Perhaps not -
Is it worth it to join a union for some trifling amount? Depends on how high the union dues run, among other factors.
Regards,
Shodan
Well, heck, seems like that boxed set of Woody Guthrie CDs I gave you has had no discernible effect. Yeah, that was me, that Christmas, I was your Secret Satan. Santa. Damn spellchuck!
What happened to working to get the law changed? It’s not a case decided on broad constitutional principles. Congress can weigh in and resolve the conflict in legislation by writing new laws. That’s kind of what they exist to do.
I also got a boxed set of Ted Nugent CDs, so I wasn’t sure which one came from you. Good to finally know! 
That was for Shodan, along with a lump of clean coal.
If firebombing were legal then the NLRA would allow people to band together to firebomb things.
The FAA being in contention with the NLRA does not make doing things in the NLRA illegal so your firebombing example makes no sense.
Glad to hear it. I showed in an earlier post the the FAA and NLRA were not at odds for fifty years. In the 80s the Supreme Court started to dramatically expand the FAA till it did start to encroach on the NLRA. It was not congress that did it. It was the supreme court that got us here.
When you say the two acts were not at odds— do you mean this particular question arose before and was settled in a different way?
It seems to me that they were “not at odds” in the sense that this particular issue was never contemplated, and thus the interaction between the two statutes was simply not explored as it relates to mandatory arbitration eclipsing class actions.
But I’m certainly no expert. Can you explain what cases drove you to reach your conclusion?
Even if it is true that the FAA and NLRA were not at odds previously, how is that related to this opinion? What in particular in this opinion do you think the court got wrong? You said earlier that this guts the NRLA, how so? As recently as 2010 the general counsel for the NLRB expressed that the two were not in conflict and that employees and employers “can benefit from the relative simplicity and informality of resolving claims before arbitrators”.
The three plaintiffs sought class action status to pursue back pay for uncompensated overtime. Typically this type of action is pursued under the Fair Labor Standards Act (FLSA), not the NLRA.
Here is the opinion in Gilmer. In Gilmer, the Age Discrimination in Employment Act (ADEA) was at issue, and the same argument by litigants was made. That the ADEA prevented mandatory arbitration because it allowed collective action. But in Gilmer, the court said this (my bold):
Essentially, if Congress wanted one act to preclude the use of arbitration in its proceedings, it would say so. It doesn’t say so so it doesn’t. Just as the ADEA doesn’t preclude arbitration under the FAA, nor does the NLRA.
So which part do you think was an error of reasoning or logic in the opinion?
The NLRA does not mention class action lawsuits. You had argued earlier that since class action lawsuits are “other concerted activities” then they are per se permitted under the NLRA and that provision implicitly overrules the FAA’s preference for arbitration. Am I right so far?
If so, you say that the limitation on “other concerted activities” must be that they are otherwise legal. What makes a certain thing illegal? A prior law outlawing something.
Why can’t we say that this “other concerted activities” clauses repeals any and all prior laws which would restraint labor? Why only arbitration preferences?
I mean when the NLRA came about no one saw it at odds with the FAA because the FAA was nothing like it is today. We are only here, where the NLRA and FAA butt heads, because the supreme court made it happen that way.
