Boycott Indiana

By David Hoffman

The late civil rights activist Malcolm X once said, "I believe that there will ultimately be a clash between the oppressed and those who do the oppressing.  I believe that there will be a clash between those who want freedom, justice and equality for everyone and those who want to continue the system of exploitation.  I believe that there will be that kind of clash, but I don't think it will be based on the color of the skin . . ."

Yet, despite this hope that the oppressed will rise up against their oppressors, American workers continually elect politicians who ruthlessly undermine the rights of labor, and America continues to call itself a democracy even though corporate plutocrats and lobbyists have more political power than the voters.

Why does this reality persist?  The answer can be found in the words of another martyred civil rights activist, Stephen Biko:  "The most potent weapon in the hands of the oppressor is the mind of the oppressed."

American workers, through a political "divide-and-conquer" strategy, are constantly being duped into acting not only against their economic self-interests, but against the economic interests of the entire nation.  And no political party is more adept at exploiting this strategy than the Republican Party (GOP). 

The GOP cajoled so many members of the middle-class to loath the poor and ignore the "corporate welfare" distributed to the rich that the middle-class is now disappearing into the ranks of the poor; it exacerbates racial fears to turn whites against African-Americans and Hispanics, and African-Americans and Hispanics against each other; it turns men against women, "white collar" workers against "blue collar" workers, and non-union workers against union workers.

According to a recent article by Harold Meyerson, Editor-at-Large of American Prospect, the GOP "jihad" against workers has stripped the National Labor Relations Board (NLRB) of its power to make labor-related decisions, because the GOP refuses to confirm nominees to this board while Obama is president.  This has reduced the number of board members from five to three.  Since the "Supreme Court ruled last year that if the board's membership fell to just two it would no longer have the power to issue [labor-related] rulings," the GOP member of the NLRB, Brian Hayes, can now eviscerate any potential ruling he disagrees with by simply threatening to resign.

In other words, a majority of one. 

[UPDATE, 1/5/12:  Shortly after this article was written and submitted for publication, President Obama used the Congressional Recess to appoint three new members to the NLRB, bringing the total number of board members to five.  These appointments included a replacement for one board member whose term recently expired.  Had these appointments not been made, the NLRB board would have been reduced to two members, which would have nullified its decision-making powers, as described above].

But this war on labor is not new, nor should it be surprising.  When all the theoretical pontifications about the benefits of capitalism are recognized for the shams they are, one reality emerges:  Capitalism is simply a system where the rich and powerful demand the maximum amount of work and productivity from labor, while providing the minimum amount of pay and benefits in return.

There is no institution in America-religious, educational, or cultural-that is not driven by profit, and even though many of these institutions publicly trumpet their "altruism," "ethics," and "respect for workers' rights," such principles privately wax and wane, and sometimes disappear completely, if they impede the quest for profits.

But perhaps no American institution has demonstrated more contempt for workers than its legal system.  A system that was originally intended to protect minority rights against "the tyranny of the majority" has, throughout much of American history, protected only one minority:  the minority of the people with the majority of the money.

In fact, one of the first significant pieces of federal legislation designed to restrain corporate power, the Sherman Anti-Trust Act of 1890, was immediately exploited by the courts to thwart unionization efforts.  When the Clayton Act was passed a few years later to prevent this exploitation, the United States Supreme Court neutered it by instituting a two-prong legal "test" that was virtually impossible for those seeking union representation to satisfy.  And, in the now infamous Lochner case (1905), the Supreme Court decreed that a law intended to protect the health of bakers by limiting their work hours was unconstitutional because it interfered "with the right and liberty of the individual to contract."

Although the reasoning underpinning Lochner appears ridiculous by today's standards, given the unequal bargaining power between bakers and their employers, its residual inequities linger in the form of an egregious and atavistic legal doctrine known as "at-will" employment. 

"At-will" employment contends that an employee serves at the will of the employer, and that either can sever the relationship at any time, for any reason, good or bad, or for no reason at all.

Yet by no stretch of the imagination is the status of "at-will" employees equal to that of their employers.  People who lose their jobs, particularly "for no reason at all," often have more difficulties finding new employment, especially in today's economy, than employers have replacing them.  And the older the discharged employee is, the greater these difficulties become.  In addition, employers can exacerbate these difficulties by giving former employees who quit without adequate notice negative job references.

