For approximately thirty years, federal and state legislatures, as well as the judiciary, have enacted laws and extended protections to unionized and non-unionized employees alike. At various times during these years the economy has been weak and strong. During all of these years, statutory protection of union activity has remained undiminished. Yet during these years, union membership has gradually declined. Although a true examination of this issue would require a book rather than a brief paper, it is the premise of this paper that workplace legislation and judicial protectionism have diminished perceived the need for and role of unions in America.
Business unionism arose in the late eighteenth and early nineteenth centuries at least in part as a reaction to the perceived inability of the worker to obtain redress from the government.1 Later, towards the end of the nineteenth century, American workers came to a critical juncture: they had to choose between pursuing political and legislative relief or private bargaining with employers.2 Despite the exhortation of some American labor leaders that workers engage in "political action, ranging from revolution to pragmatic legislative reform," by and large, labor leaders were unable to effectively organize workers under broad utopian or ideological principles.3 Early efforts demonstrated that American workers were most interested in and philosophically supportive of efforts to engage in private bargaining, improving their individual lot, rather than generalized moral or social pursuits.4
This ultimately led to the present American system for exclusive representation5 of unit employees and bargaining by a representative of employees with employers as sanctioned initially by the Wagner Act and now the NLRA, as amended.6 The Wagner Act, was the result of a century of struggle by workers to improve their working conditions; it resulted in legislation permitting employees to authorize a representative to speak from a position of strength on behalf of employees -- to protect unit employees.7 When the Act was passed it was considered "an industrial Magna Carta for labor.8
Passage of the NLRA had nearly an immediate impact on union membership. Between 1935 and 1940, union membership jumped threefold, from less than 3,000,000 before the Act to nearly 9,000,000.9 In terms of percentages, in the early 1930s, union members comprised roughly fifteen percent of the private sector work force.10 By the mid-1950s, unions represented nearly forty percent of the work force.11 "Then began the steep decline to today's figure of well under 15% -- a figure that is projected to fall below 10% by the turn of the century."12
Significantly, union membership today has fallen below the 1929 level of twelve percent.13 This decline is evidence that organized labor's recruitment efforts have become less effective in the last thirty-five years or so. Consistent with this trend, the number of certification elections has precipitously declined;14 for example, according to the literature, by 1985 unions were able to use certification to offset only about twenty-five percent of the union membership attrition resulting from the loss of jobs in unionized plants.15 The result is obviously a significant reduction in private sector union density, which is a turn that perhaps itself imprints a message on unionized and non-unionized employees in the work force today.
Although fluctuations in union membership have occurred throughout history, the current decrease is unique because it has occurred within the "ostensibly protective legal environment" engendered by the NLRA.16 Numerous explanations have been offered for this state of affairs, including structural changes such as the drop in employment in goods-producing industries, which traditionally have been the stronghold of union development, and the concomitant growth in the number of professional, managerial, technical and other white collar workers.17 Further, increased competition from imports, and the shift of employment from the rust belt to the sun belt, are frequently offered interpretations.18 Other commentators have proffered diagnoses such as greater employer use of aggressive tactics to counter organizing activities and the lack of desire on the part of employees to join.19 Relying on the results of a Harris poll, one author has written that the foremost reason for current employee apparently escalating rejection of labor organization representation is "the perception that unions and bargaining are irrelevant."20 Certainly in the context of a stagnant economy, labor organizations are hard pressed to win wage and benefit increases.
It is the thesis of this paper that the increased protections afforded by federal and state statutes, and the common law, to employees have eroded the need for union representation. Essentially the provision of certain social welfare benefits and employee protections by government substitutes for the private provision by labor organizations, reducing the perceived need for or attractiveness of union membership. The NLRA basically was enacted in a statutory vacuum:
These statutes and others, unequivocally benefitted the working and living conditions of at-will employees; they, however, simultaneously may have had the impact of hampering the expansion or stability of unionism.
Notably, although organized labor supported some legislative initiatives, it has not subscribed to all such measures. For example, labor lobbied for legislation in the areas of health and safety because it believed that substantial benefits could be gained as the result of nationwide application, while experience had shown that those benefits were not uniformly attainable at the bargaining table. Malcolm R. Lovell, Jr., The Impact of Regulatory Reform on Labor Law: Redressing the Historical Balance, 1 Hofstra Lab. L.F. 49, 54. Yet in the areas of equal opportunity and pension reform, some labor organizations sensed the obvious potential of these initiatives to
Id.
The commentary concerning labor's position on these measures, however, is by no means in agreement. For example, one recent article argues that
Parigi, Cavaliere & Allen, supra note 12, at 313 (emphasis supplied).
Thus, in the twentieth century we have witnessed the rise and decline of unions23 and the parallel rise in legislation and common law conferring greater employee rights and protections. These two trends, however, have developed on gradually intersecting slopes.
In 1964, Title VII of the Civil Rights Act24 of that year provided employees with statutory remedies for discriminatory conduct at the work place. This was especially significant during the 1960's when there were significant rumblings by unit employees of color that their units' designated labor organizations were not responsive to their interests or needs.25 The Age Discrimination in Employment Act,26 enacted in 1967, provided employees between forty and seventy years of age (later amended to remove the age ceiling) protection in the work place from employer conduct motivated by age.27 In 1970, Congress passed the Occupational Safety and Health Act28 establishing a governmental body as the watchdog and protector of employee safety and health and while labor organizations were instrumental in the creation of this new employee resource29 this Act created another fissure in the dam of union raison d'etre for its members. Congress sought to regulate and protect employee benefit plans by enacting ERISA30 in 1974.
