When conservative Christians supported the Republican takeover of their state, many of those working class voters might not have realized that they were supporting one of the most anti-worker governments in the country.
A number of state governments have prohibited local governments from imposing minimum wage requirements on private employers, but Georgia has become the only state to prohibit local governments from even considering the wages paid by government contractors in awarding them government money. The bill was passed in response to an Atlanta ordinance that would give preference in awarding contracts to companies paying higher wages.
To repeat what should be obvious at this point: conservatives don't care about "home rule" or empowering government "closest to the people." When local or state governments are pro-worker or pro-consumer, those same conservatives will immediately jump to legislation to preempt local voter power.
While the Supreme Court established a victory for anti-discrimination whistleblowers yesterday, the sad reality is that federal employees who tell the public that their bosses are failing to protect their safety still suffer retaliation.
As this piece by the former chief of the United States Park Police details, the Bush administration is using the threat of terrorism not to protect the public but to silence the internal critics who might expose its failures to deal with threats from terrorism.
When Teresa Chambers complained that Park Police were too underfunded to protect the public safety in national parks, she was stripped of her badge and terminated by the Department of Interior. Here are the official charges against Ms. Chambers-- which back up her claim that this was a political hit against an employee daring to give an honest public assessment of her budget, rather than parrot the political line imposed by the White House.
Essentially, the principle the White House has established is that no one in government may say anything about the buget, our national security, or any other public policy topic that differs in any way from the official White House position. Federal employees lose any right to free speech and the public lose any confidence of a check on lies told by the White House, since those government employees who know that the lies are occuring are barred from saying so under threat of losing their jobs.
You can read more about the case as www.honestchief.com
Critical decision protecting both gender equality and workers rights
In a close 5-4 decision (O'Connor the positive swing vote on this one), the Supreme Court held today that a coach complaining of violations by Birmingham public schools of Title IX rules requiring equality in womens' sports was protected against retaliation for his charges.
Title IX is silent on whether a whistleblower who has not suffered direct harm themselves have a right to sue for such retaliation. However, the court explained that any time a law prohibits discrimination, a person speaking out on the existence of such discrimination -- even if the initial discrimination was not aimed at them -- have themselves suffered discrimination if any retaliation then occurs.
This is a major victory for whistleblowers, since it announces a principle that those witnessing illegal activity need not wait for direct harm to themselves to act:
Without protection from retaliation, individuals who witness discrimination would likelynot report it, indifference claims would be short-circuited, and the underlying discrimination would go unremedied.Such witnesses are often the best people to help enforce laws, because they are in a better position to monitor social harm than government agencies:
teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators.How far this principle will be expanded to other areas of the law will be seen, but it does mean that the failure of a law to specifically protect whistleblowers does not automatically shut the court room door to a legal claim.
If employers just don't like losing profits to the minimum wage, they should just say that. But when they cry crocodile tears about "fairness" for certain workes, as they are in Oregon State as they campaign to lower the minimum wage for tipped workers, it makes me gag. The employers are arguing that "the bill would make wages more fair for cooks and other restaurant employees who do not earn tips."
Conservatives often say that "fairness" by liberals means attacking those doing a bit better economically, yet this is exactly what the rightwing does every day, whether trying to lower the wage for tipped workers in Oregon or attacking union wages as "too high" in other fights.
Progressives fight to raise the wage standard of all workers towards the highest wage standards possible, while conservatives promote an equality of the race to the bottom. Theirs is the class envy of dividing workers against each other, while corporate executives and their wealthy shareholders laugh all the way to the bank.
It's a digusting rhetorical trope. If businesses complain that tipped workers make more in Oregon, the state shouldn't lower the minimum wage for tipped workers, but instead make a comparable higher minimum wage the goal for for all workers.
That's fairness, liberal-style: equality that raises everyone to a higher level, not lowers better-off workers to the lowest common denominator.
While the west coast Philosophical Association did not pull out of San Francisco hotels -- although many of its members did apparently -- many other conventions are cancelling events in response to the union boycott. These include the the annual conference of the 800-person California Applicant Attorneys Association and the International Public Television Conference said in a statement that it was thinking of pulling its 2,000-person conference from the boycotted Hilton San Francisco.
One purpose of the AFL-CIO is to mediate disputes between unions competing to represent the same workers-- avoiding wasted resources and making sure that unions that do early spade work on organizing don't lose out to unions swooping in at the last moment.
SEIU just used its membership in the AFL-CIO to get get an internal ruling that AFSCME cannot compete on a vote to represent 50,000 child-care workers in Illinois:
[AFSCME]was found to have launched its organizing drive following SEIU Local 880's effort, and was told it must shut down its campaign a day after a hearing before the national AFL-CIO on the matter...If SEIU leaves the AFl-CIO, it will lose access to the so-called "Article XXI" dispute proceedings that led to this decision protecting SEIU's exclusive rights in this vote.
SEIU had maintained that it had worked to organize the workers for nine years, and filed 20,000 union authorization cards with the state, triggering the representation election.
It accused AFSCME of jumping in at the last minute and raiding its organizing campaign.
AFSCME Council 31 Executive Director Henry Bayer voiced disappointment at the AFL-CIO decision. "While we accept this decision, we do not affirm it," he said. "Clearly the mere fact that one union started an organizing effort in advance of a contending union should not determine who has the right to seek the support of a particular group of workers."
While a split in the labor federation could lead to some healthy competition that might force unions to put resources into organizing or see other unions invade their jurisdiction, this decision highlights the kind of case where the AFL-CIO does play a role in mediating less healthy disputes between unions.
Want to know how fighting for state minimum wage laws could help pass a federal minimum wage increase? The West Wing last night had this line by Senator Vinik, the fictional GOP Senator and Presidential nominee:
We have Republican Senators in seven states with higher minimum wages than the federal level...We don't want jobs moving to lower wage states.
This is a good argument for how progressives can use state policy to leverage federal policy change.
Settling a landmark lawsuit over international human rights and labor conditions, Unocal has agreed to compensate Burmese workers used as slave laborers on a Unocal pipeline in that country.
The plaintiffs used the once-obscure 1789 Alien Tort Claims Act, a statute that can allow foreign nationals to file suit in the United States.
The key importance of the agreement is that it means US companies are put on notice that they can't subcontract out human rights abuses to other countries to reap profits without responsibility for those crimes.
God, I remember when this strike started back in 1991. It was one of the those epic union fights even then and it now has to enter the record books as one of the longest strikes in union history.
The right to a trial by jury is the cornerstone of our Constitution.
Except if a corporation doesn't like juries.
Then it can impose an "arbitration agreement" requiring that if the company violates discrimination or wage or other laws, the complaint will be heard by a private arbitrator rather than a court of law.
In California, the law prohibits arbitration clauses where the process is "unconscionable", meaning there was no room for negotiation on an unfair clause. But here's the catch-22: even if the arbitration clause was imposed in an "unconscionable" manner, it's the arbitrator, not the courts, that get to decide if the arbitrator shouldn't be hearing the case, or so the Ninth Circuit just decided.
Of course, arbitrators have a financial self-interest in finding that they have the right to hear the case, since they'd be giving up a paycheck if they find the arbitration clause illegal. So how often do you think they'll find an arbitration clause illegal?
The west coast division of the American Philosophical Association had decided to cross the picket lines at the Westin Hotel in San Francisco to hold thier convention there.
These privileged academics decided their financial self-interest in going forward trumped respecting a strike by maids and dishwashers making far less than them each year.
Remind me why I should give a s--- about academic tenure for any of these people when they don't support job security for others?
To be fair, the Organization of American Historians did move their convention recently to avoid the strike, but most academics talk a good game but rarely inconvenience themselves for principle.
Mayra Cabrera and Norma Portillo were building cleaners in Mendon, Michigan, who in typical fashion were not paid for work they had done.
But in less typical fashion, they took their case to court. At the trial level, the judge, at the request of the employer, ordered the workers to reveal their social security numbers. That was information the employer should already have had, so the only purpose was to intimidate the workers, a typical tactic by both employers and some courts to chill immigrant workers from defending their rights.
But in a decision by the Michigan Court of Appeals, the state judges declared that social security information "is clearly not relevant in determining liability for unpaid wages" and should already be in the possession of the employer. The judges declared that the employer requested the information "for the improper purpose of intimidating plaintiffs to withdraw their lawsuit and forego their legal rights."
For immigrant workers, the minimum wage and other worker protections are useless if going to court risks getting them deported. So kudos to the Michigan Court of Appeals.
As employers continue to increase the share of health care premiums paid for by employees, the result has been a massive cut in take home pay for workers. For families, in large and medium companies, their share has increased to $2800 per year from $2200 just two years ago in 2003.
That's a $600 pay cut via health care costs.
Some will argue that employees are getting "more" health care, since premiums are going up, but that just highlights the silliness of saying inflation is low. Two of the largest expenses for families -- medical costs and housing prices -- are skyrocketing, yet the real effects of these costs on family income aren't fully reflected in inflation measures or in measures of the real take-home pay of workers.
When you call for customer support, you know that the person answering the phone is probably in some call center. But when you've just been discriminated against by your employer and call the Equal Employment Opportunity Commission (EEOC), you expect to talk to EEOC staff.
Not anymore. The federal government has just handed a private company a contract to run a call center to answer calls for the EEOC nationwide.
This is being done officially in the name of "efficiency" but this is a substantive change in structure of the EEOC. First, you have the decision to spend $4.9 million of EEOC budget not on creating in-house capacity but on an outside private firm. Under the Clinton administration, new funds helped the EEOC upgrade its capacity to deal with employment discrimination complaints, but funding levels have stalled under the Bush administration. And now the EEOC is privatizing those remaining funds.
And instead of regional offices receiving complaints, they will be received nationally, giving politicians at the top greater control and the career staff in the regional offices less power.
This just follows a pattern of centralization in the Bush administration. Look at the Wal-Mart deal, where local offices were prohibited from pursuing wage claims against the company but were told they had to funnel all complaints through the Little Rock DOL office.
