DMI Blog

Kia Franklin

The Irony of Big Businesses’ Opposition to the Employee Free Choice Act

Over at TortDeform we've written volumes about the dangers of binding mandatory arbitration agreements ("bma") between corporations and individuals. So imagine my surprise when I saw an article from someone who opposes the Employee Free Choice Act (a good piece of legislation that would empower employees and strengthen labor protections), but also opposed binding mandatory arbitration agreements.

Soon it all became clear: the author opposes bma when it applies to disputes between corporations and unions. This is a different matter altogether. Unlike disputes between corporations and individuals--i.e., patients, consumers, or individual employees not acting as part of a union--disputes between corporations and unions involve two parties that both have power. This addresses the primary objection that those in the social justice community have to pre dispute bma as they're used against consumers. And because it addresses this concern over the power dynamic, it takes all the fun out of it for corporations, now doesn't it?

According to this opinion in the SF Gate, the Employee Free Choice Act would be bad for big corporations because:

The Employee Free Choice Act contains a mandatory arbitration provision that has received little attention. This arbitration provision presents economic concerns that run contrary to labor's assertions that the bill would rehabilitate the economy.

The bill would permit a government-appointed third party - who has no stake in an employer's business or any understanding of the company's inner workings - to impose a binding two-year collective bargaining agreement upon a company.

The opinion goes on to fan the flames of fear, saying the Employee Free Choice Act will obliterate all U.S. jobs, destroy the economy (sorry, pal, already done!), and lead to the apocalypse. Okay, so I exaggerate a little.

When bma is forced on an individual, s/he usually has little choice besides "take it or leave it." Then when a dispute arises--any dispute, from the mundane to the extreme--the individual has to resolve the dispute before an arbitrator that likely has an ongoing relationship with the corporation. Ms. Sarcastic says, "Now, that sounds neutral!"

But replace Joe Schmo with Union 123, and the relatively level power dynamic between unions and employers changes the scenario, and corporations are not so gung-ho for bma any more because it actually has the potential to work more fairly.

So while die-hard corporatists insist that pre dispute binding mandatory arbitration is wonderful, what they really mean is, it's a wonderful thing except when corporations can't use it to bully people around.

Thomas Geoghegan, a labor lawyer, makes the connection between the detest for unions and the support for tortdeforms like the use of pre dispute bma in contracts between corporations and individuals in his book, See You in Court: How the Right Made America a Lawsuit Nation. It's worth checking out. Speaking of good reading, to learn about the benefits of the Employee Free Choice Act you can visit DMI's website,

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Posted at 5:27 PM, Dec 08, 2008 in Civil Justice
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