This statutory safety net continued to expand in the 1980s and 1990s. In 1985, the Consolidated omnibus Budget Reconciliation Act (COBRA) was enacted.31 That statute requires, in part, an employer permit former employees to participate in group health plans upon separation from employment. In 1988, Congress restricted the use of polygraph testing of active and prospective employees with the Employee Polygraph Protection Act of 1988.32 The year 1988 also saw the enactment of the Worker Adjustment and Retraining Notification Act ("WARN"), which requires that an employer give notice employees before it either closes a facility or institutes mass layoffs.33 In 1991 Congress enacted the Civil Rights Act of 1991 providing for jury trials and the possibility of punitive damages for discriminates.34 Title I of the Americans With Disability Act of 1990 became effective in 1992, initially extending its protection to millions of disabled employees in establishments of twenty five or more employees and to be further extended to employers employing fifteen or more employees beginning July 1994.35 Most recently, President Clinton last year was able to convince Congress to enact the Family and Medical Leave Act ("FMLA").36 The FMLA permits employees to take twelve work weeks of leave for the birth or adoption of a child or for the care of child, spouse or parent who has a serious health condition.
The common theme among these and other legislative enactments, as well as judge-made law, is that aggrieved employees may secure particularized assistance through government or private counsel for their personal protection and benefit -the needs of the unit need not be balanced or even considered by their representative. Not only is the NLRA no longer in a statutory vacuum, it finds itself in a crowded, and at times conflicted, legal environment. Examples of these conflicts range from individuals' ability to have a union dissolved to obvious statutory overlapping between the NLRA and other statutes to a unionized worker's right to circumvent the collective bargaining agreement to obtain relief. While examples of tensions illustrating each of these areas would be too lengthy for this paper, a few are discussed below.
One example of the elevation of an individual worker's interests over those of the bargaining unit is Bailey v. Ryan Stevedoring Co.37 In this case, the Fifth Circuit ultimately concluded that a union could be dissolved over majority objection at the instigation of a lone Title VII plaintiff.38 Plaintiff appellant Bailey, an African-American longshoreman, asserting various discriminatory employment practices in violation of Title VII, sued two locals, including his own, and five stevedoring companies on behalf of himself and others similarly situated.39 Bailey was a member of a local composed entirely of African American longshoremen which worked side-by-side with an entirely white local.40 The two locals, at least in theory, shared job assignments, which typically required three to sixteen workers,41 on a 50%-50% work sharing arrangement.42
Plaintiff Bailey, however, maintained that he had been systematically excluded from the most desirable longshore positions and restricted in the amount of work that he received. As a result of these practices, he claimed that he had suffered severe financial loss. Bailey proposed the merger of the two locals as a remedy and sought an injunction barring the continued operation of the segregated locals.
Bailey's brethren did not support his efforts, and they submitted to the court a voluntary petition, as follows:
We understand they are seeking to join our black Local 1830 and the white Local together.
We state Boudreaux, Wells and Bailey do not represent us as a class in their effort to integrate the unions. If the unions are integrated, we will lose (1) our right to equal jobs with the whites, (2) our right to elect our own officers and grievance committees, and (3) our rights to our own meetings and a chance to hold office and act for the black longshoremen to protect their interest.
By maintaining Our separate strength and not having it diluted by joining with the white Local we have been able to obtain the same wages, working conditions, including foremen and other jobs in the Port. If our Locals are put together a few dissatisfied black men can join with the white men and deprive the vast majority of black workers of their jobs and working conditions.
We do not want these three men, Boudreaux, Wells and Bailey to act for us as a class in this suit and we do not want our Local Union destroyed. We understand that if any of us want to we have the right to join the white union or stay a member of the black union now.43
The trial court denied class certification based on these representations, declaring that "the claims of [Bailey] are individual in nature and the issues raised by him are not issues common to any identifiable class too numerous to sue individually."44 Finding no evidence of race discrimination, the district court dismissed the complaint.
The Fifth Circuit agreed with the district court's conclusion regarding class certification. It, nevertheless, reversed and remanded the case on the ground that the lower court had erred by refusing to grant Bailey's "motion for permanent injunction against the continued operation of segregated locals."45 Although the Fifth Circuit declined to decide the issue whether segregated locals constitute a per se violation of Title VII, it concluded that the 1150%-50%11 rule had a potential discriminatory impact and directed the district court to issue a permanent injunction prohibiting the continuing operation of racially segregated locals.
While the Americans with Disabilities Act was enacted to promote equal employment opportunity for the disabled, it is the focus of some tension with the NLRA.46 Examples of the undermining of collective rights by individual remedies is the ADA's sanctioning of one-on-one discussions between an employer and disabled person and the ADA's effect on bargained for seniority systems.
