I know how hard it is for you to put food on your families.
–George W. Bush,
January 27, 2000
Eugene Scalia would be a dedicated advocate to the policies
of the Department of Labor.
–Ari Fleischer, Spokesman for George W. Bush,
December 14, 2001
The first duty of government is to protect the powerless
against the powerful.
–The Code of Hammurabi,
The world’s oldest legal code, 1700 B.C.
The disconnect (a word that has mysteriously replaced disconnection) between the government of this country and the people in it has been the subject of complaint for the length of our history. This is a report on the specific disconnect between Washington, D.C., under George W. Bush, and some women in Belzoni, Mississippi.
Eugene Scalia, meet the workers of the Mississippi Delta’s catfish houses. But please, shake their hands gently; many of them are in pain. The lumps on their wrists and the fingers that look as though they have been twisted into a bunch of twigs by rheumatoid arthritis are the consequence of what you have so dismissively dubbed “junk science.” Please, shake their twisted hands very gently.
Eugene Scalia describes himself as a labor lawyer, which is true, in a sense–the same way it’s true that the late Colonel Sanders was a big advocate for chickens. Scalia fils is the son of Justice Antonin Scalia. The younger Scalia, thirty-seven, was a partner in the law firm that represented George W. Bush in his case before the Supreme Court, the one that made him president and billed his backers $892,000 for the legal work.
Gene Scalia kept his distance from that case so no one could claim the high court’s decision to name Bush president was tainted by nepotism. Gore v. Bush was not the sort of case the younger Scalia would have argued or briefed, even if his father weren’t on the Supreme Court. At his firm, Gibson, Dunn & Crutcher, the big constitutional questions–affirmative action, school vouchers, did Monica Lewinsky go down on Bill Clinton–were left to Ted Olson. Scalia had other interests. While Olson was working on right-wing publisher Richard Mellon Scaife’s $2.5 million investigation of Bill Clinton’s past in Arkansas, Scalia was becoming the godfather of the anti-ergonomics movement.
Admittedly, an obscure field of law.
Scalia believes ergonomics–the shop-floor science that aims to make heavy and repetitive production-line work less destructive to workers’ bodies–is a threat to American business. He has been very well paid to make that argument. As Upton Sinclair, the great muckraker, once observed, “It is difficult to get a man to understand something when his salary depends on his not understanding it.” Scalia worked with another Gibson, Dunn lawyer, Baruch Fellner, but Scalia was the star. The king of denial of bad backs.
Wherever there was an attempt to address ergonomic injuries–at a House subcommittee meeting, a Department of Labor hearing, a courtroom in D.C., California, North Carolina, or Washington State–Gene Scalia was there. The terror of wimps claiming repetitive-stress injuries. Any bureaucrat writing rules to protect the men and women who move the nation’s freight, build its buildings, type its memos, and process its foods would first have to get past Gene Scalia.
For big bidness, Scalia was the go-to guy in the fight against ergonomics regulation. In 1988 B.C. (Before Clinton), Elizabeth Dole, not normally considered a commie, ordered the Labor Department to write a set of rules to protect workers from debilitating injuries. She had been appointed labor secretary by George the First and was succeeded in 1991 by Lynn Martin, who continued to work on the “ergo” rules, as did Clinton’s labor secretaries Robert Reich and Alexis Herman.
It took twelve years to get ergonomics regulation through the bureaucratic process. The Commerce and State Departments can rewrite the rules for export-import bank lending in a few weeks. Writing rules to protect the backs, shoulders, and wrists of working people takes longer. More than one thousand witnesses testified either for or against the proposed rules; seven thousand written comments were submitted to the Department of Labor; and hearings were held all over the country. Everybody got input, everybody got to sit at the table–company reps, flaks, union guys, big bidness, small bidness, chiropractors, disabled workers–you name the interested party, they were there. Gene Scalia was always there.
In March 2000, in its boxy, modern office building on Constitution Avenue, the Labor Department began its final forty-seven days of ergonomics hearings, the end of the process started in 1988. As the first session began, an OSHA panelist warned that anyone sitting in the front row was in danger of “getting run over by an attorney rushing to the podium.” Eugene Scalia provided the punch line for that joke; he was the first witness of the day and literally sprinted to the front of the chamber, set up his flip chart like someone on speed, and was so aggressive he seemed to frighten himself. Dark features, thinning hair, cut-the-bullshit attitude. Scalia ignored the Labor Department judge and the chair of the panel to shoot his questions at individual members. “I haven’t got much time up here,” he said. When the judge warned him to let a witness complete his answer, Scalia complained the long responses were a waste of his time. When a bureaucrat said a question was unclear, Scalia fired back, “Why don’t you just answer the question?”
