holding that plaintiff state employee's contract right to be discharged only for cause was not protected by due process clause because it did not rise to level of fundamental right
How later courts described this case
- holding that plaintiff state employee's contract right to be discharged only for cause was not protected by due process clause because it did not rise to level of fundamental right
- holding that a claim of improper discharge of a public employee cannot be brought as a violation of substantive due process
- “[W]e are persuaded . . . that plaintiffs’ statutory right to be discharged only for cause is not a fundamental interest protected by substantive due process.”
- "The denial of procedural due process is actionable for nominal damages without proof of actual injury.”
Written by the judges who cited it.
The opinion
BOGGS, Circuit Judge,
concurring in part and dissenting in part.
I agree with much of what is said in the court’s opinion, but I believe that the court has made a fundamental error in interpreting Ohio Revised Code § 4117.10. That section explicitly says that when a public employer and a union enter into an agreement that “provides for final and binding arbitration of grievances,” then the contracted-for grievance procedure controls rather than statutory provisions of the state Personnel Board of Review and Civil Service Commission.
The reason for such a provision is quite obvious. Special provisions for the determination of grievances have long been justified in public employment because such workers are frequently forbidden to organize and thus forbidden to use the provisions for the protection of workers that are often available through union contracts. Where such contracts are available, it is sensible that they should be used, and this statute embodies that understanding. The grievance procedure employed here is a quite conventional one, leading through various stages to final and binding arbitration. The court has, however, fastened on what occurs at step three of the process. If earlier attempts at resolution have failed, the grievance is submitted to a board composed of equal numbers of union and management representatives. It is only if this board is equally divided that the grievance will proceed to final and binding arbitration.
It' is clear to me that this step does not deprive the entire process of its character as one “leading to final and binding arbitration.” At each step in a grievance procedure, there is a possibility that one side or the other will give in or modify its position to the extent that a resolution can be reached. If this were not so, all of the steps before final arbitration would simply be a sham that must be played out before the ultimate decision. The fact that in this procedure one step is composed of multiple persons representing each interest should make no difference. At the earlier steps in this proceeding, and in every step of any proceeding, the contest will go forward toward final and binding arbitration only if each side sticks to its guns and makes no concessions. That is all that has happened here. Each side has agreed to put its interests in the hands of a multi-member grievance commission to which it has appointed *1354 half the members. I see no way that this process would ever have been thought, by either of the parties to the contracts, as not being one that leads to final and binding arbitration.
Controversies over the meaning of “final and binding arbitration” generally concern whether the ultimate result of the process is definitive and enforceable. See General Drivers, Warehousemen, and Helpers, Local Union No. 89 v. Riss and Co., 372 U.S. 517, 519-20 , 83 S.Ct. 789, 791 , 9 L.Ed.2d 918 (1963). As the Supreme Court notes there, “if the award ... is the parties’ chosen instrument for the definitive settlement of grievances ... it is enforceable [as final and binding].” Id. at 519 , 83 S.Ct. at 791 . There is no doubt that the arbitration process in this case is the parties’ chosen instrument, and is enforceable. See also Rowan v. Sober, Inc., 69 Lab.Cas. (CCH) ¶ 13,164, 1972 WL 921 (E.D.Mich.1972); 88 LRRM 2997, 76 Lab.Cas. (CCH) ¶ 10,724, 1975 WL 1033 (1975) (Keith, D.J.).
I would thus hold that the district court erred in not dismissing the suit as barred by Section 4117.10 and the failure of plaintiffs to proceed under the contract. This would render unnecessary discussion of many of the remaining claims. Assuming, however, that Ohio Revised Code § 124.34 does apply in this case, I have no quarrel with the determination of those claims.