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Climate Change and Archaeology

[ 8 ] February 3, 2016 |


Climate change, especially the large storms that result as well as rising ocean levels are both uncovering incredibly archaeological finds on coasts and also threatening to destroy them. It’s quite fascinating and quite depressing, as is so much about climate change:

Most 4,000-year-old archaeological sites don’t get dug up and moved. When the team dared to lift away the top layer of Meur, they were rewarded with another astonishing group of structures that lay hidden beneath it. There was an entire Bronze Age well, with six steps leading down into it. “This is almost unheard of, to find a whole well from this period,” Dawson says. There was a room where people had heated the stones of the burnt mound; the walls were cracked from the intense heat of the fire, and the clay in the floor was baked orange. Farther down, the archaeologists uncovered yet another well, which radiocarbon dating suggests may have been there since the Stone Age.

These rooms are brimming with information, Dawson says. For example, archaeologists hadn’t known that Bronze Age people built sophisticated wells like the one at Meur. The cracked stones hint at the intense heat of the fire—another clue that may someday help researchers figure out what the mysterious burnt mounds were used for. There’s environmental history here, too. At the bottom of the well, the team found a heap of leaves, stems, seeds, insects, and tiny bones. This debris, which tumbled into the well thousands of years ago, may tell scientists what was living nearby at that time. And the position of the site itself could reveal how sea levels have changed.

Other potential insights into the lives of ancient people are at risk of falling into the sea along with their stones and skeletons. At a site in the Outer Hebrides, off the west coast of Scotland, archaeologists excavated a circular Iron Age building and found that its builders had buried bizarre objects in the floor: ritualistically prepared animal bones, a crucible, a handful of white quartz pebbles. No one has a clue why. “These sites are absolutely fascinating,” Dawson says. “But every single one of them is different, and every one’s got a different story to tell.”

On coastlines around the globe, other archaeologists are racing rising seas and disappearing shores to learn such stories. Ancient settlements are emerging from the coasts of Alaska. In Nova Scotia, storms are carrying off land and archaeological remains around the 18th-century Fortress of Louisbourg. At Qajaa on the west coast of Greenland, remains from three civilizations that lived there at different times during the past 4,000 years have been preserved in the permafrost but are now threatened by melting. Back in the United Kingdom, at the British site of Happisburgh, beach erosion in 2013 revealed human footprints possibly a million years old. The footprints washed away within two weeks



The True Cost of Uber

[ 37 ] February 2, 2016 |


Uber, like the cowboy socialists of the West, talk all about private, individualized effort that makes America great. And like those cowboy socialists, Uber also relies on the government for everything, effectively socializing their business model on the rest of us while doing everything possible to escape paying the taxes that would contribute its fair share to those services. A government starved of resources then has to turn to private companies to provide basic services. A vicious circle results:

Compare this with the dire state of affairs in which most governments and city administrations find themselves today. Starved of tax revenue, they often make things worse by committing themselves to the worst of austerity politics, shrinking the budgets dedicated to infrastructure, innovation, or creating alternatives to the rapacious “platform capitalism” of Silicon Valley.

Under these conditions, it’s no wonder that promising services like Kutsuplus have to shut down: cut from the seemingly endless cash supply of Google and Goldman Sachs, Uber would have gone under as well. It is, perhaps, no coincidence that Finland is one of the more religious advocates of austerity in Europe; having let Nokia go under, the country has now missed another chance.

et us not be naive: Wall Street and Silicon Valley won’t subsidise transport for ever. While the prospect of using advertising to underwrite the costs of an Uber trip is still very remote, the only way for these firms to recoup their investments is by squeezing even more cash or productivity out of Uber drivers or by eventually – once all their competitors are out – raising the costs of the trip.

Both of these options spell trouble. Uber is already taking higher percentages from its drivers’ fares (this number is reported to have gone up from 20% to 30%), while also trying to pass on more costs related to background checks and safety education directly to its drivers (through the so-called safe rides fee).

The only choice here is between more precarity for drivers and more precarity for passengers, who will have to accept higher rates, with or without controversial practices like surge pricing (prices go up when demand is high).

The broader lesson here is that a country’s technology policy is directly dependent on its economic policy; one cannot flourish without the active support of the other. Decades of a rather lax attitude on taxation combined with strict adherence to the austerity agenda have eaten up the public resources available for experimenting with different modes of providing services like transport.