One suspects that this EEOC centralization will be used for similar purposes, to suppress complaints against any corporate ally of the Bush administration by making sure no wayward regional office even hears about a complaint the Bush administration doesn't want pursued.
While federal policy makes the headlines, the real action is in the states. While some progressive states have increased the minimum wage and strengthened workers rights, a number of GOP-dominated ones have begun an assault on workers rights. In three states-- Missouri, Indiana, and Kentucky -- recently elected Republican governors have eliminated collective bargaining for state workers. In Mississippi, which has no collective bargaining, GOP Gov. Haley Barbour is supporting a legislative effort to eliminate all existing civil-service protections for state workers.
One of the favorite anecdotes told by critics of OSHA's ineffectiveness is that the penalty for causing the death of a worker by willfully violating safety laws is half the maximum for harassing a wild burro on federal lands.
Over the last few days, we've learned some other things. The penalty for killing fish and crabs is far higher than the penalty for killing a worker. And the penalty for running a yellow light is far higher (proportionately) than the penalty for systematically hiring and abusing undocumented immigrant workers.
Lets discuss our system of laws and the penalties for breaking those laws. I'm no lawyer, but I think I understand the way it's supposed ot work: people and corporations are supposed to obey the law or else be punished in a way that will serve not only as a disincentive to repeat their crime, but also to deter others from following down the same path.
For example, while visiting my sister at a family reunion in Eugene, Oregon last summer, I was so busy enjoying the sites of that lovely town, that I neglected to stop when the traffic light turned yellow. As the rear end of my car was still in the intersection when the lite turned red, I was awarded a citation from one of Eugene's friendly motorcycle cops, along with a $230 fine -- an amount more than sufficient to deter me and every member of my family from even thinking about violating a traffic law.
Somehow, it doesn't work that way if you're a large corporation -- or even a small company -- especially if your only crime is killing a worker.
As Nathan discussed below, our favorite company, Wal-Mart, made the front page of the NY Times today:
Wal-Mart Stores Inc., the nation's largest retailer, agreed to pay $11 million to settle a federal investigation that found hundreds of illegal immigrants were hired to clean its stores, government and company officials said yesterday.In fact, Wal-Mart claims it wasn't even a fine, but rather "a voluntary payment that would be used to help ensure compliance with immigration laws."
U.S. officials described the settlement's dollar figure as the largest of its kind. But Wal-Mart admitted no wrongdoing in the case, saying it was unaware contractors were employing illegal immigrants.
Eleven million dollars sounds like a lot of money, But Nathan put it in perspective:
Prosecutors announced they were dropping all criminal charges against Wal-Mart for its use of contractors employing undocumented workers in exchange for paying an $11 million fine, a hefty sounding amount but a pittance for a company with $288.2 billion in sales last year. Let's put it this way-- this is an equivalent financial hit to an average person making $50,000 per year being hit with a $1.90 fine for illegal activity.Yesterday, the US Justice Department and the Environmental Protection Agency announced a $10 million fine against Motiva Enterprises. Motiva is an oil refining and retail business owned by Shell Oil Company and Saudi Refining, Inc.
The double standard for corporate crime is astounding-- we destroy the lives of young people for minor drug crimes, but corporate executives can break the law and steal pay from their workers, and all they get it a financial slap on the wrist.
On July 17, 2001, Tank 393, a 415,000 gallon capacity tank at Motiva’s Delaware City Refinery, exploded while containing spent sulfuric acid, which is a mixture of sulfuric acid, water, and hydrocarbons. The explosion killed one worker, Jeffrey Davis, and injured numerous others. Spent sulfuric acid from the tank farm spilled into the Delaware River, resulting in thousands of dead fish and crabs.A couple of observations:
Following the explosion, EPA criminal investigators gathered evidence which indicated that Tank 393 had a long history of problems. Among other things, Tank 393 had numerous localized corrosion and leaks during the previous eight years, including six leaks from June 1998 to May 2001. Company inspectors repeatedly recommended that Tank 393 should be taken out of service as soon as possible for an internal inspection, but no internal inspection was conducted after 1994. Motiva also switched Tank 393 from storing fresh sulfuric acid to spent sulfuric acid without conducting a full engineering review (known as a management of change review) that would have required technical experts to analyze the changes to account for the flammable hydrocarbons in spent sulfuric acid.
Shortly before the explosion, according to the statement of facts, Motiva had several warnings from its own employees about Tank 393’s problems. Nevertheless, workers were sent to acid tank farm to repair the catwalk connecting the tanks on July 17, 2001, and a hot works permit was issued for the job. During the afternoon of that day, flammable vapors from Tank 393 reached a heat source, and the resulting explosion caused the Tank 393 to separate from its foundation pad. Mr. Davis’s body was never recovered. Additionally, approximately 99,000 gallons of sulfuric acid drained into the Delaware River for days after the explosion.
Although this is the largest fine in Delaware environmental history, those closest to the accident weren't happy:
"I was disappointed that the federal government chose not to charge any individual for criminal actions," Sen. David B. McBride, D-Hawks Nest said. "While this is a very steep penalty, I'm concerned that it will just be viewed by some as a cost of doing business."Jeffrey Davis's body was completely dissolved by the acid he fell into. Only the steel shanks of his boots were ever found.
Mary Davis, the widow of Jeff, would not comment publicly on Thursday's action, according to Matthew A. Casey, one of the attorneys who represented the family in a separate lawsuit. The company settled that case for $36.4 million.
Davis called for harsh penalties against the company in an earlier state criminal prosecution. In 2003 she wrote: "We were not even left with his body to bury. Motiva destroyed our hopes, our dreams and our future."
OK, $10 million. A good chunk of change, but not a lot of a company of that size. Let's look at it in a slightly different perspective. If Motiva hadn't sent a bunch of fish and crabs to meet their maker, we wouldn't be talking about violation of environmental laws; we'd be talking only of violations of the Occupational Safety and Health Act, which resulted in a paltry $175,000 in 2002. The fine, originally a "willful" violation (meaning the company was aware of the hazard) was reduced to an "unclassifed" violation, which in the words of Robert Gombar, the attorney representing Motiva, avoids "unnecessary complication presented by harmful labels." OSHA also refused to seek criminal prosecution, which didn't sit well with the family or the state of Delaware, as recounted in a December 2003 NY Times article by investigative reporter David Barstow:
In Delaware, the state's congressman and senators wrote to [Assistant Secretary of Labor John] Henshaw this year and demanded that he account for "OSHA's inexplicable decision" to reduce the violations in Delaware City. OSHA's handling of the case, they wrote, had compounded "the emotional trauma for the family."In fact, however, even the $175,000 OSHA fine against Motiva was far higher than normal OSHA penalties for killing workers.
In response, OSHA's deputy administrator, R. Davis Layne, wrote that OSHA had simply "exercised its prosecutorial discretion" to settle a contested case. Families, he explained, are not consulted "regarding confidential litigation matters."
But if OSHA saw no potential for a criminal case, Delaware's attorney general, M. Jane Brady, did. In an interview, she recalled the stunned reaction of one Motiva lawyer when she announced her intention to seek charges: "You got to be kidding me."
This summer, Motiva pleaded no contest to criminally negligent homicide and assault, only the second such prosecution in state history. The company was ordered to pay $46,000 in fines, then the maximum under state law, and $250,000 more to a victims fund. Soon after, Delaware changed its law to allow far higher fines.
I wrote a tongue-in-cheek article last month about the low $5,800 penalty handed down to K&M Construction for killing a worker, John Duesler, last July in an unprotected 9 foot deep trench.
But even that fine sounds huge compared with this:
A Napa construction company has been fined $300 in connection with the industrial death of one of its workers.So lets put a slightly different perspective on Nathan's analogy. If the Labor Department wanted to have the same impact on Wal-Mart that Eugene's finest had on me, the fine would have been somewhere in the neighborhood of $650 million rather than $11 million.
The accident, which happened on Sept. 3, 2004, took the life of Rebecca Kogan, 39, of Menlo Park. Kogan had been employed with Tri-County Construction as a grade checker for just a couple of weeks at the time she was killed.
Kogan was run over by one of the monstrous wheels of a Caterpillar motor grader, according to authorities. She was pronounced dead at the site on Tower Road, in south Napa County.
After investigating the accident, the California Division of Occupational Safety and Health ruled there was lack of communication between Kogan and the grader driver and lack of management knowledge at the site.
So what's the message here? If you're a large corporation, make sure you target your political contributions well and hire expensive lawyers.
If you're a worker who's going to die on the job, make sure you take a bunch of fish with you.
Prosecutors announced they were dropping all criminal charges against Wal-Mart for its use of contractors employing undocumented workers in exchange for paying an $11 million fine, a hefty sounding amount but a pittance for a company with $288.2 billion in sales last year. Let's put it this way-- this is an equivalent financial hit to an average person making $50,000 per year being hit with a $1.90 fine for illegal activity.
The double standard for corporate crime is astounding-- we destroy the lives of young people for minor drug crimes, but corporate executives can break the law and steal pay from their workers, and all they get it a financial slap on the wrist.
Now, I don't support laws making it illegal to hire undocumented workers, but the more serious issues involved is that these immigrant workers were systematically being denied pay for their work. The reality is that if those workers are going to get any justice, and Wal-Mart will suffer any real economic deterrent to its actions, it's going to be via the class action lawsuit filed on behalf of the 10,000 immigrant workers who were hired to clean the Wal-Mart stores:
Wal-Mart continues to face a federal class-action lawsuit in New Jersey asserting that it and its contractors had conspired to violate racketeering laws. The lawsuit says that more than 10,000 illegal immigrant janitors were used at Wal-Mart stores and that they were virtually never paid time-and-a-half for overtime.Wal-Mart was given a free pass by federal prosecutors, even though they still refuse to take responsibility for paying the workers who cleaned their stores, yet were never paid overtime for the work. Again, you have the Bush Department of Labor "praising" Wal-Mart for "cooperation", yet all they have done is promise not to commit crimes in the future.
