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Court Commentary Roundup

[ 23 ] July 1, 2014 |

Few pieces that you should be reading about yesterday’s terrible Supreme Court decisions.

First, Sarah Jaffe on how the two cases are interlocking:

We’ve long known that low-wage workers have very few rights on the job, that their bosses are able to interfere in all sorts of personal decisions. In this case, it’s the particular nature of the benefit denied that is worth exploring for a moment. Eileen Boris, author with Jennifer Klein of Caring for America: Home Health Workers in the Shadow of the Welfare State, has noted that particular ideas of “intimacy and dirt” influence how we think about home healthcare workers and the work they do, which often involves exposure to bodily processes that are extraordinarily intimate. In the case of contraception, too, we see ideas of intimacy and dirt coming into play—sexuality is dirty, and intimate decisions can in part be influenced by one’s boss. By ruling, in theory, that the state cannot make an employer provide health insurance that covers birth control, or require that homecare workers pay the costs of their representation to the union, the court is in fact weighing in on the intimate relationships of thousands of workers.

Justice Elena Kagan, in her dissent to Harris, pointed out that the care provided by homecare workers is better when the workers are valued and paid better—things that have happened since they have had the right to union representation. In this way, she argues, the interests of the workers and the care recipients are not in opposition, as Alito’s opinion implies—they are actually aligned. The statement of Hobby Lobby’s CEO on raising wages indicates that Hobby Lobby, too, understands that workers do a better job when they are properly cared for. That includes, or should include, the right to make their own healthcare decisions, when it comes to contraception or anything else.

The conservatives pushing both of these cases would have you believe that these are cases about freedom—the freedom to avoid a union, the freedom to practice religion. And yet what they wind up being about is reducing power on the job for thousands of mostly women, mostly low-paid workers across the country.

Attacks on all workers’ rights often come first through attacks on those deemed less important workers. When we decide that birth control isn’t a pivotal issue because it only affects some workers, or that homecare workers’ loss is not a loss for us all, we leave the door open for the next attack.

And so, in a country where these feminized personal service jobs are increasingly the only jobs available, the court continues to rule that workers’ rights are less important than the bosses’, that protections on the job are a luxury working-class women can’t afford.

Second, Moshe Marvit on the implications of Harris.

In Harris, the majority implied that it was not the objecting employees that were the true free-riders, but rather the union. The decision focused on the fact that hourly rates were set by Illinois law and there were significant statutory restrictions over what the union could bargain over. It highlighted the fact that the union received dues for its representation, but questioned what negotiations or grievance representation the union could deliver to employees.

In effect, this analysis places unions in a bind: any reasonable observer would conclude that the union negotiated with the state to set the terms of compensation, benefits, and other terms of employment, which are then codified into law. However, because the Supreme Court has demarcated this activity to the realm of lobbying, which is beyond the strict scope of representation, it concluded that the union is in effect collecting dues for doing little. The majority has drawn an untenable distinction and then complains that the distinction is not tenable.

Toward the end of its peculiar analysis, the majority articulates a new and dangerous standard or test, which surely will open the doors to future problems. “The agency-fee [or fair share] provision cannot be sustained unless the cited benefits for personal assistants could not have been achieved if the union had been required to depend for funding on the dues paid by those personal assistants who chose to join.” In effect, the Court is requiring unions to prove a counterfactual, that the workers could not have achieved the same benefits it received from the union through any other means. The Court concludes that “no such showing has been made.” However, it is not clear how anyone could make such a showing. Justice Elena Kagan, writing for herself and three other dissenting justices, proclaimed that the good news with this case is that the majority did not overturn Abood. However, if the majority’s new test is a prerequisite for fair-share agreements, it may have done irreparable damage to the balance created by Abood.

Finally, I have a little piece at LaborOnline that summarizes the points I made here yesterday.


U.S-Belgium Open Thread

[ 100 ] July 1, 2014 |

Remember the Congo.

Thames Mud Butter

[ 15 ] July 1, 2014 |

Rebecca Onion’s latest Slate Vault piece is typically good, about pollution in the 19th century Thames River. She suggests reading this link at your own risk if you really like pollution stories. I recommend it highly. But probably not while eating.

