Barbara Kolkowski v. Ashtabula Area Teacher's Association, et al.

Ohio has a public employee statutory scheme for collective bargaining. In this statutory scheme, the Ohio Legislature took care to create an individual process right for all bargaining unit members, which allows them to “present [their own] grievances”. It follows from the statute's language, if they choose to represent themselves, they are allowed to speak freely to present their grievances at any time during the grievance process. It also allows those employees to do so “without the intervention of the bargaining representative”. This statutory process right clearly implicates individual freedom of speech and associational rights of those members during the grievance process, and more specifically under R.C. 4117.03(A)(5). It seems clear the Legislature intended this statute to embody an individual “liberty interest” and objective expectancy of due process for those members. This petition presents two questions, depending on the answer to the first question:

1. Whether a public employee in Ohio under a collective bargaining agreement providing for binding arbitration has the Constitutional right either fundamentally or more specifically under ORC 4117.03(A)(5) to retain counsel to present their grievance under that agreement?

2. If not, whether due process rights of public employees under the Fourteenth Amendment to the Constitution require at a minimum a balancing test to be conducted