Since Wal-Mart hasn't even made restitution to the victims of their last crime, why should anyone believe they won't do it again? When the government doesn't even require payment to the victims as a condition of the settlement, how seriously do you think Wal-Mart will take any promises they make?
House Leaders try to chill union actions to protect social security
Check out this press release by House leaders John Boehner and Sam Johnson:
House Education & the Workforce Committee Chairman John Boehner (R-OH) and Employer-Employee Relations Subcommittee Chairman Sam Johnson (R-TX) today sent a letter to U.S. Secretary of Labor Elaine Chao, calling on the Labor Department to investigate whether the concerted efforts of organized labor to pressure financial firms and brokerage institutions to withdraw their support of the President’s proposal to reform Social Security have in fact violated federal labor and pension law.The letter refers to decisions by the AFL-CIO not to invest member pension funds with companies using such worker investments to lobby for social security privatization.
“Recent media reports have raised serious legal questions about whether union leaders are in fact violating federal labor and pension laws by pressuring employers to withdraw their support for President Bush’s Social Security reform plan,” said Boehner. “The debate over how to ensure the solvency of Social Security for future generations should be open and honest, but it shouldn’t be influenced by special interests who may be breaking federal law.”
The GOP talks about an "ownership society" but when unions actually demand that they be allowed to invest their pension funds with companies not hostile to workers, then the GOP wants the government to control their investment decisions.
This rightwing attempt to use ERISA and labor law to restrict worker control of their own pension funds should be a signal of what "private accounts" really mean. While people might nominally "own" their money, decisions on how to use that money will be under the sole control of corporate financial firms.
Policy wonks want to frame this debate about financial returns to investment, but conservatives and unions know this is about power, the power to control capital in our society. Right now, workers through their unions control a chunk of capital that they have been using aggressively to demand corporate accountability. This attack by the House leadership, like Schwartzenneger's attempt to liquidate the California state pension system, CALPERS, with its heavy union involvement, is all about eliminating any power by workers collectively to control how capital is managed in our society.
A lot of folks love when courts intervene in favor of gay rights, but they often ignore when courts strike down laws designed to protect their rights. Liberals tend to talk about the Supreme Court decision striking down (rarely used) sodomy laws in Texas as typical, but ignore cases like the Supreme Court decision that overturned the New Jersey law which prohibited private organizations like the Boy Scouts from discriminating against gays,
Similarly, we heard a lot of news about the California court declaring that gays had the right to marry, but very little coverage of a New York State court striking down New York City's law requiring companies doing business with the city to offer full domestic partner benefits.
Not that the legislative branch of government can't get in on the gay-bashing. Down in Georgia, the state legislature voted to overturn a similar Atlanta ordinance requiring city contractors to provide benefits to domestic partners. But don't expect Georgia or federal courts to step in.
Here's the reality. In "blue states" like New Jersey or New York, courts are far more likely to overturn progressive legislation than expand beyond them, while in more conservative states, judicial action usually accomplishes very little.
Even in the case of abortion -- one of the few examples of strong liberal judicial activism, which is why we talk about it a lot -- courts have protected the right to abortion, but in many states, that action is hollow since so few providers even exist. In Mississippi, for example, there is only one abortion clinic in the whole state.
Here is the reality that I see. In the last decade, the courts have struck down large portions of the Violence Against Women Act, the Americans with Disability Act, New Jersey's anti-discrimination law, state and local affirmative action programs, domestic partner laws, and a range of other progressive laws around the country. And what's been the major positive judicial activism by the Supreme Court: the largely symbolic decision to strike down a handful of sodomy laws that had rarely been enforced in the past.
We need to win these fights legislatively to win in the long term -- a point that the disappearance of abortion clinics in Mississippi highlights -- and a few isolated court victories, in the face of much larger losses of progressive legislation to the courts, just highlights why progressives should stop valorizing judicial activism. It's a net loser for progressives across the board.
Congresswoman Rosa Delauro, whose district included two of the stores involved in Wal-Mart's sweetheart deal with the Department of Labor, dressed down Secretary of Labor Elaine Chao yesterday at hearings before the House:
“When the safety of children is at stake, I fail to understand how the Department of Labor could believe a fine equivalent to what Wal-Mart generates every 15 seconds would have any impact whatsoever...This settlement put the interests of one of the nation’s labor laws violators ahead of the protection of children. I intend to learn why.”The House Democrats also produced a new Q&A on the Wal-Mart deal, emphasizing how special Wal-Mart's treatment really was. A few highlights:
Question: Does the advance notice provision apply only to child labor violations?There's a lot more. Read the whole thing.
Answer: No. A review of the Wal-Mart agreement reveals that, while much of the agreement deals with particular issues related to child labor, the most critical provision of the agreement - the 15-day advance notice plus the 10-business-day abatement period - is worded to avoid using the words "child labor."...The fact that the Department of Labor failed to inform its own investigators that the compliance agreement was limited to child labor violations disproves the Assistant Secretary's subsequent assertion.
Question: Is the Wal-Mart agreement typical?
Answer: No. The Wal-Mart agreement is not typical. The Labor Department has cited agreements with Sears and Foot Locker as "similar" agreements, and later an agreement with Genesis Health Ventures as a similar agreement. A review of those agreements found major differences in critical provisions...the advance notice to Wal-Mart applies to ANY store. The advance notice to Sears and Foot Locker was limited to a small number of stores that fit into a particular set of circumstances...the Wal-Mart agreement gives the company a 10-business-day abatement period to bring the store into compliance following a DOL finding of a violation. There is no abatement period in the Sears and Foot Locker agreements.
Question: Should the DOL be so trusting of Wal-Mart when it comes to tampering with evidence?
Answer: While the law certainly forbids destruction of evidence, that is no reason for a law enforcement agency to give anyone an opportunity to destroy evidence. In fact, Wal-Mart is infamous for repeated sanctions from courts for destroying or hiding evidence.
Following up on my previous post on H.R. 525, the bill to exempt small business health plans from state insurance regulations, the House Education and Workforce Committee voted 25-22 on a party-line vote to approve the legislation, fending off amendments by Democrats to require such plans to AHPs to offer coverage for a variety of medical conditions and preventive care, such as contraceptives, autism, diabetes, and pregnancy, childbirth and well-child care. (Source: BNA Labor Report)
Instead, the GOP majority voted to leave health plans free to discriminate against coverage for those conditions, and even fended off an amendment, brought by Republican Charlie Norwood of Georgia, that would prevent such plans from charging higher premiums based on past health history. So health plans will be free to accept only the healthiest patients and leave sick people without access to any insurance, good for insurance profits but terrible for those workers and for taxpayers who are likely to see those costs showing up at public hospitals eventually.
The House may have crafted a bill so extreme that Senate moderates won't accept it and, hopefully, derail the whole thing. But make no mistake, this bill is one of the nastiest attacks on health care for working Americans coming out of Congress.
While the wage rate won't be automatically indexed to inflation, as Oregon, Washington and Florida laws require, New Jersey will set up a commission to monitor the pay rate and recommend cost-of-living increases.
Howard Dean was on hand to highlight New Jersey's actions as what national progressive policy should be:
Dean praised the Assembly for its vote earlier in the day to raise the minimum wage to $7.15 an hour by October 2006. "New Jersey will have the highest minimum wage in America in two years because of that," he said.Actually, Dean had his facts slightly wrong, since because of inflation indexing, Washington State's minimum wage is already $7.35 and San Francisco's minimum wage is now $8.62 per hour. But hey, he gets points for being there.
Slammed for Cuts in International Labor Funds, Wal-Mart Sweetheart Deal
At hearings yesterday before a subcommittee of the Senate Appropriations Committee, Elaine Chao was criticized by Tom Harkin for the cuts in funding to protect international workers' rights, including abandoning spending on fighting international child labor abuses. (Info from Daily Labor Report).
The Labor Department's International Labor Affairs Bureau received $94 million last year; the Bush administration is proposing to cut that to just $12.4 million this year.
Harkin linked the administration's abandonment of international child labor issues to its sweetheart deal on child labor issues with Wal-Mart:
Questioning the administration's commitment to child labor issues, Harkin called the agreement "unprecedented" and asked whether the 15-day notice for future investigations was typical. Harkin also quizzed Chao on reports that DOL withdrew its initial press releases announcing the settlement under pressure from Wal-Mart.All Chao could argue was that the agreement was "not well-written" but claimed it was not unusual, pointing to a 90-day notice provision in another settlement. But as BNA pointed out:
The 90-day notice period, provided in a 1999 settlement with Genesis Healthcare Ventures, was in response to a series of wage and hour violations...The Genesis agreement gave the company 90 days to perform a self-audit after notice from DOL, but did not guarantee notice of future investigations. In contrast, the Wal-Mart settlement provided 15-days of advance notice on future investigations but did not permit self-audits.Put these facts together and you have an administration that doesn't care about child labor abroad-- thereby helping to feed cheap manufactured goods to companies like Wal-Mart -- or child labor at home, to help Wal-Mart and other low-wage shops staff their stores.
How Wal-Mart Court Decision Reflects the Pathetic State of Labor Law
The Eighth Circuit Court of Appeals ruled yesterday that Wal-Mart violated federal labor law when it banned an employee from wearing a pro-union t-shirt when he was off-duty. (See full decision here).
But the real story here is not that Wal-Mart has once again broken the law in violating its workers' rights. No, it's about how pathetic the law is even when workers partially win.
While the 8th Circuit upheld the right of employees to wear the t-shirt and invite fellow employees to a union meeting off-site, the court overruled an earlier NLRB decision and declared that an employee could be disciplined for asking a fellow worker to sign a card to request a union, a supposed violation of the company's "no solicitation" policy. (Yes, the 8th Circuit actually declared that the Bush NLRB was too pro-union, aacck.)
Note, the employee in this case didn't actually have a union card for the other employee to sign at the moment. The NLRB has already determined that actually having fellow employees sign a union card does violate any "no soliciation" policy. No, the eighth circuit declared that employers can discipline an employee for even talking to a fellow employee about a future goal of having them sign a card.
