the exclusion of demotion and discharge provisions from the grievance-to-arbitration provisions of the contract is a non-mandatory subject of bargaining even where the City has an existing civil service ordinance covering demotion and discharge. Section 447.401 (reproduced at footnote 3 supra ) provides that the parties "shall negotiate a grievance procedure to be used for the settlement of disputes ......

...vice procedures is invalid or illegal. As this court held in American Federation of State, County & Municipal Employees, Local 1363 v. Florida Public Employees Relations Commission, 430 So.2d 481 (Fla. 1st DCA 1983) (hereafter "AFSCME, Local 1363"), Section 447.401 must be read in pari materia with Section 447.309(5), Florida Statutes (1981), which provides that collective bargaining agreements "shall contain all of the terms and conditions of employment ......

...in applicable merit and civil service rules and regulations." We, therefore, held in AFSCME, Local 1363 that such a contract, notwithstanding that it purports to exempt certain of its provisions from the grievance-to-arbitration provision required by Section 447.401, is valid where the parties voluntarily entered into it. But to say that a collective bargaining agreement which utilizes existing civil service procedures in lieu of the grievance-to-arbitration mechanism contemplated by Section 447.401 is valid is not to say that the public employer, in negotiating a contract, is at liberty to insist to impasse upon excepting demotion and discharge provisions from the statutorily required grievance procedure....

...tices." (emphasis added). However, the question as certified also refers to "an arbitrator's contract interpretation," which involves an issue separate and distinct from an unfair labor practice as specified in section 447.501. Under the mandates of section 447.401, each collective bargaining agreement entered into between a public employer and its employees must contain a grievance procedure to be used for settling disputes "involving the interpretation or application of a collective bargaining agreement....

...The district court below, however, held that its review of Chapter 447, Part II "fails to reveal any authority, either express or implied, granting unto the Commission the power to defer a cause to arbitration." 492 So.2d at 1124. It is unclear what the district court perceived the Commission's duty to be, pursuant to section 447.401, when confronted with an issue characterized by the complaining party as an "unfair labor practice" but which, in fact, appears to PERC to be an issue specifically addressed in the parties' collective bargaining agreement....

...primary purpose to "assist in resolving disputes between public employees and public employers," section 447.201(3). It is our view that PERC has the authority to defer to arbitration in appropriate cases in order to give effect to the provisions of section 447.401, mandating a grievance procedure culminating in final and binding arbitration for interpreting or applying a collective bargaining agreement....

...st if the collective bargaining agreement `clearly encompasses' the dispute at issue in an unfair labor practice charge. (citations omitted) 11 F.P.E.R. ¶ 16128 at 385. PERC's position is that in addition to the explicit arbitration requirements of section 447.401, its policy of deferring to arbitration is supported by other provisions of Chapter 447, Part II: section 447.301(2) and (4) provide for the right to representation in grievance proceedings; section 447.501(1)(f) makes it an unfair labor practice for an employer to refuse to discuss grievances....

...The Commission in interpreting its statutory duties must strive to give effect to all the various provisions of Chapter 447, Part II. We hold that the Commission's policy of deferral represents a reasonable method for PERC to give effect to all of its statutory duties, particularly the mandatory requirements of section 447.401....

...The Unions' claims in this case that the city's unilateral increase in insurance premiums was an unfair labor practice is merely a characterization of the issue by one of the parties. PERC's initial decision to order the parties to arbitrate, pursuant to section 447.401, and its decision to give final and binding effect to the arbitrator's award, was consistent with its reasonable standards guiding deferral....

...In conclusion, we hold that the Commission has the authority for deferral in order to give effect to the various provisions of Chapter 447, Part II, in particular the mandatory requirement of final and binding arbitration concerning interpretations of a collective bargaining agreement set forth in section 447.401....

...g., School Board of Polk County v. PERC, 399 So.2d 520 (Fla. 2d DCA 1981), our holding here that PERC does have authority to defer is based solely upon our view of the various provisions of Chapter 447, Part II, and in particular the requirements of section 447.401. See Palm Beach Jr. College Board of Trustees v. United Faculty of Palm Beach Jr. College, 475 So.2d 1221, 1225 (Fla. 1985) ("Arbitration is guaranteed to public employees by § 447.401; there is no such provision in private sector labor law)....

