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ANOTHER Corporation Suing Our Government Thanks To Trade Agreements

Thursday, June 30th, 2016

Dave JohnsonA Canadian corporation is suing the us because we wouldn’t let them build a pipeline across our country (seizing people’s property along the way) so they could sell oil to China.

They can do this because we signed a trade agreement that places corporate rights above our democracy. The Trans-Pacific Partnership (TPP) would increase by an order of magnitude the companies that can sue us for hurting their profits by protecting the environment, consumers, public health and small businesses.

Because They Can

TransCanada Corporation is suing the U.S. government (us) for $15 billion in damages under North American Free Trade Agreement (NAFTA) rules. The company wanted to build the Keystone pipeline all the way from Canada to the Gulf of Mexico so they could ship oil to China. They also wanted to use “eminent domain” to seize land from ranchers, farmers and other property owners along the way to enable this.

Why can they do this? In 1993, President Bill Clinton signed NAFTA and on January 1, 1994, the United States officially became a party to the agreement. Chapter 11 of the agreement “protects investors” by allowing them to sue governments that pass regulations or laws that hurt their profits. They can bypass the legal systems of these governments and take the issue to “corporate courts” in which corporate attorneys decide if the corporation or the government will prevail.

Bloomberg has the story, in “TransCanada Files $15B NAFTA Claim on Keystone XL Rejection“:

TransCanada Corp. is seeking to recoup $15 billion for the Obama administration’s rejection of the Keystone XL oil pipeline, in a legal claim that highlights how foreign companies can use trade deals to challenge U.S. policy.

The Calgary-based pipeline operator filed papers late Friday seeking arbitration under the North American Free Trade Agreement, arguing that TransCanada had every reason to believe it would win approval to build Keystone XL. Instead, President Barack Obama last November determined that the pipeline, which would have carried Canadian oil sands crude to the U.S. Gulf coast, wasn’t in the national interest. In response, TransCanada in January vowed to use arbitration provisions in Chapter 11 of NAFTA to recover costs and damages.

The President of the United States decided that this project is not in the national interest. But “investor protection” provisions of trade agreements override our national interest. So we have to pay a company for not letting them seize public and private land to build a pipeline across our entire country so they can sell oil to China.

Countries Lose The Right To Protect Citizens

The investor-state dispute settlement provision of the TPP was among the main targets at Tuesday’s “Trading Up’ symposium on trade at the AFL-CIO headquarters in Washington.”

Both AFL-CIO President Richard Trumka and Sen. Sherrod Brown (D-Ohio) singled out the ISDS, which Brown said “allows corporations to sue governments to pad their own profits,” as a key reason to oppose the TPP and replace it with a new trade regime that respects the interests of the people who governments are supposed to represent.

Thomas Palley, economist at the New American Foundation, said at the symposium that of provisions like the ISDS that do not really have anything directly to do with trade, agreements like the TPP “are not free trade agreements; they are global governance agreements.”

Calling them “global governance agreements,” he went on to say, would call attention to the enormity of the effect these clauses would have and would underscore the undemocratic way they are being imposed on populations around the world as well as the U.S.

Under NAFTA, we recently lost the right to, for example, tell consumers which country their meat comes from or whether tuna is dolphin-safe. Canada has been sued over their environmental laws. One company was even able to win $15 million and block Canada from stopping them from polluting the air with neurotoxins.

Under other trade agreements with similar provisions counties are being sued by tobacco companies for trying to help people stop smoking, and prevent kids from starting.

Climate vs. Profit

These “investor protection” provisions prevent governments from protecting the environment and the climate. For example, TransCanada claims that the U.S. choice to protect the climate cost them money, so we have to pay up. As economist Joseph Stiglitz said by video at the Trading Up symposium, instead of the “polluter pays” principle in U.S. law, “we pay the polluter for not polluting.” Or, worse, we pay the polluter for the right to keep polluting.

From the Bloomberg report:

The company said the U.S. spent seven years delaying a final decision on the project with multiple rounds of “arbitrary and contrived” analyses and justifications.

“None of that technical analysis or legal wrangling was material to the administration’s final decision,” TransCanada said in Friday’s filing. “Instead, the rejection was symbolic and based merely on the desire to make the U.S. appear strong on climate change, even though the State Department had itself concluded that denial would have no significant impact on the environment.”

If TPP Passes, More Like This

NAFTA covers just three countries, Mexico, Canada and the United States. The TPP starts with 12 countries, but it is a “docking agreement,” which means more and more countries can sign on as corporate power grows and is able to force them to do so. This means the number of corporations that can sue governments for hurting profits by protecting citizens and the environment grows exponentially.

Again, from Bloomberg:

Foreign companies could exploit the investor-state dispute settlement provisions in the Trans-Pacific Partnership to weaken U.S. environmental policy and labor protections. TransCanada’s NAFTA claim highlights the risk, said Sierra Club Executive Director Michael Brune.