The SCOTUS War on Women and Workers

[ 130 ] June 30, 2014 |

While today’s pair of horrible decisions might seem like distinct issues, in fact they are both part of a larger war on women and workers.

The absurdity of the Hobby Lobby decision (only contraceptives are exempted for religious beliefs because of sluts) is obviously part of the Republican war on women, but it is also very much a war on the poor. An IUD costs about a month’s worth of wages at the minimum wage. If an executive can’t get birth control because her employer gets too hot and bothered thinking of her having sexy time, she can afford it on her own. A Hobby Lobby floor worker? Probably not. For women workers at closely held corporations, this decision will be devastating.

The Harris case is specifically about home care workers in Illinois. Who are home care workers? Women. Poor women. Lots of African-Americans, lots of Latinos, lots of undocumented workers. Home care workers are a major emphasis for SEIU right now; a close friend of mine has spent over a decade on a campaign to organize them in one city alone. Harris threatens all of this. But moreover, it shows how little Alito and the boys care about rights for women wherever they are. It’s hardly coincidental that this case comes down the same day as the contraception mandate. The Court evidently believes that the home is not a workplace, but of course it is a workplace, especially if someone is getting paid to do work. That it is women working in the home, as it has always been, just makes it easier for conservatives to devalue that work.

Of course, it’s about more than just working women and it opens the door for Alito and Roberts’ continued desire to mandate the New Gilded Age, so no doubt we will see new challenges to public sector unionism that will probably reach the Court in 2016 or maybe 2017 at the latest. I am not a legal expert, but my guess as to why Abood wasn’t overturned entirely is that there wasn’t 5 votes for it yet. Regardless, both of today’s decisions are very much about keeping working women without power both on the job and at home.

Also, when we hear in 2016 that both parties are the same because of [insert pet issue here] and therefore vote for vanity third party candidate, let us remember this day and these decisions. If you think Strip Search Sammy Alito and Ruth Bader Ginsburg are the same, you might want to rethink your positions.

Monopoly 101

[ 36 ] June 30, 2014 |

Good conversation between Thomas Frank and Barry Lynn over the history of monopoly and politics in the United States connecting the two Gilded Ages, how Americans tamed monopoly, and how monopoly came roaring back (thank Ronnie!).

This Day in Labor History: June 30, 1983

[ 19 ] June 30, 2014 |

On June 30, 1983, workers at the Phelps-Dodge Corporation copper mines in Arizona went on strike. Led by the United Steelworkers of America, miners fought bravely against Phelps-Dodge’s decision to bust their union, but faced with overwhelming odds, they lost the strike, bringing in the heyday of corporations busting the unions and moving aggressively toward a completely non-union workplace.


The Phelps-Dodge mine in Morenci, Arizona had a long history. Phelps-Dodge and other big mining corporations had operated in the southern Arizona/northern Sonora borderlands for a full century by this point. Hating unions every second, they had engaged in some of the most loathsome anti-union tactics in American history, but had eventually caved to the inevitability of union representation. Phelps-Dodge had long run a workmonth of 26 days on and 2 days off before the United Steel Workers of America ended that bit of oppression, which corporate leaders always resented.

The copper industry was in deep trouble in the early 1980s. Pressure from abroad, especially the giant mines of Chile, led to a reduction in copper prices. U.S. mining corporations responded both by investing overseas and laying off workers in the United States. Phelps-Dodge had made some bad investments and was in some trouble, with its leadership taking a lot of criticism. The mine closed for 5 months in 1982.

It reopened in 1983. But Phelps-Dodge decided to use the situation to bust the union. Seeing that the USWA had caved in recent negotiations with U.S. Steel in Pittsburgh, Phelps-Dodge leaders thought they would like some union contract relief as well. Instead of cost of living adjustments, workers wages would be tied to the worldwide price of copper, forcing them to bear the direct brunt of fluctuations of commodity prices. The union was flexible in its negotiations. It agreed to a wage freeze for the entirety of the three-year deal. But it would not change its COLA requests. It had good reason not to. The other mining companies had agreed to this very reasonable offer from their unions. Phelps-Dodge said they could not afford a union workforce. Others noted that despite the recent downturn in copper prices, the company had made $550 million in the previous decade and that it was the company’s own mines in Peru, Australia, and South Africa that had undercut both prices and union work in the United States.

