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32 UCLA L. Rev. 302 (1984-1985)
Making Good on Vaca's Promise: Apportioning Back Pay to Achieve Remedial Goals

handle is hein.journals/uclalr32 and id is 316 raw text is: MAKING GOOD ON VACA'S PROMISE: APPORTIONING BACK PAY TO ACHIEVE REMEDIAL GOALS* Lea S. VanderVelde** TABLE OF CONTENTS INTRODUCTION ........................................... 304 I. IDENTIFYING THE POLICY OBJECTIVES FOR LIABILITY AND REMEDIES IN HYBRID ACTIONS ................. 306 A. The Purpose and Origin of Hybrid Actions ........ 307 1. The Grievance-Arbitration Process ........... 309 2. The Vaca Compromise ....................... 312 3. The Standard of Conduct .................... 313 B. The Deterrent Effect of Arbitration and the Hybrid A ction ........................................... 317 1. The Magnitude of Sanction .................. 318 2. The Probability of Sanction .................. 320 a. The employer's perception of its risk from wrongful discharge ........................ 322 b. The union's perception of its risk from breach of duty ............................ 326 c. The employer's ability to cure after the grievance procedure terminates ............ 331 3. The Defendants' Relative Risk Averseness .... 332 4. Strategic Behavior by Defendants ............. 335 C. The Difficulty of Remedying Wrongful Discharge as a Reason for Timely Cure ..................... 335 1. Back Pay and Other Damages ................ 335 * The title draws on Professor Summers' statement that employee protection under the duty of fair representation is a form of words which holds the promise to the ear and breaks it to the heart. Summers, Individual Rights in Collective Agreements and Arbitration, 37 N.Y.U. L. REV. 362, 410 n.188 (1962). ** Professor of Law, University of Iowa, College of Law. J.D., University of Wis- consin School of Law, 1978. I wish to thank Professors Jim Atleson, Steve Burton, William Buss, Mary Lou Fellows, Michael Goldberg, Bob Rabin, Clyde Summers, and David Vernon for their readings, reactions, and helpful comments on earlier drafts of this Article. Karla de Steuben, Mark Fransdal, Charles Nadler, and Clint Woods were very resourceful in providing research assistance.

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