“TransCanada’s attempt to make American taxpayers hand over more than $15 billion because the company’s dirty Keystone XL pipeline was rejected shows exactly why NAFTA was wrong and why the even more dangerous and far-reaching Trans-Pacific Partnership must be stopped,” Brune said in an emailed statement.

“The TPP would empower thousands of new firms operating in the U.S., including major polluters, to follow in TransCanada’s footsteps and undermine our critical climate safeguards in private trade tribunals,” Brune said.

The lesson here is that we must do everything we can to fight the TPP, and demand our government renegotiate the rest of the “trade” agreements the corporations got us into. But this time the agreements must be negotiated with labor, environmental, consumer, human rights and all other “stakeholder” groups at the table.

This post originally appeared on ourfuture.org on June 15, 2016. Reprinted with Permission.

Dave Johnson has more than 20 years of technology industry experience. His earlier career included technical positions, including video game design at Atari and Imagic. He was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the US.

What's the reality behind Walmart's 'Made in America' claims?

Wednesday, June 29th, 2016

LauraClawsonWalmart is making its annual push to get credit for its self-proclaimed massive investment in U.S.-made products, which means it’s time for a reality check. The Alliance for American Manufacturing, which put together the infographic below, has the facts:

 When Walmart claims that its American-made goods initiative will create 1 million new American jobs, it fails to mention that Chinese-made goods entering the United States through Walmart totaled at least $49.1 billion in 2013 alone.

It also doesn’t mention that the combined effect of imports from and exports to China through Walmart accounted for about 15 percent of the growth of the overall American goods trade deficit with China between 2001 and 2013.

Or that the Walmart-based Chinese trade deficit eliminated 400,000 American jobs during that time.

Walmart’s rosy claims are on the left; the AAM’s reality check is on the right.

infographic highlighting distance between Walmart's claims about buying American and the reality.

This blog originally appeared at DailyKos.com on June 28, 2016. Reprinted with permission. 

Laura Clawson has been a Daily Kos contributing editor since December 2006. Labor editor since 2011.

Brexit and the New Global Rebellion

Tuesday, June 28th, 2016

Things are changing. A major crack has appeared in the edifice of globalization, and the neoliberal order that has dominated the world’s economy since the end of World War II is now in danger.

That’s not necessarily a bad thing, by any means. But poisonous weeds are just as likely as green shoots to grow up through those cracks. To paraphrase John F. Kennedy: Those who make constructive evolution impossible may be making destructive devolution inevitable.

We now know that Great Britain, itself an amalgam of older nations, is divided. England and Wales voted to leave Europe, while Scotland, Northern Ireland, and ethnically diverse London voted to remain.

This vote was a stunning rejection of Great Britain’s political establishment. “Leave” prevailed despite opposition from all three major political parties. Prime Minister David Cameron, who will now step down, called on voters to “Remain.” So did socialist Jeremy Corbin, the most left-wing Labor leader in a generation. Barack Obama crossed the Atlantic to stand beside Cameron and offer his support.

Voters rejected all of them.

The uprising has begun. The question now is, who will lead it going forward?

Globalism’s Shadow Self

The world’s financial and political elites must now face the fact that resistance to their economic order, which has shaped the world since the Bretton Woods conference of 1944, is a major phenomenon. These elites are apparently more out of touch with the citizens of the industrialized world than at any time in modern memory.

Make no mistake: The “Leave” vote was a rejection of globalization, at least as it’s currently structured. This was a revolt of working class Britons who have seen their postwar prosperity erode around them and their social contract eviscerated by the corporate and financial oligarchy.

But it was also the sign of a darker and more sinister worldwide phenomenon: the resurgence of global nativism and xenophobia. This worldwide turn toward fear of the Other is globalization’s shadow self.

Revolt of the Powerless

That’s not to say that there wasn’t a legitimate left-wing case to be made for leaving the European Union. The “Left Leave” movement, or #Lexit, had its own advocates. “Why cling to this reactionary institution?” asked one.

But this near-victory wasn’t won with leftist arguments about resisting the global oligarchy. The left was too divided to make that case clearly or forcefully. It was largely won by stirring up bigotry against immigrants, cloaked in flimsy arguments about excessive regulation. Legitimate economic grievances were channeled into nationalist hostility.

Many “Leave” voters felt powerless, that they no longer had much of a say in their own destinies. They weren’t wrong. The European Union was largely a creation of transnational financial forces driven by a self-serving neoliberal ideology of “free” markets, privatization, and corporate economic governance.

But ,even at its worst, the EU is a symptom and not a cause. Great Britain’s citizens haven’t been losing control over their fate to the EU. They’ve been losing it because their own country’s leaders – as well as those of most other Western democracies – are increasingly in thrall to corporate and financial interests.

The British people have lost more sovereignty to trade deals like NAFTA and the TPP then they could have ever surrendered to the European Union. Their democratic rights are trampled daily, not by faceless EU bureaucrats, but by the powerful financial interests that dominate their politics and their economy.