At the end of the day Scalia got another chance to perform and challenged rules to protect pregnant women in the workplace. He complained that under the proposed rules, employers would have to consider obesity and height in workplace assignments, clearly a task he considers beyond human ingenuity. Worse, he suggested, perfectly healthy workers could “claim that they are injured in order to avoid work and obtain benefits.”
Just as there are Puritans among us who are deeply distressed by the idea that someone, somewhere might be having fun, there is a certain kind of conservative obsessed with the idea that some malingering worker somewhere might be getting away with something. One does occasionally find a case of a worker on disability who appears to be able to lift his bass boat off the trailer without difficulty, but in fact those few cases are so savagely outweighed that American workplaces are regularly scenes of carnage. About six thousand people are killed at work every year, twice as many as died on September 11, but government pays little attention. In addition, 165 people die of occupational diseases every day.
A weary Judge Joseph Vittone granted Scalia an additional five minutes to complete his questions–but only if he promised not to come back again. After two days and eight hundred pages of testimony, Scalia was back, this time complaining about the department’s bias, lecturing the judge, and laying the groundwork for a legal challenge of the worker protections. “He’s like a little bull dog,” says AFL-CIO safety and health director Peg Seminario.
Clients pay their lawyers for tenacity, and Scalia qualifies as a pit bull. He so zealously believes in the anti-ergonomics cause that he took his fight to op-ed pages and right-wing foundation bulletins, sources of much of the right’s culture wars and ideology. Ergonomics regulation, he claimed in a 1997 article, is a union scam that would “reduce the pace of work, thereby pleasing current members.” It would also require companies to hire more workers and “union membership (and dues) would increase, thereby pleasing union leaders.” Ergonomics measures, he wrote, were merely aimed at making the workplace “more comfortable.” Heaven forfend. In an article for the Cato Institute, Scalia ridiculed an OSHA investigation of complaints by workers at Pepperidge Farm. Could workers be injured by “lifting the top of a sandwich cookie from one assembly line and placing it on top of the bottom of the cookie on another assembly line, flicking a paper cup onto a conveyor belt with the thumb and placing a cookie in the cup?” He failed to mention that the high-speed production line requires those same repetitive motions thousands of times every hour, day after day, week after week, year after year. In a National Legal Center white paper, Scalia again scoffed at the government’s case against Pepperidge Farm. The biggest workplace risks workers faced on the cookie-production line, he claimed, were “boredom or compulsive snacking.”
Scalia did not represent Pepperidge Farm in its first fight with OSHA, but he couldn’t leave the case alone. In a piece for the op-ed page of The Wall Street Journal, not noted for its blue-collar readership, Scalia was more concerned about the “delightful Milano cookie” than the workers who make them. His description of OSHA’s Pepperidge complaint made it appear Washington bureaucrats are so far from reality they actually claim flicking and cupping cookies can cause “death or serious physical harm.” He did not explain that without the ergonomics rules he was seeking to defeat, OSHA’s only recourse was to invoke the cumbersome “general duty clause,” which requires employers to protect workers from death or serious physical harm. “Hard work is tiresome and sometimes uncomfortable,” concluded Scalia, the Connecticut Avenue lawyer, sententiously. “Work less and you’ll feel better. Why, I’ve experienced the very thing myself!”
It is a cultural imperative that business will oppose any government effort to regulate the workplace. “It’s almost a knee-jerk reaction,” said a labor lobbyist who has devoted most of her career to ergonomics. “But what Gene did was turn the usual business response, which we deal with all the time, into a philosophical opposition. It was not an opposition to the rule, it was opposition to ergonomics.”
Scalia created opposition by redefining the debate. Labor advocates were no longer defending the proposed rules, they were defending ergonomics itself. The ghastly possibility that some cookie flipper might claim he or she was injured just to avoid work and obtain benefits–the horror, the horror.
