The School Board of Broward County, Florida v. Gregory Smith

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA,

Appellant,

v.

GREGORY SMITH,

Appellee.

No. 4D2023-0369

[February 21, 2024]

Appeal from the County Court for the Seventeenth Judicial Circuit,

Broward County; Kathleen McHugh, Judge; L.T. Case No. COCE22-

057433.

Stephanie M. Marchman and Fabian A. Ruiz of GrayRobinson, P.A.,

Gainesville, and Kristie Hatcher-Bolin of GrayRobinson, P.A., Lakeland,

for appellant.

Mark J. Berkowitz of Mark J. Berkowitz, P.A., Fort Lauderdale, for

appellee.

KLINGENSMITH, C.J.

Appellant School Board of Broward County, Florida (“the Board”) asks

this court to reverse the trial court’s order denying a motion to vacate and

confirming an arbitration award entered in favor of appellee Gregory

Smith. Because the arbitrator exceeded his authority in ordering the

remedy specified in the arbitration award, we reverse.

Appellee is a member of the Broward Teachers Union whose grievance

was subject to the terms of the Union’s collective bargaining agreement

(“the CBA”). Under the CBA, Union employees and the Board agree to

submit all unresolved grievances to arbitration. The CBA provides that

the selected arbitrator “shall limit his/her decision to the application and

interpretation of [the CBA] and shall have no power to modify, alter, add

to, or subtract from the provisions of [the CBA].” Further, both the Union

and Board agree that the arbitration award “shall be final and binding.”

Under the CBA, the Board must follow specific procedures when filling

vacancies in Broward County schools. Regarding employees who apply for

promotions, the CBA provides: “If more education support professionals

apply than there are positions, attendance and reliability and seniority in

the District, shall be the criteria considered by the principal in awarding

the promotion.” (emphasis added).

After not being selected for multiple behavioral technician positions for

which he had applied, appellee filed a grievance with the Board, and the

parties went to arbitration. The key issue before the arbitrator was

whether the Board violated the CBA by not considering appellee’s seniority

in the school district during the hiring process. This was made clear at

the beginning of the arbitration hearing when the arbitrator acknowledged

that the parties had agreed the presented issue was whether appellee was

“denied a promotional opportunity in violation of article 13F1 of the [CBA].”

In his order, the arbitrator found the Board violated the CBA by not

considering appellee’s seniority when making the hiring decision on the

positions in question. The arbitrator then found the appropriate remedy

was for appellee to be hired by the Board as a behavioral technician and

receive backpay from the date of his filed grievance.

After appellee moved to confirm the award, the Board moved to vacate

the award under section 682.13, Florida Statutes (2022), and argued the

ordered remedy exceeded the scope of the arbitrator’s authority under the

CBA. After a hearing, the county court denied the Board’s motion to vacate

and confirmed the award, finding the arbitrator “was in a better position

to analyze the [CBA] and he had the ability to impose an applicable

remedy, based upon his analysis of the terms of that CBA.” This appeal

followed.

A motion to vacate an arbitration award is reviewed under a mixed

standard: legal questions are reviewed de novo whereas factual findings

are reviewed for competent substantial evidence. LeNeve v. Via S. Fla.,

L.L.C., 908 So. 2d 530, 534 (Fla. 4th DCA 2005); see also Boyhan v.

Maguire, 693 So. 2d 659, 662 (Fla. 4th DCA 1997). To vacate an

arbitration award, the movant must establish one of six statutory grounds

set forth in section 682.13(1). See LeNeve, 908 So. 2d at 534. Among the

six grounds is that the “arbitrator exceeded the arbitrator’s powers.” §

682.13(1)(d), Fla. Stat. (2022). This occurs when the arbitrator “goes

beyond the authority granted by the parties or the operative documents

and decides an issue not pertinent to the resolution of the issue submitted

to arbitration.” Commc’ns Workers of Am. v. Indian River Cnty. Sch. Bd.,

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888 So. 2d 96, 99 (Fla. 4th DCA 2004) (emphasis added) (quoting

Schnurmacher Holding, Inc. v. Noriega, 542 So. 2d 1327, 1329 (Fla. 1989)).

Even though the parties agreed under the CBA that the arbitrator’s

award would be “final and binding” on them, such an award is not self-

executing and must be confirmed by a court of competent jurisdiction to

be enforceable. While the standard of review is highly deferential to the

arbitrator’s findings and arbitration awards can be confirmed even if

legally incorrect, such an award must nonetheless stay within the bounds

of section 682.13. See Schnurmacher Holding, 542 So. 2d at 1329.

Our decision in Nash v. Florida Atlantic University Board of Trustees,

213 So. 3d 363 (Fla. 4th DCA 2017), is instructive. There, a professor

applied for a promotion and tenure, which the university denied. Id. at

365. After filing a grievance and going to arbitration, the arbitrator found

that the university did not consider the proper criteria in reviewing the

professor’s tenure application and that the appropriate remedy was to

direct the university to grant the tenure application. Id. at 366. On appeal,

we found the arbitrator exceeded his authority under the agreement

because the issue before the arbitrator was not whether the professor was

entitled to tenure but “whether the University had violated the CBA’s

procedure for determining an application for tenure and promotion.” Id.

at 367–68. We noted “that once the arbitrator found the University

violated the procedure by not relying on established criteria, ‘the

appropriate remedy’ was for the arbitrator to direct the University to review

Nash's application using the correct criteria.” Id.

Like in Nash, the arbitrator’s authority to order a remedy in this case

was limited to directing the Board to reconsider appellee’s application in

light of the factors which the Board had not previously considered. See id.

Such a remedy would have addressed the Board’s breach of the CBA and,

more importantly, the issue presented to the arbitrator. See id. However,

the arbitrator instead effectively awarded the position to appellee—a power

which the CBA vests with principals, not arbitrators. See id.; see also Lake

City Fire & Rescue Ass’n, Local 2288 v. City of Lake City, 240 So. 3d 128,

131 (Fla. 1st DCA 2018) (arbitrator improperly fashioned an award that

was outside of the arbitrator’s vested authority and equated to an

amendment of the bargaining agreement at issue).

The express vesting of hiring authority, combined with the fact that the

parties asked the arbitrator to determine only whether the Board

considered appellee’s seniority in the hiring process, clearly shows the

arbitrator did not have the authority to unilaterally hire appellee. See

Commc’ns Workers of Am., 888 So. 2d at 99. Allowing the arbitrator to

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order the promotion of appellee would equate to modifying or altering the

CBA, which the agreement explicitly forbids. See Nash, 213 So. 3d at 368.

Therefore, we reverse the lower court order denying the Board’s motion

to vacate the award as it relates to the portion of the award requiring

appellee be hired as a behavioral technician with backpay, and remand for

the lower court to direct the Board to review appellee’s application while

invoking the correct CBA criteria. See Nash, 213 So. 3d at 368.

Reversed and remanded with instructions.

GROSS and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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