Outten & Golden: Empowering Employees in the Workplace

Archive for July, 2010

Mine Safety Legislation Is A Start

Friday, July 2nd, 2010

Ravi BakhruIt’s been a really bad year for mine operators. The Upper Big Branch explosion in West Virginia that claimed 29 lives was the worst of its kind since 1970, according to the United States Mine Rescue Association. As Tom O’Connor puts it, workplace deaths have become an epidemic. But, as bad a year it has been for mine operators, imagine how bad it’s been for the workers themselves.

All year, this epidemic has received Congress’ attention as it holds hearings into the causes of such workplace deaths. And yesterday, House and Senate leaders introduced a legislative outline to improve compliance with mine and occupational safety laws, strengthen whistleblower protections, and help families of victims understand the cause of such accidents. The Miner Safety and Health Act of 2010 has several changes to the Mine Safety and Health Act, that if passed would vastly improve mine safety.

Here are some of the major points of the outline:

Pattern of Violations. Earlier this month, the DOL issued a statement detailing certain faults with establishing patterns of mine safety violations. You can read his full statement here and my article on it here.  The outline includes a section that would place mine operators in pattern status if it has a pattern of citations for significant and substantial violations (no change here), citations for flagrant violations, withdrawal orders, or any combination of factors. Of course, this also requires the Secretary of Labor to create threshold criteria for placing mine operators in this status. After looking closely at the new legislation, I have to wonder whether there really are any differences here. Perhaps the differences will come in the threshold details later.

Penalties. The new legislation would significantly increase the maximum penalties for mine operators. Single violations would increase from 50,000 to 150,000, and doubles the penalty for violations under pattern status. While the increase of fines is all well and good, what struck me about this legislation was the change of mens rea for criminal sanctions from “willful” to “knowing.” This lowers the standard of mens rea, and means the government would have to show an operator (or operator’s agent) knew of violations in their mines without correcting them, rather than an intention to break the law.

Retaliation. Included in this outline is a section allowing workers to refuse their employment duties if they have a good faith and reasonable belief that performing that duty would pose a safety or health risk to any miner. The standard for this would be what a reasonable miner, faced with the same circumstances, would do. To qualify for this protection, the miner has to at least attempt communication regarding the safety issue to the mine operator without receiving a response to mitigate the danger.

There is no question something must be done to stamp down on worker injuries, especially in dangerous industries like mines. Reviewing the legislation for cracks is necessary, but it won’t solve the problem of dangerous conditions. For that, we need oversight. We need people willing to use the regulations already in place. And we need people to pay attention when it’s only a single worker’s life.

About The Author: Ravi Bakhru is a third year law student at George Washington University. He currently works as an intern for Workplace Fairness, and has an interest in pursuing employee rights law in the future. To get in touch with Ravi, you can email him at Ravi.Bakhru@gmail.com.

U.S. Politicians Deny the Obvious Injury; U.S. Manufacturing Bleeds

Thursday, July 1st, 2010

Leo GerardIn the film, “Monte Python and the Holy Grail,” King Arthur severs both of the Black Knight’s arms during a sword fight, but the Black Knight attempts to battle on.

The king admonishes him: “You’ve got no arms left.”

The knight refutes that: “Yes I have.”

“Look,” at the obvious, the king tells him.

“Just a flesh wound,” retorts the knight, who clearly is suffering a state of denial.

Similarly, in the trade clash between China and America, the Asian giant has gravely wounded the United States. China knows it. U.S. voters of all political stripes know it. But too many American politicians, like the Black Knight, are in denial.

Their deliberate blindness, and resulting inaction, has enabled China to continue devaluing its currency, the Renminbi, against the dollar, a practice that makes its exports artificially cheap in U.S. markets and U.S. exports to China wrongfully overpriced. China announced just before the G-20 summit in Toronto that it would allow the value of the Renminbi to float up on world markets – and then permitted the currency that is undervalued by as much as 40 percent against the dollar to rise an underwhelming one half of one percent.

Political inaction also has facilitated China’s flouting of international trade rules forbidding government subsidies to manufacturers. The Chinese subsidies result in falsely low-priced Chinese goods flooding U.S. markets and submerging U.S. manufacturers.

