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Hastings Law Journal

Authors

Jane Byeff Korn

Abstract

Collective bargaining agreements protect unionized workers by prohibiting discharges for other than just cause and by providing a grievance and arbitration process through which unjustly discharged employees can receive reinstatement and back pay. At-will employees historically had no such protection. In recent years, courts have made exceptions to the at-will rule, and wrongfully discharged employees now may recover tort damages. Because of the disparity in the damages recoverable in arbitration and tort actions, many unionized employees are ignoring collective bargaining agreements and suing for the tort of wrongful termination. In Lingle v. Norge Division of Magic Chef, Inc., the United States Supreme Court held that wrongful termination claims by unionized employees are not preempted by federal labor law. This Article critiques the Court's approach and argues that while judicial recognition of wrongful termination actions is providing needed protection for at-will employees, it may be having a negative impact on unions. The Article asserts that the Court demonstrated in Lingle the judicial failure to consider the effect of individual wrongful termination actions on collective bargaining. The author proposes a solution, including granting arbitrators the authority to award punitive damages, that would protect the policy underlying our national labor laws while maintaining the newly won job security of at-will employees.

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