(dissenting). This appeal presents a question of great significance to public employers and employees: Does the refusal of a union representing a public employee to arbitrate the employee's unlawful discharge claim bar the employee from maintaining an action under 42 U.S.C. sec. 1983 against the employer for the deprivation of the employee's property interest in his employment?11 conclude that it does not and therefore dissent.
In a series of cases, Atchison, T. & S. F. R. Co. v. Buell, 480 U.S. —, 94 L. Ed. 2d 563 (1987); McDonald v. West Branch, 466 U.S. 284 (1984); Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (1981); and Alexander v. Gardner-Denver Company, 415 U.S. 36 (1974), the United States Supreme Court has declined to hold that individual employees, because of the availability of arbitration, are barred from bringing claims under federal statutes designed to provide substantive guarantees to employees.
Although the analysis of the question under each statute is quite distinct, the theory running through these cases [McDonald, Barrentine, and Gardner-DenverJ is that notwithstanding the strong policies encouraging arbitration, "different considerations apply where the employee's claim is based on rights *852arising out of a statute designed to provide minimum substantive guarantees to individual workers." Bar-rentine, supra, 450 U.S. at 737. [Emphasis added in Lingle.]
Lingle v. Norge Division, Magic Chef, 486 U.S. —, 100 L. Ed. 2d 410, 422 (1988) (quoting Atchison, 480 U.S. at —, 94 L. Ed. 2d at 572-73).
Lingle, Atchison, Barrentine and Gardner-Denver are private sector employee cases. McDonald is a public sector case which involved a claim under sec. 1983.
In Lingle the question presented was whether an employee who had a contractual remedy under a collective bargaining agreement for discharge without just cause could enforce her state-law remedy for a retaliatory discharge. The court of appeals held that the state tort remedy was preempted by sec. 301 of the Labor Management Relations Act of 1947.2 The Lingle court explained that sec. 301 preemption "merely ensures that federal law will be the basis for interpreting collective-bargaining agreements, and says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon the interpretation of such agreements." 486 U.S. at —, 100 L. Ed. 2d at 420-21 (footnote omitted). In other words, if a worker is granted substantive rights by state (or, by analogy, federal) law those rights may be enforced in court without reference to the grievance and arbitration procedure in a collective bargaining agreement, unless *853the application of the law requires interpretation of the collective bargaining agreement. "Today's decision should make clear that interpretation of collective-bargaining agreements remains firmly in the arbitral realm; judges can determine questions of state law involving labor-management relations only if such questions do not require construing collective-bargaining agreements." Id., 486 U.S. at —, 100 L. Ed. 2d at 422 (footnote omitted).
The Lingle court did not reach the question of whether a union may waive its members' individual, nonpreempted state-law rights. Lingle, 486 U.S. at —, 100 L. Ed. 2d at 421 n. 9. The court noted, however, that under Illinois law, the parties to a collective bargaining agreement could not waive the prohibition against retaliatory discharge nor could they alter a worker's rights under the state worker's compensation scheme. Id. The court stated: "Before deciding whether such a state law bar to waiver could be pre-empted under federal law by the parties to a collective-bargaining agreement, we would require 'clear and unmistakable' evidence, in order to conclude that such a waiver had been intended." Id. (Citation omitted.) Analogously, before we decide that the parties to a collective bargaining agreement have waived an employee's federal statutory and constitutional rights, we should require "clear and unmistakable" evidence that the parties intended to do so. There is no "clear and unmistakable' evidence in this case that the union and MSC intended to waive members' and employees' access to the courts to enforce federal statutory and constitutional rights. There is a presumption against waiver of constitutional rights. Okeson v. Tolley School Dist. No. 25, etc., 760 F.2d 864, 868 (8th Cir.), rev'd on other grounds, 766 F.2d 378 (1985).
*854The Wisconsin Supreme Court has held that a union which was the bargaining agent for all employees could not make a nonmember's termination of employment as a result of union negotiations a voluntary quit for unemployment compensation purposes. Rhea Mfg. Co. v. Industrial Comm., 231 Wis. 643, 285 N.W. 749 (1939).
Wisconsin courts have entertained actions by individual employees to recover vacation pay provided in a collective bargaining agreement. Skibb v. J.I. Case Co., 255 Wis. 447, 39 N.W.2d 367 (1949); Pattenge v. Wagner Iron Works, 275 Wis. 495, 82 N.W.2d 172 (1957). Some courts have extended judicial protection to employees whose interests are not being represented in the arbitral process simply because the union officials did not believe in the employee's claim. Clark v. Hein-Werner Corp., 8 Wis. 2d 264, 270, 99 N.W.2d 132, 135 (1959).