This has left tax-shrinking companies and venture capitalists – who view everyday life as an ideal playing ground for predatory entrepreneurship – as the only viable sources of support for such projects. Not surprisingly, so many of them start like Kutsuplus only to end up like Uber: such are the structural constraints of working with investors who expect exorbitant returns on their investments.

Finding and funding projects that would not have such constraints would not in itself be so hard; what will be hard, especially given the current economic climate, is finding the cash to invest in them.

Taxation seems the only way forward – alas, many governments do not have the courage to ask what is due to them; the compromise between Google and HM Treasury is a case in point.

There’s really no way out of this outside of vigorous taxation and investment in social services. Of course, that’s the opposite of where most American elites are today, with former Obama advisers now working for Uber and of course Republicans hating any public services.

Lead in Baltimore

[ 13 ] February 2, 2016 |


Flint is not the only American city where governmental failures and mendacity have exposed people to lead. Baltimore has certified houses as lead-free that are not in fact so.

When people in Baltimore talk about “lead checks” they are not talking about the inspections that are supposed to ensure that children aren’t endangered by lead poisoning; they are talking about the settlement payments that come after the damage is done. In the most recent discovery of fraudulent lead inspections, the inspector was not named, but is known to have worked for American Homeowner Services LLC between 2010 and 2014.

Although there have been dramatic reductions in lead poisoning in Baltimore over recent decades, an investigation by the Baltimore Sun in December showed that more than 4,900 children have been affected by lead in the last decade – 129 in the last year alone.

But Saul Kerpelman, a lawyer who has handled thousands of lead cases, says these numbers don’t really show the extent of the problem. Those numbers, he said, are calculated based on a blood lead level (BLL) of 10 micrograms per deciliter (mg/dl). But the CDC has recently determined that any amount of lead in a child’s blood can immediately and irreversibly cause brain damage. Kerpelman said that if you cut the BLL number in half to the current threshold number of 5 mg/dl, there could be as many as 4,000 cases in Baltimore last year and if the acceptable lead level were set to zero, it could be as many as 10,000 exposed children. Kerpelman said that out of the more than 4,000 cases he has dealt with, “99% are black”.

“The hysteria about Flint, Michigan, is totally justified,” Kerpelman said, referencing findings that residents had been using water with alarmingly high levels of lead. A Guardian investigation in the wake of Flint has found that cities around the country are systematically distorting water tests to underplay the amount of lead in the water.

But Kerpelman says Baltimore’s problem with lead paint is even worse because such a large percentage of the city’s housing stock was built before 1978, when lead paint became illegal, and is owned by landlords who see their properties “not as an investment [but] as a cashflow machine” in “the same areas where there used to be legal segregation and those were the only places that a black person was allowed to live”.

Many of the same absentee landlords come up in these cases over and over again.

“If you type Stanley Rochkind into Maryland case search, his name comes up over 500 times,” Kerpelman said.

Nothing like a slumlord and a corrupt investigator working together to poison tenants.

Significant lawsuits are the way to stop this problem. Of course, when Republicans talk about “tort reform,” this is exactly the type of lawsuit they are talking about.

Remembering the Slave Trade

[ 46 ] February 2, 2016 |


Above: Execution following New York City slave uprising, 1741

Too often, we discuss slavery as simply as southern phenomenon. This serves a number of functions, all of which are unfortunate. It allows northerners to demonize southerners specifically for slavery and for racism, when of course racism is nearly as bad in the rest of the country as it is in the South. It allows northerners to conveniently forget their own slavery history. It also has significant contemporary implications as America’s racial issues become uniquely southern in popular culture. But in early America, the northern industrial economy was deeply intertwined with the southern plantation economy. Southern cotton fueled northern mills. Northern shipowners brought slaves to southern ports. Northerners invested heavily in southern plantations. Slavery was central to the growth of American capitalism and slaves were the first large-scale good in the capitalist commodity markets. This latter point has been the subject of a number of vital recent books in the literature of slavery.

Luckily this push toward connecting the North to slavery has been gaining more attention in the North, with attempts to recognize the region’s slave history. A lot of this has been in Rhode Island, the home to a lot of the slave trading ships. So we have projects like this:

A project aimed at memorializing America’s slave-trade ports is moving to Rhode Island, where some 1,000 slave-trading voyages were launched.