...ot conducted fairly and regularly, or (b) The dispute was not resolved by the arbitration award, or (c) The result reached by the arbitrator was repugnant to Chapter 447, Part II, FS. Specific Authority 447.207, FS. Law Implemented 447.201, 447.107, 447.401, 447.501, 447.503, FS....

...assroom Teachers Association. The Public Employees Relations Commission summarily dismissed these charges and Galbreath appealed. The district court affirmed the dismissal, holding that Galbreath could be foreclosed from individual arbitration under section 447.401, Florida Statutes (1979)....

...School Board of Orange County, 5 FPER ¶ 10074 (1979); Gow v. AFSCME, Local 1316, 4 FPER ¶ 4168 (1978). However, unlike other jurisdictions, Florida law permits a certified bargaining agent to refuse to represent a grievant who is not a member of the certified organization. Section 447.401, Florida Statutes (1979), provides, in pertinent part: All public employees shall have the right to a fair and equitable grievance procedure, administered without regard to membership or nonmembership in any organization, except that...

...School Board of Leon County, 378 So.2d 68 (Fla. 1st DCA 1979); Manatee County Municipal Employees Local 1584 v. Manatee County School Board, 6 FPER ¶ 11188 (1980). Therefore, the grievant's right to a fair and equitable grievance procedure mandated by Section 447.401 is protected by allowing the grievant to either represent himself or to *1048 seek outside representation, for the purpose of pursuing the grievance in accordance with the procedures set forth in the collective bargaining agreement....

...Leon County CTA v. Leon County School Board, 6 FPER ¶ 11001 at 4. 424 So.2d at 841-43 (footnotes omitted, emphasis added by fourth district). We therefore answer the certified question in the negative. We also find Galbreath's constitutional attack on section 447.401, Florida Statutes (1979), to be without merit....

...by electing the remedy of the PERC proceeding, the union was barred from pursuing arbitration on the same charges. The trial court relied on Metropolitan Dade County v. Dade County Ass'n of Firefighters, Local 1403, 575 So.2d 289 (Fla. 3d DCA 1991). Section 447.401, Florida Statutes (1999), which governs grievance procedures between public employers and employees or unions provides in part: Each public employer and bargaining agent shall negotiate a grievance procedure to be used for the settlem...

...Representatives of the public employer and the union should and must be able to sit down together and negotiate an agreement which will be beneficial and fair to all parties. There is too much at stake to play games. Idealistic? Perhaps. Too much to ask? We think not. The Board also urges that Section 447.401, Florida Statutes (1975), which provides *1250 for binding arbitration of grievances, is unconstitutional....

...employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure . . . but such employee is precluded from availing himself or herself to more than one of these procedures. § 447.401, Fla....

...Similarly, Jacksonville's civil service rules provide: Once the employee has selected a forum for his/her appeal to, be heard, he/she is bound by that decision and cannot seek to have it reheard in another forum. The election-of-remedies provision in Florida Statutes, section 447.401, is hereby incorporated into these rules and is binding on all employees....

...The case law supports Cowen's argument that a suspended public employee waives the right to a particular grievance procedure only if the employee actively pursues an alternative remedy "inconsistently with the arbitration right." Id. In Bass v. Department of Transportation, this court interpreted an earlier version of section 447.401 (one which lacked reference to "an unfair labor practice procedure" and which deployed the verb "use" instead of "avail") to mean that "a career service public employee who is also a union member may contest a disciplinary action take...

...Dade County Ass'n of Firefighters, Local 1403, 575 So.2d 289, 290 (Fla. 3d DCA 1991) (holding that discharged employee waived his right to grievance procedure after civil service appeal proved "unsuccessful"). We interpret these cases to mean that section 447.401 precludes resort to a second method for resolution of a labor dispute where the aggrieved employee has actively and affirmatively labored in the pursuit of a particular remedy with the demonstrable anticipation of achieving a result....

...Chapter 447, Part II, in addition to guaranteeing public employees the right to organize *241 and bargain collectively, provides that "[a]ll public employees shall have the right to a fair and equitable grievance procedure, administered without regard to membership or non-membership in any organization... ." § 447.401....