Section 9(a) of the NLRA establishes the right of a labor organization to be the exclusive collective bargaining representative for employees in the bargaining unit:
This provision, however, presents some tension with other statutory enactments such as the ADA and its regulations. For example, the EEOC promulgated one regulatory provision which permits and encourages one-on-one discussions between the employer and the employee:
Resolving the tension between these provisions is no easy task. On one hand, "if the employer conducts an informal, interactive process with a disabled person to determine a suitable, reasonable accommodation, the employer disregards its duty under the NLRA to bargain exclusively with the union representatives of its employees."49 Under such circumstances, the employer may be guilty of "direct dealing" if he and the employee reach an accommodation that changes the employee's working conditions.50 In some circumstances this may even be used as a subterfuge to engage in direct dealing. On the other hand, if a union representative is present at the discussions, the confidentiality provisions of the ADA may be violated under the EEOC's regulatory view of the ADA protections.51
The ADA also intersects with the NLRA with respect to its reasonable accommodation provisions. Reasonable accommodations under the ADA include reassignment, job-restructuring, and modified work schedules,52 which are typically governed by the collective bargaining agreement.53 An employer is required to make such a reasonable accommodation unless it would impose an undue burden, although what an undue burden is not yet clear.54 Conversely, if the accommodation requires a material change in pay, the seniority system or performance standards, then section 8(d) of the Act requires bargaining.55
As a further demonstration of an apparent lack of understanding of the collective bargaining process, the Congressional Committee Reports and the EEOC Technical Assistance Manual for the ADA "advise" employers and labor organizations that they can carry out their responsibilities under the ADA "by adding a provision to agreements negotiated after the effective date of the ADA, permitting the employer to take all actions necessary to comply with the Act.56
In addition, Section 12212 of the ADA57 encourages the use of alternative means of dispute resolution "including settlement negotiations, conciliations, facilitation, mediation, factfinding, minitrials and arbitration." While the ramifications of this alternative dispute resolution ("ADRII) section of the Act are uncertain, some employers have sought to persuade employees that ADR rather than union/grievance resolution is a more desirable process for employees. In addition to using this argument during organizing campaigns, it is being used as a side-by-side model for businesses where only some employees are represented.58
Up to this point, this paper has focussed on employee benefits conferred by federal law. The benefits established by state legislation and common law may be equally important to the employee and will be addressed here. Obvious examples of statecreated rights include unemployment compensation to be received by striking employees,59 and minimum mental health care benefits for employees.60
An important development in the area of state-created rights has been the judicial sanctioning of employees enforcing these obligations, even where the employee is covered by a collective bargaining agreement. For instance, in Albertsons v. Carrigan,61 the Tenth Circuit held that plaintiff's outrageous conduct claim against her employer could be maintained to dispute her suspension for shoplifting even though she was subject to a collective bargaining agreement under which her discipline could have been challenged.
Another example, is the circumvention of collective bargaining agreement provisions by a covered employee who seeks common law relief for wrongful discharge, see discussion infra. The classic rule concerning the employment of an employee not covered by contract is that "an employer can fire an employee for a good reason, bad reason, or for a reason morally wrong, without incurring any liability."62 This principle has a dubious history and seems to have originated in 1877 from the active and perhaps sloppy pen of the American treatise writer Horace G. Wood who, himself, was strongly criticized for relying on questionable precedent.63 Despite the doubtful basis of Wood's rule,64 it gained widespread acceptance in the United States.65 This American Rule remained unchanged through the 1970's. During this roughly one-hundred year period, from Mr. Wood's rule to the 1970's, most courts did not recognize exceptions to the at-will rule.66
In the 1970's, the courts began to carve out exceptions to this rule, which have been characterized by one noted authority as "the most significant development in the whole field of labor law during the past decade.67 By and large, this erosion of the at-will doctrine has been applauded by legal scholars on the moral ground that "there is nothing to be said in favor of an employer's right to treat its employees arbitrarily or unfairly."68 Indeed, each year thousands of at-will employees are discharged without just cause; the estimates range from 50,000 to 200,00069 annually.
Currently, an overwhelming majority of the states does recognize one or more exceptions to the at-will doctrine.70 Moreover, one state, Montana, in 1987 enacted the first and only wrongful discharge act, although other legislatures have considered similar statutes.71 Meanwhile, the National Conference of Commissioners on Uniform State Laws has drafted a model termination act which would protect non-probationary employees from dismissals which are not supported by good cause.72
The potential of further state or federal legislation in this area is a subject of ongoing consideration.73 However, what is becoming clear is that represented and unrepresented employers are now resorting to their lawyers and the courts where in previous decades they would have enlisted the representation of their union or perhaps would have initiated a union organizing drive as a by-product of their employment dispute.
The courts have created three primary exceptions74 to the at-will rule: public policy,75 implied contract,76 and implied covenant of good faith and fair dealing.77 The first of the three is a tort theory, the other two are contract theories.78 Because the focus of this section is on the reliance on these exceptions by actual or potential unit members, rather than on the contours of the exceptions, they will not be described in detail here. Rather, they are outlined in the margin.79
It is notable that these doctrines are undergoing nearly continual development. Earlier this month, for example, the Virginia Supreme Court reinstated the wrongful discharge claims of employees who asserted that their terminations had been the result of racial and sexual discrimination. While reaffirming its adherence to the at-will doctrine, the court explained that these terminations violated public policy. The court described as its role as upholding "the policy underlying existing laws implement the fundamental public policies embodied in the state's penial designed to protect the ... personal freedoms ... of the people in general."80
The point of significance for the purposes of this paper, however, is not the potential holding of any individual case, but rather the evolution of legislative and judicial protectionism for employees, a role that was previously entrusted to labor organizations in contexts where employees sought and designated a representative.
The erosion of the at-will doctrine has impacted union members and undermined the exclusive grievance procedures provided by collective bargaining agreements in that unionized employees are increasingly opting to pursue wrongful termination actions under the public policy exceptions.81 Larger tort awards and the possible award of punitive damages have inspired union members to pursue common law remedies. In California, for example, plaintiffs win seventy percent of cases that reach a jury, and judgments average over $300,000.82 "Throughout the country, single individuals have received verdicts as high as $20 million, $4.7 million, $3.25 million, $2.57 million, and $2 million. Jury awards exceeding $1 million have been common, usually because of the addition of punitive damages."83 Meanwhile, the average back pay award by the NLRB for an unfair labor practice is $2000.84 Thus, unionized workers are not only demonstrating their belief that they may acquire other representation and seek other remedies by selecting private civil litigation but also serve as models for others to follow; the grievance and arbitration process may not be the most effective or lucrative route to follow when an individual employee feels wronged.
