I haven’t commented on the Delta stewardess fired for blogging (technically, fired for sporting an “inappropriate” picture of herself in her Delta uniform) but had to at least respond to this post . My problem is with the inane comment of J.H. Verkerke, professor of law and Director of the Program for Employment and Labor Law Studies and UVA. He’s quoted as saying, “Nonunion employees enjoy very little legal protection for their off-duty activities.” That’s funny, but I’m not aware of too many union contracts protecting members’ off-duty misconduct either.
If the point is that an arbitrator won’t find that this incident is “just cause” for a termination, that is fine (just like the EEOC could find that this termination is discriminatory, or a jury might find that Delta wrongfully terminated the stewardess based on its handbook, policies or prior actions). But the implication that unions somehow provide great protection for improper off-duty conduct (holding for a moment the question of whether this blog was improper – I don’t think it was) is just flat wrong. Finally, maybe I’ve been taking crazy pills, but I thought Delta’s flight attendants were represented by the AFA. This may sound a little shrill, but I get a little sensitive about the academic bias in favor of organized labor (especially when it is based on the empirically false notion that unions provide greater protection than individual remedies for workplace problems).
Better stop taking your lazy pills. Delta’s FA’s aren’t unionized. Look closely at the AFA site you linked to and you’ll find that the union is still trying to organize the FA’s.
In fact, union contracts do provide significant protection for off-duty conduct. Leaving aside discrimination and handbook issues, an employer normally can fire a nonunion employee for “good cause, bad cause, or no cause at all,” as the employment-at-will doctrine puts it. Virtually every union contract replaces that doctrine with a requirement of “just cause” for discipline. Arbitrators who apply that test to off-duty conduct usually demand that the employer prove some “nexus” between the questioned conduct and the employer’s legitimate business interests.
In this case, her use of the Delta uniform and other things might provide the “nexus,” but the point is that the FA would have had a better shot if she had been covered by a union contract than she does as an at-will employee.
I would also second the position (and the reasonings stated) that a union contract would provide additional protections, and from a practical standpoint, provide more readily available remedies. Here are some additional considerations:
First, and perhaps the most practical issue, is expediency. A terminated flight attendant would have remedies through the contractual grievance process, a much speedier process than remaining fired while a case wends through the legal system.
Second, since the grievance process is essentially private, it provides more opportunities for a settlement to occur. Whether through an ADR process, or through a non-precedential or no-cite resolution, neither party is as concerned with the rest of the industry watching the outcome of the case. Additionally, remedies can be crafted that would be beyond what a judge could or would award.
Third, money. Whether needing to hire a private attorney outright, or getting one to agree to a contingency fee arrangement, it’s an expensive proposition. All AFA contracts provide for legal representation throughout the grievance procedure at no additional charge to the terminated flight attendant.
Unfortunately, individual remedies come with a high pricd tag, whether in terms of time and/or money. While unions cannot totally alleviate this price tag, they can certainly help lessen their impact. Not an academic bias, just thoughts from someone who has been on both sides of the table.