Clark involved a dispute as to seniority rights. The court said:
While the plaintiff employees had no seniority rights at common law, and such rights were created solely by reason of the labor contract negotiated in their behalf by the union, nevertheless they constitute a valuable property right and cannot be divested without due process of law. It is the contention of the union that no due-process problem is present, in holding the award binding upon plaintiffs' seniority rights, because the plaintiffs were represented by the union in the arbitration proceedings. The leading case on due process as applied to class representation is Hansberry v. Lee (1940), 311 U.S. 32, . . .. The opinion expressed the conclusion that, where the substantial interests of the representative are not necessarily or even probably the same as those he purports to represent, due process militates vigorously against giving the decision effect upon them." [Clark, 8 Wis. *8552d at 273-74, 99 N.W.2d at 137-38 (citations and footnotes omitted)].
Hanson's allegation that the union withdrew his grievance without his knowledge or consent is uncontra-dicted. The union officials admitted that one of the reasons they did not pursue Hanson's grievance was his "low seniority." I conclude that the union's interests were antagonistic, or at least indifferent, to Hanson's and the holding of Clark is applicable.
There is authority that where the employee's property interest is created by legislation or a collective bargaining agreement, the extent of the process due the employee may be defined by the legislative act or the agreement. See Arnett v. Kennedy, 416 U.S. 134, reh'g denied, 417 U.S. 977 (1974) (plurality opinion) (no pretermination hearing required); Winston v. United States Postal Service, 585 F.2d 198 (7th Cir. 1978) (trial-type hearing not necessary); Malone v. United States Postal Service, 526 F.2d 1099 (6th Cir. 1975) (where collective bargaining agreement gives the union sole control of the grievance machinery, the employee must rely upon the union to exhaust his contractual remedies).3 *856The theory espoused in these cases has been dubbed the "positivist" theory. M. Finkin, The Limits of Majority Rule in Collective Bargaining, 64 Minn. L. Rev. 183, 253-55 (1980). Presumably, under this theory, the collective bargaining agreement would provide the exclusive forum in which the employee could obtain redress of an unlawful discharge. The "positivist" theory cannot be reconciled with the United States Supreme Court decisions I have discussed nor with Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).4
*857Other courts have flatly held that a collective bargaining agreement operates as a waiver of the employee's right to due process. See M. Finkin, supra, at 250-53.
The United States Supreme Court decisions which I have discussed dispel the notion that a collective bargaining agreement can circumscribe an employee's state- or federal-law or constitutional rights, on either a "positivist" or a waiver theory. Further, neither theory can be applied to public employment; a public employer's rules contained in a collective bargaining agreement must withstand constitutional examination. M. Finkin, supra, at 255.
I anticipate the argument that this case does not involve an important statutory or constitutional right such as was implicated in the cited cases; all that is involved here is an alleged discharge without cause. Gardner-Denver involved an employment discrimination claim under Title VII of the Civil Rights Act of .1964; Barrentine, a violation of the minimum wage provisions of the Fair Labor Standard Act; Atchison, a Federal Employers' Liability Act complaint; and Lingle, a retaliatory discharge. McDonald, however, makes clear that Congress intended that sec. 1983 be judicially enforceable; 466 U.S. at 290.5
McDonald was a city police officer who claimed he was discharged without "proper cause." He exhausted his remedy under the grievance process but did not appeal the arbitrator's adverse decision. Instead, he began a sec. 1983 action. The Court held that the federal courts improperly accorded preclusive effect to the unap-pealed arbitration award. The Court stated that its previous rejections of a rule of preclusion in Barrentine and of deferral in Gardner-Denver "were based in large part *858on our conclusion that Congress intended the statutes at issue in those cases to be judicially enforceable and that arbitration could not provide an adequate substitute for judicial proceedings in adjudicating claims under those statutes." (Citations omitted.) McDonald, 466 U.S. at 289. The Court said: "These considerations similarly require that we find the doctrines of res judicata and collateral estoppel inapplicable in this section 1983 action." Id. The Court further said: "[A]s we explained in Mitchum v. Foster, 407 U.S. 225, 242 . . . (1972), '[t]he very purpose of sec. 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights — to protect the people from unconstitutional action under color of state law.' " Id. at 290.
The McDonald Court explained why arbitration "cannot provide an adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that sec. 1983 is designed to safeguard." 466 U.S. at 290. First, "[a]n arbitrator may not . . . have the expertise required to resolve the complex legal questions that arise in sec. 1983 actions." Id. (Footnote omitted.) "Second, because an arbitrator's authority derives solely from the contract, an arbitrator may not have the authority to enforce sec. 1983." Id. (Citation omitted.) "Third, when, as is usually the case, the union has exclusive control over the 'manner and extent to which an individual grievance is presented,' .... The union's interests and those of the individual employee are not always identical or even compatible. As a result, the union may present the employee's grievance less vigorously, or make different strategic choices, than would the employee." Id. at 291 (quoting Gardner-Denver Co., 415 U.S. at 58 n.19). "Finally, arbitral factfinding is generally not equivalent to judicial factfinding." Id. *859These factors are all present in this case and militate against giving preclusive effect to the aborted grievance proceedings.