Main Street Americans see the obvious. They said so in a poll conducted late in April by The Mellman Group for the Alliance for American Manufacturing (AAM). The likely voters – who identified themselves as Republican, Democrat, Tea Party and Independent – said Washington must focus on manufacturing because it is crucial to America’s economic strength. Large majorities said the U.S. should strengthen domestic manufacturing and develop a national manufacturing policy.

Unfortunately, too many politicians who loll in the rarefied world of Washington, D.C. — so far from Main Street, so very far from an actual factory — don’t see it. So they’ve failed to solve the problems.

A report issued this week by the Economic Policy Institute (EPI) details the trade difficulties encountered by one American industry – paper manufacturers. Its struggles mirror those that have maimed many other U.S. manufacturers, including pipe mills and tire plants.

The report, “No Paper Tiger: Subsidies to China’s Paper Industry from 2002-09,” notes that in 2008, China overtook the United States to become the world’s largest producer of paper and paper products. This score by China is the solid evidence for the gut feeling Americans expressed in the Mellman poll for AAM. A significant majority told the pollsters they believed the U.S. had lost to China the position of world’s strongest economy.

Americans didn’t need a report to spell out for them what their families and neighborhoods had suffered over the past decade. They’d experienced the closing of more than 10 percent of U.S. manufacturing plants in their communities from 2001 to 2009 – a loss of 42,404 factories. In the paper industry alone, 159,000 of their relatives and neighbors lost their jobs as paper mills closed or cut production during the seven-year period covered by the “No Paper Tiger” study.

A woman from Los Angeles told the Mellman pollsters that this relentless loss of manufacturing capability enfeebles America: “When you consume more than you produce, you become dependent, and we are consuming more from other countries than producing our own. . .truly we have become weak and in order to strengthen the economy, I think we need to produce more.”

The U.S. will, however, continue to produce less, the “No Paper Tiger” report makes clear, if Washington doesn’t act against predators violating international regulations. The report explains that China’s government granted at least $33 billion in subsidies to paper manufacturers to accomplish the country’s rapid rise to global leader in paper production.

In its central government-controlled economy, China gives paper companies money and breaks, much of which is improper under international trade regulations. For example, some paper companies get “loans” that they don’t have to repay. The government provides tax breaks, artificially low-priced electricity and underpriced raw materials. This explains how Chinese paper companies increased capacity by an average of 26 percent every year since 2004 even as prices for paper fell internationally and costs for raw materials for paper production in China rose steeply.

China’s rule-violating subsidies and deliberate currency devaluation explain the low price of Chinese paper. Labor costs don’t account for it. That’s because labor is such a tiny percentage of the price of paper – in both the U.S. and China. In China, it’s 4 percent of production cost; in the U.S. it’s 8 percent.

By contrast, Chinese paper manufacturers confront expensive problems that the American industry does not. In China, obtaining raw materials for paper making is complicated and costly because the country has among the smallest forestry resources in the world per capita. In addition, the “No Paper Tiger” report says, the Chinese industry is relatively inefficient. In the U.S., the paper industry is highly efficient and has easy access to abundant natural resources.

The U.S., a market economy, simply does not routinely prop up manufacturers the way China does.

The “No Paper Tiger” report says that if nothing changes, U.S. paper manufacturers will continue to lose money, close mills and bleed jobs. The U.S. could be reduced to serving as nothing more than the supplier of raw materials for Chinese paper production, as if America were an undeveloped third world country incapable of manufacturing on its own.

China’s subsidization of its paper manufacturers isn’t unique. It supports many of its industries. Chinese government intervention in the market accounts for a significant portion of the manufacturing loss in America. That loss diminishes American security.

America is losing her arms. Denying it doesn’t help.

About The Author: Leo Gerard is the United Steelworkers International President. Under his leadership, the USW joined with Unite -the biggest union in the UK and Republic of Ireland – to create Workers Uniting, the first global union. He has also helped pass legislation, including the landmark Canadian Westray Bill, making corporations criminally liable when they kill or seriously injure their employees or members of the public.

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