Dennis points out in a comment on this post (in addition to my now adding lazy pills to my daily regimen) that Delta Flight Attendants are, in fact, not unionized (the AFA is trying to change that). My bad (and thanks for pointing out the error – and for caring enough to correct it). I still maintain that there is not, in fact, much difference these days between an “at-will” employee and a “just cause” one (barring of course a controlling contract provision – collectively bargained or otherwise). Dennis makes the point that arbitrators will often consider whether off-duty misconduct shares a nexus with the reason for termination (he rightfully suggests that in this case it very well could) before upholding a termination. His argument is that this provides greater protection than at-will employment does. As I said in my first post, I disagree. So-called “at-will” employees can very easily make the same argument above (the off-duty misconduct is not a valid reason for termination – or more likely is a pretext for some illegal reason) in either a wrongful discharge or discrimination claim. Dennis says, “leaving aside discrimination and handbook issues,” which is like saying, “leaving aside the labor contract” – the only way just cause ends up in a labor contract is if it is bargained there (it is perfectly legal for a union and company to agree to an at-will provision in a labor contract). I’ve defended numerous wrongful discharge and discrimination claims and based on this experience I can tell you that, in the real world, “at-will” is pretty much an empty concept – the exceptions swallow the rule. If you don’t have an objectively provable business reason to justify a termination decision you shouldn’t fire someone, whether they are covered by a union contract or not. Finally, Dennis also seems to be under the mistaken impression that just because someone is covered by a union contract with a just cause protection in place, that they are entitled to make their case to an arbitrator. In fact union members do not make this call – union representatives do. I have also settled numerous discharge grievances, especially in gray cases like this one, without an arbitration (where the union drops the grievance and the discharge stands). The “at-will” flight attendant in this case, who is not represented by a union, is in total control of the decision to appeal her termination. If represented by the AFA she does not “own” her claim – the union does – and they can settle even if the member disagrees. Not knowing the background facts (Did Delta ever discuss this site with the flight attendant? Were there any prior warnings about similar conduct? Past examples of other similar conduct handled the same way?), it does seem like Delta handled this situation a little ham-handedly (I’m sure they didn’t mean to make this woman a poster-child for the AFA’s organizing campaign). But the claim that a union contract would provide some terrific protection to her not available because of her non-union, “at-will” status is just not true.
