ARBITRATION vs. TORT….You may recall that last month I wrote about Thomas Geoghegan’s pamphlet, The Law in Shambles. One of Geoghegan’s counterintuitive (to me) arguments was that unions, for all their faults, fostered a relatively amicable workplace environment. Arbitration over employment disputes may have been frustrating for everyone involved, but the goal of the union was always to get someone’s job back, and both sides knew they had to keep working together regardless of the outcome. This prevented routine disputes from descending into all-out war. Today, with unions in decline, arbitration is no longer available to most workers and has been largely replaced by scorched earth style litigation, in which the goal is compensation, not a job, and both sides are motivated to fight to the death on the most explosive possible grounds.

That struck me as an intriguing argument, so I was interested to see the following from Timothy Burke, whose father represented management in labor disputes:

Even my dad thought some strikes were legitimate, and that unions were an important institution. Near the end of his life, he was sometimes bothered, in fact, by the waning of the union movement: my sense was that he preferred arbitration with many union leaders to some of the kinds of workplace litigation he was increasingly involved in. I once saw a videotape he did for non-union workplaces about how to handle drives to unionize, and he went well beyond explaining what their legal obligations were: the first and last thing he said, I recall, was that any employer who thought that a lack of a union was a license to squeeze his employees was going to get a union and he was going to deserve every consequence that followed from that.

Count that as a vote in favor of Geoghegan’s thesis, I guess. If corporations want less tort, perhaps they ought to think about the advantages of working with a union, not just the downsides.