The seventh circuit has stated in dicta that, "McDonald does not decide whether an arbitration proceeding can satisfy the requirements of due process of law, and does not undermine the decisions that hold that it may." Parrett v. City of Connersville, Ind., 737 F.2d 690, 697 (7th Cir. 1984), cert. dismissed, 469 U.S. 1145 (1985). The Court would have to disavow much of what it said in McDonald to conclude that the usual collective bargaining agreement grievance machinery is an adequate substitute for judicial enforcement of sec. 1983.
In any event, the question is not whether a grievance and arbitration procedure can satisfy a public employee's right to procedural due process, but whether the existence of a grievance and arbitration procedure precludes a public employee from litigating with the employer the employee's substantive claim under a federal statute or the federal constitution. McDonald answers that the public employee's right of access to the courts to enforce an important federal statutory or constitutional right cannot be barred by a collective bargaining agreement's grievance and arbitration procedure.
It is true that the United States Supreme Court has held that an action by an employee in the private sector seeking damages for an alleged "wrongful discharge" was a "minor dispute" which he was compelled under the Railroad Labor Act to arbitrate before the National Railroad Adjustment Board. Andrews v. Louisville & Nashville R. Co., 406 U.S. 320 (1972). This decision has no application to a suit by a public employee for damages for an allegedly unconstitutional deprivation of his or her property interest in the employee's job. A claim based upon a constitutionally protected interest cannot, *860as a matter of law, be deemed a "minor dispute."6
Hanson voluntarily dismissed his claim against the union for its breach of its duty to fairly represent him. Hanson is not thereby foreclosed from showing in this action that the union breached its duty to pursue his grievance. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976) (employees could maintain action against employer for breach of collective bargaining agreement even though accompanying action against union remained to be tried). It is, however, unnecessary for us to decide whether, as a condition of maintaining this action, Hanson must show that the union violated its duty to him of fair representation.7 That question has not been argued or briefed. But see, M. Finkin, supra, at 257-58.
42 U.S.C. sec. 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Section 301(a) of the LMRA provides:
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
I note, however, that sec. 111.70(4)(d)l, Stats., of the Municipal Employment Relations Act, provides that, "[a]ny individual employee . . . shall have the right to present grievances to the municipal employer in person . . .." It has been suggested that the exclusive representation contemplated by MERA is for collective bargaining purposes and not the presentation of grievances to the employer. Note, Municipal Employment Relations in Wisconsin: The Extension of Private Labor Relations Devices Into Municipal Employment, 1965 Wis. L. Rev. 671, 678-79.
The first amendment to the federal constitution provides: "Congress shall make no law . . . abridging the . . . right of people ... to petition the Government for a redress of grievances." Article I, sec. 4, Wis. Const, provides: "The right of the *856people ... to petition the government . . . shall never be abridged."
Malone and Winston, which underpin the majority opinion, are of questionable precedential value. Each case involved employees of the United States Postal Service who, in the Postal Reorganization Act (PRA), were placed by Congress under the National Labor Relations Act and treated as if they were private sector employees. In Winston the court said: "The exclusive representation of nonpreference-eligible postal employees in labor-management relations under the PRA is no different from that of private sector employees under the National Labor Relations Act." 585 F.2d at 210.
Malone and Winston follow the "positivist" approach of the plurality in Arnett v. Kennedy (although the court in Winston disavowed the approach, 585 F.2d at 209 n. 30), which one commentator has dubbed the "what you get is what you see" approach. W. Van Alstyne, Cracks in "The New Property": Adjudicative Due Process in the Administrative State, 62 Cornell L. Rev. 445, 469 (1977). In other words, because the right to tenure was conferred by Congress, Congress was free to define the process due the employee to terminate that tenure. This approach is contrary to what has long been considered axiomatic — that the Constitution defines due process. "While the State may define what is and what is not property, once having defined those rights the Constitution defines due process . . .." Arnett v. Kennedy, 416 U.S. 134, 185 (1974) (White, J., concurring in part and dissenting in part).
Civil rights actions belong in court. Burnett v. Grattan, 468 U.S. 42, 50 (1984).
It is possible, however, that the Court will require exhaustion of a collective bargaining agreement's grievance procedure where the employee does not claim that he or she was discharged for the exercise or attempted exercise of a constitutional right or a substantive right conferred by federal or state law. But see McDonald, 466 U.S. at 292 n. 11 (a rule of preclusion might have a detrimental effect on the arbitral process because employee might bypass arbitration) and id. n. 12 (preclusion of a judicial action would gravely undermine the effectiveness of sec. 1983). It is doubtful, in that event, that the Court will permit the union and the employer to bar the employee's access to the grievance machinery. See M. Finkin, supra, at 256-63.
See Mahnke v. WERC, 66 Wis. 2d 524, 225 N.W.2d 617 (1975) (employee in private sector could not maintain unfair labor practice against employer without establishing that the union failed in its duty of fair representation to him).