The company terminated the 40-year continuing agreement with the USWA, an 87-page contract that had been used the whole time with moderate changes. It immediately announced not only a $2 an hour wage cut for new workers but major changes in grievance procedures, disciplinary actions, and the other day to day operations that make unions work. They also began the unprecedented step within union contracts of forcing a medical co-pay on workers, something that we see as inevitable in 2013 but which was outrageous for many workers thirty years ago.

Immediately, the unions (vast majority were USWA but there were 13 total unions) voted to strike. 2400 union members walked out and surrounded the miners to not allow strikebreakers to enter. They were immediately subjected to widespread harassment led by the Arizona Criminal Intelligence Systems Agency, a Tucson-based state-run undercover police force. Using tactics from the violent days of the early 20th century Phelps-Dodge executives longed for, the ACISA quickly infiltrated almost every union meeting, wiretapping about 1/2 of the union meetings. The ACISA shared intelligence information directly with Phelps-Dodge officials. Phelps-Dodge began smuggling arms into the mine.

Pretty quickly, divisions rose within the workforce. About 400 of the 1480 workers scabbed quickly. George Mungia could stay on strike or potentially lose his pension. Or he could scab for 2 months and have worked long enough for the pension his union fought to give him. He went for self-interest, knowing that Phelps-Dodge would never have a union back in the mines. This number actually disappointed Phelps-Dodge, for it thought it could break the strike easily.


On August 5, the USWA decided it had to raise the level of struggle in order to survive. On August 8, about 1000 strikers and supporters surrounded the mine entrance, chasing away the strikebreakers and forcing others to remain inside the mill. Arizona Governor Bruce Babbitt called for Phelps-Dodge to announce a 10-day work stoppage to settle tensions. But this just gave time for Phelps-Dodge to plan its next maneuver. On August 19, the corporation brought in a military force to end strikers’ resistance. Calling it “Operation Copper Nugget,” 426 state troopers and 325 National Guard members, assisted by helicopters, tanks, and military vehicles, retook the entrance to the mines. They used strikers’ “violence” as the reason, which primarily consisted of a lot of swearing and some thrown eggs. Strikers could no longer keep strikebreakers out. Eight days later, 10 strikers in Ajo were charged with rioting. The strike collapsed quickly after this overwhelming display of corporate, military, and legal power.

Among Phelps-Dodge’s leaders was John Coulter, vice-president for personnel. When the company used force to end the strike, it decided to never hire the old workers back. According to Coulter, “As far as we’re concerned the strike is over.”

The strike lasted three years but was basically over in three months. In September 1984, the workers voted on whether to work without a union or maintain their union without a job. They voted out the union. In 1986, the NLRB rejected the last union appeals. It was a complete victory for Phelps-Dodge. The company became entirely union-free in Arizona.

Some labor scholars call the Phelps-Dodge strike the private sector equivalent of the air traffic controllers in 1981. From this point forward, corporations became far more aggressive about busting unions, using increasingly sophisticated tactics with tacit support from the federal government.

Almost as soon as the strike ended, copper prices rose dramatically. While this was no conspiracy, Phelps-Dodge happily combined rapidly increased profits with a union-free workplace.

John Coulter had a daughter named Ann. She became very annoying. She loves her papa though because he was a unionbuster.

The ACISA was disbanded in 1984 after state legislators thought having an undercover agency was a waste of state money.

The mines of Arizona remain union-free today.

This is the 112th post in this series. Previous posts are archived here.

