The Ohio legislative decided to stick a measure in a funding bill that would redefine all faculty as supervisors since they play some role in university governance. This would make them ineligible to have a union. I’m not at all confident that John Kasich won’t sign this.
On April 17, 1905, the Supreme Court, led by Chief Justice Melville Fuller, decided the Lochner v. New York case, overturning a New York law limiting the hours bakers could work to sixty a week. This landmark case gave official SCOTUS sanction to the idea of free contract between employer and employee. Calling such laws, “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract,” the Court effectively ruled that corporations have full rights to set any conditions of employment they chose. This classic statement of the Gilded Age has inspired conservatives and outraged liberals ever since.
By 1900, the rise of the Progressive movement and an increasingly aggressive American working class that ranged from conservative organizations like the American Federation to Labor to radicals like the Industrial Workers of the World led to a growing amount of state and local laws to regulate labor. The rank exploitation of Gilded Age capitalism had increasingly moved large swaths of Americans, including a growing number in the middle and upper classes, to understand that basic protections must be granted if the nation was to remain socially stable and if future generations would grow up to be good moral Americans.
And this attitude, while often paternalistic toward workers, had its benefits as workers really struggled to live lives of basic dignity in the Gilded Age. The combination of extremely low wages, very dangerous work, strikes met with state violence, and an economy constantly in turmoil thanks to the corruption of politicians and illegal machinations of capitalists meant that the American workforce had few options to improve their lives. They tried but usually failed because of the combination of overwhelming combined state and corporate resistance, something Lochner would reinforce. Accessing middle-class support for basic rights was necessary in order to achieve even the most rudimentary improvements in workers’ lives.
New York was one of these states with a strong Progressive movement. In 1895, the state passed the Bakeshop Act. This law regulated the sanitary conditions of bakeries (a prelude to the national Pure Food and Drug Act that would become law in 1906) and read “no employee shall be … permitted to work in a biscuit, bread, or cake bakery or confectionery establishment more than sixty hours in any one week,” as well as more than ten hours in a day. In 1899, Joseph Lochner, a baker in Utica, was indicted for violating the act by requiring employees to labor for more than 60 hours. He drew a $25 fine. Not learning his lesson, he was charged again in 1901; this time the state fined him $50 ($1400 in 2014 dollars) and sentenced him to up to fifty days in jail if he did not pay the fine.
Joseph Lochner, standing on right
Lochner appealed this second fine, attempting to overturn the law. The Appellate Division of the New York Supreme Court upheld the law by a 3-2 vote and then the New York Court of Appeals, where he lost 4-3. The Supreme Court was divided on this law. But by a 5-4 decision, the Court ruled in favor of Lochner and overturned the Bakeshop Act.
John Marshall Harlan, the best justice of the era and often the only one with the welfare of the average citizen in mind, wrote one of his classic dissensions. He wrote that it was “plain that this statute was enacted to protect the physical well-being of those who work in bakery and confectionery establishments.” He went on, “If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere.” Oliver Wendell Holmes also dissented, using his ideology of limited court activism to accuse the majority of asserting their own economic preferences into the Constitution where they did not belong.
The majority in fact did that, but didn’t care. Rufus Peckham wrote the majority opinion. He countered the argument of New York that “has a right to safeguard a citizen against his own lack of knowledge” by stating that citizens “are … able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action.” And this really sums up the doctrine of free contract. Theoretically this sounds like the language of freedom because it places control over one’s life in his or her own hands. But of course such an analysis, which libertarians love today, completely ignores power relations. No baker could assert his own rights because it was the employers who constricted those rights. When the option is a) work 65 hours or b) don’t eat, that’s not a freedom of choice.
Moreover, Peckham went into the health of working in a bakery, writing the law was unnecessary because “To the common understanding, the trade of a baker has never been regarded as an unhealthy one.” Of course, such a judgment from a judge should not matter when deciding the constitutionality of the law–the question is whether it is constitutional, not whether the judge personally agrees on the merits of the law. But of course the Supreme Court has long operated as little more than the assertion of personal political position as constitutional principle, a problem which plagues the Court today. Moreover, the question of health and work in the Gilded Age was one of huge importance because work was so starkly unhealthy. It’s entirely possible that compared to paint workers having their brains disintegrated through unbelievable levels of lead poisoning and radium workers dying from horrendous cancers that bakers didn’t have it so bad, but that doesn’t mean that working in unsanitary conditions for long hours did not have an effect on their health. Even when employers and states decided to something about workers dying or suffering grievous injuries on the job, it would take until the establishment of OSHA in 1970 before workplace health per se was really taken that seriously in the United States.