Low Information Voters

This vote won’t help the middle class. British workers will no longer be guaranteed the worker rights that come with EU membership. British corporations will be less regulated, which means more environmental damage and more mistreatment of employees and customers. They will not, in the words of William Blake, “build Jerusalem in England’s green and pleasant land.”

Most “Leave” voters probably don’t know that, because the media failed them too. Instead of being given a balanced understanding of EU membership’s advantages and disadvantages, the British people were fed a constant diet of terror fears and trivial anti-government anecdotes meant to reinforce the notion that EU was needlessly and absurdly bureaucratic.

As Martin Fletcher explains, Boris Johnson played a key role in degrading the performance of Britain’s corporate press back in his days as a journalist. Other outlets were all to eager to mimic his anti-government and anti-Europe stereotypes. And now? It’s as if Sean Hannity’sdeceptive sensationalism had made him a top presidential prospect.

Johnson and UKIP leader Nigel Farage played the same role in the Leave campaign that Donald Trump is playing in US politics. Like Trump, they have used economic fears to stoke the anti-immigrant fear and hatred that is their real stock in trade. Their slogan might just as well have been “Make England Great Again.”

The campaign’s fearmongering and hate has already claimed a victim in Jo Cox, the Labor MP who was violently martyred by a white British racist. Tellingly, her murder was not described as an act of terrorism, which it clearly was. The decision to restrict the “terrorist” label to Muslims, in Great Britain as in the United States, feeds precisely the kind of hatred that fuels movements like these.

Great Britain’s immigrant population grew by 4.5 million under EU membership. But in a just economy, that would lead to growth for the existing middle class. Britain’s immigrants didn’t wound that country’s middle class. They’re scapegoats for rising inequality and the punishing austerity of the conservative regime.

Aftershock

What happens next? Markets are already reacting, retrenching in anticipation of new trade barriers and political uncertainty.

Before the voting, estimates of a Leave vote’s effect on Britain’s economy ranged from “negative” to outright “calamitous.” The outcome will probably fall somewhere between the two.

Will the reprehensible Mr. Johnson, who pushed aggressively for Brexit, now lead his party -perhaps even his country? How much will this boost UKIP? By rejecting the EU, will Great Britain soon experience even harsher economic austerity measures than Cameron’s?

Scotland may once again pursue independence so that it can rejoin Europe. Sinn Fein is calling again for the reunification of Ireland. Suddenly anything seems possible.

There are already calls for a similar referendum in France.

British workers are likely to be worse off without EU protections, especially if the far right prevails in future elections as the result of this vote.

Trade deals will need to be negotiated between Britain and the EU, along with the terms of separation. Judging by its behavior toward Greece, Germany prefers to punish any nation impertinent enough to try guiding its own economic destiny. These negotiations won’t be pleasant.

The New Resistance

The current order is unstable. The uprising has begun. But who will lead it?

All over the world there are Boris Johnsons and Nigel Farages poised to capitalize on the chaos. The US has Trump, who was quick to tie himself to the vote. Greece has Golden Dawn. Germany has the far-right, anti-immigrant AfD party. Scandinavia has the Sweden Democrat Party and the Danish People’s Party. Hungary’s ruling Fidesz party, itself nationalistic and totalitarian by nature, is in danger of being outdone by the racist and anti-Semitic Jobbik party.

Hungary is already building a Trump-like wall, in fact, a barb-wired fence meant to keep Syrian refugees out of the country and Jobbik out of political power.

There is also also a growing democratic counterforce, poised to resist both the global elites and the nationalist bigots. It includes Syriza in Greece, Podemos in Spain, and the Corbin movement in Great Britain (although Corbin’s fate is unclear in the wake of this vote). In the US it has been seen in both the Occupy movement and, more recently, in the newly resurgent left inspired by Bernie Sanders’ campaign.

The global financial order is fracturing. But will it fall? It’s powerful and well organized. Even if it does, what will replace it: a more humane global order, or a world torn by nationalism and hate? Should these new progressive parties and factions form a transnational movement?

That’s the goal of economist Yanis Varoufakis, among others. Varoufakis confronted the EU’s economic leadership directly when he negotiated with them as Greece’s first Finance Minister under Syriza. They prevailed, and Varoufakis is now a private citizen.

The Greeks chose economic autonomy when they voted for Syriza. They didn’t get it. The British aren’t likely to get what they want from this vote either. No matter what happens, British citizens will still be in thrall to corporate financial forces – forces that can rewrite the rules they go along.

Greece’s fate has been a cautionary tale for the world, a powerful illustration of the need for worldwide coordinated resistance to today’s economic and political elites. We can vote. But without economic autonomy, we aren’t truly free. In the months and years to come, the people of Great Britain are likely to learn the truth: We are all Greece now.

The question is, where do we go from here?

This blog originally appeared in ourfuture.org on June 24, 2016.  Reprinted with permission.