Significantly, The right of the union member to pursue common law remedies has been constitutionally established by the Supreme Court in Lingle v. Norge Division of Magic Chef, Inc.85 The Court opined that plaintiff Lingle's state law claim that she was discharged in retaliation for filing a workers, compensation claim was not preempted because its resolution did
Although the Lingle Court did not resolve all of the preemption issues implicated by the intersection of Section 301 of the Labor Management Relations Act87 with these common law claims, its decision clearly sanctions the right of a unionized "employee to raise common-law tort claims in addition to pursuing grievance and arbitration remedies."88
As this article is being written the administration is drafting what is referred to as the Workforce Security Act of 1994, ostensibly to provide a comprehensive training or retraining program along with income support for hundreds of thousands of unemployed workers each year. What effect this may have on other apprenticeship or training programs often offered by labor organizations would be mere speculation of this time. What is clear, however, is that society has changed during the approximate half century that the NLRA has been in existence. our world has evolved and the cumulative effect of our social legislation and policies has had an effect of providing employees with avenues of recourse where at one time there were none. Individual representation does not need to balance the interests of the unit as a whole and remedies may be vastly greater pursuing these newer avenues. Legislation and judicial policies have offered greater protection for employees but have also had the effect of gradually diminishing the role of labor organizations for American workers.
1. Philip Taft, On the Origins of Business Unionism, 15 Indus. & Lab. Rel. Rev. 20, 21 (1962). Clearly the membership composition, structure, and role of the union has changed over time. For example, the early unions were homogenous and local, often centering on an individual craft. These unions operated independently, each craft union in each community had its own relationship with employers. Ben Fischer, Collective Bargaining and Fifty Years of the CIO, 36 Lab. L.J. (CCH) 659, 659 (1985) (IRRA Spring Meeting). Not until the Congress of Industrial organizations emerged, contemporaneously with the NLRA, did workers with "different skill functions" belong to the same union or negotiate as a group in substantial numbers. Id.
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2. Richard A. Carlson, The Origin and Future of Exclusive Representation in American Labor Law, 30 Duq. L. Rev. 779, 784 (1992).
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4. See generally William Forbath, Law and the Shaping of the American Labor Movement, 1-36 (1991).
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5. See generally Carlson, supra note 2.
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6. 29 U.S.C.A. § 151-69 (1984).
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7. Marion Crain, Building Solidarity Through Expansion of NLRA Coverage: A Blueprint for Worker Empowerment, 74 Minn. L. Rev. 953, 963 (1990).
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9. Carlson, supra note 2, at 781 n.7.
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10. Paul c. Weiler, Hard Times for Unions: challenging Times for Scholars, 58 U. chi. L. Rev. 1015, 1017 (1991).
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12. Id. There is some variation in the statistics concerning union membership. See Michael A. Curme, Barry T. Hirsch & David A. MacPherson, Union Membership and Contract Coverage in the United States, 1983-1988, 44 Indus. & Lab. Rel. Rev. 5 (1990) (from 1973 to 1989, the percent of employees who were union members declined from 23.6 to 16.3); Robert J. LaLonde & Bernard D. Meltzer, Hard Times for Unions; Another Look at the Significance of Employer Illegalities, 58 U. Chi. L. Rev. 953, 953 (1991) (from 1953 to 1989, union density declined from thirty-five percent to twelve percent); Sam F. Parigi, Frank J. Cavaliere & Joel L. Allen, Labor Law and the Future of Organized Labor Under the Clinton Administration, 44 Lab. L.J. (CCH) 313, 316 (1993) (unionized workers comprised 16.4% of the work force in 1989 and 16.1% in 1990); Carlson, supra note 2, at 781 n.8 (union membership peaked in 1955 when one-third of the work force was unionized; as of 1990, only one-sixth of the work force was unionized).
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13. Leo Troy, Market Forces and Union Decline: In Response to Paul Weiler, 59 U. Chi. L. Rev. 681, 682 (1992).
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14. Gary N. Chaison & Dileep G. Dhavale, A Note on the SeveritY of the Decline in Union organizing Activity, 43 Indus. & Lab. Rel. Rev. 366, 368 (1990). According to Professors Chaison and Dhavale, in 1975-1981, the average number of certification elections in new units was 7,191 and in 1982-1987 it fell to 3,463 per year. Id. at 369.
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15. Id. at 368 (citing Paul C. Weiler, Reflections on the NLRA at 50, Daily Lab. Rep. (BNA) E-1 (June 11, 1985)).
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16. LaLonde & Meltzer, supra note 12, at 954. Professor Carlson has written that this decline is distinctive also because it has "persisted for many years through several business cycles." Carlson, supra note 2, at 781.
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17. LaLonde & Meltzer, supra note 12, at 954.
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18. Id.; Douglas E. Ray, The Changing Face of Labor-Management Confrontation in the Late 1980's, 30 B.C.L. Rev. 101 (1988).
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19. Weiler, supra note 10, at 1016-017; Troy, supra note 13, at 687.
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20. Troy, supra note 13, at 688.
