Nation Topics - Regulations | The Nation

In 1992 Congress passed a law designed to increase the diversity of
television programming and to amplify traditionally underrepresented
voices.

One of the most important votes of 2003 will be cast not in Congress or
in voting booths across the country but at the Federal Communications
Commission.

(With apologies, once again, to Stephen Sondheim and his demon barber)

The Pentagon's recent decision to limit anthrax vaccine shots to those
at high risk does not address the fundamental objection to the shots,
which is the lack of informed consent. The military maintains that it is
not required to seek informed consent for the vaccine because it is
currently approved by the Food and Drug Administration, and it continues
to court-martial personnel who refuse the vaccine. These servicemembers
contend that the vaccine is unsafe and that the military is not using it
in the prescribed manner.

The Pentagon announced its controversial plan to forcibly inoculate all
2.4 million troops against anthrax in 1997. Almost immediately, military
members began to protest, based in part on the revelation that
approximately 300,000 servicemembers had been given experimental drugs
without their knowledge in the Gulf War. Both during and after the Gulf
War, many military personnel experienced systemic medical problems,
which are often collectively termed Gulf War Syndrome. Seven years after
the Gulf War, the military finally admitted that it had used
experimental drugs on its personnel without their consent, and that
these drugs could be factors in the medical problems.

The FDA approved the current anthrax vaccine in 1970 primarily for
agricultural workers, but not for routine immunization on large
populations. Originally approved for a six-shot, eighteen-month
protocol, the vaccine is intended to treat cutaneous (through the skin)
anthrax, but has never been tested for inhalation anthrax, which is the
most deadly form and the most likely to occur in a combat situation.
Despite the military's assertions that very few adverse reactions have
been reported from the vaccine, the General Accounting Office found that
the Pentagon has been negligent in tracking such reactions. In fact,
many military personnel have reported adverse reactions. In 2000 the GAO
surveyed the National Guard and reserve forces given the vaccine, and 85
percent reported some reactions, with 23.8 percent reported to be
systemic. Additionally, the GAO reports that the long-term effects of
the anthrax vaccine have never been studied. In 1994 one of the Army's
top biological researchers wrote that "the current vaccine against
anthrax is unsatisfactory."

In 1996 the manufacturer BioPort submitted an application to the FDA to
amend the original anthrax vaccine license to include treatment of
inhalation anthrax as an approved use, as well as an approved reduction
in the vaccination schedule. FDA regulations specify that should an
organization desire a license change for a previously approved drug or a
modified dosing schedule, the drug essentially reverts to experimental
status. Due to a vaccine shortage, the military does not require that
personnel complete the six-shot protocol, and in some cases it has
prescribed that only two of the six required shots are necessary. So
under the current law, the military, in using the anthrax vaccine as a
prophylactic against inhalation anthrax, is basically using an
experimental drug on its own people without their consent.

In light of the Gulf War experimental drug abuses, the Pentagon's
circumvention of FDA regulations with anthrax vaccine is very
unsettling. Even after the anthrax scare post-9/11, we cannot simply
ignore the system of checks and balances for experimental drugs. In
volunteering for service, military members sacrifice much for their
country. Just as they are expected to conform to the rules of their
superiors, the Pentagon should be expected to obey the laws of the
land.

Big Pharma tries out First World drugs on unsuspecting Third World
patients.

The EPA cites chapter, and some verse,
To show this warming's making matters worse.
It's getting worse no matter how you score it.
So here's the plan: They think we should ignore it.

Bureaucratic timidity and turf battles needlessly put many Americans at risk.

The Federal Communications Commission is presently conducting an inquiry--a "rulemaking"--to determine whether to relax, or even to eliminate, the remaining few regulations that limit how many me

When W. gave the nod to New Jersey Governor Christie Todd Whitman for the top EPA spot in his administration, the tone-deaf national press corps praised the appointment of a "moderate" (largely on the basis of Whitman's inconstant pro-choice positions). A little digging would have revealed that Whitman has been an unmitigated disaster for New Jersey's environmental protection. Under her governance, fines of air and water polluters have plummeted 70 percent. Indeed, after her nomination the head of the Chemical Industry Council of New Jersey praised her to the Newark Star-Ledger for having restored "balance" to the state's enviro policies after the aggressively antipolluter measures taken by her Democratic predecessor, Jim Florio.