Richard Eskow is a Senior Fellow with the Campaign for America’s Future and the host of The Zero Hour, a weekly program of news, interviews, and commentary on We Act Radio The Zero Hour is syndicated nationally and is available as a podcast on iTunes. Richard has been a consultant, public policy advisor, and health executive in health financing and social insurance. He was cited as one of “fifty of the world’s leading futurologists” in “The Rough Guide to the Future,” which highlighted his long-range forecasts on health care, evolution, technology, and economic equality. Richard’s writing has been published in print and online. He has also been anthologized three times in book form for “Best Buddhist Writing of the Year.”

People’s Summit Seeks To Take ‘Political Revolution’ To The Next Level

Monday, June 27th, 2016

Isaiah J. PooleIf you actually read Democratic presidential candidate Bernie Sanders speech to his supporters Thursday – rather than the news coverage of it – you will immediately grasp the importance of this weekend’s gathering in Chicago of about 3,000 progressive leaders and grassroots activists.

Sanders is not expected to appear at the People’s Summit, which starts Friday night and concludes Sunday morning, but his speech Thursday was a manifesto for what that summit, and the progressive movement generally, should be devoted to in the months and years ahead.

“Election days come and go,” Sanders said at the very beginning of his address. “But political and social revolutions that attempt to transform our society never end. They continue every day, every week and every month in the fight to create a nation of social and economic justice. … And that’s what this campaign has been about over the past year.”

Change, he went on to say, does not take place from the top, such as in the White House or in “the living rooms of wealthy contributors,” but from the millions of people at the bottom “who say ‘enough is enough’ and become engaged in the fight for justice.”

Rallying a core group of Sanders supporters and allies and stepping up their engagement in the “political revolution” that Sanders stoked is the stated goal of the People’s Summit.

“Sen. Sanders has electrified the nation, inspiring millions to stand up for a bolder and better future,” said George Goehl, co-executive director of People’s Action, a new national grassroots organization. “At the People’s Summit, people from across the country are gathering to plan how they can continue to fight big campaigns around bold ideas, elect progressive champions to office up and down the ballot and build new people’s organizations across the country.”

People’s Action is one of the organizations that has affiliates in states around the country that will be represented at the summit. The summit will feature a number of high-profile speakers – among them Rep. Tulsi Gabbard, (D-Hawaii); RoseAnn DeMoro, executive director of National Nurses United; CNN commentator and Dream Corps founder Van Jones, and Rev. William Barber, architect of the Moral Mondays Movement in North Carolina. But there will be workshops, training sessions and networking opportunities.

Much of the news media will be looking for tensions between the “Bernie or Bust” faction of the progressive movement that is not prepared to support Hillary Clinton as the Democratic Party nominee, and those who see a Clinton victory in November as a necessary step toward the more important, long-term objective of transforming our political and economic structures. But those tensions should not be the story. Something transformative could potentially happen in our political system, in which the fading of a presidential campaign gives birth to a political force that could have far more impact than a single presidency. this will be worth watching.

You can follow the People’s Summit through its website (where the event will be livestreamed; look for the menu option at the top of the webpage), on Facebook and on Twitter (@pplsummit).

This blog originally appeared at OurFuture.org on June 19, 2016. Reprinted with permission.

Isaiah J. Poole worked at Campaign for America’s Future. He attended Pennsylvania State University and lives in Washington, DC.

In the Wake of Deadly Clashes, AFL-CIO Stands with Mexican Teachers Union

Friday, June 24th, 2016

charlie fanningAt least eight protesters were killed and 53 injured earlier this week in clashes with police in Oaxaca, Mexico, during demonstrations against neoliberal education reforms. The teachers union in Oaxaca has been leading protests this summer against the federal government’s move to impose a national education plan that blankets over indigenous concerns in Oaxaca and imposes teacher evaluations that disadvantage schools in the poor region, as well as attacks against the union, including the controversial arrests of union leaders, mass firings of protesting teachers and the freezing of union bank accounts.

On Sunday, police sought to break up a blockade of protesters and violence erupted, with reports of police shooting into the crowd. The recent tragedy is another in a long line of incidents in Mexico’s ongoing human and labor rights crisis, including the 2014 disappearance and murder of 43 students from the teachers college in Ayotzinapa at the hands of local police and criminal gangs.

AFT President Randi Weingarten has called for an end to the violence and the immediate start of productive negotiations, and described the situation as “a sad commentary on human rights when a government meets union concerns with deadly force.”

 Talks have begun between union officials and the government, as teachers in Oaxaca continue their protests despite police threats. The AFL-CIO stands with teachers and their families in Oaxaca in their struggle for justice and autonomy.

Further, as the U.S. and Mexican governments continue to push for expanded trade benefits under the Trans-Pacific Partnership, the AFL-CIO and Mexican unions oppose the agreement and demand that the Mexican government—and other countries with dire human and labor rights records like Vietnam and Malaysia—undertake fundamental reforms to end impunity for human rights abuses and protect freedom of speech, association and labor rights.

