It's Even Worse Than You Think Read online

  “Without information like this, fatality statistics are just raw, sterile numbers,” Barab explained. “The purpose of adding names and circumstances was to impress people with the tragedy that workers and their families face every day.”

  In August 2017 Trump’s Labor Department quietly removed the preamble and the names when it killed the webpage. It also took down, without public announcement, the Fatality Inspection Data for all years prior to 2017.

  Those were just two of many other Trump administration actions inimical to worker safety. Others included no longer posting press releases about deaths resulting from unsafe working conditions, delaying rules to reduce sickness and death from inhaling silica and beryllium at work, delaying rules to lower the risk of railroad engineers and truck drivers falling asleep at the switch or wheel because of untreated sleep apnea, and the appointment to the Supreme Court of a judge who held that a company had the right to fire a worker who chose not to freeze to death on the job.

  A reasonable person listening to Donald Trump’s inaugural address would never have expected these and other actions, assuming he believed what Trump said.

  “The forgotten men and women of our country will be forgotten no longer,” Trump declared. “You came by the tens of millions to become part of a historic movement the likes of which the world has never seen before. At the center of this movement is a crucial conviction—that a nation exists to serve its citizens.”

  Those men and women were forgotten again the following week. And it was not just workers whose interests were forgotten, not to mention who were put in danger. By deciding not to implement a rule to reduce the chances of truck drivers and train operators falling asleep at the wheel, Trump put at risk the lives of families driving along the highway, people riding on passenger trains, and many others.

  The White House called it “President Trump’s War on Regulation.” In his weekly radio address in early May, he declared that “We have removed one job-killing regulation after another—they’re not pretty and they’re going. And believe me, we are just getting started on regulations. They’re gone.”

  Removal of data on workplace deaths, which average thirteen per day, infuriated Jordan Barab, who was Obama’s No. 2 at the Occupational Safety and Health Administration. As a private citizen Barab created a webpage to keep track of the names of the dead and the reasons they were killed on the job. He called it “OSHA Won’t Tell You Who Died In the Workplace. We Will.”

  After the election, Barab’s concerns that the Trump administration would be bad for workers increased when he asked where the Trump beachhead team was and learned that none was coming. Each incoming administrator sends people to scope out federal agencies, learn who does what, and get a feel for the place in advance. Then the incoming administration sends its landing team, the people who will initially implement its policies at each agency.

  When no beachhead team came, Barab figured it meant worker safety simply was not a priority for Trump. He hoped that was the worst of it, nothing more than apathy about worker safety. But when the landing team arrived, Barab realized trouble was coming for American workers, and it was not official apathy but the start of assaults on workers’ rights and safety. “Most of them had no idea they were going to Labor and had no interest in worker issues, either,” Barab said.

  What they did have was a mandate to delay, repeal, or weaken regulations that protected workers as part of Trump’s plan to eliminate “any regulation that is outdated, unnecessary, bad for workers, or contrary to the national interest.”

  * * *

  The first sign came when Trump nominated Judge Neil Gorsuch to the Supreme Court. Gorsuch was an acolyte of Antonin Scalia, whose seat he would be taking. Like Scalia, he said statutes should be read literally and if that made no sense, well, that was a problem for Congress. Also like Scalia, he had a habit of consulting dictionaries, often following Scalia’s practice of relying on the third, fourth, fifth, or even lesser definition of a word when it supported his jurisprudence.

  Trump’s nomination alarmed unions. Jody Calemine, a Communications Workers of America lawyer, told Gorsuch’s Senate confirmation hearing that Gorsuch “is a threat to working people’s health and safety.” Calemine cited Gorsuch’s dissent in a 2016 case to make his point. “That dissent reveals an anti-worker bias and features a judicial activism that will ultimately put workers’ lives at risk.”

  Those are unusually strong words about a Supreme Court nominee, but a review of the case shows Gorsuch has little regard for human life, at least when it comes to employers’ power over their workers. He considers a rigid interpretation of the law more important.

  The case was about a law Congress passed giving workers the right to refuse dangerous tasks.