However, Lochner was also the peak of corporate rights superseding that of workers and the public. The Muller v. Oregon decision three years later carved out room in the freedom of contract ideology for hours limitations on women workers, which began to slowly build toward the principle of government regulating the workforce. From 1905 on, Lochner became the case that progressive labor activists such as Louis Brandeis sought to overturn. Yet this would be a long fight lasting until the New Deal, with the Court reviving the Lochner doctrine in the 1923 case Adkins v. Children’s Hospital, declaring a Washington DC law setting minimum wages for women and children unconstitutional.
Conservatives would like to return to a Lochner-era America today and are working hard to make sure that happens.
This is the 142nd post in this series. Previous posts are archived here.
It’s long been known that better working conditions and higher pay lead to happier and more productive workers. Yet short-sighted greed and corporate resentment over treating workers like human beings has contributed to a global production system that strips workers of basic dignity. But even in Vietnamese sweatshops producing clothing for western markets, the evidence suggests that better conditions create happier workers which creates higher profits.
A bill by Assemblywoman Lorena Gonzalez to give employee rights and benefits to professional sports cheerleaders passed its first committee in Sacramento this week.
Gonzalez, a former high school and college cheerleader, said her bill “simply demands that any professional sports team — or their chosen contractor — treat the women on the field with the same dignity and respect that we treat the guy selling beer.”
Assembly Bill 202, approved by the Assembly Committee on Labor and Employment Wednesday, was drafted by the San Diego Democrat in the wake of lawsuits brought by cheerleaders for the Oakland Raiders, Buffalo Bills and Cincinnati Bengals for what they claim are illegal workplace actions by the NFL teams.
Some teams classify cheerleaders as volunteers and give them minimal compensation, according to critics.
The Charger Girls, who are contracted by a third party and perform at all San Diego Chargers home games, have been paid $75 per game in recent years.
The lawsuits contend that “in addition to sub-minimum wage pay, cheerleaders of professional teams have been forced to spend thousands of dollars in (un)reimbursed costs on travel and personal appearance as well as work unpaid overtime — practices that would be illegal under the law but were found to be commonplace pressures on teams’ cheerleaders despite the tremendous profits being gained by the teams they cheered for,” according to a Gonzalez news release.
There’s been a lot of coverage of the exploitation of cheerleaders in the last year. The NFL is basically the prototypical organization of the New Gilded Age with an exclusive club of billionaires holding cities hostage for publicly funded stadiums while treating their low-level or even high-level employees as disposable garbage that should be glad to have a job with them.
There’s nothing good happening to the American worker in 2016, but it is even more discouraging than usual that Republican governors are trying to outdo each other in unionbusting as a way to gather national prominence and perhaps a presidential nomination. Scott Walker is of course the most prominent example of this, but it is also basically Illinois governor Bruce Rauner’s entire agenda.
Rauner’s efforts in Illinois are getting the closest scrutiny. That state is an unlikely launch pad for a crusade against union power. It has been a solidly blue state in presidential elections since 1992 and had not elected a Republican governor since 1998 until Rauner, a longtime friend of Rahm Emanuel, the Chicago mayor who had also worked in private equity, won office last year. Conservative journalist Stephen Moore called the political newcomer’s campaign “the biggest election of 2014.“ Illinois, he wrote in National Review, “could become a laboratory experiment about whether conservative ideas can work in a state that has been ruled by…unions and a self-serving political machine in Springfield and Chicago.”
Once in office, Rauner issued a “Turnaround Agenda” that begins with this premise: “Government union leaders are funding politicians who negotiate their pay and benefits.” To put an end to that, Rauner issued an executive order challenging collective bargaining agreements with state employees and urged municipalities and counties to create their right-to-work zones.
