Non-Member Has No Right To Challenge Suspension Through Arbitration Under Fire Union’s Contract

Richard Robertson is an Orange County, Florida fire lieutenant. Taking advantage of Florida’s “right to work” laws, Robertson chose not to be a member of the Orange County Professional Fire Fighters, Local 2057 of the IAFF, the labor organization representing the County’s rank-and-file firefighters.

On April 12, 2016, the County terminated Robertson, having found that he violated the Department’s rules on performance of duty and truthfulness. Robertson filed a grievance under Local 2057’s contract. On July 26, at Step III of the grievance process, a Grievance Adjustment Board composed of Local 2057’s Vice President Doug Cooper, Fire Chief Otto Drozd, and Public Safety and Health Services Director Dr. George Ralls considered Robertson’s discipline. The Board determined that Robertson did not violate Rule R.23, and by a 2-1 vote imposed a 120-hour suspension.

Thereafter, Robertson sought to submit the issue to arbitration under the contract. However, the grievance procedure of the CBA specifically provides that only Local 2057, and not an individual member of the bargaining unit, has the right to proceed to arbitration.

On August 15, Robertson’s representative asked Local 2057 to submit the matter to arbitration, indicating that Robertson would be responsible for his representation and the concomitant fees and costs. Local 2057 put the matter to a vote and turned down Robertson’s request for arbitration.

Robertson filed an unfair labor practice complaint against Local 2057, alleging that the Local had precluded him from challenging the 120-hour suspension in his second grievance. Robertson also named the County, contending that it wrongfully refused to arbitrate his grievance. The General Counsel for Florida’s Public Employment Relations Commission rejected the ULP.

The General Counsel ruled that “under the CBA the Union has retained the sole discretion to determine whether a grievance may proceed to arbitration. When an employee organization retains the exclusive right to process a grievance to arbitration, the public employer is prohibited from participating in arbitration without either a request for arbitration by the union or an expressed declination by the union to represent the employee based upon his lack of membership in that organization.

“Here, there are no facts in the amended charge alleging that the Union has waived its right to represent Robertson due to his non-membership in the Union and has so informed Robertson and the County. Consequently, the County had no obligation to process Robertson’s grievances to arbitration.”

Robertson v. Orange Board of County Commissioners, 43 FPER ¶ 267 (Florida PERC 2017).