In the case of Buga v. Lorain, 2016-Ohio-3101, two City of Lorain employees were terminated during the probationary period provided under the collective bargaining agreement. Rather than filing a grievance to contest the termination, the employees filed separate actions seeking reinstatement and damages.
The City defended the action by asserting that the employees’ failure to follow the grievance procedure deprived the trial court of jurisdiction over their claims. The employees countered that following the grievance procedure was futile as the probationary provision in the collective bargaining agreement specifically permitted the City to terminate their employment “without right of appeal through the grievance procedure.” Buga at ¶ 13. The Ninth Appellate District agreed with the employees finding that “the City has failed to carry its initial burden to establish [* * * that the employees] were required to file a grievance under the CBA before filing this action.”
This case suggests that the probationary language in a collective bargaining agreement presents employers with an “either/or” proposition but not a “both.” Specifically, probationary provisions frequently contain language prohibiting employees from appealing their termination through the grievance procedure, as was the case here. While this language prevents grievances, it opens the employer to lawsuits, as was also the case here. And, while allowing the probationary employee to appeal the termination through the grievance process may prevent lawsuits, it undermines the purpose of the probationary period.
Public officials should weigh this dilemma when crafting probationary language, strongly consider whether they would prefer to prevent a disgruntled employee from appealing the termination either through the grievance process or through a lawsuit. However, it does not appear that the employer can prevent both. As the Ninth District stated, “the City’s argument has been that Appellants cannot seek a grievance under the CBA or obtain relief from the Lorain County Court of Common Pleas. This Court declines to adopt such a position.” Buga at ¶ 14.
To read this case, please click here.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.