“Like a cruise through Disney World’s Pirates of the Caribbean, to survey ergonomists’ theories is to glimpse the exotic and the absurd, occasionally amusing, and some grisly,” Scalia claimed in 1994. For seven years he didn’t let up: ergonomics is founded on “junk science.” Repetitive-stress injuries might not exist at all. Heavy lifting does not cause back strain. Reported increases in repetitive-motion injuries are caused by feeding frenzies created by doctors, reporters, and hysterical workers, a form of mass hysteria. Scalia even managed to popularize (in limited circles) an obscure word from the Greek, iatrogenesis, meaning a disorder caused by the diagnosis or treatment of a physician. What’s wrong with workers is not their wrists, backs, shoulders, or hands–it’s in their heads, he claimed. And it’s put there by “the medical and legal professions, by management, unions, governments and the media.” A veritable cabal of suspect institutions, all joined in league to protect larcenous cookie flippers.
Sherry Durst (name changed to protect the identity of the subject) is not, like Scalia, a graduate of the University of Chicago Law School. She graduated high school in Tchula, a town of two thousand in the Mississippi Delta. She has never heard the word iatrogenesis, but she’s smart enough, as Lyndon used to say, to tell chicken shit from chicken salad.
Durst is a small, attractive twenty-two year-old, with large eyes and a generous smile. While Eugene Scalia was the solicitor general of the Labor Department, Sherry Durst was one of the people he was supposed to be working for.
On the same March morning in 2000 when lawyer/lobbyist Eugene Scalia raced to the front of the Department of Labor hearing room to take the lead in the industry fight against ergonomic protection for workers, Durst got up and took her three-year-old son to the neighbor who takes care of him while she works. She then drove twenty miles to the Freshwater Farms catfish processing plant, just east of the Yazoo River in Belzoni. She put on an apron, a hair net, special latex gloves, and a pair of rubber boots. She walked into the refrigerated plant and took her station on the thin black rubber mat next to the conveyor belt. At the start of the conveyor belt, live catfish spilled out of holding tanks and began to move in Durst’s direction.
By the time the judge made his opening remarks and Scalia finished his first twenty minutes of testimony, Sherry Durst had skinned one thousand catfish. For eight to ten hours a day, Durst grabs a catfish off the conveyor belt, presses one of its sides against a set of blades mounted on a high-speed rotor, then flips the fish and repeats the process. Then she grabs another, and another, and another. If the line was running fast on March 13, 2000, Durst would have skinned twelve hundred fish before Scalia completed his brief morning testimony.
By the time Judge Vittone adjourned the ergonomics hearing at noon and the lawyers and lobbyists scrambled for cabs to make their lunches at the Red Sage or Olives, Durst had skinned between thirty-six hundred and four thousand catfish. Moments before each live fish arrives at the skinning station, it is stunned by electric shock, beheaded by one woman, and eviscerated by another, who jams each fish’s intestinal cavity against a stationary vacuum pipe called a “long gun.” In order to keep her job at Freshwater Farms, Durst has to skin a minimum of twelve fish a minute. At times, a white supervisor stands behind her with a stopwatch, calculating minutes and catfish. Durst never falls below fifteen, at times hits twenty, and has skinned more than twenty-five catfish a minute.
“It’s hard work,” she said. “You stand on the floor, sometimes eight to ten hours a day. You can imagine how it feels. When the line is moving fast, all you can do is grab the fishes as fast as you can and turn them over on one side and then the other. You lose count.” Workers get a morning break from ten to ten-fifteen–”where we have a little break room and have our little snack, or some people go outside and smoke.” Lunch is from twelve to twelve-thirty, and there is an afternoon break from three to three-fifteen. “That little break be over before you know it,” said Durst.
With the exception of the time she is allowed to be off the line, Durst spends her entire day standing and grabbing catfish–twelve to twenty-five a minute. “You have a group leader working with you,” she explains matter-of-factly. “You have to obey her, everything she tell you. You ask her when you need to go to the bathroom.”
That March 13, the Department of Labor’s Judge Vittone adjourned the hearing at 6:30 P.M. Assuming the cut-and-gut line at Freshwater’s Belzoni plant ran ten hours that day, and factoring in the two breaks and lunch, Sherry Durst skinned between 8,100 and 10,800 catfish. If she went to the bathroom once, the count dropped by 120.