This article originally appeared in aflcio.org on June 24, 2016. Reprinted with permission.

Charlie Fanning is the Global Advocacy and Research Coordinator at AFL CIO

House Republicans stand strong for anti-LGBT discrimination in the wake of Orlando shootings

Thursday, June 23rd, 2016

LauraClawsonLGBT people may be able to marry, but in many states they can also be fired or not hired because they’re LGBT. And House Republicans are fighting to keep that from changing.

President Obama’s executive order banning federal contractors from discriminating on the basis of sexual orientation or gender identity went into effect in 2015. Democratic Rep. Sean Patrick Maloney has been trying to get the House to pass an amendment backing up that executive order, but House Republicans are not having it. They’ve beenfighting to keep allowing employers to discriminate against LGBT workers even if they get federal money, and they’re not stopping now.

The House Rules Committee blocked Maloney’s amendment from getting a full House vote. Again, we’re talking about something saying that if you want federal money, you can’t discriminate. And context matters here:

Maloney argued that allowing a vote to prohibit discrimination in the workplace after the targeted attack on the gay nightclub would send a message of solidarity with the LGBT community.

“It’s hard to imagine that any act that is so horrific could lead to anything positive. But if we were going to do anything, it would be a very positive step to say that discrimination has no place in our law and to reaffirm the president’s actions in this area,” Maloney told The Hill. “Seems to me a pretty basic thing to do.”

Sorry, make that—context should matter here. But House Republicans have made it clear that there’s no context that would stop them from enabling discrimination.

This blog originally appeared at DailyKos.com on June 15, 2016. Reprinted with permission. 

Laura Clawson has been a Daily Kos contributing editor since December 2006. Labor editor since 2011.

Another Foreign Corporation To Sue U.S. Thanks To Trade Agreement

Wednesday, June 22nd, 2016

Dave JohnsonThere is a clause in many “free-trade” agreements allowing corporations to sue governments in corporate courts for passing laws, regulating and other things that might limit their profits. Never mind if the people of a country want to do something to make their own lives better; these agreements say that their governments have to pay corporations if they do.

These “investor protection” provisions even let tobacco companies sue governments that try to help people quit smoking – even for discouraging children from starting!

Recent cases like this include a Canadian oil company suing the U.S. government for not letting it build a pipeline across our country so they can sell oil to China. They include Mexican and Canadian meat packaging corporations suing to force the U.S. to stop country-of-origin labeling (COOL) of meats. They include big Mexican seafood corporations suing to force a halt to “dolphin-safe” labels on tuna cans.

Corporation Threatens Suit Over Blocking Huge Open-Pit Mine In Pristine Wilderness

Now this: Northern Dynasty Minerals is threatening a lawsuit against the U.S. government for not approving a permit allowing them to dig one of the world’s largest open-pit gold and copper mines in Alaska’s Bristol Bay wilderness.

The Pebble Mine would have produced as much as 10 billion tons of contaminated waste (3,000 pounds for every person on Earth.) The mine threatened one of the world’s most valuable salmon habitats and the corresponding fishing industry. The Bristol Bay wilderness is home to grizzly bears, wolves, caribou, wolverines, foxes, otters, moose, and many more species, making it a major tourist area. These animals also depend on clean water.

Northern Dynasty is threatening to sue for a massive payout unless the government changes course. The infamous North American Free Trade Agreement (NAFTA) enables them to do this.

The Huffington Post has the story, in “Pebble Mine: Canadian Mining Company Threatens to Stick U.S. Taxpayers with Costs of “Potentially Catastrophic” Mining Scheme“:

According to the company’s lawyers, Northern Dynasty is prepared to file a claim for “arbitration” under NAFTA, seeking compensation for the failure of the Pebble Mine project to move forward to federal permitting. The basis? That the U.S. Environmental Protection Agency (“EPA”) has acted in a “grossly abusive, arbitrary, and deliberately opaque manner,” in breach of due process, U.S. statutes, and “Northern Dynasty’s legitimate expectations . . . .”

In the ensuing 42 pages, the letter lays out the basis for Northern Dynasty’s astonishing claim that NAFTA entitles it to a bailout based on EPA’s alleged efforts to prevent it from pursuing its scheme to develop a copper and gold mega-mine in the headwaters of the greatest wild salmon fishery on Earth.

A huge, dirty, polluting open-pit mine in one of the last pristine wildernesses on Earth? The waste from the mine threatens an entire fishing industry. But a big corporation is able to sue our government for not issuing a permit for this outrageous and dangerous scheme.

That is what these “free trade” deals are about – placing corporate profits for a few already-wealthy investors (“Wall Street”) over sovereign governments, their people and the planet’s environment.

The Trans-Pacific Partnership (TPP) is another huge “free-trade” deal with similar provisions placing corporate profits above the sovereignty of governments. There is a drumbeat being engineered by corporations, Wall Street and the Obama administration to force a vote on the TPP during the “lame duck” session of Congress after the election. Holding this vote at that time would mean there is very little accountability to the public, but a lot of opportunity for passing around corporate largesse. Call your member of Congress and your senators to let them know how you feel about this idea.