Therefore it was not surprising that, in the past, "at-will" employment was often used as an excuse to discriminate against minorities and women.  But, after decades of struggle and sacrifice, laws were finally passed to prevent this type of discrimination.

Or so it was thought.

Sadly, America's legal system did (and does) everything in its power to decimate such laws:  the courts rendered the Civil Rights Act of 1964 so ineffective at preventing certain forms of discrimination that it had to be amended by the Civil Rights Act of 1991; the first law Barack Obama enacted as President was the Fair Pay Act of 2009, which overturned the United States Supreme Court's virtual destruction of the Equal Pay Act of 1963; not surprisingly this same court also invalidated the provisions of the Americans with Disabilities Act of 1990 to such an extent that Congressional Amendments had to be added in 2008 just to restore this law to its original intent; and in 2009 the court's anti-labor crusade continued when it eviscerated the Age Discrimination in Employment Act of 1967 (ADEA), even as debate was raging in Congress about raising the retirement age for Social Security eligibility.  Ironically this ruling, the epitome of judicial hypocrisy, was made by so-called "justices" who have lifetime employment that can only be terminated through impeachment, voluntary retirement or death.

As Meyerson notes, it appears curious, even counterproductive, for the GOP to wage war on labor in a so-called "democracy," especially when American workers are roughly "99 percent" of America's population.  In addition, in the past few decades union membership in the private sector has declined from 40 percent to 7 percent, and "wages as a share of the gross domestic product [GDP] are the lowest they've been since 1929."   By contrast, "corporate profits as a share of the GDP are the highest they've been since 1929."

Meyerson opines, quite correctly, that one motive behind the GOP war on labor is because white union members tend to "vote Democratic at a rate 20 percent higher than their non-union counterparts."  But this does not explain why non-union workers often vote for a political party that habitually spits in their faces.

One explanation resides in the inanity of American politics.  As much as critics want government to be managed like a "business," America's two-party system creates a recipe for inefficiency:  As demonstrated by the buffoons currently in Congress, the party that is not in power incessantly obstructs the party that is.  As a result, as illustrated by the 2010 elections, disgruntled (and often clueless) voters, angry that "nothing is getting done," elect members of the obstructionist party, thus causing those who lost power to now become the obstructionists.

But perhaps the primary motivation for the GOP's war on American workers is the Supreme Court's ludicrous Citizens United ruling (2010).  Inexplicably proclaiming that corporations and unions enjoy the same "free speech" rights as flesh-and-blood individuals, Citizens United is a manifesto for corporate corruption of America's politics. And the party most likely to benefit from this corruption is the GOP.

American workers, thanks largely to the GOP's aforementioned "divide-and-conquer" strategy, rarely speak with a united voice or common cause.  Corporations, on the other hand, have no such disunity.  Driven by profits and profits-alone, they are automatically unified and supportive of politicians who facilitate their greed, even when it destroys the national economy. 

For example, while economists debated (and continue to debate) the esoteric reasons behind the current recession, they ignored the fact that recessions are, more often than not, self-fulfilling prophecies.  Profitable corporations, or at least those concerned about their public image, exploit the "recession" excuse to discharge workers they would appear callous discharging in more "economically stable" times.  They then force their remaining workers, who now exist in perpetual fear of losing their own jobs, to do the work that two or three employees would normally do, and/or to take cuts in wages or benefits.  When this pattern is repeated throughout the nation, and indeed throughout the world, a real recession ultimately results.

Of course, proponents of the Citizens United decision are quick to argue that "free speech" rights also apply to unions.  But, as is painfully evident by the money spent on media ads and access during political campaigns, "free speech" can be expensive. 

According to Meyerson, "When it comes to elections, unions are still the most potent mobilizers of the Democratic vote-getting minoritiesto the polls and persuading members of the white working class to vote Democratic." 

So the GOP formula is simple:  destroy the financial resources of the unions and the only voice resounding in American politics will be the corporate voice.

Although the war on labor is taking place on the national stage, it is also being waged on the state level, and nowhere more conspicuously than the American Midwest.  One beneficiary of the Citizens United decision, Wisconsin governor Scott Walker, inspired extensive protests when he eliminated the union rights of most public workers, as did Ohio governor John Kasich.  Fortunately Ohio voters overwhelmingly rebuffed Kasich's efforts and Walker is currently the target of a recall campaign.

But lost in these more publicized situations is the undermining of the rights of labor in the State of Indiana.

