By Jordan Barab, reprinted from Confined Space
In Arizona, "A person commits negligent homicide if with criminal negligence such person causes the death of another person." "Criminal negligence" is defined as “gross negligence so extreme that it is punishable as a crime,” "aggravated assault" is committed if a person causes serious physical injury to another and “endangerment” is defined as “recklessly endangering another person with a substantial risk of imminent death or physical
Knowing these definitions, can anyone tell me why an employer who sends a worker to his death in an unmonitored confined space or an unprotected 12 foot deep trench shouldn't be prosecuted under any of the above felonies -- as opposed to the Occupational Safety and Health Act, where the maximum penalty for willfully killing a worker is a misdemeanor with a maximum of six months in jail?
Well, just prosecuting under the OSHAct certainly didn't make sense to the Arizona Attorney General's office. Prosecutors Christina Fitzpatrick and Mark Horlings last month convinced a jury to find the Far West Water and Sewer Company guilty on five of the six felony charges filed against it.
The jury....convicted the water and sewer company of negligent homicide, aggravated assault, violating a safety standard causing the death of an employee and two counts of endangerment in the deaths of James Gamble, 26, and Gary Lanser, 62, who were overcome by toxic sewage gases while working on an underground sewer tank on Oct. 24, 2001, in Mesa Del Sol.
***Santec Corp. a subcontractor that employed Lanser, pleaded guilty last year to a felony charge of violating a safety standard causing the death of an employee. Under the plea agreement Santec was required to implement a safety program that complies OSHA confined space standards, pay $30,000 in restitution and will be inspected annually by Arizona OSHA.
Far West had been charged with two counts of manslaughter, one for each of the deaths, but the jury, composed of nine women and three men, found the company not guilty on both counts.
Each count of manslaughter the water and sewer company was facing carried with it a lesser included charge of negligent homicide. While jurors found Far West guilty of negligent homicide in Gamble’s death, the jury was unable to come back with a verdict for the negligent homicide charge in Lanser’s death.
This tragedy was unfortunately typical of confined space incidents, where one of the workers killed was the attempted rescuer and two other rescuers narrowly escaped death:
Gamble entered the tank to remove a plug that was blocking a line into the tank and died after being overwhelmed by hydrogen sulfide fumes when a pump that ran raw sewage into the tank from a different line was turned on.
Lanser went into the tank to try and save Gamble, he, too, was overcome. A third worker, [Nathan] Garrett, went down a ladder in the tank but didn’t make it all the way down. Forewoman Connie Charles went down the ladder after Garret and she, too, breathed the toxic gas and had to be rescued.Garret has suffered permanent lung damage.
Enclosed areas or “confined spaces” in sewers and wastewater treatment plants (or anywhere where there is rotting organic material) are notorious for accumulations of hydrogen sulfide which can kill workers and their rescuers. Confined spaces can also develop life-threatening oxygen deficiencies and generate explosive methane gas. For this reason, OSHA has a detailed Confined Space standard which requires the air to be monitored, a means to safely rescue workers if they are overcome by fumes, and extensive training.
According to the prosecutors on the case, the violations were so blatant, and it was so obvious that the workers had no idea of the danger inherent in confined spaces, that a criminal prosecution was completely appropriate. The air in the tank had not been tested during the day of the incident, the workers weren’t properly trained and the required safety and rescue procedures weren’t followed. Unlike Santec, which admitted guilt prior to the trial, Far Western decided to fight the case, at one point arguing that the workers had mysteriously suffered simultaneous heart attacks. But the prosecution was strongly supported by Dr. Daniel Teitelbaum, a Denver toxicologist who has been a long-time fighter for workers' rights.
The AG’s office originally filed against both the company and its executives, although the judge separated the case into two trials. Far West president Brent Weidman will be tried for manslaughter, aggravated assault and endangerment in February.
Look back at the definitions at the beginning of this article, then consider that under the OSHAct, 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. I'm very happy about the results of this case, and about the recent decision to charge Ken Formica, owner of Staten Island, New York-based Formica Construction, with manslaughter in the 2003 trenching death of a Mexican laborer. But these are only two cases.
As far as I'm concerned, every single trenching and confined space death should automatically be referred to state or local prosecutors for felony manslaughter and negligent homicide charges. I'm sick of waiting for Congress to increase OSHA penalties when all they seem interested in is weakening enforcement and making sure that the good companies don't have their feelings hurt by mean OSHA inspectors.
As far as I'm concerned, every single trenching and confined space death should automatically be referred to state or local prosecutors for felony manslaughter and negligent homicide charges. I'm sick of waiting for Congress to increase OSHA penalties when all they seem interested in is weakening enforcement and making sure that the good companies don't have their feelings hurt by mean OSHA inspectors.Carol Borieo, the mother of James Gamble, said she would like to see an example made of Far West because she is worried what happened to her son could happen again if the company isn't punished.
And in that spirit, here's our New Year's resolution: Familiarize yourselves with these cases. Download and print out the articles. And every time you see a trenching, confined space or other workplace fatality that any jury could see was preventable, contact the local media and the local prosecutor or state Attorney General and demand that felony charges be brought.
So New York University is no different from any other rightwing corporation. Workers go on strike on they threaten to fire them, rather than negotiate a solution:
New York University issued an ultimatum yesterday to its striking graduate student teaching and research assistants: They must return to classes and other assignments next week or lose their financial stipends and their eligibility to teach next semester. Those who return next week will not be penalized.ie. they're fired and won't be rehired after that point, just like every threat of "permanent replacements" by private corporations out there.
By Jordan Barab, reprinted from Confined Space
Well he's gone and done it.
Despite a thorough trashing in Confined Space last week, Senator Mike Enzi (R-WY) has introduced his OSHA Deform legislation: S. 2065 -- the Occupational Safety Partnership Act, S. 2066 -- the Occupational Safety Fairness Act, and S. 2067 -- the HazCom Simplification and Modernization Act of 2005.
As might be imagined, the National Association of Manufacturers (NAM)praised Enzi's bills, for allegedly implementing "voluntary, solutions-oriented workplace safety initiatives rather than enforcing unrealistic standards that impose undue burdens on small companies."
They are, of course, full of crap.
In a rather ominous statement, NAM President John Engler "These bills are a good first step in bringing effectiveness and fairness to the OSH Act." A good first step? What else do these jokers have planned?
The AFL-CIO is preparing to mount a major campaign against the bills.
As I described last week, Enzi's "Partnership" bill (S. 2065) promotes partnering between OSHA and industry by promoting unproven voluntary programs and allowing companies to self-certify compliance through audits by third parties. But unlike Enzi's previous "partnership" bills, this one does not even require employers to set up a comprehensive safety and health program. And, as I mentioned before, in order to buy more business
contributions support, it eliminates the provision in the earlier Enzi bill to make criminal penalties a felony instead of a simple misdemeanor, which they are under the current law.
The "Fairness" bill (S. 2066) unfairly penalizes workers by rolling back and weakening OSHA enforcement. It makes it virtually impossible for OSHA to cite employers, allows OSHA to penalize employees adopts Charlie Norwood's small business "relief" bills passed in the House last summer.
The HazCom bill (S. 2067) starts the process of bringing the U.S. up to international chemical Right-to Know standards by setting up a commission to examination the adoption of a globally harmonized hazard identification and communication system. It has widespread support.