I posted this in #50. I will post again:
The cases that draw the conclusion above are as follows (also taken from link above):
[ol]
[li]First, in the 1980s, the Supreme Court adopted a presumption in favor of arbitration to use when deciding cases involving the FAA. It ruled in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), that when deciding whether a particular dispute comes within an arbitration clause, courts should resolve all doubts in favor of arbitration.[/li]
[li]Then, in 1984, in Southland Corp. v. Keating, 465 U.S. 1 (1984), the high court rejected the view that the FAA only applied to cases in federal courts. Rather, the Court held that the FAA also applied to disputes over contracts that were brought in state courts, so long as the dispute involved interstate commerce. [/li]
[li]A third development of the 1980s concerned the types of disputes that were subject to the FAA. Whereas previously the FAA had been found to apply only to contractual disputes, in 1985, in Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985), the Supreme Court held that the FAA also compelled arbitration of statutory disputes. [/li]
[li]Beginning in the late 1980s and through the 1990s the Court struck down legislative efforts by states to protect consumers and employees from oppressive arbitration agreements. One case involved a 1985 Montana law requiring that arbitration agreements in consumer contracts appear on the first page of the contract in reasonable-sized type (Mont. Code Ann. § 27-5-114 (1993)). The purpose of the statute was to ensure that consumers knew that they were consenting to arbitration when they entered into a contractual relationship with a large corporation.[/li]
[li]The Supreme Court has also made it difficult for consumers or workers to avoid arbitration on the grounds that it would be prohibitively costly for them to take their cases to arbitration. In 2000, in Green Tree Financial Corp.-Ala. .v Randolph, 531 U.S. 79, an individual who borrowed money to purchase a mobile home and who was subsequently saddled with exorbitant finance charges sued, claiming that the lender had violated the Truth in Lending Act—a statute intended to protect consumer borrowers from misleading terms in loans. Her loan agreement had a clause requiring an arbitration tribunal that would have imposed costs far beyond her ability to pay. The Supreme Court nonetheless enforced the arbitration clause, despite acknowledging that the projected costs of the arbitration would probably preclude Ms. Randolph from bringing her case at all.[/li]
[li]The Court has also further cut back on the ability of consumers and employees to avoid arbitration on the grounds that a contract is illegal, unconscionable, or otherwise not enforceable. One might think that if a contract is unenforceable, a party cannot be required to arbitrate under it because the arbitration clause is part of the unenforceable contract. That was the law until 1967. But in 1967 the Supreme Court held, in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, that when a party claimed that a contract it had signed was induced by fraud, that party had to assert its claim in arbitration.[/li]
[li]In 2006, the Supreme Court in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, extended the separability doctrine to illegal contracts, even though doing so meant that a party had to arbitrate an alleged violation even when the underlying contract that contained the arbitration agreement was entirely void. [/li]
[li]One of the most frequently raised objections to arbitration clauses is that they are unconscionable. Unconscionability is a well-established contract-law doctrine that says that when a contract is grossly unfair in its terms and/or in the manner in which it was procured, it will not be enforced. Each state has developed its own definition of unconscionability over time. In 2010, in Rent-A-Center West v. Jackson, 561 U.S. 63, the Court expanded the separability doctrine in a way that eliminated many unconscionability challenges to arbitration clauses.[/li]
[li]In addition to expanding the scope of the FAA, the Court has narrowed the standard of review of arbitral awards, thus restricting the ability of parties to appeal an arbitral decision in court. In 2008, in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, the Court held that parties cannot agree to have a court review the decisions of their arbitration tribunals. [/li]
[li]The arbitration of employment disputes has its own history, although one that parallels the general trends described above. The FAA contains a clause that appears to exclude employment disputes from the statute’s coverage. Section 1 of the statute provides that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Despite this language, in 1991, in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, the Supreme Court applied the FAA to an employment case, ruling that an employee was required to bring his age discrimination complaint to arbitration rather than to a court. [/li]
[li]The decision (Gilmer v. Interstate/Johnson Lane Corp.) was ambiguous about the effect of the statutory exclusion for contracts of employment because, in that case, the arbitration clause was not in a contract between an employee and an employer, but rather was in a contract between an employee and the agency with which the employee was required to register to get the job. The Supreme Court clarified the ambiguity in 2001 in Circuit City Stores, Inc. v. Adams, 532 U.S. 105, interpreting the exemption for “contracts of employment” exceedingly narrowly. It ruled that the statute applied to all contracts of employment except those involving workers who, like seamen and railroad workers, were engaged in transportation that crossed state lines.[/li]
[li]In 2011, in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), it held that a California law making class-action waivers in most consumer cases unconscionable was invalid because it was preempted by the FAA. In 2013, in American Express Co. v. Italian Colors Restaurant, the Court enforced a class-action waiver even though the plaintiffs had shown that without a class action, it would be impossible for them to vindicate their legal rights. Although Italian Colors was not a labor case, it has significant ramifications for employees’ rights under the labor laws. Both these cases will be discussed below.[/li][/ol]
Hopefully that will do for now.
