New Orleans In the final action for Craig Becker, the greatest interim NLRB member ever, a decision issued putting a knife in the corporate dodge of forcing workers to sign “arbitrate only” clauses as part of individual agreements, and allowing collective arbitrations and grievances as well as class action suits by multiple workers on employment issues. Of course this will be challenged in litigation by business interests, so we shouldn’t build a castle on this sand yet, but this could actually have real value for organizing, and given the weakness of unions, for effective worker advocates stepping into the breach of declining unionization.
This decision affects a lot of workers: estimates are that 25% of all non-union workers have signed exactly these kinds of individual arbitrate only agreements. The immediate decision involved a case with the big home builder, D. H. Horton, where a required employment agreement had mandated not only that the worker with an issue had to arbitrate but also barred the arbitrator from making a decision which could apply to any other workers or group of workers. The NLRB with support of the Department of Labor, Equal Employment Opportunity Commission, and others ruled that this requirement was a breach of the 1935 National Labor Relations Act and its protection of “concerted” or collective activity by workers.
The last thing an organizer ever wants is to be tied up in court and arbitration is not much better, but in this case, we are so desperate for leverage and any tools that might work, it is great to have a way to force employers, even in union settings, to deal with group grievances and arbitrations and enlist some of the few remaining labor side lawyers struggling to make a living to stand up tall and represent us. Too often even the best lawyers have looked at these arbitration bars and advised us to walk away because the time, trouble, and money to pierce them, no matter how righteous the issue, would have made the whole matter marginal.
Given the rising numbers of workers in temporary and informal settings that are home based and often find no compensation for overtime hours, transportation and other issues, I can hardly wait for more weapons in this war!