Enzi, who clearly doesn't read Confined Space, justified the bills, saying that
Cooperation, not confrontation is essential in making our workplaces safer. The notion that employers care little about worker safety, or are prepared to sacrifice worker health in the pursuit of profit is a dangerous myth.Yadda, yadda, yadda.
In fact, most employers are concerned for the welfare of their employees and are fully prepared to comply with laws aimed at enhancing their safety on the job. This package of bill will provide employers new opportunities to protect their important assets—hard working employees.
OK, Senator, so most employers are concerned about the welfare of their important assets. Maybe that's true, but what about the other ones, the ones who are, in fact, prepared to sacrifice worker health in the pursuit of profit. They will also be the beneficiaries of your version of "partnership" and "fairness."
In fact, they're already getting away with murder. How will these bills make it better? Particularly since you've even dropped the only crumb -- making criminal penalties a felony -- that would have made it easier to punish them.
What a turkey.
One reason unions are more successful in pubic sector organizing is that governments generally refrain from the union busting tactics of the private sectors. Teachers and other public employees have the chance to vote on whether to unionize without the illegal threats and management intimidation that is the staple of private sector organizing campaigns.
But that may be about to change in New York City charter schools, where rightwing foundations are teaming up to bring modern union busting to attack teachers unions in the expanding charter schools around the city.
This EdWize post has the details, but here's the money quotes about the rightwing Atlantic Legal Foundation (ALF) efforts to promote anti-union attacks:
In its Charter School Advocacy Program, the ALF relies almost totally upon the work of the anti-union, management law firm, Jackson, Lewis, Schnitzler & Krupman...The conference unveiled the ALF’s “legal guide” to preventing unionization in New York Charter Schools, which was published under the same title as the conference. It was written by Jackson Lewis LLP, with Kaplan and Walsh functioning as the main co-authors.Most disturbing, many mainstream leaders of the charter school movement, strongly tied to Mayor Bloomberg and the administration, participated in the ALF-sponsored conference and publicly proclaimed themselves dedicated to undermining teachers rights to unionize:
The consensus of this panel was, in the words of Norman Atkins, “good charter schools organize themselves in ways that keep unions out.” Only slightly more circumspect than the Jackson Lewis panel, this group declared as non-negotiable an “at will” employment process, with the right to hire and fire without any due process, the elimination of tenure, and a lengthy school day, week and year.Read the rest of the piece. What is highlights is that privatization of schools is opening the door to the rightwing bringing in its corporate money to gut labor rights in the public sector.
In a country of shining multi-million dollar business schools in almost every major university in the country, one of the silliest rightwing campaigns is complaints that conservatives are oppressed and somehow have no support for their rightwing views on campuses-- leading folks like David Horowitz to propose an Academic Bill of Rights.
Right now, the handful of labor centers around the country are under total assault. In California, Schwartzenneger vetoed all funding for the University of California Center for Labor Research and Education and the campuses have only been able to find alternative resources for a third of the original budget. As the Center leadership emphasizes:
Without any review, justification, or explanation, the governor has reached into the University of California’s budget to single out an academically-created program for elimination. This dangerous precedent allows a governor to defund any university programs that he does not support.Where is the conservative outrage over this selective assault on one area of academic inquiry. There is none.
And at the University of Massachusetts, the administration has slashed the budget of the Labor Studies department and ended an ongoing search for a new professor:
. “No other department has been treated this way,” said Labor Studies Professor Stephanie Luce. “We are being singled out for attack because of our political activity on behalf of workers’ rights on campus and around the world.”Business schools can create joint programs with corporate America, biology departments create joint ventures with biotech, but if labor departments cooperate with labor unions on any endeavors, they are shut down without even a peep of protest from the rightwing "guardians of academic freedom."
Of course, it's all a farce. Yes, many humanities professors are liberal, but the economic powerhouse departments on campuses, from business schools to corporatized science departments largely live these days to serve the corporate interests of business America. And the tiny handful of academic programs desgined to serve the needs of working people in the United States are under total assault.
That's the reality of academia circa 2005.
A few days ago, I noted that Sam Alito was opposed to the "one person, one vote" reapportionment cases and I emphasized that in many ways, those decisions by the Warren Court were its most important, with far greater effect on modern life than Brown v. Board or Roe v. Board decisions, since both civil rights and abortion rights were moving forward on their own political steam.
But with as little as 16% of the population of some states controlling at least one chamber of their state legislatures, there was little prospect of serious reapportionment by political means. So subtract the Supreme Court and democratic reapportionment of the states might never have happened. And the anti-democratic rightwing recognized this and was prepared to make almost any deal to override the Supreme Court through a Constitutional Amendment, including cutting a deal with the labor movement.
A little context-- the rightwing in the 1960s lacked the power or will to resist passage of the Civil Rights bills or most of the Great Society, but they were still determined to filibuster any labor law reform that would repeal anti-union provisions of the 1947 Taft-Hartley Law. And they did so.
But at one point, Republican Minority Leader Everett Dirksen offered to drop GOP filibusters of labor law reform and accept repeal of "right to work" laws-- section 14(b) of the Taft-Hartley Act -- throughout the country in exchange for the labor movement dropping its opposition to a constitutional amendment to override the reapportionment decisions.
To his credit, AFL-CIO leader George Meany told Dirksen to go to hell:
As badly as I want 14(b) repealed, I do not want it that badly. And the Senate Minority Leader and all his anti-labor stooges can filibuster until hell freezes over before I will agree to sell the people short for that kind of deal.And so rather that taking the only serious deal for labor law reform in the post-WWII period, the labor movement accepted the greater historic importance of the reapportionment decisions for our country.
In opposing the reapportionment decisions, Sam Alito made it clear that this was not merely an abstract legal position but part of his more general alignment with the rightwing politics of the 1960s, including an allegiance to the National Review , which opposed civil rights and democratic equality in the states with all its intellectual vigor in that period.
So how any Democrat could even consider voting for a political rightwing dinosaur of that era is beyond me.
By Jordan Barab. Reprinted From Confined Space
Attention journalists, political activists and residents of any area near a company that employees workers -- in other words, everyone. Check this out.
The last problem we seem to have these days in this increasingly computerized world is lack of information. The real problem is knowing where to find it and how to use it. Journalists or political organizers, if they're knowledgeable about the web, can ferret out valuable information about individual companies that they may be interested in. But mere mortals often have a harder time.
Now, Working America, the community affiliate of the AFL-CIO, has created Job Tracker, putting an enormous amount of valuable workplace-related information at the fingertips of anyone with a web browser. They've constructed an ingenious tool for discovering, by inputting a zip code or state, vital information about companies and how they treat their workers: OSHA citations (when, for what, how much ), layoffs, exporting jobs and violating labor laws. It even has each company's OSHA injury and illness rate, and whether the rates were high enough to earn a letter from OSHA warning them that they're on the targeted inspection list. You can also search by company name and by industry.
But enough talk, time to take her out for a test spin. We'll feed in my zip code, 20912 ... and seconds later I find that within 100 miles of my home are 17 companies that have been exporting jobs, 15 companies that have been laying off workers, 13 companies that have violated federal labor laws and 94 companies with safety and health violations.
OK, narrowing it down to the service sector, I find General Dynamics Robotic Systems in Westminster, Maryland which killed a worker in 2004 and received a $2,375 penalty. Bad.