Going to the bathroom is a problem. While a worker is in the rest room, the line continues to move, fish pile up, supervisors get angry. In 1990 rest-room breaks were the central issue in the strike at the neighboring Delta Pride catfish factory. Sarah White was a worker at the plant in Belzoni, where she is now the United Food and Commercial Union’s local rep. She recalled the strike’s hidden issue: “It came down to rest-room breaks,” she said in her small office across the street from the county courthouse. “We got another five or six cents an hour, but the strike centered on bathroom rights.”
The company opened with an offer of six bathroom visits a week (have you ever taken a road trip with a pregnant woman?). When the union rejected the fixed number, the company’s position hardened. “They told us they gave us six breaks, but since we said no, we were going to have to go once a day–at lunchtime,” said White. “They added five minutes to our lunch break and said we would have to go then. We couldn’t abide it. We tired of it. The workers couldn’t abide it anymore.”
The Mississippi Delta is full of stories about women who decide they can’t abide it anymore. The late Fannie Lou Hamer said, “I’m sick and tired of being sick and tired.” The civil rights leader was from Ruleville, sixty miles north of Belzoni. The workers at the catfish plants know just how she felt. In addition to the fixed number of bathroom breaks, there were other forms of degradation. Male supervisors would walk into the women’s rest rooms and tell women to get up off the toilet and go to work. “I’ve had a supervisor walk into the rest room and tell me, ‘Get up, Sarah. You’ve been sitting there too long.’ That don’t happen no more. The civil rights movement changed a lot of things.” (Those of you who think the civil rights movement ended in the 1960s haven’t been to Belzoni lately.)
Jazz artist Cassandra Wilson, another daughter of the Delta, said Mississippi women “will be as nice as possible until you cross the line.” In 1990 Delta Pride crossed the line. “They told us go on, go on out on strike,” said White. When the workers struck, the company brought in replacements and stopped negotiating with the union. “The company brought in scabs from Greenville and Cleveland, but they were too slow,” White said. Production slowed to a crawl. Black activist-comedian Dick Gregory joined the strikers for a day. The congressional Black Caucus supported them. Jesse Jackson came to help. Workers survived on sixty dollars a week in strike pay and a fifty-pound weekly ration package of rice, beans, and peas provided by the union. Supporters across the country prepared to travel to Indianola for a “civil rights/worker’s rights” march from downtown to Delta Pride’s Indianola plant.
The company blinked first. The three-year-old local, made up mostly of African-American women, won concessions from a catfish co-op made up of the most powerful white men in the region. They won the right to privacy in the rest room, a reasonable lunch-break policy, an hourly wage increase, and overtime pay that kicked in at the end of each eight-hour day, rather than at the end of a forty-hour week.
“Wages could be higher,” said White. For a forty-hour week skinning fifty thousand to sixty thousand catfish, Sherry Durst earns $240, an annual income that keeps her and her son $540 above the federal poverty level. “They tax us so hard, we keep only about $160 or $170 each week,” Durst said. Eugene Scalia and Baruch Fellner could spend that much on dinner at the Red Sage. “You got to decide if you are going to buy a car, pay your house rent, or buy your food,” said another Freshwater employee.
Sherry Durst manages, as Bush once said, “to put food on her family.” She says she hasn’t been treated for carpal tunnel problems or tendonitis, but her hands do hurt at night. She plans to leave before the serious problems set in. “A catfish house is not a place for a young person to spend the rest of their life,” she said. “I want a job sitting behind a desk, like white folks.” Durst is young, smart, eloquent, and determined. But the unemployment rate in Humphreys County is 12 percent. The average income for households where women are the breadwinners is $15,833.
The commercial catfish business–like the plantation system to which it is sometimes compared–is feudal in structure. Workers and their bosses are bound together and locked in place in a relationship defined by land ownership. Up and down the Mississippi Delta the landowners have moved from cotton to catfish, but land ownership still shapes the social hierarchy. The more ponds a landholder owns, the larger his share in the local catfish co-op. At the bottom of the feudal pyramid are the African-American men who work in the catfish ponds and the African-American women who work in the processing houses.
“You can go to a chicken house, but there’s not much else you can do around here,” said Carrie Ann Lewis. Lewis, like Durst, went to work in a catfish-processing plant when she was in her early twenties. For four years in the late 1980s she worked at Delta Pride. Today she is physically worn out. Each of her wrists has a large prominent knob on top. “Gangliatic cysts,” said Dr. Ron Myers. He is standing in the crowded space that doubles as a bedroom-living room in the four-hundred-square-foot house Lewis shares with her two children.
