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Renner v. East Manufacturing Corp.12/6/2002
where the union abandons the grievance.
. The Supreme Court of Ohio has explicitly stated that, in order for an employee to bring a cause of action for wrongful discharge in violation of public policy, the employee must have been an at will employee. Haynes v. Zoological Soc. Of Cincinnati (1995), 73 Ohio St.3d 254, syllabus. See also, Noday v. Mahoning Cty. Sheriff, 147 Ohio App.3d 38, 2002-Ohio-609; Wiegerig v. Timken Co. (2001), 144 Ohio App.3d 664.
. In the case sub judice, Paul Renner was not an at will employee. Thus, he cannot assert a cause of action for wrongful discharge in violation of public policy. The trial court correctly granted summary judgment to appellees as to appellants' claim for wrongful discharge in violation of public policy. Appellants' fourth assignment of error is without merit.
. Next, appellant's fifth assignment of error provides: " he trial court erred to the prejudice of plaintiffs-appellants by granting summary judgment to defendants-appellees on the cause of action alleging wrongful discharge in violation of the collective bargaining agreement." Appellants contend that an employer cannot attempt to invoke a "leave of absence" provision in a collective bargaining agreement to establish just cause for discharge an employee who is on leave due to an injury that is compensable under the Workers' Compensation Act. Appellants assert that the instant case involves a simple application of a state law principle that an employer cannot invoke a leave of absence provision to discharge an injured worker on temporary total disability in which the employer knows the employee is on temporary total disability.
. Briefly, appellees argue that appellant Paul Renner's grievance, concerning his termination, was never arbitrated; thus, appellant did not exhaust the grievance procedure set forth in the collective bargaining agreement and cannot bring suit for breach of the collective bargaining agreement. Appellees cite to Street v. Gerstenslager Co., (1995), 103 Ohio App.3d 156 as support. In Street, the appellant did not pursue the grievance procedure provided in the collective bargaining agreement; rather, the appellant filed suit against the company. Id. at 159. The Ninth Appellate District stated that a bargaining unit employee could not bring an action for breach of a collective bargaining agreement unless he had exhausted the contractual grievance procedures. Street, supra, at 161, citing Truex v. Garrett Freightlines, Inc. (C.A.9, 1985), 784 F.2d 1347, 1353. In the case before, unlike Street, appellant Paul Renner first attempted to pursue the grievance process under the collective bargaining agreement. The record contains the grievance form submitted by appellant and East's answer to appellant's grievance. The union subsequently notified appellant that it was withdrawing his grievance because there was "little to no chance of winning" without additional evidence. When pursuing administrative remedies would be wholly futile or if there is no administrative remedy available which can provide the sought after relief, exhaustion of remedies is not required. McIntosh v. Cuyahoga Metro. Housing Auth., 8th District No. 79316, 2002-Ohio-485, 2002 Ohio App. LEXIS 445, at 6, citing Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 17.
. In the case sub judice, the collective bargaining agreement between East and Local Union 24, International Brotherhood of Teamsters, in particular Article 19, states:
. "Termination - Employment with the Company shall terminate and seniority shall be broken by the following act(s) or occurrences(s):
. "1. quit or retire;
. "2. discharge for just cause;
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