And, in case you're interested, the CEO of the company, Nicholas D. Chabraja, "raked in $7,145,081 in total compensation including stock option grants from General Dynamics" in 2004, in addition to "another $17,807,840 in unexercised stock options from previous years."
"Awesome," as my kids would say.
Much of the information is linked to its source. For example, the OSHA violations link right to OSHA's inspection data webpage.
It's fun to think how this tool can be put to use. Workers can discover their employer's history of NLRA and OSHA violations. Journalists can instantly find if a company has "a history." Political organizers can ask Senator Porkafeller why he's getting contributions from a company that has 12 NLRB violations, 3 OSHA citations and is exporting jobs to China. Bloggers can get a few more minutes of sleep at night.
I'd suggest a few enhancements, in case anyone's asking. Adding environmental citations and toxic releases would not only attract environmentalists and residents who are wondering what's being spewed over their neighborhoods, but also highlight the connection between workplace, labor and environmental criminals.
And then maybe tying in some Google maps, with different colored pins: red for OSHA violations, yellow NLRB citations, and searching by Congressional District, and .... This could be fun.
By Jordan Barab, Reprinted From Confined Space
Wyoming Senator Mike Enzi (R) is reportedly poised to introduce wide-ranging legislation that will seriously weaken the Occupational Safety and Health Act. While all the details aren't in, Inside OSHA (subscription required) has obtained a summary of the bills and the first impression is...worse than anyone expected.
First, what won't be on the bills: Enzi had originally planned to make it easier for OSHA to seek criminal penalties against employers cited for willful violations, but succumbed to industry pressure to drop that proposal. The criminal penalties language would have raised the maximum prison sentence for willful OSHA violations from six to 18 months, according to Inside OSHA.
Among the bills that Enzi is expected to introduce as early as next week are:
Occupational Safety Partnership Act: Enzi will also repropose his pet project -- privatizing OSHA enforcement by allowing employers to hire private sector consultants to inspect their workplaces and issue a "certificate of compliance," exempting them from an OSHA citation for two years. The Partnership act will also increase the use of voluntary protection programs and technical assistance programs. These are the same programs that the Government Accountability Office studied in 2004 and found to have no proven value.
Occupational Safety Fairness Act: This bill includes Charlie Norwood's (R-GA) four OSHA-weakening bills that already passed the House of Representatives last July. In addition, there's are some even worse provisions, including one that would allow employers to vacate citations "if an employer can demonstrate that the employees of such employer were protected by alternative methods equivalent or more protective of the workers’ safety and health." In other words, instead of citing according to OSHA standards, the agency would be forced to use its shrinking resources to prove that the employer's "alternative" methods weren't equally as protective as the OSHA standard.
It would also allow employers to avoid non-serious citations if they fix the problem within 72 hours and requires OSHA is issue most citations within 30 days (instead of the current 6 months), doubles the amount of time the employer has to contest a citation. (With no additional resources, of course.)
This bill also states that “other than serious” citations may not be used as a basis for issuing subsequent, repeat, or willful violation. In other words, if OSHA cites a "close call" or an unsafe condition, and then the same problem eventually leads to a serious injury or fatality, OSHA would be prohibited from issuing a significant citation.
But the worst part of this bill is that for the first time in OSHA's history, the agency would be empowered to cite workers if they aren't wearing their personal protective equipment. Yes, this is the same agency that after five years, still refuses to issue a completed regulation requiring employers to pay for personal protective equipment mandated by OSHA standards.
Those are the best parts. More details as they emerge.
Get ready for a fight.
The campaign for universal pre-school for all California kids, spearheaded by Rob Reiner, will submit signatures qualifying the initiative for the ballot next year.
A compromise bill that will guarantee funding for three hours of pre-school for every 4-year old in the state, whether they are in public or private schools, the supporters range from Netflix CEO Reed Hastings to the California State Council of Service Employees to the Oakland, San Francisco and Los Angeles chambers of commerce.
The business support is particularly significant, since the initiative is paid for with a hike in state income taxes on those making more than $400,000 per year. The Los Angeles Chamber had not endorsed a tax increase in its 117-year history.
Which goes to show the potency of the day care/pre-K issue, since businesses, unions and of course families know the tension between taking care of their kids and work is the biggest strain on many families.
Even California Taxpayers Association spokesman Ron Roach, who dislikes the proposal, admits it will be popular:
"It's going to be quite popular with voters because they won't be taxing themselves," he said. "They'll be taxing someone else."Here's the dirty little secret that conservatives hate to admit. "Tax the rich" politics is popular and successful, especially when the proposed taxes are used to relieve financial pressures on families struggling with balancing the demands of work and family.
Across the country, we need a "tax the rich to help the American family" campaign that would fund not only pre-K education but paid family leave and better health care for all famillies.
There's a platform for progressives in 2006.
The progressive promise of global trade is supposed to be increased wealth for poor countries. But the most important trade in the information economy is often people-- and discriminatory immigration laws too often give preferences to the educated of developing nations, encouraging them to leave their home countries. The result is a brain drain that robs those countries of what is often their scarciest and most valuable resource.
As a recent Economist article details (subscription), many developing nations spend precious investments in higher education, only to see a hemmoraging of doctors and other educated workers to developed nations:
Some studies have suggested that this emigration has some positive effects for developing nations, since it encourages others to aspire to similar education, and with the notable example of India, can be a source of returning know-how and occasionally capital. So there is an argument that limited emigration from those countries could potentially benefit those nations, but unfortunately,most of them suffer not limited emigration but an uncontrolled exodus. For as the article notes:
The drain of educated minds from poor countries is mostly determined by host countries' rules, not home countries' interests...The rich world no longer welcomes the tired and the huddled; it looks set to compete ever more fiercely for the bright and the qualified.Because the United States actually has less of a bias in our immigration laws towards the highly skilled than many other countries, some people (yes this means you Matt) have suggested cutting down on lower-skilled immigrants in favor of more educated ones. But such a change would just increase the brain drain that's killing development in many countries.
So Illinois has passed a health care bill to extend coverage to all children in the state. It will be free for lower-income families, but even families earning more can buy in:
A family of four earning $41,000 a year will pay $40 a month for one child or $80 a month for two or more children. The co-payment for doctors' visits will be $10 each. A family of four earning $61,000 to $79,000 will pay $70 for one child and $140 for two or more children. The co-payment will be $15.While it doesn't solve the problem of adult coverage, many families who couldn't get affordable coverage for their kids will be breathing a huge sigh of relief.
People with higher incomes and without insurance are also eligible, though the premiums increase significantly.
The GOP is accusing the somewhat unpopular governor of playing politics to boost his popularity.
If only more Democrats would recognize that expanding health care for all families is a vote winner. We need more of that kind of opportunism.
Some are criticizing Bush for praising Taiwan for the freedom of its citizens but it's about time Bush talked about the need for China to increase freedom on the mainland.
I have little patience for the realpolitick crowd that can applaud, or at least excuse, the US bombing countries in the name of freedom and democracy, then cringe when China is mildly criticized for the wholesale dictatorship it imposes on its people.
And so the ideological drumbeat to kill workplace health benefits keeps expanding-- right in line with Wal-Mart's and General Motors' attempts to undermine the idea that they have a responsibility to their employees' health.
