#### R. E. LEARN et al., Appellants, v. W. E. SMITH, as Chief of the Jacksonville Fire Department, and Consolidated City of Jacksonville, Appellees.

No. S-84.

District Court of Appeal of Florida, First District.

Sept. 25, 1973.

Rehearing Denied Oct. 19, 1973.

*132Joseph S. Farley, Jr., of Mahon & Ma-hon, Jacksonville, for appellants.

T. Edward Austin and William Lee Allen, Jacksonville, for appellees.

JOHNSON, Judge.

In this case, after denying appellees’ last motion to dismiss the amended complaint, the trial court heard testimony submitted by the respective parties.

The appellants contend that their contract of employment, based upon the contract between the “union” and the City of Jacksonville, was breached'when they were transferred from their station to another, with reduction of pay. (They contend that the reduction in pay, without a hearing as provided in the contract at Section 8, constituted the breach, admitting the Fire Chief had the authority to transfer from one station to another, but not with reduction of pay.)

The appellees contend that the transfer was for the “best of the service”.

There can be no doubt, from the testimony of all the parties that the transfer came about as a result of certain practical joking at one Lieutenant Lindsey.

The Chief had advised by a bulletin board announcement that if the joking did not stop, he was going to transfer all of them. It was also indicated that there could be a reduction of pay.

In the testimony, however, it is clear that the transfer was a disciplinary measure, as was found by the trial court as seen on page 55 of Volume II of the record on appeal.

It is also clear that pursuant to Article VIII of the contract, if a member is reduced in rank or pay, without cause, it would have required the giving of the notice and written charges and a hearing. It appears to us that the important point in this phase of the contract is that no change can be made which results in a reduction of rank or pay, without notice and a hearing thereon.

We are aware of the fact that Chief Smith, for purposes of the record, said the transfer was for the good of the service, which probably was a good and sound move, but this did not relieve the City of the requirement for notice if such move resulted in reduction of pay. It seems from the personnel records contained in the file that the three appellants were reduced in rank and pay from engineer to private in order to replace three privates who were at the same time promoted to engineer. It therefore appears to us that the reason there were positions for privates but no engineers was because privates had been promoted to take over appellants’ positions as engineers upon their demotion. Under these circumstances, we do not think it can be said that appellants were not subjected to a disciplinary reduction in rank and pay without being afforded their contractual rights of due process. If Chief Smith wanted to transfer the members, without it being recorded as a disciplinary action then he was stuck by *133the terms of the contract, to wit: transfer only to an equal paying job, or give the required notice and hearing. In this case, the City had the alternative, yet did neither, thereby breaching the contract.

For these reasons, we reverse the Order appealed.

SPECTOR, J., concurs.

WIGGINTON, Acting C. J., dissents.

WIGGINTON, Acting Chief Judge

(dissenting) .

Plaintiffs have appealed a final judgment finding the equities of this cause to be with defendants and dismissing their action with prejudice.

By the complaint filed in this cause appellants allege that they are members of the fire department of the City of Jacksonville, whose employment rights are protected under a labor contract entered into between their union, Local 1834 of the International Association of Firefighters, and appellee-City of Jacksonville. They allege that they were reduced in rank and pay as a result of disciplinary action invoked against them by the appellee-chief of the Jacksonville fire department contrary to the provisions of their labor contract. The contract in question provides that no employee shall be reduced in rank or pay or otherwise disciplined except for cause, and in no event until he shall have been furnished with a written statement of the charges and the reasons for such action. Tt is their contention that they were disciplined by being transferred to another station, which resulted in a reduction in rank and pay, without cause and without having been furnished a written statement of the charges and the reasons for such action.

This case was tried by the court without a jury. Appellees testified that the action of the chief of the fire department in transferring appellants together with the remaining eight members of the department from their station to other stations within the city was not intended to be nor did it in fact constitute disciplinary action against them, but was done for the good of the fire department in order to provide appellants and their fellow members with closer supervision and obtain from them better service commensurate with their abilities and talent. This action followed a breakdown in morale among the members which resulted from a failure of communication between the officers and men at the fire station. None of the other eight members of the department suffered a reduction in rank or pay as a result of their transfer, so no contention is made that their transfer constituted disciplinary action within the purview of their labor contract. However, there were no open billets for employees of appellants’ rank at the station to which they were transferred, as a result of which they were temporarily required to take a step down in rank and pay until billets commensurate with their former rank opened and became available. Such billets did thereafter become open and available and were offered to appellants, but the offer was rejected by them. Because their transfer resulted in a temporary reduction in rank and pay, they contend that the transfer constituted unauthorized disciplinary action violative of the terms of their labor contract.

Upon consideration of the evidence the court specifically found that appellants were not reduced in rank or pay or otherwise disciplined in violation of their labor contract and that the equities of the cause were with appellees. The court had the advantage of hearing and observing the witnesses in person and evaluating the intent which motivated appellants’ transfer and the purpose sought to be accomplished by such action. The findings and conclusions reached by the court under such circumstances carry great weight and should not be disturbed on appeal unless clearly demonstrated to be erroneous. Under the view of the evidence taken by the court, I cannot say that it abused its discretion or ar*134rived at an erroneous conclusion in light of accepted principles of contract interpretation. Appellants having failed to make error clearly appear, the judgment appealed should be affirmed.