Rauner frames the issue as one of freedom and local control. The governor says he wants Illinois communities to decide whether “their businesses should be subject to forced unionism or employee choice.” Forced unionism is a familiar phrase among opponents of collective bargaining, but it’s also a misleading one. If a majority of workers vote to form a union, then it’s customary for workers to be compelled to pay dues as a price for being in a union. Those who don’t want to join the union are required to pay something so they aren’t getting a free ride. By giving workers the prerogative not to pay union dues, right-to-work laws undercut the power of unions.
Hoping to spur municipalities to take on public-employee unions, Rauner sent right-to-work resolutions to all of Illinois’s cities and villages. A municipality can just insert its name and vote on it. It’s a smart strategy since the Illinois statehouse is solidly Democratic and won’t pass a right-to-work law. Setting fires in small towns might arouse anti-union sentiment, and it will surely inflame the unions. Last week, unions packed a meeting of the Oswego County board in northern Illinois, where the nonbinding resolution was up for discussion. Scott Roscoe, president of the Fox Valley Building Trades Council in Aurora, told a local journalist, “If we don’t stop anti-worker schemes like right-to-work, more families will fall behind.”
I’d say it’s fairly likely that if Hillary Clinton wins in 2016 than Rauner is setting himself up nicely for the nomination in 2020. Certainly his friends the Koch Brothers are happy with him. “Right to Work a Person a Death” should just become the central agenda on the Republican agenda. And Rauner would probably even have good buddy Rahm Emanuel on his side!
The anti-sweatshop activism of the late 1990s and early 2000s has been on the upswing lately, partially in response to the outrages of the 1134 workers dying at the Rana Plaza factory collapse in Bangladesh in 2013.
Just yesterday, I ran across stories of students at the University of North Carolina and Virginia Tech both hosting events with survivors of Rana Plaza. There is pressure against European corporations for their role as well. Given the corporate attempts to hide American consumers from the impact of producing the products they buy and the enormous worldwide political, social, economic, and ecological implications of that, exposing Americans to the survivors of these disasters is a great way to fight back. A necessary way in fact. The more students involved in pressuring corporations (or at least their universities) on ethical sourcing of clothing, the better workers’ lives will become.
Above: Terrible human being Michelle Rhee.
California teachers’ unions are under a new assault by teachers suing over unions using dues for political campaigns. Members can withdraw but they don’t have full union membership. Given the makeup of the Supreme Court, I think we know where this will probably end up. Who is funding this latest attack on unionism? The Koch Brothers? Chamber of Commerce? Republican operatives? Nope. Students First.
Financial backing for the lawsuit comes from StudentsFirst, the advocacy group founded by former D.C. Schools chancellor Michelle Rhee, who has battled unions over issues ranging from teacher evaluation to charter schools. Defendants include the National Education Association, the nation’s largest teachers union, and its California chapter, the California Teachers Association. Also named are the American Federation of Teachers and its California unit, the California Federation of Teachers.
Can we please stop saying that Michelle Rhee, Students First, the charter school capitalists, or anyone else involved in the privatization of one of this nation’s most cherished, long-lasting, and successful public services cares about actual students at all? This is about profit and destroying workers’ rights. Michelle Rhee is one of the great villains of our time. She may not be the head of the organization she founded any longer, but her spirit still flows through the entire enterprise.
On April 7, 2000, the Workers’ Rights Consortium formed at a New York conference. This apparel industry monitoring organization developed in response to the anti-sweatshop movement of the 1990s and still exists today, trying to bring attention in the United States to the plight of foreign workers making apparel for our colleges and universities.
By the 1990s, almost all American textile production had moved overseas, largely to Latin America and Asia. The conditions in these factories were little changed from what workers in the United States had dealt with a century earlier. Moving from the northeast to the South to Mexico to Central America to Asia has been part of a long-term strategy by the apparel companies to find new workers to exploit and not have to improve working conditions or acquiesce to unions. Also in the 1990s, stories began appearing in the American media about the terrible working conditions in these sweatshops. Most famous were stories about Nike and the clothing line branded by TV host Kathie Lee Gifford. College students began campaigns to improve these conditions as they applied to the production of university licensed apparel.