And so you get the arguments for cutting employer-based care-- it would be more efficient, more fair, allow folks to change jobs more easily, and so on.
It sounds reasonable and if the alternative was a true universal health care system, I'd be all for it. Except as the NY Times piece linked to above shows, that's not what's being proposed:
Imagine what would happen if everyone received a federal voucher good for a typical plan - and could keep any savings after buying a cheaper plan that still met basic standards. In that case, we would shop with an eye for value, instead of just giving the boss the bill. The well-to-do, meanwhile, could augment their vouchers with after-tax money.This rhetoric isn't about ending a two-tier health system but about institutionalizing it-- and pushing companies providing decent health care to blue collar workers at places like General Motors to dump it in favor of the proposed cut-rate plan.
The article talks about the savings from tax reform around the deduction for health care benefits, but this is all a smokescreen for ignoring the real gains from reforming the tax code-- repealing tax cuts for the wealthy to pay for good health care for the uninsured.
Instead- the game is to pit those workers who have fought over decades for health care benefits against those without-- and leave the tax cuts of the wealthy untouched.
There are days I think Bush is a Communist mole sent to create a caricature of conservative policy and discredit it. Use faulty intelligence to start a war in Iraq that has discredited neoconservative interventionist policy. Propose an attack on social security, the most popular policy program of liberalism.
And create a "market-based" Medicare prescription drug plan so complicated that the very concept of privatization itself is discredited:
Enrollment in the new Medicare drug benefit begins in three days, but even with President Bush hailing the plan on Saturday as "the greatest advance in health care for seniors" in 40 years, large numbers of older Americans appear to be overwhelmed and confused by the choices they will have to make.Confusion Is Rife About Drug Plan as Sign-Up Nears - New York TimesFixing this plan is almost a gimme issue for progressives-- simplifying the plan to guarantee broad coverage for all recipients and cutting out the corporate subsidies to pay for that guaranteed broader coverage.
"I have a Ph.D., and it's too complicated to suit me," said William Q. Beard, 73, a retired chemist in Wichita, Kan...
Brian D. Caswell, a former president of the Kansas Pharmacists Association, said he spent two to three hours a day explaining the Medicare drug benefit to customers at his store in rural Baxter Springs. He encouraged them to take a look at the new program. But Mr. Caswell said: "The program is so poorly designed and is creating so much confusion that it's having a negative effect on most beneficiaries. It's making people cynical about the whole process - the new program, the government's help."...
Bush administration officials said Medicare drug plans were offering more benefits at lower cost than had been expected. But that does not mean that a person's local pharmacy will be in every plan. "In some rural areas," Ms. Lenker reported, "beneficiaries say: 'There are 40 Medicare drug plans to choose from, but my pharmacy takes only one or two plans. How does that give me choice?' "
And by doing so, the lesson to the American population will be that the whole rhetoric of privatization is a lie. Older people are now contrasting the simple and comprehensive system of traditional Medicare with a privatized prescription drug plan-- and privatization is losing out in the comparison. Thank you George!
James Galbraith thinks "[t]he notion that China is a low-wage, slave-labor economy is constantly repeated in these debates, and it betrays ignorance of the actual conditions of the place" since Galbraith describes a benign government providing low cost housing and other goods to make those pathetic Chinese wages go further.
Now, this isn't theoretically incompatible with Matt Yglesias saying it's an "authoritarian one-party state" which won't change its policies no matter how much pressure is applied.
Except this ignores that the Chinese Communists ability to maintain that authoritarian state is dependent on delivering the material goodies Galbraith describes. And so the proceeds from global trade is therefore the lynchpin of the present Communist regime's legitimacy.
Which implies a hell of a lot more leverage for social change in China than Matt Yglesias admits. Authoritarian regimes that are economically autarchiv-- think Burma -- are very resistant to outside pressure, but as China is increasingly dependent on global trade, it becomes MORE subject to pressure.
Let's talk about how big a problem that could be for China. Just in the first ten months of 2005, Chinese trade with the United States was $176.3 billion. With an average wage of roughly $1500 per worker in urban export zones, if we assume that half of that export revenue goes to wages, that's over 100 million Chinese dependent on the United States for their jobs. (Which also undermines the idea that Chinese exports are a minor issue for the US economy.)
If 100 million Chinese suddenly see their jobs at risk, do you really think the Chinese government could keep the lid on social rebellion?
I wouldn't argue for an embargo on China but a more nuanced policy where we enacted a rule that legal challenges could be made to the importation of any goods where plaintiffs could demonstrate that labor rights had been violated. This approach has multiple advantages:
China may be an authoritarian state, but they have tied their economy increasingly to that of the United States-- which means we have far more power to effect their actions, especially if we do so creatively in alliance with Chinese workers themselves.
As with everything in the blogosphere, there's actually a website dedicated solely to discussion of the subject of plagiarism.
And that site has done a nice analysis of the whole Sherrod Brown issue and finds nothing unethical in Brown's actions. And has some nice commentary on why journalists had so much trouble with this story:
Journalists, however, are in a profession based upon copyright law and where their writing is literally their livelihood. They can’t grasp why someone else would allow their work to be reused without restriction. Combine that background with the media’s love for scandal and you can see why they pounced on this story before all of the facts were clear.In the end, one of the most remarkable parts of this story is that the Plain Dealer slammed Sherrod Brown's staff for sloppy writing ethics, but the paper couldn't bear to sit one day on the story for me to get back from my mini-honeymoon to get all the facts. Brown's office made a mistake and corrected it quickly, but the Plain Dealer seems incapable of admitting that it's insistence on rushing to print caused them to make mistakes.
On that note, I feel that it’s my personal duty to make sure that I have all of the facts before running a story and I talk with everyone that’s available before running with a story. If I’m a few days later than everyone else, that’s fine. I’d rather have my facts straight than be first to the line.
In that way, though journalists consistently slam bloggers for the lack of ethics, saying we need to learn more from how they do business, it’s clear that journalists can learn a few things from bloggers as well.
Take Trade Adjustment Assistance (TAA)-- under NAFTA, those who lost their jobs due to expanded trade were supposed to receive expanded and lengthier unemployment benefits and expanded funds for retraining. This was Clinton's and the NAFTA Democrats promise to help the losers under trade deals get a fresh career.
Yet the program has been repeatedly undermined in practice, and there's been barely a peep out of those Democrats who supported the trade deals. In fact, the Court of International Trade, which hears workers appeals under the program, has been scathing in its criticism of the Bush administration for its refusal to extend TAA benefits to those who had lost their jobs to trade.
While this case is troubling enough when viewed in isolation, it is even more troubling if it is viewed in the context of other TAA and NAFTA-TAA cases appealed to this Court...There is something fundamentally wrong with the administration of the nation's trade adjustment assistance programs if, as a practical matter, workers often must appeal their cases to the courts to secure the thorough investigation that the Labor Department is obligated to conduct by law.So here you have the Bush administration consistently undermining a centerpiece of the "free trade liberals" program, their system for transitioning workers into new industries.
And what has been the stance of those pro-NAFTA Democrats?
Go to the DLC's Progressive Policy Institute site and do a search for Trade Adjustment Assistance. Not a single mention of it.
Go to the Democratic Leadership Council and do a search.
Not a mention of Trade Adjustment Assistance.
