Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Brett Kavanaugh’

Kavanaugh's SeaWorld dissent shows he wants to drag workers back a century

Tuesday, September 25th, 2018

During his years as a judge on the D.C. Circuit court, Brett Kavanaugh has dedicated a solid amount of time to writing extremist dissents to show us just what kind of a deciding vote he would be on the Supreme Court. One of those is his notorious SeaWorld v. Perez dissent, in which Kavanaugh said SeaWorld shouldn’t be held responsible for the killing of a trainer by an orca. Steven Greenhouse writes that the dissent is “remarkable because Kavanaugh shows far less sympathy to the whale trainer who was dismembered and killed than he shows to SeaWorld for being the victim of what he sees as government overregulation and overreach,” and that he “seemed to lack an empathy gene.”

It’s not just a lack of empathy, though. Kavanaugh’s dissent, Greenhouse suggests, is either profoundly ignorant of history or is an active attempt to undo historical progress:

He said that state tort law—for instance, lawsuits that workers bring against their employer because a machine chopped off an arm—would pressure SeaWorld to assure safety to its workers. But Kavanaugh bafflingly fails to realize that the workers compensation system was set up in the early 1900s in large part to prohibit workers from filing tort lawsuits against their employers. Moreover, state tort law compensates employees only after an arm is amputated or a worker is crippled, while government regulation in the form of OSHA aims to prevent such horrific injuries from ever happening.

In likening Dawn Brancheau to NFL players and NASCAR drivers, Kavanaugh essentially embraced a pro-corporate legal doctrine that was prevalent in the 19th century—that workers assume the risks inherent in a dangerous job. In other words, if Brancheau got killed or injured, well, tough luck. It’s on them. David Michaels, the head of OSHA under President Obama, criticized Kavanaugh for making “the perverse and erroneous assertion that the law allows SeaWorld trainers to willingly accept the risk of violent death as part of their job.” 

Is Kavanaugh that ignorant of history or is he fully aware of the brutal past of American workplaces, and knowingly trying to drag us back to that brutality? Given the totality of what we know about him, the latter seems the safe bet.

This blog was originally published at Daily Kos on September 24, 2018. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.

Kavanaugh: Threat to Workers and to OSHA

Wednesday, July 11th, 2018

While most of the discussion of President Trump’s nomination of Brett Kavanaugh to the Supreme Court focuses on the possibility that he will be the deciding vote to repeal Rowe v. Wade or that the will bend over backwards to help Trump out of the Russia investigation, there is clear evidence that Kavanaugh is overly friendly to corporate America, and hostile to workplace safety, the Occupational Safety and Health Act and the environment.

In 2010 a killer whale dismembered and drowned a Sea World trainer, Dawn Brancheau, in front of hundreds of horrified men, women and children looking forward to a day of fun and frolic with sea animals. The whale that killed Brancheau had been implicated in three previous human deaths.

OSHA issued a $70,000 willful General Duty Clause Citation against Sea World and ordered the company to reduce the hazard by physically separating trainers from the whales. OSHA proved that Sea World and its employees knew from previous incidents and close calls that the all of its killer whales were dangerous, and that Tilikum, the whale that killed Brancheau, was particularly dangerous.  Experts also described a feasible means of protecting employees — actions that Sea World in fact implemented following Brancheau’s death.

The Occupational Safety and Health Review Commission upheld OSHA’s citation, and Sea World appealed to the Court of Appeals. The D.C. Circuit court decided 2-1 in favor of OSHA. The Court found that  “There was substantial record evidence that Sea World recognized its precautions were inadequate to prevent serious bodily harm or even death to its trainers and that the residual hazard was preventable,” and that there was substantial evidence that there were feasible means to protect employees without impacting the business. The majority opinion upholding OSHA’s action was written by Circuit Judge Judith Rogers. Also supporting OSHA was Chief Judge Merrick Garland.

The lone dissenter, opposing OSHA’s citation, was Circuit Judge Brett Kavanaugh.

According to former OSHA Assistant Secretary David Michaels, “In his dissent in the Sea World decision, Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job.  He clearly has little regard for workers who face deadly hazards at the workplace.”

Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job.  He clearly has little regard for workers who face deadly hazards at the workplace.  —  David Michaels

Garland, as you may remember was nominated to the Supreme Court in 2016, following the death of Supreme Court Justice Antonin Scalia. Republicans, led by Senate Majority Leader Mitch McConnell, infamously refused to consider Obama’s nomination, allowing Trump to appoint Neil Gorsuch to the Court. And the lead attorney representing Sea World was Eugene Scalia, son of deceased Justice Antonin Scalia.

Are Whale Shows A Sport Like Football?

Kavanaugh calls OSHA’s action “arbitrary and capricious” because regulating the safety of killer whale shows is allegedly no different than regulating the safety of tackling in football, or speeding in sports car racing, or punching in boxing — things in which OSHA has never involved itself.  And just as you’d have no football if you didn’t have tackling, or no sports car racing if you didn’t have speeding, there would allegedly be no Sea World if there was no close human contact with killer whales.

One problem with this argument, as Rogers points out, is that no one — except Kavanaugh — claims that whale shows are a sport where you are there to see who “wins.”

Or, to put it more bluntly, people go to boxing matches to watch people punch each other, and go to football games to watch one team physically stop the other from scoring. But tourists — including small children — go to Sea World to watch attractive trainers lovingly interact with adorable sea creatures. Killer whale shows are not supposed to be modern gladiatorial contests where the audience looks forward to seeing whether the trainers will successfully keep their limbs attached or finish the show bleeding and dead at the bottom of a pool.

Not even Sea World made the football/car racing/boxing analogy, Rogers and Garland point out. By making that argument, Kavanaugh is just makin’ stuff up — adding his own opinions on matters that weren’t even part of the case.

Second, as the majority opinion points out, “physical contact between players is ‘intrinsic’ to professional football in a way that it is not to a killer whale show.” Spectators can take pleasure from a whale jumping out of the water and doing back flips even without close personal contact with a human trainer.

In fact, the show went on even after the OSHA citation. Following Brancheau’s death, Sea World implemented many of the controls that OSHA recommended in its General Duty Clause citation — and still managed to attract customers to the park — and even to the killer whale shows — without the close personal contact.

Hostility Toward OSHA

Kavanaugh’s dissent drips with hostility toward OSHA and a basic misunderstanding of the act and the principles — and law — behind it. Comparing killer whale shows to football, boxing, car racing, as well  as other “extremely dangerous” sports such as “Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile per hour fastball….” etc., etc., Kavanaugh objects to OSHA’s “paternalistic” intervention because “the participants in those activities want to take part.”

And then goes on to state (cue the heroic music)

To be fearless, courageous, tough – to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk – is among the greatest forms of personal achievement for many who take part in these activities. American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so.

He then asks:

When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?

Not “the bureaucracy at the U.S. Department of Labor,” according to Kavanaugh.

Happily, Garland and Rogers were more knowledgeable about the Occupational Safety and Heath Act than Kavanaugh. They point out that the OSHAct puts the duty on the employer to create a safe workplace, not on the employees to choose whether or not they want to risk death — especially when the employer can make the workplace safer.

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.  Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employee had “assumed” the risk when he or she took the job and the employer therefore had no responsibility to make the job safer.  Maybe the worker even liked doing dangerous work.  Employers also escaped responsibility by showing that the worker was somehow negligent. (Interestingly, Sea World originally blamed Brancheau for her own death because she hadn’t tied her hair back.)

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.

Rogers and Garland were forced to remind Kavanaugh that the employer’s duty under the OSHAct isn’t reduced by “such common law doctrines as assumption of risk, contributory negligence, or comparative negligence.”

Workers Comp laws, originally passed in the early 20th century, were supposed to be no-fault. It didn’t matter who was at fault, if the worker was hurt, the worker got compensated.  And the OSHAct, passed in 1970, further states clearly and unequivocally that the employer is responsible for ensuring that the workplace is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” and sets up a mechanism to enforce the law and penalize employers who violated it.  Even if the macho employee wants to defy death, the law states that the workers may not work at heights without fall protection or go down into deep trenches without shoring. And it’s the employer’s job to make sure that employees are not endangered.

