No one should be surprised that the 5th U.S. Circuit Court of Appeals reversed the National Labor Relations Board’s decision in D.R. Horton, Inc. v. NLRB and sided with the corporation against the interests of its employees. (The decision lets employers refuse to hire employees unless they agree to give up any right to file a lawsuit in court or to file a class action or joint grievance before an arbitrator when their employment rights are violated.)
By and large, that is what courts do when they are presented a choice between corporate interests and the rights of workers—especially their rights to unionize or act collectively. The history of American law is an almost unbroken train of cases where courts have trampled the rights of workers to organize against more powerful employers. Even when Congress or state governments act explicitly to protect working families and equalize the balance of power in the workplace, the courts usually take the side of the corporations (they’re people, too, after all). In the 19th century, the courts treated unions as conspiracies in restraint of trade and applied the anti-trust laws against them. When Congress amended the anti-trust laws in 1914 to free unions from anti-trust regulation, the courts nevertheless found ways to outlaw boycotts, strikes, and picketing. Congress had to pass a new law in 1932 that barred federal courts from issuing injunctions in peaceful labor disputes.
The National Labor Relations Act (NLRA), which sets out the laws governing union organizing and collective bargaining, is the clearest continuing example of the courts’ hostility to unions and the collective rights of working people. From the start, the courts pulled the teeth from the NLRA, which was expressly designed to more fairly balance the bargaining power of corporations and their employees. The unions’ main economic weapon, the strike, was weakened in an early case when the Supreme Court ruled that peaceful economic strikers could be permanently replaced.
Since then, in case after case, the courts have relentlessly diminished the rights of unions and workers by removing critical subjects from the bargaining table, excluding large groups of employees from unionizing and bargaining at all, denying unions fair access to employees during organizing drives, and freeing employers to intimidate employees into voting against a union.
So D.R. Horton is no surprise, even though it strikes at the very heart of the National Labor Relations Act’s protection of employees joining together for better treatment by their employer. The waiver employees were forced to agree to prohibits an arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees. The idea that individual employees have to take on, alone, the corporation that employs them, hiring their own attorney, paying for an arbitrator’s time, and pursuing each grievance individually, no matter how identical to the cases of fellow employees, is just one more instance of the courts discounting or refusing to care about the relative powerlessness of individual employees.