So why should anybody who is potentially going to lose out under trade deals be anything but a steadfast opponent of these deals -- and why shouldn't they see the "free trade liberals" as liars who promise to help those hurt by trade, but remain silent as the Bush administration systematically violates the part of those trade deals like TAA benefits which the Clintonites promised to them?
If the Clintonites won't publicly fight for a relatively limited program like TAA, why should anyone buy that they will really deliver on the more ambitious promises folks like "pro-growth liberals" like Gene Sperling make, and not see the whole rhetoric as a bait-and-switch?
Taking a theoretical step back from the Sherrod Brown story, I have a longstanding academic interest in how the law treats collective production of knowledge. One of my academic articles I'm fondest of is Trade Secrets and Collective Bargaining: A Solution to Resolving Tensions in the Economics of Innovation, an exploration of the history and present debate on how to recognize and reward intellectual work in our economic system.
What is fascinating in all this is the search for the singular "author", as law professor James Boyle notes. All sorts of work is appropriated by others in our economic system with corporations or "authors" appropriating the collective work of others as their own based on money changing hands in an employment relationship.
In this game, my blog post, based on my collating and summarizing a range of writers, including individual summaries in various LEXIS decisions, gets the status of "author" and my role must be acknowledged. But no one would have had a problem if Sherrod Brown appropriated work by his direct employees as his own, since we are used to accepting corporate appropriation of the ideas of their employees.
We inherently reject a "public domain" where ideas can be freely appropriated -- even when the writer authorizes such appropriation -- but accept what I call a "private domain" within an economic enterprise where ideas may be freely appropriated without attribution.
Part of what I explored in the paper is this history of corporations extinguishing the rights of workers over control and ownership of knowledge in the workplace in contrast to this rising enforcement of intellectual property rights between corporate "authors."
It is only against this background that one can understand why the Plain Dealer can blithely accept the fiction that Sherrod Brown is the "author" of work done by his staff, but has palpitations if Brown uses work from the public domain. Any employer in this view has the right to claim work done in his "private domain" as his own, but we must fiercely suppress any recognition of a "public domain" outside such capitalist firms.
In this sense, the corporate resentment of "open source" software -- something I've also written extensively about -- is of a similar character to the Plain Dealer's conniptions over the "plagiarism" issue. There is something deeply threatening to many parts of the old "information establishment"-- whether corporate journalism or software companies -- from a movement like blogging or open source software where the production of knowledge is so clearly a collective process and where ownership and attribution is oten so unclear.
Of course, production of knowledge in the old system is also collective and appropriation is rampant, but the fictions of capitalist exchange and labor exploitation allow corporate "authors" to assert singular ownership of ideas to fudge over the messiness of innovation, where borrowing and appropriation are rampant and necessary to the process.
It the critics of these deals -- who support trade but demand that basic standards of freedom for workers be incorporated into the trade regime -- who truly support "free trade." It is actually Orwellian that advocates for unrestricted trade with China-- where workers are thrown in prison if they advocate unionizations -- can appropriate the use of the term "freedom" for their position.
What exactly is wrong with demanding that if China wants to sell goods to the US, they must extend accepted ILO labor rights, such as the freedom to form a union, to their workers?
A special 2002 Amnesty International report entitled Labour unrest and the suppression of the rights to freedom of association and expression laid out in detail many of the abuses that suppress wages for Chinese workers and means trade with that country supports anything but freedom:
Labour unrest in China continues to be widespread...Protests are often forcibly repressed by public security personnel, and labour activists, workers' leaders and those who appeared to be outspoken face detention and imprisonment. Journalists and lawyers are also targeted by the authorities and often face intimidation and arrest if they speak out in defence of protesters.In a companion report, they listed various labor activists imprisoned in the country.
The neoliberals sign on to a range of global policies that give freedom to financial capitalists to operate unhindered around the world, yet fiercely resist any demands that the freedom of workers be given equal consideration in the international trade regime.
And then they have the chutzpah to accuse their critics of being opposed to "freedom."
Yes, we oppose legitimating child slavery and suppression of workers free speech under the Orwellian rubric of "free trade", but that doesn't mean we oppose greater trade under a better and, yes, freer system of world trade. But "free" should include freedom for workers, not just of the owners of capital.
So along with a decent article on DeWine and Alito's labor record, the Plain Dealer also chose to write an editorial restating their attack on Sherrod Brown as a "plagiarist" and added an attack on me, calling me an "Internet dilettante."
This is part of the pattern of these kind of scandal stories-- when the supposed victim of a politician's actions won't cooperate in the scandal, the media attack them as well. Think Clinton cheating with Monica -- and Hillary getting attacked as a doormat and Monica being mocked as overweight.
But the irony of this Plain Dealer attack is that just yesterday, when Steve Koff, the author of the Sherrod Brown hit piece, talked to me on the telephone and was trying to convince me that I was a victim, he praised the professionalism and carefully written quality of my writing and research. So one day I'm a highly skilled professional whose work was misused and the next I'm a dilettante.
Aside from the insult, this is pretty much clear proof of malice, since they only changed their characterization of me from "professional" to "dilettante" when it served their purpose to diminish and libel me to justify their hit piece.
The reality is that the Plain Dealer is in no position to lecture anyone on writing ethics. Sherrod Brown corrected his mistake within minutes of having it called to his attention. The Plain Dealer just keeps adding new targets of libel for their hit pieces without a hint of apology.
As Atrios would say, time for a conference on blogger ethics.
When the government says you have no rights under the law, that doesn't mean workers can't fight out on their own. Bush's National Labor Relations Board stripped graduate student employees of their rights under labor law, but NYU grad students are still fighting, going out on strike to demand the University recognize their union as the collective bargaining agent for the student workers.
It's worth remembering that there were unions long before the Wagner Act, and the rightwingers can grind the law into useless dust, but that can't stop people determined to fight on their own.
For more, check out the grad union's web site.
Reprinted from Confined Space
Every once in a while industry associations slip up and reveal their true sociopathic colors.
Pat Cleary, who writes the "Manufacturers' Blog" for the National Association of Manufacturers has always been a bit of a joke -- a bad joke considering NAM's "contribution" to repealing the ergonomics standard in 2001 and generally weakening workers health and safety rights.
Now, however, he's gone over the edge, way beyond bad taste, all the way to dispicable:
Trial Lawyers and the Theory of the Lead Paint DietSince when is lead poisoning in children a joke?
Great editorial in yesterday's Wall Street Journal entitled, "Paint by Lawyer" about the trial lawyers' assault on the paint industry because of people eating -- that's right, eating -- lead paint. If you're eating lead paint as you're reading this, please stop. Paint is a coating, not a foodstuff.
I guess there's not much funnier at NAM than reduced IQ, learning disabilities, attention deficit, disorders, behavioral problems, stunted growth, impaired hearing, and kidney damage. mentally retarded, and even death.
Not only that, but Cleary lies:
No matter, the last time one nationally-known paint company had any lead in their paint was 1938, a fact little-known to the public and oft-ignored by the trial bar. In the 40's and 50's, it was essentially discontinued industry-wide. In 1954, the industry developed a standard that banned the use of lead pigments in paint. There's been a lot of paint over the dam, as it were, since then.It's little know because it's not true. Even the Journal column that he quotes states that
Until 1978, when the Consumer Product Safety Commission banned it for residential purposes, lead paint was widely used (though the industry had voluntarily reduced the amount of lead in paint about 20 years earlier).And 75 percent of houses and apartments built before 1978 in the United States still contain lead paint. About two-thirds of the homes built before 1940 and one-half of the homes built from 1940 to 1960 contain heavily-leaded paint. Especially in low income areas, the paint is still chipping, still turning to dust and being ingested by hundreds of thousands of small children every year.
