Arbitrary, Capricious, and Contrary to Law

National Mediation Board and National Labor Relations Board new rules

Non-union vs. union

During this time of economic distress in our country unionized employees, including mechanics in the airline business, are protected from dismissal by their collective bargaining agreements, which often require “just cause” before the termination of any employee. This is valuable protection. Non-union workers traditionally are not guaranteed the protection given to union employees.

Unless non-union employees have individually negotiated employment contracts, they risk being terminated by the use of the common law employment-at-will rule that allows an employer to dismiss an employee at any time for any reason.

The union employee must be afforded several opportunities for reinstatement under most agreements before he can be let go. The process can be long and detailed and is designed to explore all opportunities to retain the employee. If an employer wants to avoid a union all they have to do is provide the same benefits and wages that are sought by the union.

At-will discharge

Fortunately, for the non-union employee, the dismissal at-will concept has been slowly eroded, so that many states have all but done away with it, thus making it almost as difficult to dismiss a non-union employee as it is for a union protected person. Where there is no union to deal with employers must still deal with the ever-present threat of a wrongful discharge lawsuit by an employee. The possibility of large jury awards must be considered for the wrongful termination of an at-will employee. The employer may be faced with both compensatory and punitive damages for mental anguish and or pain and suffering or actual physical injuries.

The real danger of such a tort case is that a jury could become overly sympathetic with and identify with an aggrieved employee and impose punitive damages as well. The erosion of the at-will employment doctrine provides a judicial solution for those employees. All employers should carefully seek alternate paths to avoid litigation with discharged employees. The continued erosion of the at-will employment concept however, now provides job security not unlike that available to the union employee.

So the question remains … if all other things are equal the status can be considered almost equal … why bother with complex arrangements?

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He is a USAF veteran. Send comments to

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