Did Brancheau enjoy her job? Undoubtedly.

Did she “willingly accept the risk of violent death as part of their job?”  Unlikely. And legally irrelevant.

Did she deserve a safe workplace? Absolutely.

Nothing New Under the Sun?

Kavanaugh also objected to OSHA’s citation because the agency allegedly “departed from tradition and stormed headlong into a new regulatory arena.”

Well, first, Congress put the General Duty Clause into the OSHAct to address “unique” recognized hazards for which there is no OSHA standard.

Second, objecting to OSHA “storming into a new arena” brings back memories of the arguments used by previous OSHA heads, politicians and the health care industry when unions petitioned the agency in the late 1980’s for a bloodborne pathogens standard to prevent HIV infection and over 300 health care worker deaths a year from hepatitis B. At that time, infectious diseases were “a new regulatory arena.” Thankfully, Judge (or Justice) Kavanaugh wasn’t around then to rule on that standard. Thousands of health care workers owe their lives to OSHA’s move into the “new regulatory arena” of infectious diseases.

Bad for the Environment

Ken Ward of the Charleston Gazette-Mail reminds us that Kavanaugh is not only anti-worker (and anti-OSHA), but also anti-environment (and anti-EPA). In 2011, Kavanaugh was the lone dissenter in a case where Arch Coal had challenged the Environmental Protection Agency’s authority to cancel a mountain-top removal permit that had been issued by the U.S. Army Corps of Engineers. The 2,300-acre Spruce operation that would have buried more than seven miles of streams.  “The EPA cited the growing scientific evidence that mountaintop removal mining significantly damages water quality downstream and noted an independent engineering study that found Arch Coal could have greatly reduced the Spruce Mine’s impact.”

Kavanaugh’s argument is that EPA didn’t do a proper cost benefit analysis. Suddenly becoming a champion of working people and unions (at least when it benefits the company), Kavanaugh argued that EPA had failed to factor in the costs of  putting more than 300 United Mine Workers union members out of work.  Once again, Kavanaugh was making stuff up (legally). Arch Coal hadn’t even made that argument.

Kavanaugh also criticized the agency’s examination of potential damage to aquatic life as an “utterly one-sided analysis.” Perhaps the fish had also “accepted the risk” of living in streams near coal deposits.

One of the judges in the majority was an Ronald Reagan pick, and the other was appointed by President Obama.

Conclusion

Kavanaugh stated at last night’s press conference that one of his legal principles is that “A judge must interpret statutes as written.”  He might have added that to interpret the law as written, one must first read and understand the law.

He also warmly told the world that his mother was a prosecutor whose trademark line was: “‘Use your common sense. ‘What rings true? What rings false?’ That’s good advice for a juror and for a son. ”

Indeed it is. And maybe he could explain to the parents and husband of Dawn Brancheau why it rings false to him that the company responsible for their daughter’s safety should be held responsible for her death —  and held to the same standard as every other employer in the country.

Until he does that, he doesn’t belong on the Supreme Court.

This blog was originally published at Confined Space on July 10, 2018. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Trump’s Supreme Court Pick Could Spell a Fresh Hell for Workers’ Rights

Tuesday, July 10th, 2018

On Monday, President Donald Trump announced his nomination of conservative Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. If Kavanaugh is confirmed, Chief Justice John Roberts, a fellow conservative, will become the ideological and political center of the Supreme Court, and protections for women, minorities, voting rights, civil liberties and more could come under threat. Workers and labor unions should be particularly concerned about Judge Kavanaugh’s history of siding with businesses against workers and for pushing a deregulatory agenda.

In his 13 years on the Court, Chief Justice Roberts has helped to unleash unlimited corporate money into politics, open the door to mass voter disenfranchisement and lay the groundwork to strengthen the power of corporations over consumers and employees. He has also, in the words of Justice Elena Kagan, led the conservative project of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” This is who will now be the swing vote on the Supreme Court if Kavanaugh is confirmed.