This post originally appeared on ourfuture.org on June 15, 2016. Reprinted with Permission.

Dave Johnson has more than 20 years of technology industry experience. His earlier career included technical positions, including video game design at Atari and Imagic. He was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the US.

Baltimore May Be the Next City to Adopt a $15 Minimum Wage

Tuesday, June 21st, 2016

Bruce Vail

The national movement toward a minimum wage of $15 an hour is picking up steam in Baltimore, with a key test of strength for the local movement expected before the end of the summer.

The City Council’s Labor Committee met this week to begin the process of moving legislation to a vote, hearing testimony from supporters and opponents, and setting the stage for a full Council vote in late July or August.

“We’re making progress. I’m encouraged,” says Councilwoman Mary Pat Clarke (D), the chief sponsor of the legislation. Powerful opposition from Baltimore business interests is apparent, she tells In These Times, but that is to be expected. On the other hand, support is strong from a majority of the members, Clarke adds, so proponents are pushing forward for a full Council vote just as soon as practical.

“We hope to get this passed in August or September,” says Ricarra Jones, a political organizer for 1199SEIU. Opponents are “trotting out the same old discredited (economic) theories,” she says, but the momentum of successful $15 minimum wage fights in California, New York, Seattle, and Washington, D.C., should help push the Baltimore effort forward.

Jones says local labor unions are rallying in favor of the higher minimum wage. Aside from SEIU, prominent in the coalition are the Baltimore Teachers Union (an affiliate of American Federation of Teachers), the American Federation of State, County and Municipal Employees (AFSCME), and UNITE HERE. Ernie Grecco, President of the Metropolitan Baltimore Council AFL-CIO Unions, adds that support is “unanimous’ among the 160 local labor organizations affiliated with the group.

As reported earlier at In These Times, Clarke’s bill would raise the minimum wage in steps from the current $8.25 an hour to $15 by 2020. It would then establish a cost of living adjustment (COLA) so that the wage would rise annually thereafter, based on inflation statistics. Significantly, it would also eliminate the so-called “tipped wage,” the special sub-minimum of $3.63 an hour that applies to waiters, waitresses, bartenders, and other servers who receive tips as part of their daily work.

Melvin R. Thompson, a lobbyist for the Restaurant Association of Maryland, focused on the tipped wage during his testimony to the Labor Committee June 15. “Passage of this legislation will force many employers to eliminate jobs because paying such high minimum wages to unskilled, entry-level workers will be unsustainable for businesses that utilize such labor. If passed, this legislation will ultimately hurt the very people it is intended to help,” he told the committee.

The Restaurant Association commissioned a study that found the $15 minimum would cause the loss of about 3,500 jobs in the city, Thompson added. One restaurant manager, identified as an official of the Ruth’s Chris Steak House chain, asserted that the chain would close at least one, or possibly two, of its locations in the city if $15 legislation passed.

These voices against raising the wage were joined by executives from the Greater Baltimore Committee and the Downtown Partnership of Baltimore, two influential Chamber of Commerce-like organizations representing business owners.

In sharp contrast to the well-tailored suits and slick presentations of the lobbyists was the testimony of Vonzella Barnes, a housekeeper at the Horseshoe Casino, a recently-opened gambling palace controlled by the multinational Caesars Entertainment Corp.

Hired at the opening of the casino two years ago at a wage of $9.50 an hour, she has had no raises, the 46-year-old mother of two testified to the Labor Committee. The cost of the two children, and other regular monthly expenses, means that “I constantly have to borrow money from my Mom to pay the rent,” she said. “At her age, I should be giving her money, not borrowing from her.”

Barnes wore her red UNITE HERE union t-shirt as she testified, signifying that many union workers in Baltimore would benefit from the $15 minimum wage. UNITE HERE and several other unions represent workers the casino, but even union wages in some of the lower-pay positions leave workers at near poverty levels.

Indeed, 1199SEIU members launched a series of short strikes against Baltimore’s Johns Hopkins Hospital in 2014 over a demand for a $15 minimum, but failed to achieve that is the final settlement. During that fight, it was exposed that hundreds of employees of the wealthy Hopkins Hospital were forced to rely on Medicaid, food stamps, housing subsidies, or other anti-poverty programs, to make ends meet.

Councilwoman Clarke linked her minimum wage proposal to Baltimore’s race riot last year, which exposed the dismal living conditions in the city’s low-income neighborhoods. “We’ve had this debate about minimum wage in Baltimore before, and the actions of the city have not been enough. This year has to be different – because last year was different. Baltimore has to change its ways,” she says.

This blog originally appeared at inthesetime.com on June 20, 2016. Reprinted with permission.

Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’sDaily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

Appeals court upholds workers' right to a union vote without delays and stalling tactics

Monday, June 20th, 2016

LauraClawsonA federal appeals court has upheld a National Labor Relations Board move modernizing and streamlining union representation elections. The rule, which business lobby groups like the American Builders and Contractors and the National Federation of Independent Business have tried to brand as “ambush elections,” cuts down the time employers have to fire and intimidate union supporters, and reduces the endless litigation employers would use to prevent workers’ voices from being heard. The case went before the Fifth Circuit Court of Appeals, one of the most conservative in the country, but the bosses still didn’t win:

In delivering the opinion of the court, Judge Edith Brown Clement said the “board acted rationally and in furtherance of its congressional mandate in adopting the rule.”

“Here, the board identified evidence that elections were being unnecessarily delayed by litigation and that certain rules had become outdated as a result of changes in technology,” she wrote.

“It conducted an exhaustive and lengthy review of the issues, evidence and testimony, responded to contrary arguments, and offered factual and legal support for its final conclusions.”

A previous lawsuit by the U.S. Chamber of Commerce and some of its allies had been dismissed. Congressional Republicans also tried to block the rule from going into effect, but President Obama vetoed that attempt.

This blog originally appeared at DailyKos.com on June13, 2016. Reprinted with permission. 

Laura Clawson has been a Daily Kos contributing editor since December 2006. Labor editor since 2011.

The Right to Strike Must Mean the Right to Return to Work After a Strike

Friday, June 17th, 2016

With the decisive victory for union members at Verizon, 2016 is already on pace to be the second year in a row where recorded strike activity has increased over the previous half-decade. Now, a new decision from the National Labor Relations Board (NLRB) could restore legal job protections for striking workers, making workplace job actions a more common—and more powerful—union strategy.

Workers simply do not have a meaningful right to strike if they do not have a right to return to the job when the strike is over. But, thanks to the judicial gutting of labor rights, going on strike is a high stakes proposition for American workers. Not only do striking workers lose out on pay and benefits during the strike, but they run the risk of losing their jobs entirely. So, while work stoppages are on the rise relative to the last few years, they are at historically low levels compared to the post-war era when wages actually rose with corporate profits.

In a new case, American Baptist Homes, the NLRB attempts to strike a balance between workers’ statutory right to strike and protection against employer retaliation for union activity and a boss’s Supreme Court-granted “right” to hire permanent replacement workers “to protect and continue his business.” Thankfully in this case, the exceptionally arrogant and stupid Executive Director of the employer in this case and her counsel went on the record that their use of permanent replacements was meant to “punish the strikers and the Union” and to discourage future strikes, as Benjamin Sachs has detailed.

For much of the last four decades, the NLRB has simply taken a boss’s word that the permanent replacement of striking workers was necessary to continue her business. Now, the NLRB has declared that it will return to an earlier, Supreme Court-approved standard in which employers’ rights to permanently replace striking workers may be “wholly impeached by the showing of an intent to encroach upon protected rights.”

In other words, the NLRB will investigate when an employer hires scabs—and they better have a good case. Since most strikes these days are defensive—pushing back against employers’ attempts to gut work rules, slash pay and benefits and bust the union—this is a big deal.

“…to interfere with or impede or diminish in any way the right to strike.”

A forthcoming book by labor law scholar Julius Getman, The Supreme Court on Unions: Why Labor Law is Failing American Workers, explores in depth the “judicial arrogance” of the court in substituting their own ideology and facts when shaping the labor law regime. It is particularly well timed as we look forward to a profound change in the Court in the wake of Justice Antonin Scalia’s death (although Getman clearly did not anticipate Scalia’s timely passing when he wrote the book).

One aspect that stands out in Getman’s book, to this writer at least, is the shakiness of the legal precedent that allows employers to permanently replace striking workers. It begs for a campaign of judicial activism to repeal it.

This legal vulnerability of strikers was established by a 1938 Supreme Court decision, NLRB vs. Mackay Radio. It was a poorly decided and little-revisited case upon which the entire anti-union playbook depends. Getman shines a welcome spotlight on the case, and inspires the conclusion that the so-called “Mackay Doctrine” is overdue for a sustained campaign of judicial challenge from unions and their allies.

In the original case, NLRB v. Mackay Radio & Telegraph Co., the union’s strike lasted all of one weekend. The employer continued operating by transferring workers from its other facilities, and when support for the union’s goals failed to materialize, the leaders called off the strike. When the strikers returned to work on Monday, four of the leaders were singled out and denied reinstatement.

The NLRB quickly ruled that the employer’s actions were clear violations of the law and went to court to order the employer to reinstate the four fired strikers, with back pay. The 9th Circuit Court refused to enforce the NLRB’s order, as this was generally a period when many jurists considered the labor act, in part or in whole, to be unconstitutional. That’s how the case got to the Supreme Court.

Ironically, the Mackay decision was hailed at the time as a victory for labor. It was yet another decision that cemented the constitutionality of labor law, but the Court also found for the union and the NLRB.