Four Pinocchios

[ 60 ] June 29, 2014 |

This is a week old now, but worth mentioning. I normally don’t much care for media rating systems like Politfact, but when the Washington Post decided to aim its guns at Little Tommy Friedman and his penchant for using false historical analogies to press his foreign policy aims (that are mysteriously incredibly influential on Capitol Hill), it’s hard to resist. Basically, Friedman decided to “quote” Dean Rusk in reference to current relations between the U.S. and Putin’s Russia, saying during the Cuban Missile Crisis, when Soviet ships supposedly came within a few miles of the U.S. naval blockade, “We’re eyeball to eyeball, and I think the other fellow just blinked.”

Problem–the entire scenario was fabricated in Bobby Kennedy’s memoir. Does Friedman care that this is a falsehood? No, he does not care. Because he wants it to be true because toughness is a virtue and if he has to go all The Man Who Shot Liberty Valance about myths, well, print the legend. And if that causes U.S. relations with Russia to decline, great.

Thus, four Pinocchios for Friedman.

Thanks to BlueLoom for the link.


[ 36 ] June 29, 2014 |

If you aren’t familiar with Robert Bullard, the founder of the study of environmental justice as a line of academic inquiry, you should be. For over 30 years, Bullard has straddled the line between academic and activist, working with local communities to fight for environmental justice and forcing rich white environmental organizations to come to terms with the structural inequalities in society and in their own movements that marginalize the concern of the poor. At the end, most environmentalism should protect the poor because it is the poor that are most effected by pollution due to their inability to move away from it and their lack of political power to prevent it from occurring near their homes. Unfortunately, this has not always been recognized by the environmental community as important. That has slowly changed, but it’s largely been more superficial than real, as the big green organizations remain mostly dominated by whites. An excerpt of this interview Guernica did with Bullard:

Guernica: As a corollary to marginalized communities shouldering a disproportionate toxic load, do you see the equity issue playing out in access to green energy? Because to date that appears largely clustered in communities of privilege.

Robert Bullard: Oh yes. We have a term for that: energy apartheid. At the same time that all this emphasis is being placed on going green and clean and renewable, if you look at the equity impact, there is a class bias, and a racial bias embedded in class. People with resources can have better access to clean energy and renewables, and better access to green transportation, while at the same time a lot of the dirty energy industry facilities are still getting placed in working-class, lower-income communities of color. We’re talking clean and acting dirty.

Look at the fact that the nuclear power industry is trying to redefine itself. There had not been a nuclear power plant built in decades, and it is not by accident that the first two plants to get permitted are being placed in Waynesboro, Georgia, which is overwhelmingly African-American and that already has two nuclear power plants. So you’re talking about a community of lower-income African-Americans that is going to be used as a guinea pig for restarting nuclear power, a very risky operation. We have to point out the inconsistency of these things—who is going to benefit from this green economy, who’s getting the jobs and the contracts and the benefits? There is a disconnect. If we are going to have a green economy and move toward a green future, we have to make sure that future is equitable and not an opportunity for some communities to just get more dirty industry.

Moments in Congressional History

[ 40 ] June 29, 2014 |

I ran across former Speaker of the House Galusha Grow today. Hadn’t thought of him in awhile and remembered he is one of the great names in Congressional history. I read his Wikipedia page and was reminded of just how horrible Congress was in the 1850s, when the Democrats became a party of fireeating extremists:

During the 35th United States Congress, on February 5, 1858, he was physically attacked by Democrat Laurence M. Keitt in the House chambers, leading to a brawl between northerners and southerners. Keitt, offended by Grow having stepped over to his side of the House chamber, dismissively demanded that Grow sit down, calling him a “black Republican puppy”. Grow responded by telling Keitt that “No negro-driver shall crack his whip over me.” Keitt became enraged and went for Grow’s throat, shouting that he would “choke [him] for that”. A large brawl involving approximately 50 representatives erupted on the House floor, ending only when a missed punch from Rep. Cadwallader Washburn of Wisconsin upended the hairpiece of Rep. William Barksdale of Mississippi. The embarrassed Barksdale accidentally replaced the wig backwards, causing both sides to erupt in spontaneous laughter.

I suppose it’s only a matter of time before Republicans start physically attacking Democrats on the floor of the House.