This is how one-sided union elections are in the workplace. Employers can enlist managers and supervisors in a full onslaught against any union, hold captive audience group meetings or pull them aside for individual meetings to discuss the evils of the union. But employees can't even talk about the goal of having a fellow employee sign a card to bring in a union. All they can do is suggest they attend a meeting after a long day's work shift where they can then hear more details.
What's the next legislative atrocity coming down the pike from the GOP Congress? So many to choose from, but a sleeper is H.R. 525, labeled the "Small Business Health Fairness Act of 2005," which has a committee hearing this Wednesday. With a name like that, you know evil's afoot and the plan here is to exempt more health insurance plans from state regulation.
Currently, large national companies' health plans are exempt under the federal ERISA law from state regulation, such as many "patients bill of rights" laws, but rather than create a federal patient bill of rights law, as Bush promised back in 2000, the rightwing idea of "fairness" is extending the lack of patients' rights to more families. The idea is to create "Association Health Plans" that any business could join and thereby escape state health care regulations, just like the big corporations do. As its sponsors argue, the goal is to "give them freedom from costly state-mandated benefit packages"-- i.e. all those pesky requirements for immunizations and decent consumer protection.
Proponents argue that any kind of health insurance is better than none, so this legislation will expand health insurance coverage. But an Urban Institute study projects that such plans would actually decrease health coverage, since healthy individuals would be the ones most likely to jump into such plans, driving up costs of other plans and decreasing health insurance availability for the sickest and most vulnerable workers.
This bill is so bad that thousands of organizations oppose it, including the Republican Governors Association.
Check out these resources on the bill and call your Congressmember.
No, this isn't about the federal bill passed about class actions, it's about Wal-Mart (yes, they are everywhere) making a legal claim before the 9th Circuit that their constitutional rights would be violated if they had to defend against the 1.5 million women certified in a class action for sex discrimination by a lower court. Instead, Wal-Mart wants the case broken up into thousands of different cases for each store, dramatically undermining the economic feasibility of the suing the behemoth store.
When you get down to Wal-Mart's argument, their defense is that they hold managers to so little accountability that Wal-Mart as a whole can't be judged by each store's actions, so each one has to be sued individually despite nationwide statistics showing disparities between the treatment of men and women in promotion and pay.
And here's the great part of Wal-Mart's strategy. Women would have a hard time proving discrimination, since most never applied for promotion: Wal-Mart mostly uses a tap-on-the-shoulder" method of picking out promising people, so it would be hard to document particular points where women applied for job openings and were turned down.
It's a nasty game-- create arbitrary promotion policies in each store, then claim that each one is so screwed up in its own way that plaintiffs have to shoulder the burden of legal costs locally rather than in a nationwide class action.
So with the new bankruptcy law, if you are a giant credit card company owed money by a struggling family, you can prevent them from escaping their debts.
But if you are a baggage handler at an airline and you are owed money for your pension from the shareholders of a failing airline, well, you are shit out of luck, and have to accept pennies on the dollar in any federal help available.
Shareholders Don't Own Companies: Conservatives love to say that the interests of shareholders should be the only criterion for corporate governance. The shareholders own the company, so it's theirs to do with what they want. Except when the company goes bankrupt, suddenly the shareholders don't REALLY own the airline. All they own is the stock, so they aren't responsible for any costs beyond the value of the stock. Any additional costs are someone else's problem. As shareholders, they may have made collective deals with the workers to pay them pensions, but they aren't held responsible with their own money for paying those debts.
Look carefully at this reality revealed by bankruptcy law. Corporations are not owned by shareholders, since the shareholders take on none of the responsibility of ownership, especially the responsiblity -- supposedly so prized by conservatives -- to pay back debts. Corporations are creatures of government, created with the social privileges of limited financial liablity of shareholders. Since their debts are ultimately public, as with pension bailouts and lost benefits for workers, the public should demand for greater control of their decisions when solvent.
If the government or the broader society has to cover the costs of reckless decisions made in the fat years, they should demand a bigger cut of the profits to pay those social costs.
This is what a union town looks like. The Las Vegas hotel casino industry is so organized that the union negotiates for neutrality even before a hotel opens, then talks to workers who potentially might work at the new hotel and signs them up. By the time the new Wynn Hotel Casino opens, it will no doubt be a union shop essentially on day one.
My first union job was as an organizer in Vegas back in 1988, following a harsh strike in 1984 that had nearly destroyed the union and left it on the defensive. Instead, seventeen years later, the union dominatea the industry with over 50,000 members. And this is in a "right-to-work" state.
What this took was militant tactics, smart strategy, and dedicated resources to new organizing. And that's what's needed in every union and union local across the country.
For those who follow New York politics, they know that the Democratic-aligned, but independent and union-backed Working Families Party has become one of the most important dynamic actors in electoral politics here.
A number of court decisions in recent years have attacked the power of state and local governments to require that contractors working for government have decent labor relations with those workers.
However, labor scored a crucial court decision in a Milwaukee federal court upholding a local government ordinance that required companies providing care to the elderly or disabled sign "labor peace" agreements with unions seeking to organize their workers.
Under those agreements, contractors are limited in what they can say about the union, must provide unions employees' names, addresses, and telephone numbers access to the workplace to let unions talk to workers. In exchange, the union must agree not to engage in strikes, picketing, or boycotting.
Because the ordinance serves the city's "proprietary interest" in providing uninterrupted services to a vulnerable population, the court ruled that federal labor law does not preempt the decision.
The big question is whether higher courts uphold the decision, but it's a decision worth celebrating.
DAILY LABOR REPORT
March 11, 2005, Friday
JUDGE UPHOLDS MILWAUKEE COUNTY LAW REQUIRING CERTAIN CONTRACTORS TO STAY NEUTRAL
AUTHOR: By Susan J. McGolrick
A federal judge Feb. 11 upheld a Milwaukee County ordinance requiring certain contractors that provide care, treatment, or transportation services for elderly or disabled persons to sign labor peace agreements with unions seeking to organize their employees who perform county-funded work (Metropolitan Milwaukee Ass'n of Commerce v. Milwaukee County, E.D. Wis., No. 01-C-0149, 2/11/05).
Granting summary judgment to Milwaukee County, Judge Lynn Adelman of the U.S. District Court for the Eastern District of Wisconsin held that the ordinance is not preempted by the National Labor Relations Act and does not violate contractors' free speech and due process rights. The Metropolitan Milwaukee Association of Commerce challenged the ordinance, which was signed into law in late October 2000.
The ordinance is not preempted by the NLRA, Adelman decided, because it reasonably advances the county's proprietary goal of ensuring that the delivery of county-funded services to vulnerable residents is not interrupted as a result of union organizing and contractors' response to organizing.
MMAC failed to show that the ordinance is facially unconstitutional -- that every application of the law would violate contractor's free speech rights, Adelman said. She also found that the association failed to show that the ordinance violated due process by being unconstitutionally vague.
The National Labor Relations Board filed an amicus brief in the case arguing that the ordinance is preempted by the NLRA.
Ordinance Applies to Contracts Over $ 250,000.
The ordinance, which is titled "Responsibility of Certain County Contractors to Reduce the Likelihood of Labor Disputes," applies to contracts worth at least $ 250,000 to provide care, treatment, or transportation services for elderly or disabled residents in the county. Such contractors must enter into a labor peace agreement with a union that seeks to organize the contractor's county-funded employees and requests an agreement.
The labor peace agreement must provide that the contractor will not "express to employees false or misleading information that is intended to influence the determination of employee preference regarding union representation" and that the union will not "misrepresent to employees the facts and circumstances regarding their employment."
The contractor must agree to provide the union with employees' names, addresses, and telephone numbers and to give the union reasonable access to the workplace for the purpose of providing union information. The union must agree not to engage in strikes, picketing, or boycotting.
The agreement must include procedures to prevent the parties from coercing employees into supporting or opposing union representation. The parties may not require employees to attend a meeting or event intended to influence their views. Disputes arising under the agreement must be arbitrated. The county has the right to terminate contracts with contractors that refuse to sign a labor peace agreement or are found by an arbitrator to have violated one.
Adelman initially granted summary judgment to Milwaukee County in April 2002, finding that MMAC's challenge to the ordinance was not ripe for judicial review because it had not been enforced against any contractor. However, the U.S. Court of Appeals for the Seventh Circuit reversed in April 2003, ruling that the mere threat of future enforcement already had impacted the contractors (325 F.3d 879, 172 LRRM 2134 (7th Cir. 2003); 69 DLR A-1, 4/10/03).
Proprietary Exception to NLRA Preemption Applied.
Courts have held that the NLRA preempts state and local laws that regulate activities protected by or prohibited by the NLRA, Adelman explained. However, she said, the U.S. Supreme Court has ruled that when a state or locality "takes action that affects labor relations but does so for the purpose of serving its proprietary as opposed to regulatory interest, the action is not subject to NLRA preemption."
Adelman adopted the approach recently developed by the Third Circuit in Hotel Employees & Restaurant Employees Local 57 v. Sage Hospitality Resources LLC, 390 F.3d 206, 175 LRRM 3328 (3d Cir. 2004); 221 DLR AA-1, 11/17/04, for distinguishing between proprietary and regulatory action. Government action is proprietary if it serves to advance or preserve the government's interest as an investor, owner, or financier in a project or transaction, and if the scope of the funding condition is specifically tailored to the proprietary interest, Adelman said.
The Third Circuit's approach "permits courts to distinguish proprietary from regulatory action based on objective factors and strikes an appropriate balance between Congress's intent to maintain uniformity in labor regulation and its intent to allow state and local governments to act as market participants," Adelman said.
MMAC did not dispute that Milwaukee County has a proprietary interest in ensuring that the delivery of county-funded services to elderly and disabled residents is not interrupted. In considering whether the ordinance reasonably serves that proprietary interest, Adelman observed that "private employers often enter into neutrality agreements like those required by [the ordinance] to reduce the likelihood that union organizing will disrupt their businesses." Witnesses also testified at public hearings that union organizing efforts and employers' responses to those activities have previously delayed the provision of transportation services to the elderly and disabled, the judge said.