...immunity under Article X, Section 13, of the Florida Constitution. II. Whether Irven's internal memoranda constituted whistle-blowing under section 112.3187, Florida Statutes. III. Whether Irven's election of remedies under section 112.3187(11) and section 447.401, Florida Statutes, foreclosed her complaint for and evidence of retaliation for whistle-blowing....

...The FCHR notified Taylor that her whistle-blower complaint was denied as being without merit. Taylor then appealed this decision to PERC. After a formal administrative hearing, PERC dismissed Taylors complaint, determining that it was barred by her election to pursue the collective bargaining grievance to conclusion. Section 447.401, Florida Statutes, (2003) governs grievance procedures for public employee union members....

...Subsection (11) of that statute states: *423 Sections 112.3187-112.31895 do not diminish the rights, privileges, or remedies of an employee under any other law or rule or under any collective bargaining agreement or employment contract; however, the election of remedies in s. 447.401 also applies to whistle-blower actions....

application of a collective bargaining agreement.” Section 447.401. The statutory right of a union to represent

...447, 2 then such a position by the public employer would interfere with the public employees’ rights and would constitute, by definition, an unfair labor practice. Conversely, in the absence of such a right, there can be no unfair labor practice. Section 447.401 does require one provision in all public employee labor contracts, that there be a negotiated grievance procedure for the interpretation or application of the .collective bargaining agreement....

...Orange County Police Benevolent Association, 482 So.2d 336, 340 (Fla.1986), the supreme court stated “a union and public employer would be perfectly within their rights to voluntarily exclude some aspect of their collective bargaining agreement from section 447.401 and utilize exclusively the dispute resolution machinery of a civil service board....

legally foreclosed from arbitration under Section 447.401, Florida Statutes (1979). This precise question

...perly have rendered under the circumstances. Had the court found that the dispute was arguably determinable under the terms of the contract, the proper remedy would have been to require grievance procedures leading to arbitration as required by law. Section 447.401, Florida Statutes (1979)....

...deference need be given to the agency’s interpretation. Miami-Dade Cty. v. Gov’t Supervisors Ass’n of Fla., 907 So. 2d 591, 593-94 (Fla. 3d DCA 2005). Because we find that PERC’s interpretation is in conflict with the plain and clear language of section 447.401, Florida Statutes (2016), we afford PERC’s interpretation no deference. Under section 447.401 and Articles 6.4, 6.6, and 6.8 of the governing Collective Bargaining Agreement, Hagan was entitled to only one remedy....

...tive Bargaining Agreement grievance process. We therefore conclude that PERC erred by addressing Hagan’s grievance and determining that the City committed an unfair labor practice by refusing to process and arbitrate Hagan’s grievance. Section 447.401 provides career service employees with various avenues to address his or her grievances. There is nothing ambiguous about what section 447.401 provides, including its limiting language. Section 447.401 provides, in relevant part, as follows: A career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a...

...grievance shall be withdrawn for redress consistent with the Election of Remedy form. . . . (emphasis added). Hagan chose to pursue a Civil Service Board review of his discipline, rather than utilizing the grievance procedure established under section 447.401 or the Collective Bargaining Agreement, and thereafter pursued an appeal to the circuit court appellant division to address the adverse Civil Service Board determination. Thus, under both section 447.401 and the Collective Bargaining Agreement, the grievance procedure under the Collective Bargaining Agreement was no longer available to Hagan or to the FOP for the purpose of addressing the disciplinary action....

...t the City’s refusal to arbitrate the grievance constituted an unfair labor practice. Our conclusion that Hagan’s election of the Civil Service Review procedure is a bar to pursuing the union grievance procedure is not only supported by section 447.401 and the Collective Bargaining Agreement, it is supported by the case law. representative may be present to represent the bargaining unit member if the bargaining unit member desires him present. The immediate supervisor shall attempt to adjust the matter and/or respond to the bargaining unit member within (7) working days. 9 Florida courts have consistently applied section 447.401 to bar attempts to pursue more than one avenue of redress....