Lewis was a “long gunner.” She spent her days grabbing fish off the conveyor belt and thrusting them into the vacuum “gun barrel” that sucks out the intestines. “Sometimes so many of those fishes go by you see fishes in your sleep,” she said. Within a year Lewis began to develop tingling and numbness in her hands. Pains in her shoulder joints were diagnosed as tendonitis. At night her hands ached. If the pain lasted all night, she was unable to sleep. She agreed to an operation on one wrist and it provided some relief, so she had the same operation on the other wrist. She was out on workers’ compensation for six months. When she returned to the plant she asked to be assigned to something other than the long gun. “The supervisor told me, ‘You can go back to the long gun or you can go home.'” She went home and has been there ever since. A local lawyer, whose ad is on the back of the forty-seven-page Belzoni phone book, got her a $2,000 settlement.
At twenty-nine, she was finished. She has other health problems and lives on a $545 monthly disability check. Carrie Ann Lewis reached her highest lifetime earnings, $3.45 an hour, in 1989, the year she left Delta Pride. It’s not likely she will ever make that much again. According to Dr. Myers, she can never work on a cut-and-gut line in any of the half-dozen catfish-processing plants that surround Belzoni.
Ron Myers grew up in Chicago and graduated from medical school in Wisconsin–a place as far from the Delta in culture as it is in miles. His great-great-grandfather had been enslaved on a plantation one hundred miles from Belzoni. Myers, who is also an ordained minister, left the Midwest to open a clinic in Mississippi when a congregation in Wisconsin agreed to support his work. “I began to see twenty-four, twenty-five, twenty-six-year-old ladies with the arthritic wrists of sixty-year-olds,” Myers said. He advised them to follow the least intrusive and most prudent course of treatment–rest. It was advice managers in the catfish plants couldn’t buy. The local plants now keep Dr. Myers off the list of physicians approved by their health-care plans. “These women are operated on, sent back to work too soon, but never allowed to take enough time off to rest,” said Myers.
He became an outspoken critic of the catfish industry. It would not exist without the women who do the processing work, he said. Yet the women are ignored. There is no place for them in the town’s catfish museum. And they were discouraged from setting up a booth at Belzoni’s annual World Catfish Festival. Denise LaSalle, a black R&B singer who had moved on from Belzoni to the big time, was turned down by the catfish festival’s entertainment committee. So Myers organized an annual African-American Heritage Buffalo Fish Festival, scheduled on the same day that Belzoni holds its catfish festival. Buffalo is a carp that is not raised commercially. Pollution in the Mississippi has made local buffalo fish hazardous to eat, so Myers has the fish for the festival brought in from Louisiana.
In April 2002 Belzoni’s two fish festivals were as divided as the black and white neighborhoods in the town that calls itself the Heart of the Delta. At the white folks’ World Catfish Festival, fifteen thousand people wandered the downtown streets. In the course of a day thousands lined up for catfish and hush puppies. Crafts were sold from booths. On the steps of the Humphreys County courthouse, which serve as a stage for local talent, a couple of white guys fronting a big jazz ensemble offered up something that was supposed to be the blues. The crowd swelled when an entrant in the talent contest began to sing the “Dixie” variation in Mickey Newbury’s “American Trilogy.” The entire downtown was given over to this local celebration of the catfish. But the festival–with its funnel-cake booths, craft sales, and children’s games–was whiter than Brigadoon. There was hardly an African-American face to be seen.
They were all three blocks away, where Belzoni’s African-American community was gathered in front of a stage made of two-by-fours and plywood, listening to hip-hop contestants, local musicians with bad amplification, and other contests and readings organized by “the Doc.” Late in the afternoon Denise LaSalle’s touring coach pulled up at the makeshift stage and the local-girl-made-good led her band through an R&B show that made the white bluesmen on the courthouse steps sound like the Carpenters.
She closed with a gospel number–”because when I left Zion Rock Church in Belzoni, Mississippi, I took God along with me.” She came back for the Buffalo festival because “Doc asked me and because of the women working up in those catfish houses.”