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21. Jane Byeff Korn, Collective Rights and Individual Remedies:Rebalancing the Balance After Lingle v. Norge Division of Magic Chef, Inc., 41 Hastings L.J. 1149, 1176-77 (1990).
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22. Korn, supra note 21, at 1176-77 (quoting Neumann & Rissman, Where Have All the Union Members Gone?, 2 J. Lab. Econ 175 (1984)).
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23. Indeed, it has been said that the "prevailing theme of nearly all current labor law literature is that the traditional system for collective bargaining has failed." Carlson, supra note 2, at 781 n.10. Many professionals in the field currently believe that collective bargaining will see no resurgence without a substantial change in the law. Id.
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24. 42 U.S.C.A. §§ 2000e to 2000e-17 (1981) & Supp. 1993
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25. Organized labor's lack of responsiveness to the needs of minority members certainly pre-dates the 1960's. See, e.g., Steele v. Louisville & N.R.R., 323 U.S. 192 (1944). Ironically, over time the union density among African-American workers has become higher than that for Caucasian Americans. See Curme, Hirsch & MacPherson, supra note 12, at 9, 12.
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26. 29 U.S.C.A. S 621, et seq. (1985 & Supp. 1993).
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27. Among the amendments to the ADEA was the "Older Workers Benefit Protection Act" of 1990, which provided minimum standards for the negotiation of enforceable waivers and releases of potential age discrimination claims. Among the statutory requirements is that "the individual is advised in writing to conduit with an attorney prior to executing the agreement." 29 U.S.C.A. S 626(f)(E). The statutory impetus is not to propel employees towards their collective bargaining representative.
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28. 29 U.S.C.A. §§ 553, -651-678 (1985 & Supp. 1993).
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29. See discussion supra note 22.
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30. 29 U.S.C.A §§ 301, et seq. (1985 & Supp. 1993 (scattered sections)).
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31. Pub. L. No. 99-272 (tit. X), 100 Stat. 222-237 (codified as amended in scattered sections of Title 26)
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32. 29 U.S.C.A. §§ 2001-2009 (Supp. 1993).
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33. 29 U.S.C.A. §§ 2101-2109 (Supp. 1993).
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34. 42 U.S.C.A. § 1981a (Supp. 1993).
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35. 42 U.S.C.A. 12101-12213 (Supp. 1993). Although the "longstanding hallmark" of the union was its protection of the individual worker, it, like the rest of America failed in protecting disabled people. Erika F. Rottenberg, The Americans with Disabilities Act: Erosion of Collective Riqhts, 14 Berkeley J. Empl. & Lab. L. 179, 181 (1993). Two thirds of the disabled were unemployed during the late 1980's, while sixty-six percent of that group desired employment. Id.
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36. See C.F.R. § 1630.2(o).
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37. 528 F.2d 551 (5th Cir. 1976), reh'q denied, 533 F.2d 976 (5th Cir. 1976), cert. denied, 429 U.S.1052 (1977), on remand, 443 F. Supp. 899 (M.D. La. 1978), revld on second appeal, 613 F.2d 588 (5th Cir. 1980), rehl'g denied, 618 F.2d 781 (5th Cir. 1980), cert. denied, 450 U.S. 964 (1981).
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38. Elizabeth M. Iglesias, Structures of Subordination: Women of Color at the Intersection of Title VII and the NLRA Not!, 28 Harv. C.R.-C.L.L. Rev. 395, 413 (1993).
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39. 528 F.2d at 552.
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40. Id. At 553, 554 n.2.
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41. Id. At 554. A contract between the locals and the stevedoring association controls the size of longshore gangs. Id. At 554 n.5.
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42. Id. At 554 n.6.
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43. Id. At 553.
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45. Id. At 557.
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46. Note, The Impact of Federal Labor Policy on the Americans with Disabilities Act of 1990: Collective Bargaining Agreements in a New Era of Civil Riqhts, 1992 B.Y.U.L. Rev. 1055, 1056 (1992).
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47. 29 C.F.R. § 159(a).
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48. 29 U.S.C. §1630.2(o)(3) (1992).
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49. See Note supra note 46, at 1063.
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50. Stephen M. Crow & Sandra J. Hartman, ADA Versus NLRA: Is A Showdown Imminent Over Reasonable Accommodation?, 44 Lab. L.J. (CCH) 375, 379 (1993).
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51. Note, supra note 46, at 1063.
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52. 42 U.S.C. §12111(9) (B).
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53. Rottenberg, supra note 35 at 184; Note, supra note 46, at 1082-83.
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54. Crow & Hartman, supra note 50, at 376.
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55. Id. The ADA does not include a section preserving seniortty systems as does Title VII. Jules L. Smith, Accommodating the Americans with Disabilities Act to Collective Bargaining obligations Under The NLRA, 18 Empl. Rel. L.J. 273, 281 (1992). Title VII provides that:
56. EEOC Technical Assistance Manual S 7.11(a), reprinted in Daily Lab. Rep. No. 18 (Special Supp. Jan. 28, 1992).
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57. 42 U.S.C.A. S 12212.
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58. Certainly, the Supreme Court has previously held that age discrimination claims may be subject to compulsory arbitration. Gilmer v. Interstate/Johnson Lane Corp., 111 S.Ct. 1647 (1991).
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59. See, e.g., New York Tel. Co. v. New York State Dept. of Lab., 440 U.S. 519
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60. See, e.g., Metropolitan Life Ins. Co. v. Massachusetts, 471U.S. 724 (1985) .
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61. 982 F.2d 1478 (10th Cir. 1993).