...the one electing should not later be permitted to avail himself of an inconsistent course”) (quoting Williams v. Robineau, 168 So. 644, 646 (Fla. 1936)); see also Schafer v. City of Pompano Beach v. IAFF, Local 1549, 39 F.P.E.R. ¶ 120 (2012) (“Section 447.401, Florida Statutes, raises an absolute statutory bar to re-litigating an employer’s disciplinary action in an unfair labor practice case when the employee has already elected to challenge that disciplinary action in a civil service...

...15 appellate division, which ultimately led to review by this Court. Thus, the FOP’s attempt to pursue the same grievances Hagan has already fully litigated and which have been decided adversely violates section 447.401, Florida Statutes, and Articles 6.4, 6.6, and 6.8 of the governing Collective Bargaining Agreement....

...38 , 70 L.Ed.2d 23 (1981); Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla.1983); Palm Beach Jr. College v. United Faculty of Palm Beach Junior College, 425 So.2d 133 (Fla. 1st DCA 1982). In our view, the agency’s interpretation of section 447.401, Florida Statutes (1983), is reasonable, and we therefore decline to overturn the ruling....

...Local 1363 of the American Federation of State, County, and Municipal Employees (Local 1363) appeals the final order of the Public Employees Relations Commission (PERC) which held that the collective bargaining agreement between Local 1363 and Metropolitan Dade County does not violate Section 447.401, Florida Statutes (1981)....

...conclusions, and any recommendations, together with a transcript of the proceedings, to the county manager, who may sustain, reverse, or modify the decision of the hearing examiner. Local 1363 contends that this method of dispute resolution violates Section 447.401 because it does not “have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties.” This contention is without merit. While the Legislature has mandated that each public employer and bargaining agent must negotiate a grievance procedure, it has not, in Section 447.401, specified which issues must be included in the procedure. Section 447.401 must be read in pari mate-ria with Section 447.309(5), Florida Statutes (1981), which sets forth the matters which must be included in a collective bargaining agreement....

...in applicable merit and civil service rules and regulations." (Emphasis added) It is undisputed that Section 2-47 of the Metropolitan Dade County Code is a civil service rule and that all members of Local 1363 are civil service employees. Therefore, this agreement does not violate the mandate of Section 447.401. Because the grievance procedure mandated by Section 447.401 need not cover the matters set forth in the contract, we hold that the parties are bound by the terms of *483 their agreement....

...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....

...uant to the terms of the collective bargaining agreement with either the 4  certified bargaining agent for the public employee or the employee involved. Neither party explicitly discuses section 447.401, Florida Statutes (2018), which provides that “[e]ach 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 collective bargaining agreement.” § 447.401, Fla....

...The statute requires that the procedure “shall have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties.” Id. Almost this exact language is found in section 1 of Article 29 of the CBA. Section 447.401 clearly indicates a path to arbitration, and PERC has stated: An employer’s refusal to discuss a grievance in good faith pursuant to the terms of a collective bargaining agreement with either the certified bargaining agent or the public employee involved is clearly and expressly prohibited by Section 447.501(1)(f). Moreover, such a refusal inherently interferes with a public employee’s Section 447.401 right, thereby constituting conduct prohibited by Section 447.501(1)(a). Westfall v....

...However, “[w]hether a claim is within PERC’s exclusive jurisdiction depends of the nature and substance of the claim, not on how the plaintiff labels the claim.” Amato, 208 So. 3d at 237. Here, the Employee’s claim alleges the City refused to discuss the grievance in good faith, which is an inherent interference with section 447.401, and “constitut[es] conduct prohibited by Section 447.501(1)(a).” Westfall, 8 F.P.E.R....

...Fraternal Order of Police, Miami Lodge 20, 511 So. 2d 549, 552 (Fla. 1987) (“[PERC’s] policy of deferral represents a reasonable method for 5 PERC to give effect to all of its statutory duties, particularly the mandatory requirements of section 447.401.” (emphasis added))....

...After the Sheriff responded to the complaint, both sides moved for summary judgment. The Sheriff argued the questions relating to the probationary provisions of the CBA should be determined by an arbitrator pursuant to Article 33 of the CBA and section 447.401, Florida Statutes (2009), which requires public employers to establish grievance procedures. Moreover, the Sheriff argued, for a probationary deputy to be entitled to continue in employment as a deputy, the Sheriff was required to take some affirmative action....