The doctor, a beatifically sweet man who weighs close to three hundred pounds and runs on adrenaline, returned to a theme he’d been working all day. He has organized carpal tunnel workshops, fried buffalo, directed traffic, served as an emcee. Onstage, he got back on-message. “They brought our ancestors here to chop cotton; now we chop catfish for six-fifty an hour,” he told the all-black crowd gathered on the vacant lot beside his small clinic. (Actually, nonunion companies pay less than $6 an hour, and even union workers don’t start at $6.50. Sherry Durst started at Freshwater Farms at $5.95. Many of the line workers at Delta Pride top out at $7.30 after fifteen years.)
Labor unions can help with wages and some working conditions, but only the federal government has the muscle to protect workers’ bodies in the Third World pockets of this country, places like the Mississippi Delta, the Rio Grande Valley of Texas, and Appalachia.
As the clock ran out on Bill Clinton’s second term, it looked as though the federal government wouldn’t be coming to the aid of the tens of thousands of women cutting catfish in the Mississippi Delta. The corporate coalition that had hired Scalia to block ergonomics regulation was close to achieving a goal they had been working toward for years. They had almost busted the worker protections once before, when the Newt Gingrich House cut off all funding for writing such rules in the mid-nineties. But Clinton’s Labor Department
managed to keep the process alive. When Judge Vittone gaveled the Department of Labor ergo hearings to an end, the twelve-year process was over and the rules could be implemented. But Bill Clinton had little time left in office, and the rules had to be listed in the Federal Register. It seemed that big business had stalled long enough to kill the ergo rules.
Bill Clinton stepped in and saved them. While he waited for the Supreme Court to decide who would follow him into the White House, Clinton took the final step in the bureaucratic process. He ordered the rules posted in the Federal Register. Within a few weeks there finally would be federal protection from the kind of repetitive physical labor that has left Carrie Ann Lewis with “the arthritic wrists of a sixty-year-old.” The business community reacted as though ergonomics rules were something Clinton had thought up while he was packing up his files. Gene Scalia returned to the op-ed pages. The National Coalition on Ergonomics–a creation of Scalia’s that is funded by big corporate interests–cranked up its “grassroots” operation. As they say in Amarillo, big bidness went “balls to the wall” fighting the new rules.
“They really wanted this,” said a member of the late Senator Paul Wellstone’s staff. “We heard they had a bill drafted before the session began. It didn’t take long to see how determined they were.” All the business community needed was a signal from the White House. As soon as Karl Rove moved into Hillary Clinton’s old office, they got it. “These regulations would cost employers, large and small, billions of dollars annually while providing uncertain benefits,” said a White House press release. “If implemented, they would require employers to establish burdensome and costly new systems to track, prevent and provide compensation for an extremely broad class of injuries, whose cause is subject to considerable dispute.” The press release was business-lobby boilerplate straight from the National Coalition on Ergonomics.
You have to give Eugene Scalia credit for making it possible for the White House (or anyone) to claim that the very idea of repetitive-motion injuries in the workplace is “subject to considerable dispute.” The Department of Labor reports that there are 1.8 million American workers disabled by injuries caused by physical stress on the job each year. Those workers had been waiting a decade for the rules. Whether the injuries are called musculoskeletal disorders, carpal tunnel syndrome, or repetitive-motion injuries, the cause is not under “dispute” by those who are not in the pay of big business. The National Academy of Science had already done two studies, ordered by Congress, on the connection between types of work and workplace injuries. (A second study was necessary because conservative members of Congress didn’t agree with the conclusions of the first study they had commissioned. They didn’t agree with the conclusions of the second one either, but since a third would only have confirmed numbers one and two, they gave up.)
With the backing of the business community and the Bush administration, the House moved to kill the ergo rules. House whip Tom DeLay–also known as “the Hammer” and “Tom DeReg”–hasn’t found a government regulation he liked since he gave up killing bugs in Sugar Land. In fact, the former exterminator still stands foursquare for bringing back DDT. Just the man to kill ergo in the House.
In the Senate the late Paul Wellstone and Ted Kennedy were still standing for the democratic wing of the Democratic Party and were willing to filibuster any attempt to bust the ergo regs. Beyond Kennedy and Wellstone, a number of Democrats still retain some quaint attachment to working people–or at least they worry that organized labor will fail to support them in the next election.
A few Republicans–Arlen Specter of Pennsylvania and Lincoln Chaffee of Rhode Island–also pay attention to the labor constituencies in their states. So according to political math, the Senate should have been a stopper.
