Although barely mentioned by the media, three cases currently being considered by the Supreme Court under the name NLRB v. Murphy Oil, U.S.A. could overturn nearly a century of progressive labor law.
They question whether employers’ mandatory arbitration agreements with individual employees are illegal because they prevent workers from pursuing work-related claims collectively. The Court’s decision, to be announced in late spring, could erase decades of now-required safeguards for non-union and low wage workers regarding workplace safety, protections against discrimination, wage payment and job security.
On the side of big business are the U.S. Chamber of Commerce, the Department of Justice and 17 pro-corporate supporters that have written “friend of the court briefs.” On the workers’ side are the National Labor Relations Board (NLRB) and numerous unions, supported by 11 “friend of the court” briefs.
If the justices find for the defendants it could result in mandatory arbitration to settle all employee grievances against management. This would effectively abolish numerous, hard-won labor laws, and make class-action lawsuits illegal, destroying an important weapon in the fight against race and sex discrimination in the workplace. It would also render irrelevant the National Labor Relations Act (NLRA), enacted by Congress in 1934 to protect worker’s rights.
How we got here. The NLRA established the National Relations Board (NLRB) to enforce labor laws. This reform occurred against the backdrop of massive strikes and union organizing for many rights now taken for granted. The legislation enshrines two important safeguards. The first is that workers have the right to organize themselves and collectively bargain with employers to advance their interests. The second is that it is unlawful for bosses to obstruct workers’ collective organizing efforts.
The NLRB is not a perfect institution. It should, but does not, represent farm and domestic workers, and board members are appointed by the President. However, it has, at times, gone to court to defend union organizing drives, file complaints against discrimination, and contest violations of wage and hour agreements.
However, as a result of a multi-decade litigation campaign by big business, a series of Supreme Court decisions in the 1980’s and 1990’s turned arbitration into the wide-spread practice it is today. In 1999, a group of banks including Chase Manhattan, American Express and Citibank formed the “Arbitration Coalition” to promote taking cases over arbitration to the Supreme Court. As a result, the Court steadily ruled that arbitration agreements supersede state laws and regulations, many of which were created for the precise purpose of protecting workers.
An unfair fight. American Prospect journalist Simon Lazarus writes regarding the current Supreme Court case, “What they (employers) want, of course, is brutally clear — a blank check to impose otherwise illegal prohibitions against concerted legal action, simply by inserting them in the mandatory arbitration sections of employment contracts.”
Arbitration is deeply unfair to workers. Its terms are defined by the boss — when and where it will take place and what’s on the agenda. The employer hires the arbitrator and often uses the same one multiple times, establishing a cozy relationship that benefits management. Arbitrators do not have to be trained in the law and their judgement does not need to conform to the laws of the state in which the arbitration takes place. There is no process of discovery in which the complainant has access to evidence the bosses have. And unlike a court of law, there is no provision for review to ensure the arbitrator is not corrupt.
Arbitration agreements force a worker to take on the employer as an individual, even if several workers have the same grievance, a David vs. Goliath fight. If the dispute involves back pay, for example, management could decide that the amount of unpaid wages is less than its arbitration expenses, and pay the worker nothing. Clearly, working people’s strength comes through solidarity and collective action. Arbitration’s goal is to isolate and defeat, one worker at a time.
Breaking the chains. These are not good times for the vast majority of workers in this country. Courts have documented extensive and systematic wage theft in numerous industries — garment manufacturing, nursing homes, construction, agriculture, restaurants, and poultry processing. The Economic Policy Institute recently reported that “approximately 16 percent of private sector non-union employers, employing 25 million workers, already impose…agreements that mandate arbitration and bar class relief.”
No matter what happens in NLRB v. Murphy Oil, U.S.A., there is no easy way to reverse the fallout from this anti-union crusade launched by bankers and billionaires. Workers cannot depend on the bosses’ courts, especially today’s ultra-conservative Supreme Court, to protect them. Clearly the current situation requires an aggressive counter-campaign against arbitration by unions and all champions of using class action suits as a way to win important, if always threatened, reforms.
However, also at our disposal is the greatest defensive and offensive weapon working people have — and it does not depend on the Supreme Court or Congress or the ballot box. It is our ability to withhold our labor by striking. Working people’s capacity to organize as a class resides in recognizing and using this collective power.
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