...out in the parties’ agreement.”). Under the Broward County Code of Ordinances, deputy sheriffs are public employees subject to Chapter 447 of the Florida Statutes. See 3 Broward County Code of Ordinances, Sec. 18-6(e)(1)-(2).1 Section 447.401, Florida Statutes (2009), requires public employers to “negotiate a grievance procedure to be used for the settlement of disputes between employer and employee, or ground of employees, involving the interpretation or application of...

PER CURIAM. This is an appeal from an order dismissing a complaint seeking to have Section 447.401, Florida Statutes (1977) 1 declared unconstitutional....

...Being aggrieved of this action, Sherry requested that the U.T.D. process a grievance on her behalf against the School Board. She alleged that by letter of February 13, 1978, the U.T.D. advised her that it would not process the grievance on her behalf because she is not a union member and pursuant to Section 447.401, Florida Statutes (1977), the U.T.D. was no longer required to represent non-dues paying members in grievance procedures. Thereupon, Sherry filed the present declaratory judgment action arguing that Section 447.401, Florida Statutes (1977) is unconstitutional in that the refusal of the U.T.D....

...It is clear that the gravamen of Sherry’s complaint is that the U.T.D. would not process her grievance free of charge, although she is not a dues paying member and could process the grievance by herself. We, therefore, conclude that in the posture of this case the issue of the constitutionality of Section 447.401, Florida Statutes (1977) is not properly presented and Sherry lacks the requisite interest to bring the instant action under Section 86.011 et seq. Florida Statutes (1977). See e. g. Duran v. Wells, 307 So.2d 259 (Fla.2d DCA 1975). Affirmed. . “447.401 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 collective bargaining agreement....

ANSTEAD, Judge. This appeal is from a final judgment setting aside an arbitrator’s order entered pursuant to the provisions of Section 447.401, Florida Statutes (1977)....

...However we believe it is clear the arbitrator merely interpreted the contract in a way the school district would not and in a manner we might not. But this does not render the arbitrator’s interpretation an alteration. (Id. at 626) In addition, the appellee, while making no direct claim that Section 447.401 is unconstitutional, contends that it cannot be held responsible for compensation to teachers for which it made no specific provision in its budget....

teacher are terms and conditions of employment. Section 447.401 provides that each public employer and bargaining

following question in the affirmative: Does Section 447.401, Florida Statutes, require that the certified

...; and fourth, that PERC erred in failing to permit a supplement to the record. The appellees respond that the appellants’ complaint is not an unfair labor practice complaint, but is in effect a grievance under the contract; that in accordance with Section 447.401, Florida Statutes (1985), the contract was required to have a binding arbitration procedure, which it did, and the parties were required to proceed thereunder....

PER CURIAM. Affirmed. See § 447.401, Fla....

membership or non-membership in any or-ganization_” § 447.401. Public employees may also bring individual grievances

...t, “[s]election of redress other than through the Grievance Procedure contained herein shall preclude the aggrieved party or parties from utilizing said Grievance Procedure for adjustment of said grievance.” This provision of the CBA mirrors section 447.401, Florida Statutes, which governs grievance procedures between public employers and bargaining agents and provides, “[a] career service employee shall have the option of utilizing . . . a grievance procedure established under this section, but such employee is 5 precluded from availing himself or herself of more than one of these procedures.” § 447.401, Fla. Stat. Therefore, if this court determines that Rodriguez previously elected to pursue a remedy outside of the contractual grievance procedure, both section 6.4 of the CBA as well as section 447.401, Florida Statues would bar arbitration of Rodriguez’s grievance. In considering whether Rodriguez waived his right to arbitrate by pursuing an inconsistent remedy, we first examine whether Rodriguez actively participated in litigation pertaining to the issue underlying the termination....

...ion, and specifically addressed in a prior opinion of this court. Because we find that Rodriguez has waived his right to arbitrate, and alternatively, that the doctrine of collateral estoppel applies, both section 6.4 of the CBA as well as section 447.401, Florida Statues bar arbitration of Rodriguez’s grievance. Reversed. 8 

...s will take precedence over such ordinances when specific conflicts arise. Indeed, this Court has long held as a general rule that a statewide statute *636 prevails over a conflicting municipal ordinance ... Accordingly, any conflict arising between 447.401 and the Civil Service Act of the City of Cassel-berry, Florida, must be resolved in favor of section 447.401....