Stadium Ruins

[ 93 ] June 29, 2014 |

A surprisingly harsh and direct article by Juliet Macur in the Times on the complete idiocy of stadium building for the World Cup. A lot of these new stadiums not only cost a ton of money, but they weren’t even built in cities with functioning soccer teams that can even come close to filling them up. They are used for 5 or 6 games and then just left to rot. The stadiums cost billions of dollars in total in a poor nation. What a total waste of money.

Neither FIFA nor Brazil learned from the past. So many cities regret playing host to huge sporting events. Athens, for one, fell into debt after hosting the 2004 Olympics. Most of its once-sparkling athletic venues, including an arena just for taekwondo, are used sparingly at best and stand as reminders that holding the Summer Games in their birthplace sounded wonderful but wasn’t at all practical.

“What are we going to use this stadium for after the World Cup?” Marília Sueli Ferreira, who works at a stationery store in view of the Natal stadium, asked through an interpreter. “The World Cup is made for tourists, not for residents, and the tourists are going to disappear very soon.”

The tourists started leaving Natal after the last game here, on Tuesday.

The stadium will not regularly host tens of thousands of fans. This city of fewer than a million people in northeastern Brazil does not have a top-level soccer team, and its lower-level teams attract several thousand fans only on their biggest game days.

Without a guaranteed tenant, the stadium has a murky future. But it has company.

The stadiums in Manaus, surrounded by rain forest; Cuiabá, the soybean capital of Brazil, near Bolivia; and Brasília, the capital, are also expected to become World Cup white elephants because none of them have soccer teams that can consistently fill them. The four stadiums cost about $2 billion, most of it public money. (The human toll was also great, as nine workers died during the construction in Brazil.)

Already the stadiums from South Africa 2010 are ghost towns.

Last fall, I paid about $4 to tour Cape Town Stadium, which was built for the 2010 World Cup in South Africa but had turned into a cavernous ghost town. Maybe 100 people a week buy tickets to get a close look at the Cup-generated waste. The space can be rented for weddings or other events, like the small fashion show that I saw there.

Suites that once held World Cup parties were dusty and silent. The state-of-the-art locker rooms, with tiny safes at each stall and rows of sinks to wash dirt off cleats, remained untouched. Thousands of tiny lights glistened from the ceiling of a V.I.P. entrance.

It’s no wonder that peoples are starting to reject holding mega sporting events
. Easier for FIFA to place the events in countries dominated by egocentric quasi-dictatorial leaders than democracies. Everyone is cool with the bribes in that set-up too.

The Great Divide

[ 106 ] June 29, 2014 |

Joseph Stiglitz is ending his The Great Divide series on the Times and in doing so notes that extreme economic inequality under capitalism is not inevitable, but rather a series of policy choices:

So why has America chosen these inequality-enhancing policies? Part of the answer is that as World War II faded into memory, so too did the solidarity it had engendered. As America triumphed in the Cold War, there didn’t seem to be a viable competitor to our economic model. Without this international competition, we no longer had to show that our system could deliver for most of our citizens.

Ideology and interests combined nefariously. Some drew the wrong lesson from the collapse of the Soviet system. The pendulum swung from much too much government there to much too little here. Corporate interests argued for getting rid of regulations, even when those regulations had done so much to protect and improve our environment, our safety, our health and the economy itself.

But this ideology was hypocritical. The bankers, among the strongest advocates of laissez-faire economics, were only too willing to accept hundreds of billions of dollars from the government in the bailouts that have been a recurring feature of the global economy since the beginning of the Thatcher-Reagan era of “free” markets and deregulation.

My only critique here is that Stiglitz doesn’t talk about racism as part of the choice structure. After all, a lot of Americans chose against their own economic self-interest by committing to racial self-interest and voting for politicians promising to cut welfare so those big black bucks would stop driving up to the store in their Cadillac and buying t-bone steaks on food stamps. Of course, these same politicians were cutting jobs and government programs for whites too, but so long as it was played as a race thing, millions of Americans were OK with it.

NHL Draft

[ 23 ] June 28, 2014 |

Presumably Scott has renounced the Flames in favor of the Buffalo Sabres.

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