But the Republicans had a secret weapon: the Congressional Review Act, an obscure law passed during the Gingrich Revolution. The CRA allows Congress to overturn any executive order that has been on the books for fewer than sixty days. It also limits debate to ten hours in each chamber and prohibits amendments and filibusters. Once DeLay had rounded up his votes in the House, all the business lobby needed was ten hours and fifty senators. (In case of a tie, there was no doubt how Vice President Cheney would vote.)
As Senate debate began, Chris Dodd of Connecticut emphasized how painstaking the ergonomics rule-making process had been. OSHA had extended its time period on the regulations and had held nine weeks of public hearings. Dodd even suggested that one thousand witnesses and seven thousand written comments might be sufficient.
For workers sitting in the gallery and watching, the debate was almost as painful as a carpal tunnel injury. “So after twelve years of work…in ten hours of debate, we are going to wipe all this out,” Dodd said. Kennedy pleaded with Senator Don Nickles of Oklahoma, the Senate sponsor of the CRA bill, to hold off for sixty to ninety days to allow time to meet with Bush and discuss his objections. But the business lobby just wanted to bury it.
“They were in a full-court press,” said Peg Seminario, the AFL-CIO’s health and safety director who had worked on the rules for years. “Once Bush was elected, it was clear he was going after the rules. With Bush in office and [Elaine] Chao at Labor, they could have used the legislative process to modify the rules or change them. It was even reviewable in court. Business could have challenged the rules in court, but there was so much process, there was such a record, so much evidence and testimony on both sides, they could only have made minor changes. But they knew that once you are into those processes, you will have rules, no matter how you change them. So they had to get Congress to do it. They had to go the CRA route to try to kill it forever.”
The Bushies insisted they only wanted better rules. Secretary Chao wrote a letter to senators promising to go to work on newer ergonomics standards. That was all the ass-cover six conservative Democrats needed. After ten hours of debate, the Senate voted 56—44 to kill the rules twelve years in the making. Republican moderates Specter and Chaffee voted with the Democrats, but Zell Miller of Georgia, Blanche Lambert Lincoln of Arkansas, Fritz Hollings of South Carolina, Max Baucus of Montana, and John Breaux and Mary Landrieu of Louisiana–all Democrats from states carried by Bush–voted with the Republicans.
Kennedy sent the Labor Department a formal request for documents, trying to find a paper trail on who had made the decision to kill ergonomics regulation. “He got nothing,” said a Senate staff member. “Nothing worth having. Probably because there was nothing. This all had to be done through private meetings with the White House staff. With Karl Rove, the president and vice president talking to Chao or her staff.”
The House vote was a done deal but still brought on an offensive drive by the lobby, the likes of which has rarely been seen since the happy days of the Gingrich Revolution six years earlier, when Newt Gingrich and Tom DeLay turned their office fax and copy machines over to the business lobbyists. The usual suspects from the K Street firms were joined by a large number of corporate CEOs, and many of them stuck around for the celebratory press conference after the 223—206 vote. Sixteen House Democrats joined the Republicans to kill protection for workers. It was a great day for UPS, one of Scalia’s old employers. The company had given 85 percent of its $1.3 million in political contributions to Republicans the previous year. Killing off the ergo regs was a good return on that investment.
When Tom DeLay called to thank the president for his support, Bush said he’d done nothing. DeLay told The New York Times that he had had to explain to the president that “the very fact that he was in the White House had helped” because it bucked up Republican senators from states with big labor constituencies.
Bush, Rove, DeLay, and Scalia won and won big. The CRA also prohibits any federal agency from writing rules similar to those killed by the legislative process. Ergonomic Protection for Workers, RIP.
“The good companies make their workplaces safe for their employees,” said Jackie Nowell, who lobbied on ergonomics for the United Food and Commercial Workers. “People are going to be hurt by the bad companies.” The only reason regulation is ever necessary is because of bad companies. One bad company was the subject of a devastating series in The New York Times in early January 2003: McWane Inc.’s Tyler Pipe plant in the president’s home state is so callous about its workers the series was sickening to read. There are also entire industries with miserable records–beef packing among the most notorious. Every bad company operating in the country got a nod and wink from the White House when President Bush joined forces with Eugene Scalia to kill the ergonomics guidelines that began in the White House of the first President Bush.