The Middle Passage Ceremonies and Port Markers Project has been working to place markers at 40 ports along the Atlantic and Gulf coasts where slaves arrived or where ships were sent to be used in the trade. The Middle Passage refers to the forced migration across the Atlantic Ocean of more than 10 million Africans, many of whom died on the way.

“We’re just simply saying mark the place where it began,” said Ann Chinn, who founded the Middle Passage project. “In the same way, people marked Plymouth, they marked Jamestown, they marked St. Augustine. Well, in each of those places, Africans were there too.”

The project is rolling out as places around the country have been coming to grips with their roles in the slave trade, including the North, where the region’s history of fighting against slavery is more widely known than its less noble roots of trading and profiting from slavery.

A lot more of this please. Slavery and racism are not southern problems with southern histories. They are national problems with national histories. They need to be remembered and discussed way.

Cowboy Socialism

[ 57 ] February 1, 2016 |

John Wayne

While the Bundy boys and their band of idiots are mostly in jail or have left the Malheur National Wildlife Refuge, there are still a few diehards holed up in there. I do worry about these people committing acts of violence, on their own and leadership and desperate. Hopefully this gets resolved very soon.

But the larger issues around Sagebrush Rebellion extremism have not gone away. At the core of the rural western discontent is an ideology of individualism that rolls through the region and its iconic mythical figures from Hank Stamper to John Wayne. The idea of individual white man (or sometimes woman) and hardscrabble families making it on their own from a hard land is deeply imbued in how ranchers and loggers and miners and western farmers think about themselves. What the Bundys and others are pushing is a rather extreme example of it, but the broader phenomena is real enough throughout the region.

The problem with it is that their foundational myth that places them at odds with the government also erases a government that subsidizes almost everything about their lives. Whether the government stealing the land from Native Americans, investing in water projects, handing out timber contracts, never revising a system that allows the government to collect almost no money from mining on the public lands, or allowing ranchers to graze on government land for incredibly below market prices, rural westerners are the ultimate welfare recipients. Our tax dollars are funding their lifestyles, which I don’t per se have a major problem with if said recipients didn’t then commit armed takeovers of federal buildings while ranting about government tyranny. But the government created the modern West so that people like the Bundys could have their lifestyle in the first place.

It’s hard going, and one reason is the cowboy political tradition represented by Ammon Bundy and his pack of revolutionary wannabes, who want to pay zero in federal grazing fees and end the federal ownership of land. Even reformist Western politicians still have to tiptoe around the fact that the federal government is simply an inextricable part of how the West functions and has been since the beginning. That Bundy has confused one of the primary spigots of rancher welfare with a rancher-smashing tyranny is only a wild exaggeration of a typical view, rooted in Western myth and broader American conservatism.

The issue of broader American conservatism is important as well because the oil companies and other natural resource industries are looking to destroy the past century of American environmental law. The same thing that is happening to labor and is happening to civil service exams–the destruction of a century of reform in order to return us to the Gilded Age–will almost certainly happen in the environmental realm if the Republican Party wins the presidency this fall. The Bundys could get their way, not through occupying the Malheur, but simply by having any bog-standard Republican win the presidency.

Americans You Should Know

[ 2 ] February 1, 2016 |


Louis Tikas, Greek immigrant, miner and organizer, leader of the workers in the Colorado coal fields leading up to the Ludlow Massacre, where he was murdered.

Are Strikes the Answer to Labor’s Woes?

[ 27 ] February 1, 2016 |


Shaun Richman thinks so.

Our challenge is to inspire even non-union workers to think about their power and how to exercise it using the tools we have on hand: a union movement with miniscule density in only a handful of service and public sector industries largely led by staff who have precious little personal experience with leading job actions. We should be clear about how deep this deficit is.

One of the most promising labor projects of the moment is Bargaining for the Common Good. This is an effort by public sector unions in Washington, Oregon, California, Minnesota, Wisconsin, Illinois and Ohio to align their bargaining demands with each other and with community demands around progressive taxation, affordable housing, youth incarceration and government transparency.

These community demands fall well outside a union’s scope of bargaining and are therefore technically illegal. But as long as the unions also have demands that are within their legal scope (not hard to do when employers refuse to pay people what they deserve), then the unions can press the community’s case. This is a brilliant way of getting community to see unions’ fights as their own and of building worker and community power—and the next Chicago teachers strike will likely be the highest profile test of the theory this side of the Mississppi.