Thanks to Whitman's evisceration of state enviro regs as well as a raft of subsidies and tax cuts to developers, suburban sprawl gobbled up more open space and verdant land during her tenure than at any other period in New Jersey's history. Moreover, she decapitated the state Department of Environmental Protection staff by 738 employees in her first three years in office, cut the remaining staff's workweek by five hours, eliminated fines of polluters as a source of DEP revenue and made large cuts in the DEP's budget. That's why the New Jersey Sierra Club's Bill Wolfe has warned that Whitman might "dismantle [federal] EPA and take it out of the enforcement business. I believe that this is precisely the policy Whitman has presided over and legitimized in New Jersey." One mechanism was the Office of Dispute Resolution, which she established to mediate conflicts over environmental issues (usually resolved in favor of business). She also installed an Office of Business Ombudsman under the Secretary of State (the Star-Ledger labeled it "essentially a business lobby") to further grease the wheels of the bureaucracy for polluters and developers, and to act as a counterweight to the DEP.

If Senate Democrats want to take a serious look at Whitman's record in the Garden State, they should start with "Open for Business," a three-part exposé by the Bergen County Record in 1996. After a ten-month investigation, The Record detailed dozens of cases in which Whitman's corporate-coddling policies had circumvented laws designed to protect the environment. Often, those getting favored treatment were big campaign contributors, like Finn Caspersen, then chairman of Beneficial, at the time the nation's largest independent consumer-loan company. The firm got more than $182 million in taxpayer subsidies in the form of road construction designed to ease traffic around its lavish office complex in Peapack--improvements that increased the value of an open 700-acre tract that Beneficial owned nearby. While all this was going on, Caspersen, his family and their political action committee gave the state GOP $143,250.

A more recent example: For the past three years, Roche Vitamin, a manufacturing plant in Belvidere, has been "belching out 300 tons of methanol annually--at least 10 times the rate state permits allow," according to the Star-Ledger. And Clinton's EPA has been fighting Whitman's proposals to further dilute state regs controlling water pollution and coastal development, which would sanction gigantic increases in pollution and hand over environmentally sensitive lands to rapacious developers. No wonder The Weekly Standard's David Brooks praised Whitman's nomination (and that of her anti-enviro counterpart proposed for Interior, Gale Norton) as reflecting the Bush Administration's "corporate mentality."

Whether the Dems have the stomach for a real fight against Whitman is an open question--her nomination has already been endorsed by her state's influential senior Democratic senator, Robert Torricelli. (Says a knowledgeable state Dem: "This is The Torch's way of paying back [Woodbridge mayor] Jim McGreevey," whose aggressive politicking in the gubernatorial race caused Torricelli to abort his plans to run this fall. "With Christie at EPA, McGreevey's GOP opponent, State Senate president Donald DiFrancesco, becomes acting governor and gets a big advantage.") Whitman and The Torch also get campaign cash from many of the same corporate polluters, and such bipartisan influence-buyers are likely to go all out in lobbying Senate Dems on Whitman's behalf.

In their campaigns for the White House, the major-party candidates--even the one backed by labor--spent little time debating labor-law reform.

Nevertheless, the AFL-CIO had hoped that a Gore victory and Democratic gains in Congress would lead to strengthening of the National Labor Relations Act (NLRA) or, at least, union-friendly appointments to the National Labor Relations Board (NLRB). Continued Republican control of Congress now eliminates the possibility of the former, while Bush's court-won victory makes the latter highly unlikely. In fact, when our new President gets through filling three vacancies on the NLRB early this year, his appointees will insure that the failure of labor law--a scandal exposed in different ways by former NLRB chairman William Gould in Labored Relations and by lawyer Lance Compa in the recent Human Rights Watch report Unfair Advantage--continues to thwart union organizing for the next four years.

Since the AFL-CIO began putting greater emphasis on membership recruitment in 1995, there have, of course, been important new gains. But some of the most significant victories involved organizing campaigns in which unions used their bargaining or political clout--where they still have it--to secure recognition in new units without using Labor Board certification procedures. For tens of millions of workers in the private sector, bypassing the law is not an option--and, for better or worse, the sixty-five-year-old NLRA continues to shape organizing strategies in many key industries.

Long hailed as the "Magna Carta of American labor," the NLRA (or Wagner Act) is definitely showing signs of age. The act was designed in 1935 to promote collective bargaining as a peaceful alternative to the many violent, Depression-era battles over union recognition. Its New Deal sponsors viewed unionization as a necessary corrective to the "inequality of bargaining power" between individual workers and management. To referee workplace disputes, Congress created the NLRB, which conducts representation elections, awards bargaining rights based on them and investigates "unfair labor practices" by employers that might discourage organizing or prevent workers from negotiating a union contract.

But the limited remedies, light penalties and secret-ballot elections available under the NLRA are meaningful only if its administration is swift and efficient. In few other areas of the law is there greater truth to the axiom that "justice delayed is justice denied." When union votes are stalled for months, union victories tied up in litigation for years, bad-faith bargaining goes unpunished and fired union supporters get reinstated (if at all) long after an organizing campaign has ended, management wins--even if the board ultimately rules otherwise.