Indiana has a sordid history, particularly when it comes to race relations.  Sometimes referred to as the "northernmost southern state," Indiana's Constitution of 1851 banned African-Americans from coming into or settling in the state.  During the 1920s, the Ku Klux Klan controlled many Republican officials in Indiana, and up to one-third of all white males in the state were members of this group.  And in 1930, in the City of Marion, two African-American men, Thomas Shipp and Abram Smith, were the victims of a highly publicized lynching.

Indiana's history makes the state particularly susceptible to the GOP's "divide and conquer" strategy.  In addition, Indiana's Supreme Court is openly hostile to the rights of workers, and treats the "at-will" employment doctrine as if it were a deity.

Under the court's "interpretation" of "at-will" employment, Indiana employers can not only engage in lawlessness; they can fire employees who report or complain about it.  This was graphically demonstrated in 1979 when the court endorsed the firing of an "at-will" employee who had reported that his superior was receiving illegal "kickbacks."  In 2007 the court again endorsed corporate lawlessness by permitting the firing of an "at-will" employee who complained he had unlawfully been denied overtime pay.

In embracing such lawlessness, the Indiana Supreme Court stated, almost orgastically, "the employment at-will doctrine has steadfastly been recognized and enforced as the public policy of this state."

Even the few "bones" this court has thrown to Indiana workers are woefully inadequate.  In 1973, the court ruled that employers cannot fire employees who file workers compensation claims.  But some Indiana business attorneys advise employers to simply wait a few months so that the link between the firing and the workers compensation claim appears "tenuous."

And if Indiana employers cut costs by manufacturing the equipment or machinery their workers are required to use, employees injured on such equipment or machinery are limited to woefully inadequate workers compensation remedies, because, unlike many other states, Indiana courts reject the "dual capacity" doctrine, which places employers who manufacture defective machinery or equipment for employee use outside the purview of workers compensation statutes.

So corporations seeking to locate to Indiana are already coming into a rabid "at-will" employment state where workers cannot even complain about employer violations of the law for fear of being fired, where there is no "dual capacity" doctrine to prevent employers from manufacturing unsafe equipment or machinery that injures or kills workers, and where those injured or killed are forced to accept inadequate workers compensation remedies. 

Yet the Indiana Supreme Court, due to ignorance, hypocrisy, selective blindness, or all of the above, continues to proclaim, "revision or rejection of the [at-will] doctrine is better left to the legislature."

Of course, there is little chance of that happening, especially now that Indiana is in the grip of two of the most amoral, anti-labor politicians in the nation:  GOP governor Mitch Daniels and GOP house speaker Brian Bosma.

On his first day in office, Daniels signed an order ending collective bargaining with public employee unions, and he continues to worship at the altar of "privatization" by selling off bits of Indiana to corporate interests.  And even though, during the last legislative session, Daniels decided not to support GOP efforts to pass a "right-to-work" law in Indiana-a law specifically motivated by Citizens United to financially weaken Indiana labor unions-with a new session approaching, Daniels is now openly supporting this legislation.  So from Klan control to corporate control, Indiana politics has progressed very little.

So I urge all members of the working class to boycott the State of Indiana unless and until this right-to-work legislation is defeated.  And if someone other than yourself issues your paychecks, and/or if your continued employment is contingent upon the whims of another, you are a member of the working class.

Indiana's capitol, Indianapolis, is the site of the 2012 Super Bowl, and Daniels, Bosma and others of their ilk are slobbering over the profits their corporate handlers will soon be making.  And while I realize it is impossible to expect a boycott of an event like the Super Bowl, even those attending the game can help.  When you look at your hotel clerk, your bellhop, your bartender, your waiter or waitress, remember that, in the eyes of Daniels, Bosma and the Indiana Supreme Court, they, and thousands in Indiana like them, have no rights; that they can be cheated out of their rightfully earned wages and fired for complaining; that they can even be fired for exposing an employer's criminality; and that they, despite years of dedicated service, can simply be dismissed at an employer's whim.  Then remember that every dollar you spend in Indiana is a dollar that supports Daniels' and Bosma's anti-labor agenda.

If "right-to-work" becomes the law in Indiana, then nobody, union or non-union, will have the resources or the ability to speak out against the corporate control and corruption of Indiana politics.  And the rights of workers everywhere-of all races and genders, "blue collar" and "white collar," union and non-union-will be diminished.

BOYCOTT INDIANA, before it is too late.

David R. Hoffman

Legal Editor of Pravda.Ru