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Employee had no right to have private
attorney representation at arbitration

Kolkowski v. Ashtabula Area Teachers Assn (Ohio Ct App 09/06/2022) http://case.lawmemo.com/oh/Kolkowski.pdf
Sent to Custom Alerts™ subscribers on 09/09/2022

Barbara Kolkowski had a grievance against the School Board that employed her. Although she was not a member of the Teachers Association, the Association serves as the exclusive collective bargaining representative for School Board employees.

When Kolkowski's grievance advanced to the arbitration stage, she wanted to decline representation by the Association's counsel and to be represented by her own lawyer at her own expense. However, the Association denied her request, and she sued the Association and the School Board.

The trial court dismissed her case, and the Ohio Court of Appeals affirmed.

The collective bargaining agreement between the Association and the School Board provides that in arbitration proceedings, the “aggrieved shall be represented by the Association.” The Court of Appeals held that Kolkowski lacked standing to compel the School Board or the Association to allow her to arbitrate her claim with her own counsel because she "is not a party to the CBA and the CBA does not grant her the right to independently arbitrate this matter."

Kolkowski also argued that the clause in the CBA requiring her to use Association representation for arbitration violates the constitutional rights of free speech, free association, and her right to retain the counsel of her choosing. The Court of Appeals rejected these arguments, saying "the government is not required to listen to her in the context in which she demands. Instead, the Board has the right to choose not to listen to her, which it has through its negotiation of the arbitration terms in the CBA. Without the CBA, [Kolkowski] would have no right to pursue any grievance with her employer at all."

Finally, the court said:

It is incongruous with the principles of collective bargaining for appellant to argue that she has rights to free speech and due process which entitle her to be represented by the counsel of her choosing at a proceeding which she herself is not legally entitled to initiate. It would be incongruous for appellant to possess a constitutional right to hire her own attorney for an arbitration proceeding which is an optional portion of a negotiated grievance procedure between the Association and the Board. Finally, it is incongruous for appellant to individually assert a right to enforce the CBA in arbitration, the result of which may well affect the rights of other Association members under the CBA.

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