The selection of NLRB members--and the agency's influential general counsel--is determined by who controls the White House and what kind of nomination deals are brokered with the Senate. (Functioning at full strength, the board consists of three appointees, including the chairman, from the President's own party and two from the opposition party.) However, as the AFL-CIO argued in its last major campaign for labor-law reform in the late 1970s, unfair-labor-practice victims need more than a sympathetic NLRB majority or efficient functioning by the agency's 2,000 career employees around the country. The law itself must be repaired.

The enormous gap between workers' legal rights on paper and the reality of NLRA enforcement under Democrats and Republicans alike is most effectively documented in Unfair Advantage. Labored Relations also describes how bad substantive decisions, "the creakiness of the NLRA's administrative procedures" and its "lack of effective remedies" have undermined worker organizing and strike activity in recent decades. But the bulk of Gould's memoir is devoted to refighting the personal political battles that occupied him during his four and a half years as a Clinton appointee on the NLRB. Gould's book thus invites comparison with Locked in the Cabinet, Robert Reich's glibly amusing account of his stint as Clinton's Secretary of Labor. Both men assumed their Washington posts--Reich at the Labor Department and Gould at the board--after a career in academia. Even before Clinton nominated Gould in 1993, Reich had tapped him (based on his work as a Stanford University law professor and respected arbitrator) to serve on the Dunlop Commission, a panel of experts convened to recommend labor-law changes.

At the time, Gould had just offered his own ideas on this subject in a book titled Agenda for Reform. In it he called for many of the same corrective measures now advocated by Human Rights Watch: employer recognition of unions based on signed authorization cards rather than contested elections; imposition of first-contract terms by an arbitrator when the parties can't reach agreement by themselves; greater use of injunctive relief to secure quicker reinstatement of workers fired for union activity; a ban on permanent replacement of economic strikers; and heavier financial penalties for labor-law violators.

Needless to say, Senate Republicans weren't too keen on Gould's proposals and kept his nomination to the NLRB dangling for almost a year. In fact, even Reich's labor-law-reform panel--which Gould left prior to being confirmed as NLRB chairman--failed to promote these much-needed changes. Instead, the Dunlop Commission stressed the importance of amending the NLRA so management-dominated "employee participation" schemes could flourish even more widely as an alternative to unions. Repackaged as the Teamwork for Employees and Managers (or TEAM) Act and adopted by Congress after the GOP took over in 1994, this anti-union legislation was ultimately vetoed by Clinton--after frantic labor lobbying.

To survive his contentious confirmation process (and avoid the fate of fellow African-American Lani Guinier, whose nomination to a top Justice Department post was dropped by Clinton when her writings as a law professor were attacked by the right), Gould played up his credentials as a "professional neutral." He proclaimed that his goal in Washington would be "to reduce polarization both at the board and also between labor and management." Equipped with what turned out to be a serious lack of diplomatic skills, Gould might have had an easier time trying to bring peace to the Middle East.

During Gould's tenure, Congressional Republicans sought to cripple the NLRB's operations with budget cuts, harassing oversight hearings and nonstop political sniping. Positive initiatives, like general counsel Fred Feinstein's attempt to get more federal court orders reinstating fired workers while their cases were being litigated, became a lightning rod for conservative criticism. Under these trying circumstances, Gould, Feinstein and pro-labor board members like Sarah Fox and the late Margaret Browning needed to stick together and coordinate their strategy in the face of common adversaries. Gould, however, quickly fell out with his colleagues in a fit of pique over their failure "to accord me stature and defer to my leadership." His "leadership" soon took the form of public feuding with, and criticism of, his fellow Clinton appointees--combined with attention-getting public statements about many of the leading labor-management controversies of the day. Even when he was on the right side of these disputes, his ill-timed interventions had the effect of exacerbating the NLRB's political problems.

In 1998, for example, Gould injected himself into the debate about a state ballot initiative in California that would have required unions to obtain the individual consent of their members before using dues money for political purposes. Gould's statement of opposition to this Republican-backed "paycheck protection" scheme correctly noted that it would "cripple a major source of funding for the Democratic Party." When his testimony was briefly posted on the NLRB's website after being presented to state legislators, it created such a ruckus that even Congressional Democrats generally supportive of labor and the board raised the possibility that Gould should resign to avert further Republican retribution against the agency.

