IN THE CIRCUIT COURT IN AND FOR ESCAMBIA COUNTY, FLORIDA.
CASE NO. 83-50-CA-01-C
ESCAMBIA COUNTY SCHOOL BOARD, Petitioner,
vs.
ESCAMBIA EDUCATION ASSOCIATION, Respondent,
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THIS CAUSE coming on for hearing on Motion to Vacate arbitration award filed by Petitioner ESCAMBIA COUNTY SCHOOL BOARD, and Motion to Dismiss filed by Respondent, ESCAMBIA EDUCATION, ASSOCIATION, and the Court having considered the matter finds as follows:
During the year 1982, Grievants were involuntarily transferred from Pensacola High School to other schools within the district in order to make room at Pensacola High School for three, football coaches-teachers. On May 25, 1982, Grievants filed their separate grievances alleging the involuntary transfer was in violation of provisions of a collective bargaining agreement entered into by the Escambia County School Board, hereinafter referred to as the "Board", and the Escambia Education Association, hereinafter referred to as the "Association".

Hearing was held before the arbitrator on October 13, 1982, and an award was entered on November 18, 1982, granting the relief sought by Grievants and requiring their re-assignment to their old positions at Pensacola High School and thereafter, on January 6, 1983, the Board filed its motion to vacate said arbitration award, and on February 2. 1983, the Association filed its motion to dismiss the same. The Board's amendment to its motion to vacate the arbitration award was filed without objection at the hearing on March 10, 1983, on all pending motions. The relevant portions of controlling Statutes and documents are as follows:

B. When a reduction in the number of teachers in a school is necessary, the following procedure is used:
1. The principal shall give written notice to the teachers in the affected school stating why the transfer is necessary and how many teachers at each grade level and/or subject area will be transferred.
2. Each teacher in the affected school will be provided with an up-to-date list of vacancies and will be given an opportunity to volunteer for one of the vacant positions. All volunteers will be transferred first, after which involuntary transfer will be made if necessary based on district-wide seniority, those having the least seniority being transferred first.
C. Under no circumstances will a teacher be involuntarily transferred for reasons which are arbitrary, capricious, or discriminatory.

Florida Statute 230.23 Powers and duties school board
The school board, acting as a board, shall exercise all powers and perform all duties listed below:
(5) Personnel.-- Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of chapter 231:
(f) Transfer and promotion. -- Act on recommendations of the superintendent regarding transfer and promotion of any employee.

Florida statute 230.33 Duties and responsibilities of superintendent
The superintendent shall exercise all powers and perform all duties listed below and elsewhere in the law; provided, that in so doing he shall advise and counsel with the school board.
(7) Personnel. -- Be responsible, as required herein, for directing the work of the personnel, subject to the requirements of chapter 231 and in addition he shall have the following duties:
(a) Positions and qualifications. -- Recommend to the school board duties and responsibilities which need to be performed and positions which need to be filled to make possible the development of an adequate school program in the district and recommend minimum qualifications of personnel for these various positions.
Florida Statute 230.23 Powers and duties of school board
(5)(b) Appointment of non-instructional personnel, ... The term "Act on the written recommendations" shall be interpreted to mean that the school board must consider the recommendations or nominations of the superintendent submitted as prescribed by law and may not reject such recommendations or nominations except for good cause,...
Florida Statutes 447.309 Collective bargaining; approve or rejection
(3) If any provision of a collective bargaining agreement is in conflict with any law, ordinance, rule, or regulation ..., the conflicting provision of the collective bargaining agreement shall not become effective.
Florida Statute 447.401 Grievance Procedures
... Such grievance procedure shall have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties. However, an arbiter, or other neutral shall not have the power to add to, subtract from, modify, or alter the terms of a collective bargaining agreement...

The Board asserts in its motion to vacate that the Association accepted the recommended decision of Special Master Marvin C. Wahl wherein Special Master Wahl recommended that Article IX Involuntary Transfer, becomes operative only when a reduction in the number of teachers in a school becomes necessary. The Court cannot ascertain from the exhibits that the recommended decision of Special Master Wahl was in fact accepted and adopted by both parties. If the parties had formally adopted said recommended decision, the arbitrator's decision, in the case sub judice, with respect to violation of Article IX would be easily, disposed of since there was in fact no reduction in the number of teachers at Pensacola High School in the present instance. Further, the court is of the opinion that whether Article IX deals with involuntary transfers for other reasons is not germaine for the purpose of the decision herein made. The arbitrator further found that Article IX, C had been violated in that the three transfers in question were proscribed by said Article in that they were arbitrary, capricious, and discriminatory and the transfers were not made for legitimate reasons as contemplated under Article XX of the agreement.

The arbitrator found that Article II, O of the agreement had been violated by the Board, which provision requires that all terms and conditions of employment shall be applied equitably among all bargaining unit members at each work site. This was based upon a finding by the arbitrator that Grievants were singled out since they were coaches and an avenue had to be opened in order to make way for the new coaches, not previously, on the faculty, who were to undertake rejuvenating the Pensacola High School football team. It appears that Grievants were in fact singled out for transfer to make room for the three new coaches who were to rejuvenate the Pensacola High School football team. While some persons may conclude that this action was not in the best interests of the student body at Pensacola High School, that is a matter of opinion and it was within the prerogative of the Board to make the questioned transfers for the reasons stated in this regard, the arbitrator exceeded his authority by substituting his judgment for the judgment exercised by the Board.