The labor relations act, after all, was meant to protect workers who engage in union activity from “discrimination in regard to hire or tenure of employment or any term or condition of employment,” and these four workers were singled out for their strike activity and told that they no longer had jobs.

Of course, Mackay had no time to hire permanent replacements in a weekend.

The issue was inserted by Justice Owen Roberts as an offhand comment, which I’ll quote in full because it bears scrutiny:

Although Section 13 of the act, provides, ‘Nothing in the Act should be interpreted to interfere with or impede or diminish in any way the right to strike,’ it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment in order to create places for them.

In other words, the employer in Mackay broke the law because it discriminated against the strike leaders by singling them outand firing them, but if the employer had found a non-discriminatory way to discriminate against strikers (like, say, hiring scabs to replace them in the order of reverse seniority) then that would be hunky dory.

“…the right to protect and continue his business…”

In the four decades that followed Mackay, very few employers took the liberty to permanently replace striking workers, as it generally fell outside what was considered socially acceptable behavior by employers in the post-war era.

Which isn’t to say that some employers didn’t try to push the envelope in their union-busting attempts. Most judicial revisiting of Mackay comes from cases where the Courts rejected employer attempts to go further.

For instance, in a 1963 case the Supreme Court rejected an employer’s attempt to grant replacements a “super seniority” for their service as scabs by ruling that it was not “proper under Mackay.” It was this sort of right-wing judicial activism that pushed back on union rights and served to give a bad footnote the appearance of settled legal doctrine. But the court has never revisited the facts or logic of the Mackay decision.

As Getman points out, what is now considered the “Mackay Doctrine” is in direct conflict with the actual Mackay decision:

The holding is that it is illegal to decide which employees are entitled to work after a strike on the basis of union activity. But the dictum insists that the employer may give employment preference to those who work during a strike over those who strike, which is precisely the same result, penalizing union activity that was outlawed by the holding.

“It is impossible to know,“ writes Getman, “what led the Court to go out of its way to announce that the hiring of permanent replacements was consistent with the Act.” But one can easily guess that the conservative judges, aghast at New Deal encroachments on property rights, sought to ensure that the bargaining power of unions was “balanced” in some way.

The Mackay Doctrine wasn’t really put to use until the 1980s, starting with the Phelps-Dodge copper mining company, which bargained its Steelworkers local to impasse over drastic cuts in pay, benefits and working conditions, pushed them out on strike and then had the scabs vote to decertify the union 12 months later. This is how employers have weaponized Mackay to union-bust much of American industry. (And it would be clearly illegal under the new American Baptist Homes standard.)

The results are far from Justice Roberts’ nebulous “right to protect and continue his business,” and farther still from “balancing” the power of unions and management. Common sense dictates that the right of management to permanently replace striking workers be revisited; justice demands that the Mackay Doctrine be overturned.

Call me a cockeyed optimist, but I think Mackay is vulnerable to constitutional challenge as a violation of workers’ 1st amendment rights of free speech and assembly, 13th amendment protections against involuntary servitude and 14th amendment guarantees of due process and equal protection. As it is, the American Baptist Homes NLRB decision is certain to be resisted and appealed by business and industry, and will inevitably wind its way up the federal courts.

Even if the Court doesn’t go for those constitutional arguments, it could be ruled to have been “wrong the day it was decided” for having ignored both the plain language of the law, as well as the clear legislative intent. Or the Court could decide that their predecessors acted in the public interest by attempting to “balance” the power of unions and management in 1938, but that the track record of Mackay since 1983 demonstrates that true balance can only be achieved by restoring the right to strike without reprisal.

Or if the Court really wants to weasel out of the controversy, they could lean on the crucial (and crucially forgotten) “protect and continue his business” portion of the initial Mackay dictum—only granting the “right” to permanently replace strikers to employers who can demonstrate that they might go out of business otherwise, or, as in American Baptist Homes, that they have no ulterior union-busting motive.

Not that Julius Getman would necessarily agree with my proposal. “The long existence of the doctrine,” he writes, “its acceptance by Court after Court, and the fact that it has survived attempts to overturn it by amendment all will make it a ward of stare decises, safe even from liberal courts.”

Getman is a brilliant and accomplished legal scholar. I’m just an organizer who argues with lawyers a lot. So, with respect, I don’t see a substantial downside to trying. It was the dogged pursuit of anti-union lawsuits by the right-wing—often, initially, unsuccessful—that helped make Mackay precedent, as well as brought us on the verge of outlawing neutrality agreements and outlawing the union shop in the public sector. It is time that we launched a sustained counter-offensive in the courts.

And what about striking workers who do lose their jobs under the current doctrine? Who could argue against taking every step imaginable to restore their rights and their livelihoods?

This blog originally appeared at InTheseTimes.org on June 15, 2016. Reprinted with permission.

Shaun Richman is a former organizing director for the American Federation of Teachers. His Twitter handle is @Ess_Dog.

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