Central to this movement was United Students Against Sweatshops (USAS). Formed in July 1998 by students at 30 campuses, USAS began providing a national organization for all these anti-sweatshop movements on American campuses. USAS members began conducting fact-finding tours, visiting Dominican Republic sweatshops making baseball hats for colleges where young women earned $40 in a 56-hour week. The movement continued to grow through that fall, with new chapters opening at campuses across the United States. Universities refused to sign any code of conduct with the exception of Duke University. Instead, schools sought to avoid responsibility through the Collegiate Licensing Corporation, a corporate front that claimed to monitor apparel industry conditions. It created a CLC code that forced no responsibility onto universities. This intended to make a claim that the schools cared, but it only made the anti-sweatshop activists more determined. Protests and sit-ins grew at schools around the country by 1999. Schools continued trying to cover themselves, now joining the Fair Labor Association, another corporate front group that provided only voluntary guidelines for schools.
Through this campaign, the students gained the support of the United Needletrades, Industrial, and Textile Employees (UNITE). UNITE formed in 1985 as a merger of the International Ladies’ Garment Workers Union (ILGWU) and the Amalgamated Clothing and Textile Workers’ Union (ACTWU). Both of these unions were decimated by 1985 from the outsourcing of their jobs overseas. UNITE hoped that combining forces would help marshal resources to fight this, although the job losses continued. Facing the end of the union, UNITE quickly saw the growing sweatshop movement as useful allies in the war against the exploitation of apparel workers that these unions had fought since the beginning of the century. UNITE offered professional assistance, funds, and training to the burgeoning sweatshop movement. The AFL-CIO also chipped in, giving USAS $40,000 in 1999-2000.
In April 2000, activists met in New York City in order to develop strategies to help hold universities to anti-sweatshop pledges. It created the Workers Rights Consortium (WRC), an independent labor monitoring organization dedicated to the ethical sourcing of clothing for colleges and universities. It is supposed to define standards, conduct independent external monitoring, and force contracting companies to disclose wages, hours, and working conditions, with an independent agency to determine violations of the code. It places reports of factory inspections online that you can peruse.
The WRC developed connections with labor unions and NGOs in the nations where clothing production took place. It based its investigations on complaints it heard from the workers and affiliated agencies on the ground. It took that information, conducted investigations, and sought to press university administrations on its findings to ensure their contractors were complying with the agreed upon codes. In January 2001, the WRC took on its first case. Workers at a factory in Atlixco, Mexico complained that their employer, the Korean operator Kukdong, which had contracts from Nike and Reebok, used child labor, subjected workers to verbal harassment and physical violence, fed workers spoiled food in the company cafeteria, did not provide mandated maternity leave, and illegally fired workers. In other words, standard treatment of workers in the global apparel industry that continues today. Within a week, the WRC was in the factory and interviewing workers. It filed a report and began to pressure university administrations. This all led to Nike and Reebok forcing Kukdong to rehire the fired workers, improve the cafeteria food, increase wages, and recognize the factory’s independent union (an important point considering the corrupt official Mexican unions).
This early victory provided the WRC needed legitimacy. At that time, the WRC had the support of 44 universities. Ultimately, the WRC provided much needed American attention on apparel sweatshops, but the reality is that there is not a whole lot the WRC can do to force a fundamental transformation of the entire industry. So long as students were actively forcing change, they could create some real victories for workers. But the fundamentals of the global apparel system require government action to force real changes. Simply put, the WRC even at its height had no conceivable way to monitor conditions at the thousands of sweatshops scattered around the world. No independent monitoring organization will ever have those resources.
The WRC was never able to get the U.S. government to take the issue seriously enough to force its corporations to make changes or to pass laws that would create enforceable standards for outsourced production imported back into the United States. Instead, the free trade mania continues in this nation that encourages the exploitation of the world’s workers by American corporations for cheap goods that we can buy without knowing anything about the conditions of production. Despite all this work by the anti-sweatshop movement, a WRC/Center for American Progress report from 2013 showed that real wages for apparel workers around the world fell between 2001 and 2011.
After 9/11, the sweatshop movement faded from prominence in young activist communities, with opposing the war in Iraq, the Patriot Act, and other actions of the Bush administration taking precedence. Yet the movement remained relatively strong at some campuses and has been rekindled to some extent in recent years, partially through events like the Rana Plaza collapse in Bangladesh that killed over 1100 workers again drawing the attention of young Americans. Today, the WRC has 180 college and university affiliates, as well as 6 high schools. This affiliation, which includes the University of Rhode Island, can often be pretty loose. URI has no real anti-sweatshop movement and while the university is aware of it, to my knowledge anyway, there’s no real active movement on these issues coming from my school.