Many here, including some in this thread, say this latest decision is correct because it upholds the law congress wrote.
I submit congress did not write the law this decision is based off of. Or rather, congress wrote it and the SCOTUS subsequently interpreted it far from its original use. So much so that the SCOTUS, not congress, put the FAA and NLRA in contention.
See my post to Bricker just above.
I have found that money isn’t a major factor when people join or organize a union. It’s fear of the company that is one of the bigger factors, and this ruling just gave a lot of people something to fear. The union can say, “The company pays the arbitrator, how fair do you think they’re going to be? We’ll make sure you get a fair shake.” Even if the amount is a trivial the union can say we got your back, and even better if it’s a group of people who were cheated in some way.
But this isn’t novel - as you acknowledge it’s been near 40 years in the making. Even the NRLB ackowedged that the NLRA doesn’t preclude arbitration.
So again, what part of the reasoning do you think the court got wrong? I get you think it continues a pattern, so would you upend the rules of statutory construction to get your favored result? If Congress wishes a different result they merely need to change the law. This wasn’t decided on constitutional grounds.
Maybe the third time is a charm.
“…the FAA applied only to a narrow range of commercial disputes—those brought in a federal court pursuant to its power to decide issues arising under federal law.”
So your complaint is not with this ruling, but with nearly forty years of precedent?
That’s fine. I disagree with many parts of Supreme Court precedent and don’t particularly like arbitration clauses, but your argument seems to say that this decision was absolutely correct as far as case law goes, but that about 20 some cases should be overruled.
I wish people here would decide if the supreme court changing the law to suit their own agenda is what they want.
Some in this thread have decried the SCOTUS doing that.
So, we have a law that no one, not even congress, interpreted the way conservative courts have. Once conservative courts got in they have been relentlessly expanding the scope of the FAA. This expansion got us to the latest ruling.
So which is it with you guys? I suspect the answer is the supreme court changing the law from how it was written is great when you agree with them and unconscionable when you don’t.
With these rulings (listed in my previous post) the supreme court has dramatically decreased the ability of US citizens to access the courts and seek compensation when they have been damaged. That is not hyperbole. In Concepcion they made it “impossible for them to vindicate their legal rights.” They have allowed a corporation to force you to arbitration with no negotiation of the contract and made those arbitration decisions so set in stone there is practically no redress to be had even if they ignore the law (among other things).
But y’all are ok with this despite congress never writing all that into law. Now the court as essentially allowed wage theft because it will be near impossible for someone to bring a case to stop it (unless they are willing to spend untold thousands to recoup the $500 their employer stole from them).
So regardless of the “legalities” of whether this was right or not, does this mean that employers have a de facto license to commit petty theft?
They could force every low wage employee to work an extra half hour after closing cleaning the joint, unpaid. 5 bucks times 5 days a week times 50 weeks a year - steal $1250 a year.
And then find a reason to fire the small number of employees who take it to arbitration, which are a rigged court and you have to pay a fee if you lose, right? Arbiter could simply decide that if the employee can prove only a few specific days instead of every day, therefore just pay the days the employee can prove.
And then the employer can add that employee to a list of troublemakers, to be written up at the slightest perceived infraction and fired.
Of course, I hate to point this out, but class actions don’t help much either. Class actions are a way to plaintiff’s attorneys to collect a multi-million dollar payday and they will generally pay out pennies on the dollar to the affected employees. The only way class actions help is that if the employer has to pay out 20 million, that’s actually enough to affect their bottom line and they might not flagrantly violate the rules so much in the future.
Also, class actions protect individual employees from retaliation as it’s one thing to retaliate against a lone employee, another to retaliate against 1000 of them, any of whom if you fire the powerful attorneys doing the class action may add that to their list of complaints.
Another option is federal or state enforcement, e.g. DOL’s WHD, which enforces FLSA. But how well that works in practice on a $230M budget with a nominated Administrator who was sued for stiffing her house cleaners, I don’t know.
You just pointed out how class actions help. Yes they do not give the plaintiffs much benefit but the threat of a substantial lawsuit dissuades companies from doing bad things which is a good thing.