Arbitration & Mediation

First DCA Rules on Waiver of Arbitration in Collective Bargaining Case

By Christopher B. Hopkins, Esq.

The question of waiver of arbitration continues to be a hot topic and, arguably, this case will not help clear the differences of opinion among the various district courts of appeal.

The case of City of Jacksonville, Jacksonville Sheriff's Office v. Todd Cowen involves a lengthy set of facts considered under the Labor Organization / Public Employee statute on grievance procedures. If this case holds any implication outside of collective bargaining situations, the First DCA may be following a higher standard for waiver of arbitration than other DCAs.

Public employee Cowen was arrested and charged with various crimes and was then placed under suspension. He appealed the suspension yet the suspension was lifted. Several months to a year went by and the Sheriff's office essentially re-opened the investigation. At that point, Cowen demanded arbitration which the City claimed he waived since the Public Employee statute holds that there is an election of remedies provision (once you select your forum, you're stuck with it). The trial court, oddly enough, pushed the waiver question to the arbitrator.

The First DCA properly held that waiver was an issue for the trial court. It then held that waiver was considered under the standard of review of "competent substantive evidence" however, in this case, it found there were no facts to be found and that this was a de novo matter of law.

Interpreting the Public Employee statute, the court held that an aggrieved employee waived an alternative forum if the employee has actively and affirmatively labored in pursuit of a particular remedy with the demonstrable anticipation of achieving a result. Fine, so that's an interpretation limited to Chapter 447. BUT, the Court went on to discuss waiver under the Florida Supreme Court's Raymond James Financial Services v. Saldukas case and held that Cowan's post-suspension behavior to not be "inconsistent with his right to arbitration" since he did not actively pursue the appeal he filed and/or it was a wholly separate action.

Full post as published by Florida Arbitration Law on January 02, 2008 (boomark / email).