This is the 141st post in this series. Previous posts are archived here.
In the aftermath of the Homestead Strike of 1892, the New York songwriter William W. Delaney composed a song by the name of “Father Was Killed by the Pinkerton Men.” It became fairly popular across the nation that year. Here are the lyrics.
‘Twas in Pennsylvania town not very long ago
Men struck against reduction of their pay
Their millionaire employer with philanthropic show
Had closed the work till starved they would obey
They fought for home and right to live where they had toiled so long
But ere the sun had set some were laid low
There’re hearts now sadly grieving by that sad and bitter wrong
God help them for it was a cruel blow.
God help them tonight in their hour of affliction
Praying for him whom they’ll ne’er see again
Hear the orphans tell their sad story
“Father was killed by the Pinkerton men.”
Ye prating politicians, who boast protection creed,
Go to Homestead and stop the orphans’ cry.
Protection for the rich man ye pander to his greed,
His workmen they are cattle and may die.
The freedom of the city in Scotland far away
‘Tis presented to the millionaire suave,
But here in Free America with protection in full sway
His workmen get the freedom of the grave.
This is taken from Paul Krause, The Battle for Homestead, 1880-1892: Politics, Culture, and Steel, p. 4.
Building off the sociopathy of its founder, Steve Jobs, Apple is banning felons from working on constructing its buildings. It’s nice that capitalists are judging the morals of the American working class while outsourcing production to facilities where conditions are so bad that workers jump to their deaths often enough that suicide nets were erected. But condemning people who have made one mistake in their life or got caught up in the United States’ racist justice system to not being worthy enough to do hard labor on their buildings is a really classy move for Apple to make.
Migrant workers in Germany’s construction industry are increasingly faced with abusive practices of this kind.
In March 2014, the German union representing construction workers, Industriegewerkschaft Bauen-Agrar-Umwelt (IG-BAU), took on a similar case, defending 50 building workers in Frankfurt who had not been paid for months. The company was finally forced to pay the €100,000 (US$106,230) in wage arrears.
“More and more construction and public works companies are turning to labour subcontractors. As a result, a whole host of firms has sprung up specialising in the supply of cheap labour for construction projects,” explains Frank Schmidt-Hullmann, head of migrant workers’ affairs with IG-BAU.
“They are not genuine construction firms. They look like it on paper, but their only activity is, in fact, to supply labour at a low cost. They are brass plate companies that often only pay wages for the first few months. They then stop paying and expect the workers to keep going until the job is finished, in the hopes that they will be paid at the end of the contract.
“We are constantly coming across situations like this. And we only know about the cases that are presented to a union. It’s the tip of the iceberg.”
Most of the migrant workers in this situation are employed under the status of EU posted workers.
What a surprise that subcontracting is responsible for this rise in exploitation. It’s almost like other nations are looking at the new forms of corporations exploiting labor developing in the United States and learning from it! Glad to see the global influence of our corporate masters leading to a global Gilded Age.
“100% cotton. Made in Cambodia by Behnly, nine years old. He gets up at 5:00 am every morning to make his way to the garment factory where he works,” reads the label on this yellow sweater. “It will be dark when he arrives and dark when he leaves. He dresses lightly because the temperature in the room he works reaches 30 degrees.”
That’s the equivalent of 86 degrees Fahrenheit—a temperature most of us would find difficult to work in for an entire day. The effects of the heat on Behnly are compounded by the room’s atmosphere. “The dust in the room fills his nose and mouth. He will make less than a dollar, for a day spent slowly suffocating. A mask would cost the company ten cents. The label doesn’t tell the whole story,” the tag reads.
Of course, hiding those working conditions is the goal of corporations so that we don’t think of any of that when we shop. Workers may be dying making our clothing, but the sale is so good! Moving production across the globe makes this far easier. We can’t even find Bangladesh on a map so no Triangle reaction here when 1129 workers die to make our clothes. I wouldn’t be a bit surprised to see country of origin labels challenged under the corporate rights provisions of the Trans-Pacific Partnership, so we’ll see if even this minor knowledge of where our clothes are made remains five years from now.