Adelman decided that the county "had a reasonable basis for concluding that the risk of service disruption as the result of union organizing was sufficiently serious to justify taking action" and "for concluding that requiring County contractors to enter into labor neutrality agreements would reduce the likelihood of such disruption." She found that "labor neutrality agreements are designed to reduce intimidation of the type that apparently contributed to" the past disruption of transportation services.
The county also showed that the ordinance is specifically tailored to its proprietary goal, Adelman said. She pointed out that the ordinance applies only to employees whose work is tied to the provision of services contracted for by the county and covers only contracts for the provision of care, treatment, or transportation services to the elderly or disabled.
MMAC's Free Speech, Due Process Claims Also Fail.
MMAC also argued that the ordinance violates the First Amendment's free speech clause in all instances, not just as applied to a particular set of circumstances. A government acting as an employer or a contracting entity "has broader authority to restrict the speech of the party with whom it contracts or whom it employs than it does when it acts as a sovereign and restricts the speech of members of the public," Adelman said.
Using the balancing test from Pickering v. Board of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 1 IER Cases 8 (1968), Adelman said "a contractor must prove that the government terminated his or her contract for speech related to a matter of public concern." Because MMAC alleges that the ordinance is unconstitutional on its face, the association must show that every future application of the ordinance fails the Pickering balancing test, Adelman said. She found that MMAC "made no attempt to do so."
Finally, MMAC argued that the ordinance's requirement that contractors agree not to "express to employees false or misleading information that is intended to influence the determination of employee preference regarding union representation" violates the 14th Amendment's due process clause because the provision is unconstitutionally vague. Adelman said the association's argument focused on the term "misleading."
After considering a dictionary definition of "misleading," Adelman found that a contractor violates a labor peace agreement if the contractor "expresses information to employees that tends to lead the employees in a wrong direction or cause them to take a mistaken action or hold a mistaken belief" and the contractor "expresses such information to its employees with the intent that the information will 'influence the determination of employee preference regarding union representation.' " Adelman decided that the ordinance "is not so unclear that persons of common intelligence must necessarily guess at its meaning."
Gordon P. Giampietro and Jonathan O. Levine of Michael Best & Friedrich in Milwaukee represented MMAC. Marianne Goldstein Robbins of Previant, Goldberg, Uelman, Gratz, Miller & Brueggerman in Milwaukee represented the county.
The Los Angeles mayor's race is ending up a repeat of four years ago, with a runoff between James Hahn, now the incumbent mayor, and Antonio Villaraignosa, a former state Assembly speaker and now City Councilperson.
One big difference is that while the unions backed Villaraignnosa, a former union organizer, four years ago, labor has largely switched to supporting Hahn this time around.
Why are Los Angeles unions spending hundreds of thousands of dollars telling union voters to ignore what they spent $1.5 million saying four years ago?
I don't know local LA politics, but I don't have to buy Marc Cooper's view that it's bad "backroom deal making" to think this is the wrong use of union money. Maybe supporting Hahn is the better choice, but is it that MUCH better?
In a political race like this, wouldn't it be a better approach to tell union members, these two guys are both good, then spend the money running organizing campaigns against employers who deserve to be trashed with union money? This is in many ways just a miniature version of the larger national debate on whether to give priority to politics over organizing.
Now, I'm hardly a fundamentalist on the issue. The LA unions seems to have extracted good treatment of municipal and other workers. But having spent so much money four years ago telling members how great Villaraignosa is, it just seems especially wasteful to spend so much trying to tell members the unions made the wrong choice back then.
The Washington Times reports that the AFL-CIO is planning to lay off 80 to 100 staffers in response to last weeks decision to restructure the federation, devoting more money to political action. The AFL-CIO currently employs 421 persons.
Robert Welsh, chief of staff for AFL-CIO President John J. Sweeney didn't say when the cuts will come or identify which workers are likely to lose their jobs.Last week the AFL-CIO Executive Council voted to increase spending on political and legislative activity from $32 million to $45 million annually. The Council rejected a proposal by the Teamsters, SEIU and other unions that would have rebated $35 million -- or 50% of the AFL-CIO's income -- from the Federation's budget to unions to use for organizing.
"The first step is to develop a new blueprint for what staffing and capacity should look like, given the vision that Sweeney laid out and the executive council signed off on," said Denise Mitchell, special assistant to Mr. Sweeney.
No word yet on what this means for the AFL-CIO health and safety department but thing aren't looking too good.
The whole debate seems to have come down to a chicken and egg fight over whether we need to go after political change first in order to be able to organize, or organize first in order to build a big enough membership to effect political change.
In my humble opinion there is no doubt that organizing has to come first. To get the major changes in labor law that the labor movement needs to make mass organizing possible, you would not only need a (liberal) Democratic president, but large Democratic majorities in both houses of Congress. (Maybe in my childrens' lifetime...) On the other hand, organizing Wal-Mart, the world's largest retailer, isn't going to be quick and easy either.
But I don't agree that slashing the AFL-CIO's budget is the way to get there. The relatively small amount of money that would go back into the unions' budgets isn't going to be near sufficient to suddenly transform the shrinking unions into mean organizing machines. Labor's organizing problems are much too big to be fixed by a few more dollars. And the loss of the AFL-CIO's health and safety department (along with other services that the nation's central labor body plays is a high price to pay for a negligible payoff.
....in my humble opinion.
Phil at Laboring Away at the Institute has some more thoughts on Wal-Mart and labor. I'll follow up on a separate point in a later post, but Phil raises an interesting argument for liberal cities welcoming WalMart into their communities. He argues against using zoning laws -- a favorite anti-WalMart tool -- to block their entrance:
I don't understand why progressives are trying to keep Wal-Mart out of these pro-union communities - these are exactly the places where Wal-Mart stands to lose elections and where unions will be able to mount a strong fight.I actually agree that blocking WalMart from a few liberal cities is an ultimately losing strategy, since it does nothing to deal with the 3000 Wal-Marts open across the country.
However, the problem with just letting WalMart into such areas is that they undermine existing high-wage, unionized retailers. But the solution, as I've argued for as a participant in these local legislative debates, is to welcome all large retailers into the city, but establish a minimum wage and benefit standard in the industry. The model for this approach is the proposed Chicago ordinance to require a wage of $10.50 per hour plus benefits at all such stores.
Promoting Free Speech: The Chicago bill also has a pro-organizing provision to require such retailers to give the public access to sidewalks and parking lots to talk to customers and workers -- something that would tremendously assist union organizers. A version of this organizing provision has already been enacted into law in Hartford, Connecticut.
Now, WalMart can choose to avoid such cities to avoid the regulations, but I doubt if they are enacted widely that WalMart will. It's been willing to expand in Canada despite much tougher union laws there, so it fits the model of luring WalMart into a more favorable environment for unionization. I am especially a strong advocate for the rules protecting free speech on the sidewalks and parkings lots of large retailers (or basically all employers, frankly) as a tool for encouraging greater communication around issues of corporate abuses.
Phil says that "consumers vote with their feet" for Wal-Mart. One problem with such a neoclassical view of "choice" is that it ignores imbalances in information available to consumers, who often don't understand the downside of shopping at WalMart compared to the massive advertising budget by the company. Letting consumer and labor advocates have "equal time" right where WalMart customers are making their buying decisions is one way to make sure those are fully-informed choices. Phil as a believer in consumer sovereignty should be a big advocate of this kind of provision, shouldn't he?
How many ways can the GOP screw workers?
How about imposing 16-hour work days on truck drivers, while only paying them for eleven of them. A new amendment to the upcoming highway bill by Congressman John Boozman of Arkansas would change the law to allow trucking companies to impose "split shifts" on drivers, meaning they are forced to work off-the-clock or, at best, cool their heels while companies load their trucks. And do the math, with sixteen hours on the road, that leaves even less time for sleep every night and increasing danger on the road for all drivers.
Oh, and why is the major sponsor from Arkansas? Funny coincidence, that's the home state of Wal-Mart, which is pushing the bill hard and whose executives and employees gave Boozman $48,152 in the last election cycle.
5,000 people die annually in truck-related crashes on U.S. roads, more than died in the World Trade Center bombings, yet the GOP thinks corporate profits are more important than truck safety.
We probably won't see the union label right away on the next edition of The Sims, but the labor discontent in the game industry is very real, as the era of startups and stock options gives way to the reality of corporate ownership, drudge labor, and worker discontent:
there is little question that a new labor base has been galvanized by critics who say that as Silicon Valley has come to be dominated by big public companies that respond mainly to Wall Street's quarterly scoreboard...amid a consolidation that has put the video game business in the hands of a few big public companies like Electronic Arts and Activision, and in which best-selling titles can cost $10 million to $20 million to create, many developers say they feel like cogs in someone else's machine.And they are demanding overtime pay for the excessive hours they are forced to work.
The first reaction of many people is that unions wouldn't work in such environments, since they are foreign to creative technology industries. Yet Hollywood remains dominated by a range of unions that assure that everyone, from stage hands to actors, get treated decently and get a share of the returns from Hollywood's wealth. In many ways, the Silicon Valley game shops more and more are resembling the old studio system from which those Hollywood unions emerged. It's obviously a harder environment today to organize, but the discontent it real.
And maybe the Silicon Valley game developers will look at the janitors cleaning offices throughout the industry, who engaged in a largely successful decade-long struggle to unionize that part of the industry, and wonder why they can't do it too?
A belated reply to Phillip Wilson, a conservative at the blog Laboring at the Institute. Responding to my post on how Wal-Mart's campaign against the Colorado union effort is symbolic of the general state of labor law in the US, given Wal-Mart's threats to replace anyone on strike and refuse to bargain, Prof. Wilson complains:
I think Nathan's view of the law of organizing campaigns is what he wishes it would be, not what it is. Telling employees that they could be replaced during a strike is not a threat; it is a legal fact.He's correct on the state of law in regard to the ability of employers to fire strikers, one of the things that makes the US an outlaw by many human rights organizations.