What follows could be bigger. A number of public and private sector unions in Minnesota have contract expirations in 2016. Their bargaining demands for the common good are focused not just on their individual employers but also on the largest employers in the state: Target and Wells Fargo. This is the potential for the closest thing we’ve seen in a while to a general strike (something Minnesota has a history of doing).

Another promising project is the Fight for 15. Some have dismissed the series of rolling one-day strikes for increases in the minimum wage and organizing rights as mere P.R. stunts. But there is something deeply radical and significant at play here. Workers who don’t even technically have a union are proving their value—and their power—to their bosses by withholding their labor. And the response from the general public is, at worst, a sort of patronizing “Well, good for them” but more often something a bit closer to “Go get ‘em!”

As I write my new book for The New Press, No Retreat, No Surrender: American History in Ten Strikes (first draft due in June, yikes!), I am musing on these questions a lot. And, as any good historian would probably say, it depends. The real lesson of studying strikes is that they can serve as a great window into their time. Sometimes they are aspirational, demanding and winning real changes in the lives of workers. The Flint Sit-Down Strike is one of these moments, where a small group of workers taking radical action can inspire millions to improve their own lives. Some of the IWW strikes like at Lawrence or the timber strikes in the Northwest serve some of these functions as well. Other strikes can be more consumeristic in content, such as the Oakland General Strike of 1946, where workers shut down the city for no radical purpose. They just wanted more money for themselves. That really helps us understand the consumer republic of the postwar period. Other times though, what strikes really tell us is that workers are desperate. The strikes become last-ditch efforts to save what they once had, whether the Gilded Age strikes of workers losing control over their own labor or the strikes of the 1980s like at Hormel or Phelps-Dodge that companies used to crush unions entirely. These incidents are more sad than anything else.

So this leads us back to the question of whether strikes are part of the answer for labor’s woes. I don’t know. The CTU strike was pretty inspirational, in part because Rahm is such a villain and in part because they did some great things. But it’s not like the CTU has beaten back Emanuel in the years since. That strike was defensive and CTU remains in a defensive posture today, just trying to keep teachers’ jobs and schools open.

On the other hand, it’s true enough that in the New Gilded Age, organized labor is going to have all their long-used tactics rendered ineffective by the Supreme Court, the Koch Brothers, and hostile Republicans around the nation. Friedrichs is just the latest example. There may be a time when a strike or series of strikes becomes that spark that shows a newly aggressive American working class.

In any case, we really need people who are thinking hard about how to express worker power in an era where they are seeing power stripped from them. Things like the Fight for $15 are great examples of how that power can be reclaimed, although actually winning some victories does have to happen at some point. Certainly whatever does bring worker power back in the United States is going to take some new strategies in combination with some traditional strategies. More analysis of these new strategies is necessary, which is why articles like Richman’s are important.

How Free Trade Killed the American Working Class

[ 191 ] February 1, 2016 |


Noah Smith bluntly states that free trade with China has devastated the American working class. Moreover, he attacks economists for being unwilling to question their assumptions that free trade is always good. He starts by citing a new study showing just how devastating free trade with China has been to American workers:

But look at actual economics research, and you will find a very different picture. The most recent example is a paper by celebrated labor economists David Autor, David Dorn and Gordon Hanson, titled “The China Shock: Learning from Labor Market Adjustment to Large Changes in Trade.” The study shows that increased trade with China caused severe and permanent harm to many American workers:

Adjustment in local labor markets is remarkably slow, with wages and labor-force participation rates remaining depressed and unemployment rates remaining elevated for at least a full decade after the China trade shock commences. Exposed workers experience greater job churning and reduced lifetime income. At the national level, employment has fallen in U.S. industries more exposed to import competition…but offsetting employment gains in other industries have yet to materialize.

What is the impact upon American workers?

Autor, et al. show powerful evidence that industries and regions that have been more exposed to Chinese import competition since 2000 — the year China joined the World Trade Organization — have been hit hard and have not recovered. Workers in these industries and regions don’t go on to better jobs, or even similar jobs in different industries. Instead, they shuffle from low-paid job to low-paid job, never recovering the prosperity they had before Chinese competition hit. Many of them end up on welfare. This is very different from earlier decades, when workers who lost their jobs to import competition usually went into higher-productivity industries, to the benefit of almost everyone.