Seven months after he signed the death warrant on ergonomics regulation, President Bush, who has never held a job involving physical labor, appointed Eugene Scalia solicitor of labor. The appointment put Scalia in charge of the federal government’s labor-law firm: five hundred attorneys responsible for enforcing 180 federal laws covering everything from workplace safety to child labor. The laws protect the worker, but there’s a catch. The worker can’t hire a lawyer to enforce them. There are many federal work-place protections that can only be enforced by the Department of Labor. “A worker has no individual cause of action with these laws,” explained a Senate staffer. “They are enforced by the solicitor of labor.” Sherry Durst, meet your lawyer: Gene Scalia. The president had decided that decisions whether to file suit against an employer for breaking workplace-safety laws, child-labor laws, or hundreds of other federal protections for workers would be made by an anti-worker zealot.
The Democrats never saw the Scalia nomination coming. Despite repeated campaign promises of a bipartisan approach to Congress–”the way politics is practiced in Texas”–Bush never consulted them. “He wasn’t looking for any Bob Bullocks on this one,” said a Democratic staffer, referring to the late lieutenant governor of Texas, who theoretically favored bipartisanship. (Actually, he favored his own control over everything.) “On their big issues, we never hear from them.”
By the fall of 2001, Bush and Rove had already driven Vermont senator Jim Jeffords out of the Republican Party and Democrats controlled the Senate, so confirming Scalia was not going to be as easy as killing the ergonomics regs. A Democratic Senate majority meant that Kennedy chaired the Health, Education and Labor Committee. “The senator was furious about the Scalia appointment,” said a committee staff member. Senator John Edwards of North Carolina, whose daddy had worked in a mill for thirty-seven years, asked, “Just out of curiosity, have you yourself ever had any personal experience working in a manufacturing plant or the kind of poultry facility that Senator Wellstone was asking about?” Scalia replied, “No, I have not worked in a facility like that.” Kennedy pressured his committee members to vote no, but Jeffords “reluctantly” cast the deciding vote to support the nomination.
Kennedy admits Scalia is a skilled lawyer, qualified to do many things. But to serve as an advocate for the nation’s workers? Kennedy’s staff discovered that Scalia had once actually represented workers–a group suing their own union after they had crossed a picket line. Kennedy decided to filibuster. Tom Daschle, then Senate majority leader, took his time scheduling a vote, predicting Scalia would lose whenever it happened. Bush realized it had been a lot easier to be “bipartisan” when the Republicans controlled both houses of Congress. So the president “recessed” Scalia in, installing him in office while Congress was adjourned. A recess appointment is basically an “up yours” to the Senate. It is something presidents rarely do, but it allowed Eugene Scalia to slip past the Senate.
Thirteen months after Secretary Chao wrote senators promising she would “improve” ergonomics regs, the Bush administration announced its grand new plan for worker protection. To wit, OSHA announced that in six months it would publish a set of voluntary guidelines companies might choose to use to protect workers. In one of those little protocol tiffs that absorb so much energy in Washington, the White House even stiffed Democratic senators with the release of the plan on the voluntary workplace guidelines. “They came over and briefed the Republican senators,” a Senate committee staff member said. “Then they made the Democrats go over to the Labor Department for their briefing. And they didn’t even have enough information packets for the Democrats who showed up.” Readers of Washington tea leaves noted the new “voluntary rules” were announced on a Thursday–bad news is always released at the end of the weekly news cycle.
A month later Secretary Chao assured angry members of the Senate Labor Committee that solicitor Scalia would aggressively enforce the voluntary guidelines–as soon as they were written. Chao said she was aware of Scalia’s anti-ergonomics work in the past, but that was when he was a lobbyist working for business interests. At the DOL, she promised, Gene Scalia would be different: “He has a new client.”* The news that there would be no workplace protections and that Eugene Scalia would be their advocate didn’t surprise a small group of catfish workers sitting in the living room of a housing project on a Sunday afternoon in Tchula, Mississippi. In this part of the Delta, most news related to work–whether cotton farms, catfish factories, or chicken-processing plants–is bad. “The unions, they might help you a little,” said a former “Chili stripper” (Chili’s restaurant chain buys tons of catfish every year, cut into small “Chili strips”), “but these companies don’t much listen to no union. These companies wear you out, and when you can’t work no more, they tell you good-bye.”
She is in her mid-thirties; she doesn’t look a day over fifty-five.