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62. Sid L. Moller, The Revolution that Wasn't: On the Business as Usual Aspects of Employment At-Will, 27 U. Rich. L. Rev. 441, 441 (1990).
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63. Theodore J. St. Antoine, The Twilight of Employment At-Will? An Update, First Ann. Lab. & Empl. L. Inst. 1, 2 (1984). In contrast to Wood's formulation of the American Rule, the English Rule presumed a hiring period of one year; that rule may have been predicated on "the medieval Statutes of Laboures, which were initially designed as pro-employer measures to prevent unauthorized quitting or wage-gauging by employees during periods of severe labor shortages resulting from the Black Death." Id. at 3.
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64. Professor St. Antoine notes that Wood's rule was anticipated by California legislature in the Field Code in 1872 as well as courts in New York and Kentucky. Id. at 2-3.
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65. Moller, supra note 62, at 441.
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66. Id.; Michael A. Robbins & Naomi Norwood, State Wrongful Discharge Law: Are Unionized Employees Covered?, 12 Empl. Rel. L.J. 18, 20 (1986).
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67. St. Antoine, supra note 63, at 2.
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68. Id. at 13.
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69. Leonard B. Mandelbaum, Employment at Will: Is the Model Termination Act the Answer? 44 Lab. L.J. (CCH) 275, 277 (1993); see also St. Antoine, supra note 63, at 14 (100,000); Lewis L. Maltby, The Decline of Employment At Will -- A Quantative Analysis, 41 Lab. L.J. (CCH) 51, 51 (1990) (150,000); Model Uniform Employment -- Termination Act (Proposed Official Draft 1991) (History of the Act in Conference) (150,000-200,000).
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70. Jeffrey M. Hahn & Kevin M. Smith, Wrongful Discharge: The Search for Legislative Compromise, 15 Empl. Rel. L.J. 515 (1990).
Model Uniform Employment -- Termination Act (Proposed Official Draft 1991); see also infra notes 75-77. This trend has led one commentator to opine that employment for an indefinite period no longer is treated as per se terminable at will but as presumed terminable at will." David Dominguez, Just Cause Protection: Will the Demise of Employment At-Will Breathe New Life Into Collective Job Security, 28 Idaho L. Rev. 283, 285 (1991-1992).
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71. Hahn & Smith, supra note 70, at 519; Dominguez, supra note 70, at 284; 28 Idaho L. Rev.; Model Act, supra note 69 (forty out of forty-five states and territories responding to a survey had bills introduced in their legislature).
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72. Model Act, supra note 69, at § 1.
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73. See, e.g., Maltby, supra note 69, at 51.
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74. These, however, are not the first exceptions to the rule; they were preceded by statutory exceptions:
Robbins & Norwood, supra note 66, at 21.
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75. See, e.g., Caraway v. Franklin Ferguson Mfg., 507 So.2d 925 (Ala. 1987); Luedke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989); Wagenseller v. Scottsdale Mem. Hosp., 710 P.2d 1025 (Ariz. 1985); Sterling Drug, Inc. v. Oxford, 743 S.W.2d 280 (Ark. 1988); Peterman v. International Bhd. of Teamsters, 344 P.2d 25 (Cal. App. 1959); Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo. 1992); Sheets v. Teddy's Foods, Inc., 427 A.2d 385 (Conn. 1980); Dominique v. Dept. of Employment Servs., 574 A.2d 862 (D.C. 1990); Smith v. Piezo Tech. & Prof Adm'rs, 427 So.2d 182 (Fla. 1983); Parnar v. American Hotels, Inc., 652 P.2d 625 (Haw. 1982); Jackson v. Minidocka Irrigation Dist., 563 P.2d 54 (Idaho 1977); Kelsay v. Motorola, Inc., 384 N.E.2d 353 (Ill. 1978); Frampton v. Central Ind. Gas Co., 297 N.E.2d 425 (Ind. 1973); Springer v. Weeks & Leo Co., 429 N.W.2d 558 (Iowa 1988); Palmer v. Brown, 752 P.2d 685 (Kan. 1988); Firestone Textile Co. v. Meadows, 666 S.W.2d 730 (Ky. 1988); Cahill v. Frank's Door & Bldg. Supply Co., 590 So.2d 53 (La. 1991); Adler v. American Standard Corp., 432 A.2d 464 (Md. App. 1981); DeRose v. Putnam Mngt. Co., 196 N.E.2d 428 (Mass. 1986); Trombetta v. Detroit, Toledo & Ironton R.R. Co., 265 N.W.2d (Mich. Ct. App. 1978); Phipps v. Clark Oil & Refining Corp., 408 N.W. 2d 569 (Minn. 1987); McArn v. Allied Bruce-Terminix Co., 8 I.E.B. Cases 1314 (Miss. 1993); Boyle v. Vista Evewear, Inc. 700 S.W. 2d 859 (Mo. Ct. App. 1985); Ambroz v. Cornhuskers Square Ltd., 416 N.W. 2d 510 (Neb. 1987); Hansen v. Harrah's Reno, Inc., 675 P.2d 394 (Nev. 1984); Monge v. Bebee Rubber Co., 316 A.2d 549 (N.H. 1974); Pierce v. Ortho Pharm. Corp., 417 A.2d 505 (N.J. 1980); Boudar v. EG & G, Inc. 742 P.2d 491 (N.M. 1987); Coman v. Thomas Mfg. Co., 381 S.E.2d 445 (N.C. 1989); Krein v. Marian Manor, 415 N.W.2d 793 (N.D. 1987); Hazlett v. Martin Chevrolet, Inc., 496 N.E.2d 478 (Ohio 1986); Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989); Nees v. Hocks, 536 P.2d 512 (Or. 1975); Geary v. United States Steel Corp., 319 A.2d 174 (Pa. Super. Ct. 1974); Cummins v. E.G. & G. Sealol, Inc., 3 I.E.R. Cases 705 (D. R.I. 1988); Ludwick v. This Minute of Carolina, 337 S.E.2d 213 (S.C. 1985); Johnson v. Kreiserts, Inc., 433 N.W.2d 225 (S.D. 1988); Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn. 1984); Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985); Berube v. Fashion Ctr. Ltd., 771 P.C. 1033 (Utah 1989); Payne v. Rozendaal, 520 A.2d 586 (Vt. 1986); Bowman v. State Bank of Kevsville, 331 S.E.2d 797 (Va. 1985); Thompson v. St. Regis Paper Co., 685 P.2d 1081 (Wash. 1984); Harless v. First Nat'l Bank in Fairmont, 246 S.E.2d 270 (W. Va. 1978); Ward v. Frito-Lay. Inc., 290 N.W.2d 536 (Wis. Ct. App. 1980); Griess v. Consolidated Freightways, 776 P.2d 752 (Wyo. 1989).