The Journal doesn't get away blameless either. First, the only reason the industry "voluntarily" reduced the amount of lead in paints was overwhelming evidence, not just that lead was poisoning children, but that the industry knew that lead was poisoning children.
The Journal's article was basically its usual screed against trial lawyers. It ends with this line:
A better way to protect [children] would be to pursue landlords who don't maintain their properties, rather than hooking up with contingency-fee lawyers to loot the paint industry for products that it believed to be safe when they were sold 30 years ago.(emphasis addedThis is also a bald-faced lie. Anyone who knows the history of the lead industry in this country (and if you don't, read Gerald Markowitz and David Rosner's excellent book Deceit and Denial -- now) knows that knew that that children were being poisoned from ingesting lead as far back as the 1920's -- and spent the next several decades manipulating the media, buying scientists and fighting government regulation.
But the myths live on, as Rosner and Markowitz point out:
Immediately after taking office in 2001, Bush, known to be a friend to industry, appointed Gale Norton to head the Department of the Internior. Norton, a former lobbyist for NL industries, the modern incarnation of National Lead, was quick to claim that the lead industry had first learned of the dangers of its products to children in the 1940's and had acted immediately to remove lead from point, when in fact industry documents indicate that they had known more than twenty years earlier that their product was killing children.
We may never know tht true extent of the damage lead, vinyl and countless other chemicals have done to our society, not to mention the damage that trade associations have done to our democrat institutions. Nor will it eve be possible to evaluate the lost potential of individuals whose intelligence has been slightly lowered, whose behaviour has become a bit more erratic, whose peronalites have been altered in ways imperceptible to scientific measurement. We will never know the social, economic adn personal costs to socity from the lost potential of our citizens.It's really no joking matter.
P.S. They're probably beyond shame, but it might not hurt to write a few outraged letters to NAM President John Engler (National Association of Manufacturers, 1331 Pennsylvania Ave., NW Washington, DC 20004-1790) or e-mail him here.
Arnold lost on EVERY SINGLE INITIATIVE, although the closest was the anti-union Prop 75 which would have crippled the ability of public employee unions to raises political funds from members. But after initially leading in the count, the initiative went down to defeat.
So goodbye and goodnight to Ah-nold.
Here is the title of the new Plain Dealer story:
And in a decent length article, it now lays out the concerns workers rights advocates have about Judge Alito:
Brown's latest letter said "many important questions regarding Judge Alito's record, and the implications for America's working families, remain unanswered."And no more laughing from the DeWine camp as the article contrasts these worker concerns with DeWine's rush to endorse Alito:
"I think Mike DeWine has had a history of rushing to support presidential appointees who have had a string of anti-worker decisions," Brown said in a phone interview.
"Alito has ruled against families on the family leave issue, has ruled against worker safety in a mine workers' issue, has ruled against minorities in an anti-discrimination case. Those are three examples of many, and I think Mike DeWine should slow down and look at this guy's dozen-plus years of pro-company, anti-worker rulings."
DeWine said immediately after a get-acquainted meeting with Alito on Nov. 1 that the federal appeals judge seemed to be within the mainstream of conservative judges and that he saw no reason so far to oppose him. He had expressed similar support for Harriet Miers until her withdrawal. DeWine said he expected to learn more about Alito before and during the confirmation hearings.So the DeWine's little media ploy may have backfired by generating multiple days of attention to the labor issue. Brown took a small hit on the attribution issue but DeWine gave the story legs for multiple days. If the Plain Dealer runs my letter-to-the-editor piece as promised, probably tomorrow, that will have made it a four day story on Alito's anti-worker record.
"Our staff lawyers are in the process of examining Judge Alito's entire record, and I am quite certain that these and many other issues will be raised at Judge Alito's hearings," DeWine spokesman Mike Dawson said. "That is what the hearing process is for."
As for concerns that worker rights might get short shrift, Dawson said, "There are 18 members of the Judiciary Committee that will have an opportunity to question Judge Alito on a variety of different issues."
So thanks to all of you who wrote to the Plain Dealer to push for a substantive story to balance the bullshit attribution non-scandal story of the first day.
Pushing the Bullshit
Right Angle Blog
Right on the Right
and special mention to NRO's The Corner for pushing the story all day.
A decent piece by the Associated Press's David Hammer:
[T]he Cleveland-area congressman's staff went on the offensive Tuesday when the author of the Web log, or "blog," said Brown had the right to use his words.The reporter didn't really write about the substance of Alito's decisions or challenge Mike DeWine's office on why they are supporting such an anti-labor judge.
Brown sent the letter to Sen. Mike DeWine, whom Brown is challenging in next November's election, to call attention to anti-labor decisions nominee Samuel Alito had made while sitting on the 3rd Circuit Court of Appeals. DeWine sits on the Senate Judiciary Committee, which will preside over Alito's confirmation hearings before he can join the high court...
Newman, a lawyer who has fought for increasing Ohio's minimum wage, said he had e-mailed the Alito posting from his Web site, NathanNewman.org, to several activists for their use. He also posted it on one of the most popular Democratic blogs, DailyKos.com, in hopes that someone powerful would use it.
Newman pointed out the DailyKos site contains a disclaimer that says the content may be used for any purpose unless restrictions are noted.
But at least it's a good counter-offensive and in the end, the whole affair gave more publicity to the whole issue than if DeWine hadn't tried his whole media gambit.
One of the problem I have with the politics of scandal is that people feel so free to find a crime without a victim. Notably, I've been quite skeptical of Plamegate precisely because there is little proof that anyone was really hurt very much by the disclosure.
I know who the real victims of Alito's anti-worker court decisions are, yet the rightwing is doing everything possible to divert attention from that issue onto this silly "scandal" story. Yet it's Brown's office that was actually promoting the true purpose of my original words-- and it's the rightwing misusing my words to hurt that cause.
So I feel victimized by the rightwing, not by Sherrod Brown.
So in the case of Brown using my blog post, clearly I'm not a victim. So the only other possible victim is the public that was somehow deceived.
Were they deceived that Brown got on LEXIS, did the legal research himself, and wrote every word of the letter he sent Mike DeWine himself?
This is the comparison to academic plagiarism, but the difference between students (and I teach two classes) and politicians is that we expect students to do their own research. Politicians have speech writers and use other peoples ideas without attribution all the time.
So the problem isn't using other people's ideas, but that somehow the American people assumed that Brown paid good money to staff for these unattributed ideas and the fact that he got them for free from a blogger is a scandal.
Now, if I was a volunteer on the Brown campaign, and not a paid staff person, would all these conservatives beating their breasts over plagiarism still see a problem? I doubt they could do so with a straight face.
So is the problem that I am an independent political activist offering my ideas to all progressive comers, without working for Brown specifically? But that's true of a whole range of think tanks and other political activists who promote talking points and rarely expect attribution. Ironically, rightwing corporations spend a lot of money generating ideas and information and whitewashing them through independent institutions precisely to cover up where those ideas came from.
