This is part of a return to the Lochner era - named after the Supreme Court decision in Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), which struck down, as violating the Fourteenth Amendment, a New York law limiting the hours of bakers to 60 per week. According to the Court, this law violated the "freedom of contract" of the bakers. Now, the Supreme Court similarly follows the myth of "consent" to these awful clauses.

I am sad to say that these awful decisions claim to invoke the principles of the Steelworkers Trilogy argued by my law school professor, David Feller. [United Steelworkers v. American Manufacturing Co., 363 U.S. 564 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); and United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).] What the current Supreme Court (especially the dishonest Thomas) refuse to recognize is that the Steelworkers Trilogy involved arbitration by unions, using the collective power of their members (and union lawyers such as myself) to advance the cause of those workers. While I will go to court to defend union arbitration, I have been forced to fight these clauses in individual contracts, with less and less success over the years.

Also absent from these individual agreements is the Duty of Fair Representation the unions operate under, which requires them to fairly represent all the workers in the unit, without discrimination. Indeed, the cases establishing this Duty of Fair Representation, against unions which practiced racial discrimination, was the springboard for later civil rights decisions such as Brown v. Board of Education.

But the individual arbitration clauses employees are required to sign now have no corresponding duty of fair representation. They are designed to prevent, rather than use, the collective power of the workers, by prohibiting class arbitration.

What is the answer? As Joe Hill said: DON'T MOURN - ORGANIZE!