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76. See, e.g., Hoffman-LaRoche v. Campbell, 512 So.2d 725 (Ala. 1987); Jones v. Central Peninsula Gen. Hosp., 779 P.2d 783 (Alaska 1987); Leikvold v. Valley View Hosp., 668 P.2d 170 (Ariz. 1984); Gladden v. Arkansas Children's Hosp., 728 S.W.2d 501 (Ark. 1987); Pugh v. See's Candies Inc., 116 Cal. App. 3d 311 (Cal. App. 1981); Continental Airlines, Inc. v. Keenan, 731 P.2d 708 (Colo. 1987); Finley v. Aetna Life & Cas. Co., 499 A.2d 64 (Conn. App. 1985), rev'd on other grounds, 520 A.2d 208 (Conn. 1987); Washington Welfare Ass'n v. Wheeler, 496 A.2d 613 (D.C. 1985); Kirshita v. Canadian Pac. Airlines, 724 F.2d 110 (9th Cir. 1986) (Hawaii); Jackson v. Minidoka Irrigation Dist., 563 P.2d 54 (Idaho 1977); Duldulao v. St. Mary of Nazareth Hosp., 505 N.E.2d 314 (Ill. 1987); Young v. Cedar County Work Activity Ctr., 418 N.W.2d 844 (Iowa 1987); Morriss v. Coleman Co., 738 P.2d 841 (Kan. 1987); Shah v. American Synthetic Rubber Corp., 655 S.W.2d 489 (Ky. 1983); Terrio v. Millinocket Community Hosp., 379 A.2d 135 (Me. 1977); Staggs v. Blue Cross of Md., Inc., 486 A.2d 798 (Md. Ct. Spec. App. 1987); Hobson v. McLean Hosp. Corp., 522 N.E.2d 975 (Mass. 1988); Toussiant v. Blue Cross & Blue Shield of Mich., 292 N.W.2d 880 (Mich. 1980); Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983); Rosen v. Gulfshores, Inc., 8 I.E.R. cases 196 (Miss. 1992); Johnston v. Panhandle Coop. Ass'n, 408 N.W.2d 261 (Neb. 1987); Southwest Gas Corp. v. Ahmad, 668 P.2d 261 (Nev. 1983); Panto v. Moore Bus. Forms, Inc., 547 A.2d 260 (N.H. 1988); Woolley v. Hoffmann-LaRoche, Inc., 491 A.2d 1257 (N.J. 1985); Forrester v. Parker, 606 P.2d 191 (N.M. 1980); Murphy v. American Home Prods. Corp., 448 N.E.2d 86 (N.Y. 1983); Mers v. Dispatch Printing Co., 483 N.E.2d 150 (Ohio 1985); Langdon v. Saga Corp., 569 P.2d 524 (Okla. Ct. App. 1976); Speciale v. Tektronix, Inc., 590 P.2d 734 (Or. Ct. App. 1979); Small v. Springs Indus., Inc., 357 S.E.2d 452 (S.C. 1987); Osterkamp v. Alkota Mfg., 332 N.W.2d 275 (S.D. 1983); Aiello v. United Airlines Inc. 818 F.2d 1196 (5th Cir. 1987) (Texas); Arnold v. B.J. Titan Servs. Co., 783 P.2d 541 (Utah 1989); Sherman v. Rutland Hosp., Inc. 500 A.2d 230 (Vt. 1985); Roberts v. Atlantic Richfield Co., 568 P.2d 764 (Wash. 1977); Cook v. Heck's, Inc., 342 S.E.2d 453 (W.Va. 1986); Ferraro v. Koelsch, 368 N.W.2d 666 (Wis. 1985); Alexander v. Phillips Oil Co. 707 P.2d 1385 (Wyo. 1985).
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77. See, e.g., Hoffman-LaRoche v. Campbell, 512 So.2d 725 (Ala. 1987); Mitford v. deLasala, 666 P.2d 1000 (Alaska 1983); Wagenseller v. Scottsdale Mem. Hosp., 710 P.2d 1025 (Ariz. 1985); Foley v. Interactive Data Corp., 47 Cal. 3d 654 (Cal. 1988); Magman v. Anaconda Indus., 193 Conn. 558 (1984); Reiver v. Murdoch & Walsh, P.A., 625 F. Supp. 998 (D. Del. 1985); Holmes v. Union Oil Co., 760 P.2d 1189 (Idaho 1988); Siles v. Travenol Labs., Inc., 433 N.E.2d 103 (Mass. App. Ct. 1982); Jeffers v. Bishop Clarkson Mem. Hosp., 387 N.W.2d 692 (Neb. 1986); Savage v. Holiday Inn Corp., 603 F. Supp. 311 (D. Nev. 1985);
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78. Moller, supra note 62, at 460-489; Hahn & Smith, supra note 70; St. Antoine, supra note 63, at 5-13.