If Brown had been asked about attribution and tried to cover up where the information came from, that would be a problem, but his office readily confirmed where the information originally came from.
So how did the public suffer in any way? They never expected that the research was done by Brown personally and the office readily told the reporter where it came from when asked.
This is the fakest of fake "scandals." It's actually about a bunch of intellectuals, reporters and journalists, who are so frigging self-absorbed with admiring their own words that they don't understand that people who care about the actual substance of politics give away our writing for free (both in terms of payment and attribution) all the time.
Politicians are not "authors" but collective expressions of their supporters political will. They don't write their own material but reflect the ideas and aspirations of their political allies. If they misuse those ideas, the public hears about betrayals from those allies.
But as long as those politicians hold that trust and use their allies ideas with respect, there is inherently no scandal.
The only scandal in this story are rightwingers who refuse to engage in the substance of the original post. Why don't they spend as much time trying to defend Alioto's rightwing labor decisions? Why don't they explain why workers should be denied the minimum wage or the freedom to form unions or access to jury trials to prove discriminatory treatment?
Why? Because they don't want to discuss these cases, because THEY want to mislead the public and change the subject. It's those attacking Sherrod Brown who are victimizing the public by distracting them from useful political information and a substantive debate.
National Review's The Corner had multiple posts about the "plagiarism" charges, but not one of the posts actually had the courage to try to defend Alioto's legal decisions. They know these economic issues are losers for them and Alioto and are determined to fool and distract the public.
So who misused my post again?
So a Sherrod Brown staffer used some lines from one of my blog posts. Who frigging cares? This is a ridiculous story from the Cleveland Plain Dealer:
Rep. Sherrod Brown wrote to Sen. Mike DeWine last Friday, voicing concern about Supreme Court nominee Samuel Alito's labor record.This is the post Brown used to list the cases where Alito has attacked workers rights.
Brown's language was crisp -- and was plagiarized.
Roughly 90 percent of what Brown, an Avon Democrat, wrote in his letter was lifted from an Internet posting by a blogger, as Brown's office acknowledged Monday when The Plain Dealer presented the similarities.
Brown had not credited the blogger, Nathan Newman of NathanNewman.org, or any other source.
Did the Plain Dealer do an indepth analysis of Alito's labor record in response?
No, they created a bullshit meta-story that was of such supposed breaking news value that they couldn't wait for me to get back from my mini-honeymoon to get my reaction. If the crime is plagiarism, then you think they'd want to talk to the victim before running it.
But what about the real victims, the workers denied minimum wage, family leave, or a day in court to challenge racial and gender discrimination because of Alito's decisions? The paper of course also pursued Mike DeWine for his reaction to that. And here was DeWine's response:
"We couldn't decide who to respond to -- the person who sent us the letter or the person who wrote the letter," joked Mike Dawson, DeWine's communications director. "So we decided not to respond to either."So DeWine thinks workers having their paychecks stolen by employers is a joke?
DeWine thinks union workers being denied the freedom to form unions is a joke?
DeWine thinks racial discrimination is a joke?
That's the story the reporter should have concentrated on.
Who the hell cares if a Brown staffer copied a factual listing of legal cases into a letter? This was hardly a literary blog post using deathless prose for the ages. It was the facts that made this post interesting, not it's literary value.
But in typical manner, the response of the media is to ignore the substance and focus on some stupid "he said, she said" story.
Guess what, Sherrod Brown's staffer was lazy and didn't do a rewrite of my blog post or put in an attribution line. But the report on this story was even lazier, doing an easy "call the campaigns for quotes" story instead of the harder work of dealing with the substance of Alito's anti-worker legal record.
So write the author of this story, Stephen Koff, at firstname.lastname@example.org or call him at 216-999-4212, and demand that he spend at least as much time in a story on the substance of my blog post as he did on this silly story.
And how about a followup with Mike DeWine to see if he agrees with his aide that workers rights are a joke not worth responding to?
Update: It's also worth noting that he blog post was also posted at DailyKos, which has
this disclaimer on every page:
"Site content may be used for any purpose without explicit permission unless otherwise specified."
See at the bottom of this page:
So the reporter saying that Brown's letter "was plagiarized" is flatly inaccurate. The reality is that politicians used public domain sources in a whole host of ways and using my blog post was no different.
One measure of what an economic criminal Wal-Mart has become is how routine it is when 200,000 Missouri workers are certified for a class action against the company for illegally failing to pay them for rest breaks and forcing those employees to work off-the-clock.
While there is a long trial ahead, just getting class action status required extensive testimony by the employees, where the judge stated that the plaintiffs (from BNA Daily Labor Report, no link):
have demonstrated by compelling testimony that a Sam's Club payroll manager was trained and instructed to systematically and routinely deduct rest breaks and meal breaks from employees' daily time records, with or without verification by the employee or supervisor; [and] that unauthorized overtime pay was removed or edited from time records.This is theft, nothing less, and yet some people offer Wal-Mart even a nod of acceptance for their consistent abuse of the law and their workers. Tasini has rightly been railing on Democratic operatives for taking money to spruce up Wal-Mart's image, and for Democratic Congressmen who voted to support the DOL-Wal-Mart dirty deal on child labor.
At this point, political collaboration with the Beast of Bentonville is no longer acceptable-- I'm withTasini. Democratic consultants working for Wal-Mart should have EVERY contract cut off from Democratic committees, and every Congressman voting with Wal-Mart should be facing primary challenges next year, especially those in safe Democratic districts like Ed Towns and Henry Cuellar -- who also went renegade on the CAFTA vote.
By Jordan Barab, Reprinted from Confined Space
The Bush administration's very bad weeks continue.
While this won't make the same headlines as the Miers withdrawal or Scooter's journey to the dark side, the underbelly of the Bush administration's coziness with its special corporate friends was revealed for all to see as the Bush Labor Department was taken to the woodshed yesterday by its inspector general who criticized the Department for an agreement promising the stores 15 day notice before labor invstigators woud inspect its stores for child labor violations.
The Labor Department's inspector general strongly criticized department officials yesterday for "serious breakdowns" in procedures involving an agreement promising Wal-Mart Stores 15 days' notice before labor investigators would inspect its stores for child labor violations.
The report by the inspector general faulted department officials for making "significant concessions" to Wal-Mart, the nation's largest retailer, without obtaining anything in return. The report also criticized department officials for letting Wal-Mart lawyers write substantial parts of the settlement and for leaving the department's own legal division out of the settlement process.
The report said that in granting Wal-Mart the 15-day notice, the Wage and Hour Division violated its own handbook. It added that agreeing to let Wal-Mart jointly develop news releases about the settlement with the department violated Labor Department policies.
The inspector general, Gordon S. Heddell, said the agreement did not violate federal laws or regulations.
The Labor Department had reached the special deal with Wal-Mart last February when Wal-Mart, the world's largest retailer agreed to pay $135,540 to settle federal charges that it violated child labor laws in Connecticut, Arkansas and New Hampshire. As part of the agreement, revealed yesterday after it was secretly signed in January, the Labor Department agreed "to give Wal-Mart 15 days' notice before the Labor Department investigates any other 'wage and hour' accusations, like failure to pay minimum wage or overtime."