In other words, the public might have been wrong about free trade in the 1980s and 1990s, but things have changed. Popular opinion seems to be exactly right about the effect of trade with China — it has killed jobs and damaged the lives of many, many Americans. Economists may blithely declare that free trade is wonderful, but our best researchers have now shown that public misgivings about these smooth assurances have been completely justified.

So what’s the deal with economists?

Why are economists so willing to declare to the world that free trade is good, even after reading papers like the one by Autor et al.? Part of the problem is the definition of “good.” According to most models of trade, reducing trade barriers raises efficiency — which is to say, total gross domestic product. But efficiency says nothing about fairness, and almost any model of trade will show that some people, industries and regions lose out. If most Americans experience slight gains from lower import prices, and a few lose their livelihoods and have to go on welfare, economists call that a “good” outcome, because they are so focused on the concept of efficiency. But because the public cares about a lot more than efficiency, the job losses in industries and regions knocked out by China since 2000 have made economists seem increasingly callous and out of touch.

But this is only part of the problem. Economists are also stubbornly unwilling to question their benchmark theories, even when the evidence presents a challenge to these theories. The fact that Autor et al. find total national employment declining in response to trade with China should be cause for concern. Standard trade models, especially the simple ones taught in Econ 101, predict that this shouldn’t have happened. Autor et al. sternly rebuke the economics profession for relying too much on theory, and not enough on evidence, when it comes to the issue of trade:

We argue that having failed to anticipate how significant the dislocations from trade might be, it is incumbent on the economics literature to more convincingly estimate gains from trade, such that the case for free trade is not based on theory alone, but on a foundation of evidence.

In other words, economists love their theories but struggle to understand or to care about the actual effect of those theories in practice upon living, breathing human beings. Economists do often make their own version of moral arguments–that raising living standards in China and Bangladesh are worth lowering living standards in the United States. There are of course several problems with this argument. First, why do economists get to decide who has jobs and who does not have jobs? What higher authority do these people think they are? Second, it’s entirely unclear whether these arguments are even correct. It’s certain that the global trade regime has created a class of wealthy people in every affected nation. But the evidence is mixed otherwise. Yes, standards of living have risen in China. But for all the talk about this, defenders of this system have absolutely no answer to how free trade has destabilized Latin America, an area of the world they prefer to forget about entirely. It’s also less than clear that creating working conditions where over 1100 people die in a factory collapse is somehow helping the people of Bangladesh and it’s pretty bloody horrendous that this system leads to the slaves in the global fish trade with our Asian trading partners that feeds ourselves and our pets. Third, what is clear is that long-term economic instability in the United States is having enormous implications for governance and social policy, including the erasure of working class voices from politics, the rise of corporate cash to replace those voices, right-wing populism up to the point of fascism (and to a lesser extent the Sanders campaign on the left), and the subcontracted, franchised, outsourced, temp economy. None of this is good for Americans, unless you are rich. Like a lot of economists.

A lot of economists are the academic version of H.A. Goodman and Walker Bragman. They can foist their theories on the public without worrying too much about it because they aren’t going to be affected by the outcome. If a future of low-paid work in the U.S. is in the offing, what do they care? Their positions are secure. This is always the problem with making policy from 30,000 feet. If you don’t care to understand how your policies will actually affect the people in your community, you probably don’t care about those people in the first place.

It’s time to rethink the entire trade system, ensuring it helps the American working class while also using the tools we have at our disposal to demand justice for workers around the world when American companies relocate there. Otherwise, we are destroying ourselves and often killing Asian and Latin American workers.

What is the Midwest?

[ 144 ] January 31, 2016 |


What states do you say belong in the Midwest? Take the quiz here.

I said North Dakota south to Oklahoma, Minnesota south to Missouri, and then Wisconsin, Michigan, Illinois, Indiana, and Ohio.

Really state borders don’t fit this that well. The western parts of the Plains states are the West. And western Pennsylvania really is the Midwest but you can’t say the state belongs to it culturally.

I suppose Oklahoma is the one people might take the most exception to, but it’s not really the South and only part of it is really the West. I don’t know.

