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BK Blog Post
Posted by Wade Rathke.
Wade Rathke is the founder of ACORN (Association of Community Organizations for Reform Now) – a nationwide activist network engaged in community organizing.
New Orleans The New York Times has run a three-part series on the galloping trend of corporations, both large and small, overtly or slyly forcing consumers and even non-union workers to agree to arbitration procedures that block their access to courts and to joining with others in class action litigation on larger concerns. The stories are horrendous and unsurprisingly expensive, and thousands of words later there is no mystery to the bottom line that the deck is totally stacked for the corporations. Law school professors referred to the movement to arbitrations as the “privatization of the justice system.” And, like so much in our neoliberal world, too often it is the consumer bringing the complaint that ends up paying for the process rather than the company which is already saving money in legal fees and settlements that they would have incurred in courtroom proceedings.
Obviously this trend to excessive arbitration needs to be stopped, but in the classic way that an individual problem seems personal, rather than political, and given the corporate influence in converting so much of government into crony capitalism, it is hard to believe the Calvary is coming or that relief will make it to us soon. This level of rampant injustice speaks to a huge gap in accessible and affordable representation in these kinds of civil procedures where formal legal training and licensing is not required. There is a subset of the labor movement that might be able to meet some of this huge demand though. For all of the decades long battle to move the labor movement to an organizing culture, the “servicing” model still has huge and deep support and a generation of union staff that lived through the process has extensive experience in handling arbitrations, and that’s old school union reps. Where are they now that we really need them?
There are few local union staffers that have spent more than a year or two in service to the membership that have not been schooled in the hard knocks experience of written grievance procedures up to the point of formal arbitration hearings. Picking arbitrators, writing up the paperwork, preparing to argue the case with the member, and negotiating the settlement when one is available are all core skills that virtually all union reps have been forced to acquire. Most learn to do anything that they can to avoid arbitration because of the time and expense, but for many there is no choice and invariably arbitration can’t be avoided. To dissuade filings of job discrimination complaints, including by gender and race, the United Kingdom now requires the grievant to pay 1200 pounds or about $1500 to even file. The cost for unions like Unite, the largest in the UK, has been about 9 million pounds per year, since they pay the cost for their members, effectively reducing the income they have for anything else. A big union like SEIU’s 32BJ in New York does 2500 arbitrations annually with three arbitrators conducting hearing virtually five days a week. My point is simple: unions may not like arbitrations, but they know them like they know the back of their hand.
Is there a way to use all of that residual skill to fill the gap for tens of thousands that are caught in a bewildering process with the odds stacked against them and lawyers out of their price range? I would think training legal advocates and putting out the call for old school union reps with time on their hands and these skills in their heads, might be something worth all of us coming together to try and organize. God knows it’s needed!