Kavanaugh, who is 53 years old, once clerked for Judge Alex Kozinski, who abruptly retired last year after a long history of sexual harassment was revealed. Previously, Kavanaugh worked with Kenneth Starr to investigate President Clinton and draft the report that lead to Clinton’s impeachment. Over his last 12 years on the D.C. Circuit Court of Appeals,  Kavanaugh has shown himself to be an extraordinarily conservative judge. An analysis by Axios determined that Kavanaugh is just slightly less conservative than the most conservative member of the Court, Clarence Thomas.

A review of Judge Kavanaugh’s decisions regarding workers’ rights shows a disturbing trend of siding with employers on a range of issues.

In Southern New England Telephone Co. v. NLRB (2015), Kavanaugh overruled the NLRB’s decision that the employer committed an unfair labor practice when it barred workers from wearing T-shirts that said, “Inmate” on the front and “Prisoner of AT$T” on the back. Under the law, employees are permitted to wear union apparel to work, and the NLRB found that these shirts were protected under the National Labor Relations Act. The Board rejected the argument that “special circumstances” warranted limiting workers’ rights, because no reasonable person would conclude that the worker was a prison convict.

Kavanaugh rejected the Board’s legal analysis, writing, “Common sense sometimes matters in resolving legal disputes. … No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say ‘Inmate’ and ‘Prisoner.’” Kavanaugh was undoubtedly correct in his understanding of the company’s desire not to have workers wear such shirts, which is precisely why the workers did so. What the unions did in wearing the shirts was apply pressure in a labor dispute in a manner that the law has long allowed. However, Kavanaugh criticized the Board’s analysis, writing that “the appropriate test for ‘special circumstances’ is not whether AT&T’s customers would confuse the ‘Inmate/Prisoner’ shirt with actual prison garb, but whether AT&T could reasonably believe that the message may harm its relationship with its customers or its public image.” By shifting the focus to the employer’s public image, Kavanaugh undercut the right of workers to publicly protest and dissent.

In Verizon New England Inc. v. NLRB (2016), Kavanaugh overturned the NLRB’s ruling that workers could display pro-union signs in their cars parked in the company parking lot after the union waived its members’ right to picket. In his decision, Kavanaugh held that “No hard-and-fast definition of the term ‘picketing’ excludes the visible display of pro-union signs in employees’ cars rather than in employees’ hands, especially when the cars are lined up in the employer’s parking lot and thus visible to passers-by in the same way as a picket line.” Therefore, according to Kavanaugh, the union’s waiver of the right to picket also applied to signs left in cars.

Judge Kavanaugh again overruled a pro-worker NLRB decision in Venetian Casino Resort, L.L.C. v. NLRB (2015). The NLRB had determined that the casino committed an unfair labor practice when, in response to a peaceful demonstration by employees (for which they had a permit), the casino called the police on the workers. Citing the First Amendment, Kavanaugh held that “When a person petitions the government in good faith, the First Amendment prohibits any sanction on that action.” Calling the police to enforce state trespassing laws, Kavanaugh concluded, deserved such protection.

In UFCW AFL CIO 540 v. NLRB (2014), Judge Kavanaugh issued an anti-worker decision involving Wal-Mart’s “meat wars.” After 10 meat cutters in Jacksonville, Texas, voted to form the first union at a Wal-Mart, the company closed its meat operations in 180 stores and switched to pre-packaged meats. (The notoriously anti-union Wal-Mart denied that its decision had anything to do with the union vote.) After the switch, Wal-Mart refused to bargain with the meat cutters, arguing that they no longer constituted an appropriate bargaining unit. Judge Kavanaugh agreed with Wal-Mart’s argument, but did write that Wal-Mart must bargain with the union over the effects of the conversion of the employees.

Judge Kavanaugh has consistently sided with employers in labor law cases, to the detriment of workers’ labor rights. He also has argued that the Consumer Financial Protection Bureau, established in 2011, is unconstitutional, and Aaron Klein, director of the Center on Regulation and Markets at the Brookings Institution, has said that his nomination “could reverse over a century of American financial regulation.”

Labor advocates should be extremely concerned about this ideological bent if Kavanaugh becomes a justice on an already very business friendly—and conservative—Supreme Court.

This article was originally published at In These Times on July 10, 2018. Reprinted with permission.

About the Author: Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.

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