Ironically, Gould's batting average at the board shows that he was not as much a union partisan as his business critics claimed. According to a recent law-review analysis by professor Joan Flynn, Gould's "votes in disputed cases were considerably less predictable than those of his colleagues from management or union-side practice... [they] broke down in a much less lopsided fashion: 159 for the 'union' position and 46 for the 'management' position." In contrast, when Ronald Reagan tried to change the NLRB's alleged pro-union tilt during his Administration, his chairman was a management-side lawyer--Donald Dotson, a figure no less controversial in the 1980s than Gould was in the '90s. Did Dotson pursue Gould's stated goal of "return[ing] the Board to the center to promote balance"? Of course not. Despite equally hostile Congressional oversight by members of the then-Democratic majority, Dotson openly promoted a Right-to-Work Committee agenda, defending management interests just as zealously as he had when he was on the corporate payroll.

Naming Gould to lead the board was, thus, very much an expression of Clinton's own political centrism. Unhappily for labor, Gould's unexpected personal showboating, squabbling with would-be allies and what Flynn calls his "near-genius for irritating Congress" impeded, rather than aided, the administrative tinkering that Clinton appointees were able to do at the board during his tenure. Vain, impolitic and--in the view of some critics--hopelessly naïve, Gould often did as much harm as good. In this respect, he was not unlike the Dunlop Commission, in that Reich's vehicle for building a political consensus on labor-law reform instead fed right-wing attempts to weaken the NLRA.

Gould's defense of his record seems designed to avoid the kind of flak that Reich received over his memoir's fanciful reconstruction of private and even public exchanges with various Washington notables. Labored Relations quotes extensively from the author's minutiae-filled daily journal, leaving the impression that no such literary license has been employed. Unfortunately, Gould lacks Reich's self-deprecatory humor and acute sense of irony. The author's tedious recitation of his speaking dates, telephone calls, case conferences, lunch and dinner conversations, etc., will be a hard slog for anyone but specialists in the field or ex-colleagues searching for critical comments about themselves (of which there are many).

Outside the Beltway and the "labor bar," settling old scores about who did what to whom as part of the "Clinton Board" is much less a preoccupation than the difficulty of defending workers' rights under any administration. Unfair Advantage does a much better job of keeping this big picture in focus, in particular by documenting the rising toll of workers fired for what, in board jargon, is called "protected concerted activity." In the 1950s, author Lance Compa reports, "workers who suffered reprisals for exercising the right to freedom of association numbered in the hundreds each year. In the 1960s, the number climbed into the thousands, reaching slightly over 6,000 in 1969. By the 1990s, more than 20,000 workers each year were victims of discrimination for union activity--23,580 in 1998, the most recent year for which figures are available."

The "right to freedom of association" is, of course, enshrined in international human rights standards that the United States nominally supports and often seeks to apply to other nations. Compa, a former organizer for the United Electrical Workers who now teaches international labor law at Cornell, exposes the hypocrisy of this official stance in light of persistent NLRB enforcement problems and the structural defects of the NLRA itself. In this Human Rights Watch report, he concludes that "provisions of U.S. law openly conflict with international norms...of freedom of association."

Millions of workers, including farm workers, household domestic workers and low-level supervisors, are expressly barred from the law's protection of the right to organize. American law allows employers to replace permanently workers who exercise the right to strike, effectively nullifying that right. New forms of employment relationships have created millions of part-time, temporary, sub-contracted and otherwise "atypical" or "contingent" workers whose freedom of association is frustrated by the law's failure to adapt to changes in the economy.

The problem with Compa's sweeping indictment of the status quo is that it contains no strategy for change--other than elevating the debate about what should be done from the lowly sphere of labor-management relations to the higher moral plane of international human rights norms. At the local level, Jobs with Justice coalitions and some AFL-CIO central labor councils around the country are actually trying to build a long-term grassroots campaign to promote greater public support for the right to organize. Not unlike that of Human Rights Watch, their target audience is the same elements of academia, the arts, churches and the liberal middle class that have long displayed admirable concern about human rights violations abroad or discrimination against women, gays and minorities at home.

Public officials, university professors, the clergy, civil rights leaders and neighborhood activists are now being encouraged to intervene in organizing situations to help neutralize illegal management resistance to unionization. Workers' rights activists will find plenty of new ammunition in Unfair Advantage, and even some that's buried in Labored Relations. Hopefully, their community-based efforts will create an improved climate for organizing--in some parts of the country at least--and put NLRA reform back on the national political agenda of labor's putative allies in the Democratic Party. Yet while having a Democrat in the White House may prove a necessary condition for reform initiatives, it's hardly sufficient--as the Clinton era just proved. Workers who try to form unions will continue to be at risk until Americans elect both a Congress and a President willing to do more than just tinker with our tattered protection of the right to organize.