Wrongful Termination Lawsuit v. Union Grievance and Arbitration in California

Generally, a worker in California who is a member of any SEIU union and who has been wrongfully terminated in violation of state or federal laws can pursue one or the other or both legal routes to redress their termination:

Route I  – Union Grievance and Arbitration

The first route is filing a grievance through the union representative for termination in violation of the collective bargaining agreement (most such agreements provide that there must be just cause for termination, which is generally more than a trivial mistake or a problem in performance, and has to be something relatively serious). Sometimes, the parties to a dispute settle a grievance in exchange for compensation or employee’s reinstatement or both. If the grievance is not settled, it should eventually be submitted to a binding, out-of-court arbitration, in front of an arbitrator. The arbitration is like a mini trial where the Arbitrator will be the sole decision maker and will rule on the case after listening to the testimony of all parties and witnesses and after considering all the documentary evidence provided by the employer and the aggrieved employee. The employer is represented by counsel and the employee is represented by the labor attorneys appointed/hired by the union.

The advantage of the union grievance and the arbitration process is that the arbitrator has the power to literally order employee’s reinstatement and further order that the employee is paid full back wages for the time missed from work since termination, assuming of course that the arbitrator finds in employee’s favor. The main disadvantage of this route is that dealing with unions is quite often frustrating as they are not responsive or not aggressive enough about pursuing grievances on behalf of the workers. Having limited resources and personnel, a union must pick and choose which cases to fight for and which cases to let go, which is often not an easy decision. Unfortunately, many unions are not as supportive of their members, and it’s not uncommon to hear about corruption and collusion between unions and employers, kickbacks, and other improper, unethical or even illegal conduct.

Route II – Wrongful Termination Lawsuit in Court

The same aggrieved employee can also file a separate action – a civil lawsuit in court if there is evidence of violation of state or federal law (such as discrimination, harassment, retaliation, etc…). This action will be brough in court and will have nothing to do with the arbitration proceedings. The collective bargaining agreement provisions have very little or no weight in that court action. Winning or losing a grievance or a union arbitration also has no binding effect on the court action. In other words, just because you lost the grievance, doesn’t mean you don’t have a good civil / wrongful termination case. The opposite is true as well – winning a union arbitration doesn’t guarantee victory in court.

The advantage of a court action is that the employee is not left to the mercy of the union representative, but can enjoy individual representation and attention from an experienced employment attorney of his/her choice. Hopefully, that attorney can pay a much closer attention to the case than an overwhelmed or corrupt union administration.  The disadvantage of a court action is that the court/judge/jury does not have the power to order the employer to take the employee back, like a union arbitrator can under the CBA provisions. This is because state and federal anti-discrimination laws provide for recovery of monetary damages for lost wages, emotional distress, and in some cases for punitive damages, but they do not provide for reinstatement except in limited cases (such as under Labor Code section 132).

Combining Both Routes 

Pursuing both of the above routes is often a good idea for obvious, practical reasons. First, having two concurrent actions increases the chances that the employee will prevail in at least one of them. Secondly, having two actions against the employer applies greater financial pressure on the employer, who has to incur legal expenses on both fronts, and is more likely to encourage the empoyer to engage in settlement negotiations sooner than later.  Finally, there is really no downside to pursuing both legal routes at the same time.

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