V.

DADE COUNTY ASSOCIATION OF FIREFIGHTERS, LOCAL 1403, Appellee,

No. 90-2171.

District Court of Appeal of Florida, Third District.

Feb. 26, 1991.

County sought review of arbitrator's ruling that county's discharge of fire fighter violated collective bargaining agreement. The Circuit Court, Dade County, Richard &, Feder, Jr., entered final summary judgement for union, and appeal was taken. The District Court of Appeal held that firefighter's appeal of his discharge through civil service appeal procedure precluded any relief by arbitration under grievance procedure.

Reversed.

.. County fire fighter's appeal of his discharge through civil service appeal procedure foreclosed any relief under union grievance procedure; career service public employee who was also union member could contest disciplinary action either through union or by filing civil service appeal, but could not pursue both avenues for relief.

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Robert A. Ginsburg, Dade County Atty. and John McInnis, Asst. County Atty., for appellant.

Sugarman & Susskind, Robert A. Sugarman, and Alice Weisman, Miami, for appellee.

Before SCHWARTZ, G.J., and BARKDULL, and GERSTEN, JJ.

PER CURIAM.

Appellant, Metropolitan Dade County, appeals a final summary judgment in favor of appellee, Dade County Association of Firefighters, Local 1403, on appellant's action to vacate an arbitration award. We reverse.

The facts may be briefly stated. A Dade County firefighter was discharged by the Dade County Fire Department for violating the Department's policy prohibiting the use of illegal drugs. The employee sought relief from discharge through the avenue of a civil service appeal. The employee's appeal was unsuccessful.

An arbitrator then heard the discharged employee's grievance based on a contractual violation of appellant's drug testing procedure. The arbitrator ruled appellant had violated the collective bargaining agreement, and as a remedy, ordered appellant to reinstate the employee as a firefighter, Appellant petitioned the trial court to vacate 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 section, but such employee is precluded from availing himself to more than one of these procedures,

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. Stat. (1989). "[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 v. Department of Transportation, 616 So.2d 972, 973 (Fla. 1st DCA 1987).

Accordingly, we reverse the final summary judgment with instructions to the trial court to vacate the award and enter judgment in favor of appellant.

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Theodore BASS, Appellant,

V.

DEPARTMENT OF TRANSPORTATION, Appellee.

No. BO-392.

District Court of Appeal of Florida, First District.

Oct. 80, 1987.

Rehearing Denied Jan. 4, 1988.

Theodore Bass, in pro. per.

Maxine F, Ferguson, Appellate Atty., Dept. of Transp., Tallahassee, for appellee,

PER CURIAM.

The appellant, Theodore Bass, seeks review of an order of the Public Employees Relations Commission (PERC) dismissing his appeal to that body of a disciplinary action taken against him by his employer, the Department of Transportation (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 follow employees. Because of the procedural history of this case, and because of the provisions of § 447.401, Fla. Stat., we are unable to address the merits of Mr. Bass's complaint, and must affirm.

The record indicates that Mr. Bass is both a career service employee of the DOT and a member of a collective bargaining unit of the American Federation of State, County, and Municipal Employees (the union). Upon being notified by DOT of its intent to discipline him, Mr. 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 to Mr. Bass was the instant civil service appeal files.

Section 447.401, Fla. Stat., prescribing grievance procedures for public employee labor organizations, provides, in pertinent 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. The basis for PERC's order dismissing Mr. 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, Bass's civil service appeal would have to be dismissed was not only proper, it was required. Accordingly, said decision must be, and hereby is, AFFIRMED.

SHIVERS and ZEHMER, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge, concur.