...s. As noted above, conflicts between those rules and the impasse resolutions are to be resolved in favor of the resolutions. 8 Moreover, as the Florida Supreme Court has indicated, FOP was free to exclude the — collective bargaining agreement from § 447.401 of the Florida Public Employees Relations Act— ... [A] union and a public employer would be perfectly within their rights to voluntarily exclude some aspect of their collective bargaining agreement from section 447.401 and utilize exclusively the dispute resolution machinery of a civil board. All that would be required is a mutual agreement to do so. City of Casselberry, supra at 340. A review of the agreement attached to the Complaint reveals that FOP not only failed to exclude § 447.401 from its terms but rather specifically included it as a mandatory provision....

...ompensatory and punitive damages. He alleges jurisdiction is properly invoked pursuant to 42 U.S.C. §§ 1983 and 1985 and 28 U.S.C. §§ 1331 and 1343. He further alleges that this Court has pendent jurisdiction to consider the constitutionality of § 447.401, F.S.; to consider allegations that the CTA breached its duty of fair representation; to consider whether the applicable grievance procedure is void and in *247 effective on the basis that it violates federal labor law and certain sections...

...ovisions of the above Acts and denied him rights under the First, Fifth and Fourteenth Amendments to the United States Constitution. In essence, however, plaintiff’s federal claims appear to arise out of what he deems an improper interpretation of § 447.401, F.S., by the PERC Commission....

...He alleges that § 447.501, F.S., along with PERC’s interpretation of the same, effectively denies him property rights and deprives him of a fair hearing before an impartial tribunal, both in violation of his right to due process of the laws. Further, plaintiff argues that § 447.401, F.S., along with PERC’s interpretation of the same, denies him equal protection of the laws. He reasons that prior to the enactment of § 447.401, F.S., both dues paying and non-dues paying members of the CTA were entitled to fair representation. That the enactment of § 447.401, F.S., as well as PERC’s interpretation of its meaning, has effectively removed CTA’s duty of fair representation with regard to non-dues paying members....

...In view of these alleged infringements upon plaintiff’s rights, plaintiff seeks from this court, among other things, the following relief: a determination that PERC erroneously dismissed his unfair labor practices claims against the School Board and the CTA; a declaration that § 447.401, F.S., is unconstitutional as a violation of Article I, § 6 of the Florida Constitution, as well as other provisions of the United States and Florida Constitutions; a determination that the CBA currently in effect between the School Board...

...or unclear. See Connecticut State Federation of Teachers, at 483-84 and the cases cited therein. Here, these requirements are satisfied. Essentially, plaintiff challenges PERC’s interpretation and application of the following language contained in § 447.401, F.S.: “......

...required to process grievances for employees who are not members of the organizations ...” This Court is not aware of, nor has it been informed of, any Florida State Court decision which has specifically construed or interpreted this provision of § 447.401, F.S....

...Thus, it has not been interpreted by Florida courts in a manner which makes its intent and meaning clear and certain. It is quite possible that the Fourth District Court of Appeal, in rendering its decision in plaintiff’s presently pending appeal, could interpret the above provision of § 447.401, F.S....

...It is also possible that the court could find a distinction between non-members and non-dues paying members. This interpretation would place plaintiff and other non-dues paying members on equal footing with dues paying members by removing non-dues paying members from the ambit of the exception contained in § 447.401, F.S. regarding non-members. Such a reading of § 447.401, F.S. would place an affirmative duty on the CTA to process grievances of dues paying and non-dues paying members similarly and with equal vigilance. Clearly, either of the above interpretations of the meaning of § 447.401, F.S....

...788 , 25 L.Ed.2d 68 (1970); Askew v. Hargrave, 401 U.S. 476 , 91 S.Ct. 856 , 28 L.Ed.2d 196 (1971); and Reid v. Board of Education of City of New York, 453 F.2d 238 (2nd Cir. 1971). Finally, it is also possible that the Florida Appellate Court could determine that § 447.401, F.S., is repugnant to the Florida Constitution....