The ILO Committee on Freedom of Association commented on US labor law that:
The right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests. The Committee considers that this basic right is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally.(See Unfair Advantage by Human Rights Watch for the reference). But I agree with Prof. Wilson that this farce is the state of the law in the United States, one reason it's often silly to talk about US workers being less inclined to join unions than those in other countries, when US workers face a much more hostile legal regime.
But Prof. Wilson may be reacting to my statement that Wal-Mart intimidated workers in Colorado by threatening to "continue to violate labor law." I was thinking not of the threat to replace workers during a strike but the statement by one of the workers, who initially favored the union, but who described the message from Wal-Mart that the company would "never agree to a contract, out of pure stubbornness." A threat to refuse to bargain in good faith if the union was voted in is a clear violation of federal law. We'll see if Wal-Mart was smart enough to phrase its words in a way that allow the Bush NLRB to pretend that's not what Wal-Mart threatened, but it's clear that was the illegal message conveyed to the workers themselves, that voting for the union was futile, so why bother with the inevitable intimidation that would follow?
It's also just a bit bizarre that Prof. Wilson argues, in another post, that my wish that "Wal-Mart offered better wages and benefits to workers, is just not shared by that many people, including lots of Wal-Mart workers." The idea that Wal-Mart workers don't want better wages and benefits is not very credible. Everyone wants higher wages and health care for their kids. Whether they feel aggrieved enough to form a union or strike or take other action can be disputed, but given the extreme number of collective action lawsuits against Wal-Mart over its pay policies, arguing that Wal-Mart workers want their low pay hurts Prof. Wilson's credibility to argue his broader points.
It's an odd thing that Prof. Wilson argues that mandating higher wages for Wal-Mart workers shows that progressive ideas are "unpopular" since progressives prefer "to legislate their view of the world, hoping everyone else follows along," odd since it's precisely because of the popularity of regulating Wal-Mart in any community that such legislation could be passed. Right now, people want the convenience of Wal-Mart and they want higher wages for its workers; mandating a living wage for large retail workers is a way for the community to get both its goals.
This might not work if only one community passes such legislation, since Wal-Mart may choose to boycott the first few communities that do so, but if many communities and state governments pass such legislation, Wal-Mart can't boycott all of them. There's nothing magic about Wal-Mart; is is a strategic actor that will resist only as long as it's profitable to to evade such regulations, then it will concede and open its stores with higher wages and benefits for its workers.
With a focus on overtime due to Santorum's repulsive little bill, it's worth celebrating some of the successes we've had at the state level in ending mandatory overtime for some workers, notably health care professional who we sure as hell don't want working beyond the point of stress and exhaustion.
The AFT and SEIU unions, both representing nurses in various states, have been especially vigilant in promoting laws to restrict overtime in the name of consumer health. Check out AFT's indepth study, Stop the Clock for more. New York and Vermont are now mounting campaigns to restrict overtime in those states.
A similar issue to linking restricting overtime to patient health is the fight in California over restricting the workload of nurses. Nurses won a ballot initiative to decrease patient-to-nurse caseloads to a five-to-one ratio to enhance patient care, but Governor Schwarzenneger defied the law last fall and issued an executive order to keep the ratio at six-to-one across the state. However, a federal judge slapped him down this week and declared he had overstepped his powers and implemented the law. Nurses are now following him around the country protesting his fundraising jaunts before corporate backers, highlighting the issue and Arnie's hostility to workers and patient needs.
Showing the power of collectively controlling $400 billion in its pension plans, the AFL-CIO convinced St Louis-based Edward Jones & Co., the nation's largest operator of retail brokerage offices, to withdraw from a social security privatization coalition, the Alliance for Workers Retirement Security, with the threat of withdrawing all business from the firm and advocating to its members that they pull their business as well. This was followed yesterday by Waddell & Reed, a Kansas-based financial services company, also withdrawing from the Alliance.
Which just shows why progressives should be paying more attention to Arnold Schwarzenneger's campaign to destroy the state pension fund, CALPERS, which has also been campaigning against social security privation. Union pension funds are a critical tool for workers in being able to keep some pressure on the big financial services company, which they HATE. One goal of destroying regular pension funds in favor of IRAs, 401(k)s and other individual accounts is that it becomes almost impossible for unions and other activists to organize so many individuals for proxy fights and other corporate campaigns against corporations.
Corporations are very clear that killing CALPERS is part of their campaign to defang corporate accountability:
Business leaders have argued that Calpers, and its sister fund, the California State Teachers Retirement System (Calsters), which have combined assets of $250bn (£130bn), have been over zealous in their pursuit of more accountability in business.The fight for CALPERS is the same as the fight against social security privatization. Progressives need to understand that "social capital", pension funds controlled directly by workers and communities collectively, are a critical resource that need to be defended with all our efforts.
Calpers led the shareholder revolt against Walt Disney last year that resulted in Mr Eisner being stripped of the chairman's job. He is still chief executive. In Britain, the fund has argued for more transparent structures at Shell and against the appointment of James Murdoch at Sky.
Here is the roll call vote of members voting yes on Santorum's amendment to gut minimum wage protections:
Of these only Domenci, Coleman and DeWine also voted in favor of Kennedy's minimum wage bill. Senator Chafee was the only Republican who supported real minimum wage increase AND refused to line up to support Santorum's cynical exercise.
The GOPers will now go home and tell their constituents that they voted to raise the minimum wage, but the Democrats wouldn't join them in a "thoughtful" compromise. This makes it all the more important to be ready in the future to respond in opeds and other venues to rebut those claims and nail each of these Senators for this vote AGAINST minimum wage workers, AGAINST overtime protections, and AGAINST tipped workers.
The Santorum amendment to permanently prevent states from regulating wages for tipped workers just illustrates a breathtaking assault by today's conservatives, both in Congress and in the courts, on the ability of states to create higher labor standards, stronger consumer regulations or tougher anti-discrimination laws than the federal government. Forget any rhetoric about "states rights" or federalism, just think about this list:
From Congress to the Presidency to the Supreme Court, conservatives in the federal government have sought to paralyze state government powers -- the one exception being state government power to engage in discrimination, the defense of racism being the sum total and only meaning of "states rights" in the conservative lexicon.
Now, of course, progressives often seek strong federal power, but then we never claimed otherwise. The problem with conservative language around federalism is their hypocrisy and the reactionary goals of their use of federal power.
For progressives, their version of federalism has been that the federal government creates a MINIMUM standard of labor, civil and consumer rights, with state and local governments free to enhance those standards to further protect working families. The progressive metaphor has been of states as "laboratories for democracy", where they have the opportunity to experiment and pioneer new policies that, if successful, are incorporated into a new round of enhanced federal minimum standards applicable to all states.
Conservative thinkers have come into power with the explicit goal of disabling state laboratories of democracy to benefit their corporate contributors and benefactors. The clearest goal is to kill existing progressive legislation, but the subtler goal is to hobble progressive experimentation and new ideas at the local level. If such ideas can never be tested at the state or city level, it will be that much harder to point to their success in selling the broader public on enacting them as national legislation.
In the area of the minimum wage, for example, it is precisely the existence of higher minimum wage laws at the state and local level -- and specifically the overwhelmingly support demonstrated last fall for creating a higher minimum wage in Florida -- that is pressuring even Republicans to talk about raising it at the national level. Kill the ability of states to even legislate in the wage area and much of that pressure will disappear.
The National Taxpayers Union, Club for Growth, Conservative Contrarian, Rightward Bound and other rightwing sites have been demoaning Santorum's betrayal around his "minimum wage" bill. They should rest easy, although you wonder if Santorum is in danger of pissing off former friends if even they can't keep track of his hypocritical rhetoric.
Want a real pro-family policy? How about one that allows parents to actually BE with their families when they are sick, or just when they need to meet with a teacher to discuss their kid's progress?
Too many parents can't do that, because they aren't guaranteed sick days or personal time to attend to family needs. Which brings us to Take Back Your Time, a new coalition fighting for paid time off, whether the more modest goal of guaranteeing a few days off per year or the broader goal of funding more serious time off after the birth of a child or long-term illness in a family.
Targeting 21 states initially, the campaign is already having success, with committees in the Washington State House and Senate approving a bill calling for five weeks' paid family leave for workers, to be financed by having workers pay a tax of 2 cents per hour worked, about $40 a year. California already has a program where families get 55% of their normal pay for six weeks for such family leave.
Several dozen members of Congress will soon introduce a bill in Congress which would guarantee families at least seven days time off to address family needs-- something desperately needed since half the workforce don't have guaranteed sick days. This will be a direct challenge to the "family" rhetoric of rightwing politicians who don't think that extends to demanding companies respect family needs. But it's dangerous ground for conservatives to resist:
The average middle-class married woman works 500 hours, or 12.5 weeks, more per year than in 1979.The Take Back Your Time campaign has linked up with a religion campaign, the Lord's Day Alliance, which is promoting time off work for family and religious reflection, an alliance that will create tension between rightwing GOP leaders and their religious base:
"The No. 1 concern that women have today — even more than security — is a lack of time," said Frank Luntz, a GOP pollster
"Many hard-working, rank-and-file evangelicals would support legislation guaranteeing paid sick days or paid vacations," Wilcox said. "But evangelical leaders will not go along with these ideas because their close allies in the business community are so firmly against it."At some point, those religious political leaders should be forced to choose between sucking up to corporate CEOs and helping their congregants take time off for their kids.
Venezuela has arrested the former leader of the Venezuelan Labour Federation who led the strike two years ago against Hugo Chavez's regime. I have great sympathy for Chavez's populism, but his on-again authoritarian actions don't give great confidence in the long-term direction of his regime.
This as the Bolivian President has just announced his resignation in the face of widespread strikes and civil disobediance against that regime's attempts to privatize its natural gas facilities and clamp down on poor coca growers.