The inspector general wrote that all Wal-Mart promised to do if caught violating the law again was to bring a store into compliance within 10 days of when the department notifies it of a violation, but that there was
"little commitment from the employer beyond what it was already doing or required to do by law."The inspector general's report was conducted at the request of California Congressman George Miller who has had a pretty good month, after succeeding in pressuring the administration into backing off of its Davis Bacon wage support suspension last week.
"In our view," the inspector general's office wrote about the Wage and Hour Division, "the Wal-Mart agreement may adversely impact W.H.D.'s authority to conduct future investigations and issue citations or penalty assessments, and potentially restrict information to the public."
The violations involved workers under age 18 operating dangerous machinery, including cardboard balers and chain saws. In the agreement, Wal-Mart denied any wrongdoing, although the company agreed to pay the fine.
The inspector general also contradicted the Labor Department's claim that there was nothing about this agreement that the Clinton administration hadn't done, finding that
the agreement between Wal-Mart and the Labor Department's Wage and Hour Division (W.H.D) "was significantly different from other agreements entered into by W.H.D." and "had the most far-reaching restriction on W.H.D.'s authority to conduct investigations and assess" fines..The full inspector general report can be found here.
By Jordan Barab, Reprinted from Confined Space
In an attempt to take the media's mind of their runaway Scooter (not to mention Harriet, Katrina and Iraq) and to shore up his last remaining political stronghold -- the ultra conservative religious right-wing -- President Bush today ignored my suggestion to find a Hispanic John Roberts in drag and wasted no time in nominating Samuel Alito to the Supreme Court.
Generally thought to be to the right of both Rehnquist and Scalia (hence the nickname, Scalito), Alito's record seems assured to incite major partisan warfare, possibly culminating in a filibuster and the long-feared "nuclear option."
Most of the discussion about Alito will focus on how he will respond to a challenge of Roe v. Wade, but as everyone from David Sirota to the National Association of Manufacturers agrees, the real business of the Court is business. And, here at Confined Space, as always, we want to know what a Scalito nomination means for workplace protections, OSHA and the environment. Alito doesn't seem to have many decisions directly bearing on the OSHAct (or on environmental laws), but indications from other decisions indicate that workers and the environment may be in big trouble if he is confirmed.
Alito hasn't worked in the private sector, so we don't know as well as with John Roberts or Harriet Miers to what extent he sold his soul to corporate America. He has been on the court for 15 years, however, so we have a pretty good idea of where he comes down on a number of issues -- and he can't claim that he was just representing his clients.
On the whole, according to (long, technical) papers put together by the Alliance for Justice and People for the American Way, many of Alito's decisions, if upheld, would have placed impossible burdens on victims of race and sex discrimination who are attempting to prove their claims.
Specifically, according to Think Progress:
ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by “immuniz[ing] an employer from the reach of Title VII if the employer’s belief that it had selected the ‘best’ candidate was the result of conscious racial bias.” [Bray v. Marriott Hotels, 1997]Alito's record also seems to put the Family Medical Leave Act in jeopardy. According to Angry Bear, Alito found
ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito’s dissent was so restrictive that “few if any…cases would survive summary judgment.” [Nathanson v. Medical College of Pennsylvania, 1991]
that the FMLA was unconstitutional because there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave. Furthermore, he argued, the requirement that everyone be guaranteed 12 weeks of unpaid family leave was a disproportionately strong remedy:A Supreme Court opinion, authored by William Rehnquist, overturned Alitos' ruling, finding it deeply flawed. Rehnquist
Notably absent [from the FMLA] is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.
...Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional.
cited the extensive evidence that was presented during the debate about the FMLA in Congress, and that clearly documented the pervasive discrimination implicit in unregulated family leave policies. Furthermore, Rehnquist argued that the FMLA was an entirely appropriate remedy to this subtle form of discrimination.Most troubling, however, is Alito's identification with the theories espoused by the so-called "Constitution in Exile" group (which I've written about here, here, and here) which argues that the most important rights are economic rights, particularly the right to property, and anything that take away those rights -- such as environmental or workplace safety laws -- are, or should be, unconstitutional.
And I quoted University of Chicago law professor Cass Sunstein, warning that "many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional."
As the New Republic's Jeffrey Rosen wrote earlier this year (subscription required),
What should be far more troubling to Senate Democrats, however, is Alito's 1996 dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns. Applying the logic of the Constitution in Exile for all it's worth, Alito insisted that the private possession of machine guns was not an economic activity, and there was no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce--therefore, Congress has no right to regulate it. Alito's colleagues criticized him for requiring "Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute." His lack of deference to Congress is unsettling.Alito's ruling in this case even caused some conservatives to do a double-take:
Broad interpretations both of federalism and the Interstate Commerce Clause are considered the heart of a vast number of civil rights laws, discrimination laws and worker protections. And the fact that Alito, in the medical leave case, took a more conservative view of congressional power than even Rehnquist should give pause to liberals, said Eric Maltz, of Rutgers University School of Law.And how far is it from "no empirical evidence that private gun possession increased violent crime in a way that substantially affected commerce" to "no empirical evidence that deaths and injuries in the workplace increase medical costs that substantially affect commerce," particularly considering that even Rehnquist was highly critical of Alito's attention to the evidence in his decision about the FMLA?
Maltz said the machine gun case involves a far more conservative position than that of Roberts, whose views of interstate commerce became controversial because of an opinion involving California toads.
"Toads aren't part of interstate commerce, but machine guns are," said Maltz, himself a conservative. "I think liberal interest groups should really worry about that."
Regarding environmental issues, Earthjustice has found a decision by Alito, and guess what, it's bad. Alito attempted to make it more difficult to hold polluters accountable when they fouled water supplies:
In Public Interest Research Group (PIRG) v. Magnesium Elektron (MEI), Judge Alito joined in a 2-1 ruling gutting citizens' access to courts under the Clean Water Act. Although the Act authorizes "any citizen" to bring a "civil enforcement action" against alleged polluters, the Third Circuit ruling declared that PIRG did not have standing to sue because it had not demonstrated that MEI's pollution resulted in serious harm to the environment (reversing a rare $2.6 million fine handed down by the trial court for MEI's violations of the Act). The majority concluded that the Constitution denied Congress the authority to pass a law allowing citizens access to courts in these circumstances. Three years later, the Supreme Court essentially reversed and rejected Judge Alito's analysis, ruling (in a 7-2 decision over a heated dissent by Justice Scalia) that "the relevant showing... is not injury to the environment, but injury to the plaintiff." (Friends of the Earth, Inc. v. Laidlaw)It's hard to tell how the politics of this nomination will play out -- especially concerning labor and business issues -- but it's already entering at least one 2006 Senatorial race. Sherrod Brown, who is running against Ohio Republican Senator (and Senate Judiciary Committee member)Mike DeWine
voiced disappointment with Bush’s Supreme Court pick. If he were a Judiciary Committee member, like DeWine, Brown said, he would want to know more about Alito’s positions on worker rights and the environment.To sum up, this is serious stuff. To quote myself earlier this year:
What does all of this mean for the rapidly approaching national struggle over Bush's court nominations and the filibuster battle that will accompany it? It means that we need to make the American people know what's at stake -- nothing less than the advances ths society has made over the past 100 years. Not just the fate of legal abortion, but also the fate of workplace safety, the environment, minimum wage laws, consumer wage laws, the 8-hour day, child labor prohibitions -- in other words, issues that strike at the very heart of 20th and 21st century American values.