Recording the Workplace

[ 75 ] January 31, 2016 |


As I have noted in posts here and in Out of Sight, the greatest threat of ag-gag laws, which criminalize knowledge of what happens inside agricultural operations to fight against animal rights activists getting hired to work so they can record and publicize the mistreatment of farm animals, is that if knowledge of one workplace is criminalized, why wouldn’t the law criminalize all public knowledge of what happens inside all workplaces? It’s an extremely dangerous precedent. It’s one that corporations are well of and have tried to implement. Luckily, Obama’s National Labor Relations Board is there to stop them, at least for now. It may not surprise that the corporation in discussion here is Whole Foods, whose interest in the lives of poor people largely extend to photos in their stores of happy brown farmers to provide an sheen of authenticity to their high prices and cultural appropriation and perhaps to their employees which they won’t allow to join a union.

The National Labor Relations Board (NLRB), in a 2-1 decision, ruled against blanket employer policies banning employees from taking photos or recordings in the workplace. Such policies would, in the view of the NLRB, having a chilling effect on employee’s ability to record or photograph workplace safety violations or actions that were discriminatory.

Whole Foods’ unsuccessful argument to the NLRB was that its policy allowed for a free and open discussion in the workplace, without concerns of statements appearing on the Internet. But the NLRB found that a blanket ban went too far, as it was “essential” in many cases to have a photo or video in order to prove a violation of an employee’s rights.

This is somewhat different of course than an ag-gag bill because the NLRB has no authority unless the images are recording workplace safety violations. But the principle is very important.

This case also is another reminder that we can demonize the other Democratic Party candidate all we want to, but the election in November is far, far more important than who wins the nomination.

How the Wagner Act Laid the Groundwork for Affirmative Action

[ 5 ] January 31, 2016 |


Very interesting Touré Reed analysis at Jacobin:

The case for affirmative action — like unionization before it — proceeded from the view that anti-discrimination policy was in the public interest. Though the history of federal workplace anti-discrimination initiatives dates back to the New Deal, President Kennedy’s 1961 Executive Order 10925 — which authorized the federal government to cancel contracts with vendors who failed to take “affirmative action” to redress employment disparities — is generally understood as the start of the modern era of anti-discrimination policy.

The Kennedy and later the Johnson administrations argued that workplace discrimination was a drag on the national economy, viewing racism as an irrational encumbrance on productivity. The Kennedy administration’s case for a fair employment practices bill — what would eventually become Title VII of the Civil Rights Act of 1964 — thus centered on the Commerce Clause, placing workplace discrimination in the purview of the federal government.

Those who imagine that market-oriented programs offer the best route to racial equality today should recall that opponents of Title VII, like Republican senator Barry Goldwater, argued that fair employment practices legislation violated “freedom of contract.”

But while anti-discrimination legislation necessarily infringed on an employer’s right to hire, fire, promote, or demote whomever they wished, the Wagner Act had already abridged this right — as proponents of anti-discrimination law understood at the time — thus establishing a precedent for affirmative action.

In fact, the phrase “affirmative action” first appeared in a Wagner Act provision that directed judges to impose financial penalties on employers who discriminated against union organizers.

The eventual implementation of affirmative action in the workplace likewise drew on precedent stemming from the Wagner Act. As study after study has shown, few if any employers use quotas — which are not mandated by Title VII. Instead, employers hoping to avoid costly lawsuits established offices of equal employment to ensure compliance with anti-discrimination law.

These new equal employment offices were modeled on the labor relations departments union and non-union firms established in the wake of the Wagner Act. Moreover, many of the policies implemented by equal employment offices to ensure fair employment practices — including in-house grievance procedures, formal job descriptions, published guidelines for promotion and termination, salary classifications, and open bidding— were already in use by labor relations departments partly because unions had demanded them.

The Wagner Act and the labor movement it helped spawn are perhaps the clearest expression of the social-democratic impulses informing the old New Deal Democratic coalition. As such, the links between the right to collective bargaining and anti-discrimination legislation draw attention to the historic importance of social democracy to so-called civil rights issues.

Indeed, it’s hard to imagine on what basis black civil rights leaders — who lobbied on behalf of a group that accounted for just 10 percent of the nation’s population — would have demanded a fair employment practices act in the 1960s, if the Wagner Act had not already established a precedent, in the name of the public good, for abridging the right to freedom of contract.