For workers of Latin America or of any regime for that matter, the right to strike in protest of government actions is a key check on abuse of power by government. Any regime-- right or left -- which clamps down on that right is opening the way for unchecked authoritarianism.
For anyone who has tried to ping me with a trackback and gotten an error message, the problem seems to be fixed.
...No, really, it's now fixed. Please give it a try and let me know if it's all working.
This is as low as it goes, as the GOP fights to expand sub-minimum wage sweatshops across the country. Pennsylvania's Rick Santorum is leading the charge for a GOP bill that would ostensibly raise the minimum wage by $1.10 per hour, but in reality would cut wages for millions of American workers and expand unregulated sweatshops across the country.
As this Economic Policy Institute analysis details, the bill is a trojan horse for assaulting workers rights.
Licensing Sweatshops: While a $1.10 per hour minimum wage increase by itself would help 1.8 million workers, Santorum includes a poison bill exempting any business with revenues of $1 million or less from regulation -- raising the exemption from the current $500,000 level.
The upshot: while 1.2 million workers could qualify for a minimum wage increase, another 6.8 million workers, who work in companies with revenues between $500,000 and $1,000,000 per year, would lose their current minimum wage protection.
And an even larger number of businesses, those with revenues under $7 million, would be exempt from fines under a range of other safety, health, pension and other labor laws. Essentially, the realm of unregulated sweatshops would be expanded and legalized under Santorum's bill.
Killing Overtime: It gets worse-- the 40-hour work week would be abolished and companies would not have to pay overtime if they cut hours the next week. The proposal is called "flex time", but workers would have no say in the matter. Their hours could be rearranged, upsetting child care and other weekly routines, and companies would no longer have the deterrent of having to pay overtime as a way to encourage giving workers a regular weekly schedule.
Banning State Minimum Wage Laws: But here's a kicker from a GOP supposedly dedicated to states rights. Santorum's bill would ban states from requiring employers to pay tipped workers with a guaranteed wage. Employers could pay tipped workers nothing and force them to live off tips, while states would be preempted from creating a higher wage standard for tipped workers.
The federal Fair Labor Standards Act specifically guarantees states the right to impose higher wage standards than the federal law. One area where many states have a higher standard than federal law is for tipped workers, who are guaranteed only $2.13 per hour in wages under federal law and can be forced to credit their tips against the required federal wage level. Many states have a higher minimum wage for tipped workers or have abolished the so-called "tip credit" altogether and let workers keep their tips, without allowing employers to reduce their salary below the regular minimum wage level.
With Santorum's bill as law, you would end up with a situation where small and even medium size restaurants and other businesses with tipped employees would be exempt from the federal minimum wage, and state governments would be barred from requiring employers to pay actual wages to tipped workers. Essentially, those workers could be hired for zero dollars and told they had to live only off tips, however little those were.
The attack on the tip credit is bad enough, but the precedent of the federal government creating a MAXIMUM standard for wage regulation and restricting the right of states to create a higher standard is even more dangerous. Because of federal inaction, states across the country have raised their minimum wages -- Red State Florida raised theirs just last fall and indexed it to inflation -- and many more are thinking about it. (See the chart below)
If Santorum and the GOP can push through a restriction on states' ability to raise standards for tipped workers, the next step could easily be a restriction on states being allowed to have ANY minimum wage higher than the federal level at all.
The City Minimum Wage Precedent: Sound too far-fetched even for rightwing politicians? Well, after a number of cities began enacting city minimum wage laws, about a dozen southern and western states, including Florida, Louisiana and Georgia, passed legislation banning local governments from enforcing local minimum wages higher than the federal minimum wage level. Backed by the conservative American Legislative Exchange Council, these "minimum wage repeal acts" are the model for the national GOP going further and preempting state minimum wage laws, just as they recently preempted state class action laws and just as they have preemped state health care and environmental regulation. (See this post today on the full range of conservative's preempting progressive state laws).
Taking the fight to the states: Right now, there is an upsurge of grassroots energy working to raise the minimum wage at the state level. Despite the Florida legislature banning local minimum wage laws, Florida voters last fall, by a vote of 72%, raised their overall minimum wage by $1 per hour -- and raised the wage for tipped workers by the same amount. Other states are raising the minimum wage far higher than the federal level-- Washington State now has a $7.35 per hour minimum wage, and San Francisco has a $8.62 per hour city minimum wage.
The GOP now knows that it's not enough to just keep blocking minimum wage increases at the federal level; they have to stomp on these new state initatives as well. The Santorum bill is the first step in the rightwing goal of not only restricting federal law but gutting the ability of states to take action against sweatshops as well.
Pounding Santorum and the GOP: If progressives miss the opportunity to smash this vote over the head of these rightwing politicians, they are truly brain-dead. While voters are closely divided on a range of social issues, even many normally Republican voters support raising the minimum wage. It's the best wedge issue in the progressive arsenal, and we get to skewer the GOP for hypocrisy on states rights to boot.
States raising minimum wage
Thanks to ACS Blog for the heads up.
Update: BTW- for those in who need a quick tutorial on minimum wage economics and arguments, see these posts:
In the end, the showdown in Las Vegas between the union factions ended up more of a standoff, with the majority pushing through relatively minor reforms in the face of more far-reaching proposals by unions representing 40% of AFL-CIO members-- deferring the fight to the summer convention.
Instead of emphasizing new worker organizing, unfortunately, the majority proposals emphasize increased spending on politics, not worker organizing.
While there's no doubt federal labor law changes would assist organizing, that's just not going to happen any time soon in the face of GOP filibusters. There is a chicken-and-egg problem for labor: labor's numbers have decreased, so their political power has declined, which means they can't change the law without expanding their membership numbers. Dramatic labor law changes will be the result of an upsurge in new worker organizing, not the cause of it.
Now, there are opportunities for legal changes at the state and local level, something I know well, since my day job is helping local community-labor coalitions pass such legislation. But even political work at that level will be useless if spending on organizing isn't expanded to take advantage of any legal changes.
Look at the converse side of corporate power. Yes, corporations have influence because of their bankrolling of politicians, but their real power stems from their economic power, their ability to threaten to move jobs to a different state or even overseas unless politicians do what they demand.
Similarly, politicians have historically made legal changes favoring unions only when the alternative was disruptive labor conflict. The federal government either ignored or actively suppressed labor unions during the 19th century. It was only when mineworkers were able to shut down the athracite coal fields for months in 1902, threatening disruption of heating supplies around the country, that Teddy Roosevelt became the first President in American history to intervene in a strike in a positive manner, supporting union demands for binding arbitration to raise wages. And when the Wagner Act was passed in the 1930s, its purpose was specifically to calm the upsurge of wildcat strikes spreading throughout the economy in order to preserve, "labor peace."
If "labor peace" already exists because of too little organizing and lack of strength in the workplace by unions, politicians will feel no real pressure to change the law. Money can't buy political power for unions; only organizing will deliver it.
(Reprinted From Confined Space)
While the legions of John Sweeney and Andy Stern assemble to do battle in the far-away magical kingdom of Las Vegas, it might be a good time for those of us left at home to discuss what really matters: what do the coming changes in the AFL-CIO mean for workplace health and safety?
For those of you who have been napping through the past year, there is a debate raging in the halls of labor about what can be done to reverse labor's declining membership. SEIU President Andy Stern is leading the charge with several "suggestions" and is threatening to take his ball and go home if there is no agreement. On the other hand, other unions, such as the Machinists, are threatening to take their ball and go home if Stern's proposals are accepted.
In all seriousness, the problems are extremely critical, even life threatening. Unions today account for 7.9 percent of the nation's private workforce and 12.5 percent of all workers. In the 1950s, one-third of all workers belonged to a union. One thing that everyone agrees on is that it's the right time to have this debate.
To make a long story short (if you want the long version, David Moberg, writing for The Nation, will accommodate you here), Stern and his allies (including the Teamsters and UNITE-HERE) have several proposals, most of which I'm not going to discuss here. (All of the unions' proposals can be found here.) The three proposals that have garnered the most attention are:
And skeptics might wonder if this plan will really contribute significantly to solving the AFL-CIO's problems. Is lack of money the main reasons that unions have failed to organize successfully or is it just that many unions don't know how (or don't really want) to organize? Or might it have something to do with the political atmosphere, unsupportive laws and a changing national and global economic structure?
Unions currently contribute only 1% of their percapita income to the AFL-CIO. Will rebating 1/3 or 1/2 of that amount make the difference between a faltering and thriving labor movement? And can these decisions be made successfully without first having a debate on what the Federation's role should be?
Which brings us to the main points: If the Federation's budget is to be cut significantly, and more focus is to be put on politics and legislative activities, what becomes of the Health and Safety Department? And what exactly is the role of workplace health and safety in the labor movement?
The Role of Health And Safety in Labor
The role of health and safety in the labor movement and in organizing was one of the first topics I addressed in this blog and through the miracle of the internet, you an go back and read those articles.
That first discussion was initiated by a statement made by then Hotel Employees and Restaurant Employees President John Wilhelm's in March 2003:
"the A.F.L.-C.I.O. was spread too thin and should devote more of its money and energy to organizing.
Mr. Wilhelm said he would even consider ideas like eliminating the federation's respected health and safety department to channel more money into organizing. "My view is that if we don't devote the largest possible amount of money to organizing and to political action that relates to organizing, we will go out of business," he said. "And if we go out of business, we can't help anybody's health and safety."
In April 2003, I reprinted a speech by Diane Stein, Executive Board Member of PACE Local 1-149, in which she defended the mission of workplace safety in the labor movement:
I know that there is debate in the labor movement right now about whether we can afford to continue working on safety and health when we need so many resources devoted to organizing. While none of us would argue against organizing, I would argue that we can't afford to do away with what some may consider to be "special projects" and that includes safety and health.And in August 2003 I wrote a longer piece entitled "Union Health and Safety Programs: Organize and Die?" in which I examined in great depth whether organizing and union health and safety programs are conflicting or complimentary and whether there was a role for a workplace health and safety programs in a union -- or a labor movement -- that decides to redirect a substantial percentage of its resources to organizing.
