Union Station: School counselor appeals grievance representation challenge to Ohio Supreme Court

School counselor appeals grievance representation challenge to Ohio Supreme Court

Attorneys from The Buckeye Institute filed an appeal to the Ohio Supreme Court on behalf of a school guidance counselor who was not allowed under an exclusive collective bargaining agreement to use her own lawyer in a dispute with the school district.

Background

The plaintiff, Barbara Kolkowski, is a high school guidance counselor in the Ashtabula Area City School District. Kolkowski is not a member of the Ashtabula Area Teachers Association. However, as an employee of the school district, Kolkowski is a member of the bargaining unit the union represents.

In November 2020, Kolkowski wanted to use her own lawyer to represent her in arbitration with the school district. The union denied her request, saying that the collective bargaining agreement required an advocate from the union to represent her.

In January 2021, Kolkowski sued the union and district board of education in the Ashtabula County Court of Common Pleas. Attorneys from The Buckeye Institute, which says its “mission is to advance free-market public policy in the states,” represent Kolkowski.

Kolkowski’s lawsuit said she wanted to “choose her own counsel, make her own arguments, and present her grievance in arbitration without the intervention of the Union.” Kolkowski’s attorneys cited Ohio Revised Code 4117.03(A)(5), which says that public employees have the right to “[p]resent grievances and have them adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of the collective bargaining agreement then in effect and as long as the bargaining representatives have the opportunity to be present at the adjustment.”

On Oct. 5, 2021, Judge David A. Schroeder ruled in favor of the union. Schroeder wrote:

“First, Defendants argue that this is not a constitutional question, but a contract law question. They believe this comes down to specific language in the [collective bargaining agreement (CBA)], which is binding on [Kolkowski]. Their position is that under the CBA the union provides the representation for arbitration, and that [Kolkowski] has no right to retain her own counsel to represent her at arbitration. Defendants also argue that once [Kolkowski] asked for the [union] to become involved, the grievance was turned over to the union and [Kolkowski] lost standing. Finally, they argue that since this is a question regarding an issue with the CBA, the [State Employment Relations Board] has exclusive jurisdiction over this matter. … The Motions to Dismiss filed by the Defendants are well-taken.”

Kolkowski’s attorneys appealed to the Ohio Eleventh District Court of Appeals on Jan. 18, 2022. They wrote, “… Ms. Kolkowski never sought Union representation. The only part that Ms. Kolkowski allowed the Union to play was that of transmitting the arbitration demand, which the Union was required to submit under the CBA. … If, as the trial court held, the mere request for arbitration amounts to Union ‘representation,’ then the guarantees provided by [Johnson v. Metro Health Medical Centr. (2001)] and [Gaydosh v. Trumbull County (2017)], codified in R.C. 4117, and protected by the U.S. and Ohio Constitutions are illusory.”

On Sept. 6, 2022, Judges John J. Eklund, Thomas R. Wright, and Mary Jane Trapp upheld the lower court’s ruling. Eklund wrote:

“It is incongruous with the principles of collective bargaining for [Kolkowski] 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 [Kolkowski] 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 [Kolkowski] 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.”

Supreme Court appeal

On Oct. 21, Kolkowski’s attorneys filed an appeal to the Ohio Supreme Court.

Buckeye Institute senior litigator Jay R. Carson said, “When the United States Supreme Court issued its opinion in Janus v. AFSCME, it recognized that public employment does not require public employees to surrender their constitutional rights. Ohio has recognized that same right in its constitution and laws. … But that is just what the union—which Ms. Kolkowski is not a member of—is forcing her to do—surrender her right to hire her own lawyer, at her own expense, to represent her in a workplace arbitration dispute. Today, the Ohio Supreme Court has an opportunity to vindicate Ms. Kolkowski’s right to have her own legal counsel.”

The case name and number are Kolkowski v. Ashtabula Area Teachers Association (2022-1299).

There are seven justices on the Ohio Supreme Court. Justices are elected to six-year terms in partisan elections. There are currently three Democrats and four Republicans on the court.

All but one of the current justices were on the court in 2020 when we published “Ballotpedia Courts: State Partisanship,” a report evaluating justices’ partisan affiliations through their behavior before joining the court. In that report, we assigned a score of “Mild Democrat” to two of the current Democratic justices and “Strong Republican” to all four current Republican justices. In 2020, the Ohio Supreme Court heard 436 cases and decided 67% of them unanimously.

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