Simply put, the civil rights movement’s victories required an interventionist state — as was understood by all of the principal players, on both sides, at the time. And while the New Deal had significant limitations, its efforts to enhance the purchasing power of working people — centered on fostering a more stable form of capitalism — established a framework for a rights discourse that would prove indispensable to African-American civil rights.

Cursing and Labor Law

[ 12 ] January 31, 2016 |


Does labor law protect cussing at your bosses? It depends. And that’s the subject of this story about how Murray Energy, a horrible coal mining company, has fired a couple of workers for swearing at bosses in what the workers call a labor action. Now, for context, coal miners work blue. So do their bosses. This is not a conversation for those who find swearing a mortal sin. For example:

The coarse language, according to workers, extended all the way up to the company’s CEO — Mr. Bob Murray himself.

After Murray Energy took over the mine in late 2014, Bob Murray laid out his company’s rules in a meeting with workers. “These are my f—— rules, and if you don’t like it, there’s the f—— door,” he said, according to workers who testified before the NLRB.

So, in this atmosphere, this is what the workers did:

Richard Harrison and Jesse Stolzenfels used to work at the West Virginia mine. In late 2013, Murray Energy Corp., one of the nation’s largest coal companies, took the mine over from a previous owner. Shortly thereafter, the company tried to implement a controversial production-based bonus program.

Workers at the mine, who are represented by the United Mine Workers of America union, voted it down. But the company went ahead and adopted the plan anyway — in violation of its labor contract, according to the union. Murray Energy disagrees and maintains it followed the agreement.

Under the program, workers received bonuses based on the amount of coal they extracted. Many opposed it on safety grounds, including Stolzenfels and Harrison, according to court filings. The latter, in particular, had a history of a speaking out over safety. Meanwhile, the company told miners who disagreed with the plan that they could opt out of it by writing “void” on their checks and returning them.

In February 2015, Harrison and Stolzenfels took this route — but not before adding some profanity-laced flair. Harrison’s check, for $11.58, read, “Void Void Kiss My Ass Bob.” Stolzenfels’ check, for $3.22, read “Void Eat S— Bob.” The company responded by suspending both of them with “intent to discharge,” citing the employee handbook’s policy against profanity.

For this, they were suspended and canned. So is this a labor issue? What legal protections might these workers have?

“Certainly there are many people who would feel uncomfortable or disapprove of the [workers’] conduct,” said Angela Cornell, director of the labor law clinic at the Cornell University Law School. Ultimately, though, that’s not what matters.

The National Labor Relations Act, the federal bedrock of American labor law, gives workers the right to engage in “protected concerted activity” — to join together with one or more co-workers and speak out over pay and working conditions without facing retaliation. “In this context, workers have more rights than they would otherwise,” Cornell said.

For example, an angry worker who comes into the office and fires off an expletive at his or her boss is unlikely to be protected by the National Labor Relations Act. But if that worker drops an f-bomb or two while she’s complaining with co-workers about say, long hours or unsafe working conditions, her speech is more likely to be protected.

A separate federal law that covers mining safety offers comparable protections.

Cornell University’s Angela Cornell said the angrily worded missives from Harrison and Stolzenfels don’t appear to be isolated or individual incidents. Instead, they seem to be part of a broader workplace dispute — one that involved tense disagreements over workplace safety and the miners’ collective bargaining agreement.

Of course, workers can lose protections if their conduct is especially reckless or egregious — for example, by making a violent threat to a supervisor, or by trying to sabotage their employer’s business. Indeed, that’s precisely what Murray Energy is arguing.

The company maintains the voided checks did not amount to “protected concerted activity” in the first place. But even if they did, the company argued in its post-hearing brief, the miners forfeited their protections by engaging in “indefensible or abusive misconduct.”

The board’s general counsel disagrees. It also noted in its post-hearing brief that employees have used “far more biting and insulting profane language” toward management and not lost their protections. In previous cases, for instance, workers have legally confronted their supervisors with such epithets as “egotistical f—–,” “stupid f—— moron” and “f—— liar.”

Cynthia Estlund, a labor law professor at the New York University School of Law, said the labor board tends to give workers a fair amount of leeway when they express grievances. “It’s not that profanity is protected as such,” she said. But “from the beginning, the board has given employees some breathing room when they’re engaging in protected, concerted activity,” she added.

Right now, the two workers are being paid by their employer to stay at home.

Interesting case.

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