In this regard and of great importance in determining that the arbitrator exceeded his authority, consideration must be given to the above various Statutes which vest in the Board unrestricted discretion to make transfers of its employees, designate positions to be filled, and prescribe qualifications for those positions. Further, where a provision of a collective bargaining agreement and Florida statutory law are in conflict, statutory law prevails. 447.3O9(3) F.S., 1981. The position of the Board that the arbitrator exceeded his authority by disregarding that provision of the collective bargaining agreement, Articles XX, which specifically provided that the Board has a right to direct its employees, is also well taken.

The Legislature has seen fit to vest the discretion in staffing schools, whether by new hire or transfer, in the superintendent and to provide that his discretion shall be unfettered except for instances where the school board rejects his recommendations for good cause. Neither party has the right to waive the requirements of the Statute which are designed to protect the public interests and it is beyond the power of the Board to surrender this responsibility or restrict its exercise of its authority as part of any agreement reached as a result of collective bargaining.

It, appears that F.S. 230.23(5)(f) provides that the Board has the power to act on recommendations of the superintendent regarding transfer of any employee. The only admonition in the agreement with regard to involuntary transfers is that the same shall not be arbitrary, capricious or discriminatory. This admonition certainly limits the exclusive authority vested by law in the Board to transfer without regard to whether the same is arbitrary capricious, or discriminatory. The practical effect of the "arbitrary, capricious, or discriminatory" provision is to vest in an arbitrator the ultimate responsibility to decide whether the transfer is arbitrary, capricious or discriminatory at any time that the Association takes issue with any particular transfer. Therefore, the holding in Lake County Education Association vs. School Board of Lake County, 360 So.2d 1280 (Fla. 2 D.C.A. 1978) becomes applicable wherein it was held that a school board cannot enter into a collective bargaining agreement under which the board agreed that its refusal to reappoint a non-tenured teacher must be based upon probable cause. It appears that it is the public policy of Florida as expressed by Statute that the board shall have the exclusive prerogative to decide whether to transfer teachers, designate positions to be filled by them, and provide for their appointment.

It is the opinion of the Court that certain cases cited by the Association, Knight v. H. S. Equities. Inc., 280 So.2d 456 (Fla. 4 D.C.A. 1973); City of Miami v. Fraternal Order of Police, 368 So.2d 56 (Fla. 3 D.C.A. 1979); Broward County Paraprofessional Association v. McComb, 394 So.2d 470 (Fla. 4 D.C.A. 1981), are not applicable inasmuch as Florida Statute 447.309(3) was not considered in the rendering those decisions. Brevard Federation of Teachers v. School Board of Brevard County, 372 So.2d 169 (Fla. 4 D.C.A 1979) reinstated the arbitrator's award and held that there was abundant evidence to support the arbitrator's's conclusion and the Appellate Court found no evidence that the issue being arbitrated was beyond the scope of the agreement and the arbitrator's's authority. The Appellate Court opined that it was clear that the arbitrator merely interpreted the contract in a way the school district would not and in a manner that the Appellate Court might not but that this did not render the arbitrator's interpretation an alteration of the agreement. This opinion evidently did not consider the applicability of 447.309(3), F.S., 1981. School Board of Seminole County v. Cornelison, 406 So.2d 484 (Fla, 5 D.C.A. 1981)

The policy reflected by the above mentioned portions of the Florida Statutes are obviously not intended to benefit the teachers but, rather, to benefit the students and the public by giving the superintendent of schools an unfettered discretion to exercise his professional educational expertise in recommending staffing of the educational system. The entire thrust of the Association's efforts is to restrict the superintendent's discretion in transferring teachers and to limit the Board's discretion in acting upon those recommendations. An arbitrator has no jurisdiction to interpret a provision of a collective bargaining agreement in such a manner as to necessitate the provision being legally invalid.

Further, before there can be binding arbitration, there must be a legally valid provision in the agreement, the interpretation or application of which is in contention by the parties, and if a provision in the agreement is not legally valid, then it is not truly a part of the agreement and cannot be the subject of binding arbitration. It is not the place of the arbitrator to determine the validity of the collective bargaining agreement but it is within the province of the Court to determine whether a dispute is arbitrable as being within the scope of the arbitration provision of an agreement. If the provision is, in fact, valid, interpreting it to be legally invalid would be equivalent to rewriting the agreement; if the agreement is, in fact, invalid, it is not truly a part of the agreement and its interpretation or application is not subject to the grievance procedure.

Finally, although cumulative, the agreement provides that under no circumstances will a teacher be involuntarily transferred for reasons which are arbitrary, capricious, or discriminatory but the agreement does not provide for a remedy for such violation of the provisions of said agreement. Where such a remedial provision is absent, to permit an arbitrator to require retransfer of such teacher would usurp the prerogative of the Board to order transfers as it did in the instant case.

It is therefore

1) The Motion to Dismiss filed by the Respondent ESCAMBIA EDUCATION ASSOCIATION, be, and the same is thereby denied.

2) The Motion to Vacate Arbitration Award filed by the Petitioner, ESCAMBIA COUNTY SCHOOL BOARD, be, and the same is hereby granted and said award made by George V. Eyraud, Jr., Arbitrator, and dated November 18, 1982, be, and the same is hereby vacated and set aside.

3) The Court hereby reserves jurisdiction of this cause to determine Petitioner's entitlement to costs in and about the prosecution of this action and the amount thereof.

DONE AND ORDERED at Pensacola, Escambia County, Florida, this 18th day of March, 1983.

CIRCUIT JUDGE

Copies furnished:
W. Russell Hamilton, III, Esquire, Attorney for Petitioner
Ronald G. Myer, Esquire, Attorney for Respondent