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79. First, the public policy tort theory requires that the employee establish the existence of a clear public policy, as manifested in constitution, statute, regulation or case law and that "dismissing employees under the circumstances like those involved in plaintiff's dismissal would jeopardize the public policy." Moller, supra note 62, at 470. The employee also must show that his dismissal was motivated by conduct related to the public policy and the employer lacked an overriding legitimate business justification for the dismissal. Hahn & Smith, supra note 70, at 516.
A case illustrating this rule is Tameny v. Atlantic Richfield Company, 610 P.2d 1330 (Cal. 1980), in which an employee was discharged for refusing to illegally fix gasoline prices. The Supreme Court of California explained that an employer has an obligation "to refrain from firing an employee for refusing to commit a criminal act" and that obligation springs not from the contract between the parties, but rather "'reflects a duty imposed by law upon all employers in order to implement the fundamental public policies embodied in the state's penial statutes."' Moller, supra note 62, at 469 (quoting Tameny, 610 P.2d at 1335).
The second exception is the implied contract theory which requires that the discharged worker show the employer made a promise of employment security, such as representing that the employee would not be discharged except for cause. St. Antoine, supra, note 63, at 10-11. The employee must show that he gave consideration for the promise, that the employer breached the promise and that he suffered damages. Moller, supra note 62, at 461.
Finally, the last exception has been explained by one commentator, as enabling
Id. at 481.
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80. Lockhart v. Virginia Educ. Sys. Corp., No. 921503 (Va. Jan. 7, 1994); Wright v. Donelly & Co., No. 930205 (Va. Jan. 7, 1994), summarized in, Daily Lab. Rep. A-15 (Jan. 27, 1994).
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81. Korn, supra note 21, at 1157; Robbins & Norwood, supra note 66, at 19; see, e.g., Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988); Jones v. Roadway Exp., Inc., 931 F.2d 1086 (5th Cir.), reh'q denied, 936 F.2d 789 (5th Cir. 1991); Knafel v. Pepsi-Cola Bottlers, Inc., 899 F.2d 1473 (6th Cir. 1990); Greiss v. Consolidated Freightways Corp., 882 F.2d 461 (10th Cir. 1989); Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th Cir.) (en banc), cert. denied, 493 U.S. 992 (1989); Hanks v. General Motors Corp., 859 F.2d 67 (8th Cir. 1988); Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993 (9th Cir. 1987); Vincent v. Trend W. Technical Corp., 828 F.2d 563 (9th Cir. 1987); Truex v. Garrett Freightlines, Inc., 784 F.2d 1347 (9th Cir. 1985); Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir. 1984), cert. denied, 417 U.S. 1099 (1985); Anderson v. Coca Cola Bottling, Inc., 772 F. Supp. 77 (D. Conn. 1991); Durrette v. UGI Corp., 674 F. Supp. 1139 (M.D. Pa. 1987); Nelson v. Owens-Corning Fiberglass Corp., 648 F. Supp. 44 (D. Mont. 1986); Snow v. Bechtel Const., Inc., 647 F. Supp. 1514 (C.D. Cal. 1986); Austin v. New England Tel. & Tel. Co., 644 F. Supp. 763 (D. Mass. 1986); Scott.v. New United Motor Mfg., 632 F. Supp. 891 (N.D. Cal. 1986); Hohn v. Kaiser Cement Corp., 624 F. Supp. 549 (D. Mont. 1986); Faust v. RCA Corp., 612 F. Supp. 540 (M.D. Pa. 1985); Johnson v. Hussman Corp., 610 F. Supp. 757 (E.D. Mo. 1985); Zaks v. American Broadcasting Cos., 626 F. Supp. 695 (C.D. Cal. 1985); Messenger v. Volkswagen, Inc., 585 F. Supp. 565 (S.D. W. Va. 1984); Taylor v. St. Regis Paper Co., 560 F. Supp. 546 (C.D. Cal. 1983); Friday v. Hughes Aircraft Co., 236 Cal. Rptr. 291 (Cal. App. 1986); Mouser v. Granite City Steel, 460 N.E. 2d 115 (Ill. App. 3d 1984); Brevik v. Kite Painting, Inc., 416 N.W.2d 714 (Minn. 1987); Brinkman v. Montana, 729 P.2d 1301 (Mont. 1986); Richard v. Portland Gen. Elec. Co., 730 P.2d 578 (Or. App. 1986); Carnation Co. v. Borner, 610 S.W.2d 450 (Tex. 1980); Yoho v. Triangle PWC, Inc., 336 S.E.2d 204 (W. Va. 1985).
In general, courts have permitted union members to maintain claims under the tort-based exception only. Robbins & Norwood, supra note 66, at 24. The contract theories, the courts have held, apply only to at-will employees, who otherwise have no job security. Id.
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82. Mandelbaum, supra note 69, at 277; Model Act, supra note 68.
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83. Model Act, supra note 69.
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84. Korn, supra note 21, at 1159.
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85. 486 U.S. 399 (1988).
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86. Id. at 409-410.
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87. 29 U.S.C. §