People join unions because they need better work lives. Safety and health is a huge part of that struggle.
Without unions actively working on these issues, we would be failing the people we represent.
People join unions because they know that unions are the only institution who really put forward their agenda. We cannot abandon that agenda because we need resources for organizing. It simply doesn't make sense.
In brief, the conclusion of that article was that health & safety programs are important to workers and unions because they save lives, contribute to organizing campaigns and they're important to legislative and regulatory fights that affect workers' lives. Finally, almost every major workplace health problem was initially discovered by workers and their unions, and then brought to the researchers and government regulators. (For information on how unions help to protect workers health and safety check out Hazards.)
Since those articles were written, UNITE has merged with HERE and Wilhelm is now the co-president of the merged union. Ironically, UNITE-HERE is probably the union that most effectively uses health and safety issues in its organizing campaigns. Meanwhile, Wilhelm is often named as a possible challenger to AFL-CIO President John Sweeney who has said he would run for re-election next July.
So we're left with a many questions, a few of which I've asked below:
The AFL-CIO Health and Safety Department: RIP?
So what’s going to happen if there are significant cutbacks in the AFL-CIO budget, and the remaining budget is increasingly dedicated to legislation and politics? The rumor is that the Health and Safety Department would be abolished and the staff (those who aren’t laid off) would be merged into the legislative department.
Why do we care?
What does the AFL-CIO health and safety department do? The staff consists of only four professionals, led by veteran Peg Seminario, one of the most respected health and safety -- and labor -- leaders in the country. One staff position is fully dedicated to workers comp issues (and is the only labor person in the country who addresses workers compensation issues from a national perspective.) The department plays a crucial strategic coordinating role with the various union, particularly focused on legislation, standards, and enforcement activities. Depending on the political environment, their activities may be more defensive than offensive.
Forcing OSHA to issue health and safety standards or to enforce the law is no longer a simple administrative process. To be successful, unions need to organize massive grassroots political action campaigns. It takes coordination from the AFL-CIO and national unions, it involves organizing the victims of health and safety problems on the local and national level and it takes political action in Washington and in the states.
This role was most apparent during the 10-year long ergonomic fight that finally resulted in a standard (before it was revoked). This was a battle fought by many unions on multiple fronts: political, scientific, workplace, regulatory, legal and congressional, all coordinated by the AFL-CIO health and safety staff. The AFL-CIO is practically the only player holding down the fort against asbestos compensation legislation that threatens to undermine the rights and compensation for thousands of victims of the asbestos industry. In my 23 years in the labor movement and government, working in the workplace safety and health area, I’ve never ceased to be amazed at how the energy and organization of that department has challenged – and generally beaten – the combined forces of corporate America in legislative, legal and regulatory battles.
And lets not forget symbolism. There is probably no issue more central to the founding of the labor movement in this country than the issue of safety on the job. Look back at any of the early stories of the founding of the American labor movement and you'll find workplace safety and health concerns. The history of the Mineworkers, the Steelworkers, the Oil Chemical and Atomic Workers and many other early unions is also the story of workplace safety. The 1968 Memphis sanitation workers strike was sparked by two workplace fatalities. So what message are we sending to American workers (and the enemies of American workers) if we devalue the importance of the issue upon which the labor movement was founded. It's hard to "Mourn for the Dead, Fight like hell for the living" from the perspective of the legislative department.
Finally, and perhaps most important, how can working people and individual unions working alone and individually be any match for the well funded combined power of the Chamber of Commerce, NAM, NFIB and individual industry associations who have the ability to hire high-priced attorneys, scientists – and legislators.
And what do these changes mean for workers, not just those relative few who still belong to unions, but to the many who do not.
Most workers, of course, won't be directly affected by the disappearance of the AFL-CIO's health and safety department, but where will they be without a central force in Washington defending their right to a safe workplace against the powerful corporate-Republican juggernaut doing everything it can to to destroy the labor movement and to destroy the workplace protections that American workers have only enjoyed for the past 35 years.
Those who still belong to unions may continue to have health and safety departments to rely on to educate their activists and defend their rights in the workplace and in Washington D.C., but those without union representation will be left with nothing.
And will individual unions continue to support health and safety programs? Labor health and safety activists remember well that when Andy Stern took over SEIU he decimated one of the labor movement’s largest and most active health and safety programs, leaving only one Washington representative to address the giant union’s abundance of health and safety issues.
And the state of most individual union health and safety departments is not good. Many of the smaller unions don't have any health and safety staff and depend on the Federation for information, resources and technical assistance. Even in the larger unions, most staff is funded by government grants. This means that in an era where the labor movement is attempting to shift more and more of its resources to organizing and politics, most health and safety staff is forbidden to participate in organizing or politics. In addition, the grants tend to skew health and safety activities toward grant targets which may or may not be in tune with the union’s organizing targets, although without the grant programs, many union health and safety programs would practically cease to exist.
And, of course, dependence on government grants in this period of overwhelming hostility toward labor and toward workplace safety issues is not a secure place to be. Bush has tried unsuccessfully every year to reduce OSHA’s $10 million grant program by 60%, and this year he's trying to eliminate the entire program. Its fate rests, as it has in previous years, on Republican Senator Arlen Specter, whose health is not good.
Most health and safety staffers are anxious to get involved in organizing campaigns, but complain that it’s often difficult to convince the organizers that health and safety is a good organizing issue and to involve health and safety issues in the initial conceptualization of organizing campaigns. Some have just about given up.
I certainly don't have the answers to all of these questions. These are not easy issues, but they need to be addressed by health and safety activists. Change is needed and it's coming. But will these changes be good for workers' safety and health?
These are my thoughts. I encourage you to support or blast them. Use the comment box below (which will limit those of you who tend to be wordy), or E-Mail me and I'll print or summarize your thoughts. Let me know if I can post your thoughts, and whether or not you want to remain anonymous if I decide to publish them.
Related StoriesThe Great Debate I: Union Health and Safety Programs vs. Organizing, April 7, 2003
A nice little history lesson over at Demagogue about how much more visionary the car industry unions were compared to management in preparing for competition from abroad:
Michael Beschloss, who edited the transcripts, introduces a Jan. 25, 1964 conversation between LBJ and Defense Sec. Robert McNamara (former CEO at Ford Motor Co.) "Walter Reuther, president of the United Auto Workers union, has proposed to Johnson that the government help create a new American company to produce small cars, competing with Volkswagen ..."Conservatives always try to blame labor for the decline of unionized industries, but they never seem to blame those who actually made the stupid investment decisions that allowed Japan companies to take over the industry-- and ignoring the fact that Japanese companies were themselves unionized.
Back in December, the Fifth Circuit held (pdf) that a maintenance employee at a public hospital had the First Amendment right to wear a "Union Yes" button. Today brings news that the Fifth Circuit has vacated that decision and has taken the case for en banc review (i.e., review by the entire court, not just a three-judge panel).
Cross posted at The Next Hurrah.
I was listening to All Things Considered last night with my flu-wracked wife, when we heard a piece about a lawsuit against a medical resident who'd just finished a 36-hour hospital shift. The resident in question, zonked out after an absurdly long shift, rear-ended a college student and caused the student massive, unrepairable brain damage. There was a weird tenor to the story, which focused on the safety aspects of residents driving home after pulling two-day shifts -- it was almost an afterthought when one of the commenters mentioned how incredibly unsafe it is to force medical doctors to diagnose patients, prescribe and administer meds, and generally be responsible for the well-being of sick people when the doctors have been rendered incompetent by fatigue. As the NPR sidebar notes, "[i]nterns working 30-hour shifts in an intensive care unit made 36 percent more serious medical errors, including 5.6 times more serious diagnostic errors, as compared to those same interns when they were scheduled to work no more than 16 consecutive hours." I don't mean to downplay the tragedy of auto accidents caused by sleep-driving residents and interns, but it seems to me that the bigger problem here is that our teaching hospitals expect doctors to care for patients on no sleep. As the American Medical Student Association points out, we don't let truckers drive for more than 10 hours straight -- why the hell would we let doctors work longer than that in our hospitals?
Anyway, the NPR piece featured a representative from the Committee of Interns and Residents, the labor union that's had a good deal of success in organizing residents across the US. The CIR rep spoke about the dangers to both motorists and patients caused by our archaic and willfully stupid overwork of residents and interns. As my wife and I nodded approvingly, I said something like, "Yeah, the CIR is doing a good job -- but I bet that the NLRB is going to build on their decision that university TAs can't organize, and screw interns and residents too."
Call me Carnac. I open the BNA Daily Labor Report this morning (subscription only, alas), and what do I see? (Answer below the fold!)
NLRB 'Likely' to Follow Ruling in Brown,
Reverse Boston Medical, Attorney Predicts
DORADO, PUERTO RICO--Following the National Labor Relations Board's recent decision in Brown University that graduate student teaching assistants and research assistants are not employees covered by federal labor law, it is "very likely" that the board will reverse its 1999 decision in Boston Medical Center that medical interns, residents, and fellows are covered employees, a Philadelphia management attorney said Feb. 28 at an American Bar Association conference. The board ruled in Boston Medical, 330 N.L.R.B. 152, 162 LRRM 1329 (1999), that medical interns, residents, and fellows are employees protected by the National Labor Relations Act. Doreen S. Davis of Morgan, Lewis & Bockius said the same test the three-member board majority used in deciding Brown, 342 N.L.R.B. No. 42, 175 LRRM 1089 (2004 -- whether the relationship between the teaching assistants and the university is primarily academic or economic--leads to the conclusion that medical interns, residents, and fellows have a primarily academic relationship with the teaching hospitals where they work and should not be permitted to collectively bargain.
So the doctors that triage you, diagnose your illness, and order treatment for you when you check into an emergency room aren't actually doctors, according to the management oligopoly -- they're students. Because it's not enough to work them to the bone in exchange for relatively little pay -- now the hospitals can strip them of employee protections and their dignity as medical professionals.
This is an abortion from a labor law perspective, but it's even worse from a health policy viewpoint.