  Truck driver Alphonse Maddin was nearly out of fuel one January night in 2009. Temperatures had plunged to 14 degrees below zero. Maddin pulled over on an Illinois roadway to figure out where to get fuel. Ten minutes later he tried to drive off, but the rig wouldn’t budge. The trailer’s brakes had frozen. A dispatcher told Maddin to sit tight until a repair truck arrived. Maddin fell asleep in the unheated truck for two hours, awakened by a cousin’s cell phone call. Maddin’s torso was numb, his speech slurred, cousin Gregory Nelson testified, describing classic signs of hypothermia. Maddin radioed his dispatcher, who told him “Hang in there” until help arrived.

  A half hour later, certain he was on the verge of freezing to death, Maddin disconnected the trailer and drove to warmth.

  TransAm Trucking fired him for not following orders. The Olathe, Kansas, company calls itself “the premier carrier in the temperature-controlled freight industry by providing its customers with superior service that exceeds their expectations.”

  Congress subsequently passed a law that protects a worker by making it unlawful for an employer to discharge an employee who “refused to operate a vehicle because . . . the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.”

  The worker bears the burden of showing that a reasonable individual in such circumstances “would conclude that the hazardous safety or security condition establishes a real danger of accident, injury, or serious impairment to health.”

  Maddin filed a complaint with the Labor Department. An administrative law judge and a review board both found the firing violated federal law protecting workers who refuse unsafe work orders. TransAm, ordered to reinstate Maddin with back pay, took the case to the Tenth Circuit Court of Appeals. It argued that the law protected only workers who refused to operate unsafe equipment, while Maddin drove the truck after being instructed to “stay put.”

  Two of the three judges hearing the case concluded that the Labor Department had reasonably interpreted the word “operate,” and upheld the reinstatement with back pay.

  The third judge, Neil Gorsuch, didn’t see it that way.

  The law “only forbids employers from firing employees who ‘refuse to operate a vehicle’ out of safety concerns,” he wrote in dissent, adding that “nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly . . . permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid . . . The law before us protects only employees who refuse to operate vehicles, period.”

  Gorsuch said Maddin had two choices if he wanted to keep his job. He could drag the truck with the frozen brakes locking its wheels, which Gorsuch said would be illegal. Or, Gorsuch wrote, “he could sit and wait for help to arrive (a legal if unpleasant option).”r />
  “Unpleasant” is an interesting word for choosing to die, as Maddin was certain he would have within minutes had he decided to “sit and wait for help to arrive.”

  At Gorsuch’s confirmation hearing, Senator Dick Durbin, an Illinois Democrat, said that 14 degrees below zero was very “cold, but not as cold as your dissent, Judge Gorsuch.”

  People who voted for Trump believing he was their economic savior and political champion could hardly have expected that his first Supreme Court nominee would have a man choose between his life and his job.

  Calemine, the lawyer for the Communications Workers union, told the Senate Judiciary Committee hearing that he expects Gorsuch to take “a sledgehammer to workers’ explicit statutory rights. . . . More workers will die on the job. . . . Our health and safety worker safety laws are written in the blood of working people, please do not allow Judge Gorsuch to repeal these laws” with “his brand of judicial activism.”

  Trump’s nominee had a history of “judicial activism,” a phrase most often used by conservative witnesses before Congress to criticize centrist and liberal judges.

  * * *

  Gorsuch was sworn in as the Trump administration took numerous actions inimical to worker safety, including veterans and defense industry workers.

  A rule went into effect in Obama’s last days to protect 62,000 workers from beryllium dust. Beryllium, a metal lighter than aluminum and more rigid than steel, is used in military and other applications, including making nuclear bombs. Obama updated a rule from the 1940s that was much weaker.

  Under Trump’s executive order to freeze regulations, the Labor Department also put off a rule to protect workers from silica dust. That silica dust can cause fatal lung disease was known since the Romans, who recognized the lethal effects, though not the cause. The rule that the Obama administration put into place was meant to protect about two million workers, in construction, dental labs, and other places where silica is used. The rule was expected to generate benefits of $7.7 billion greater than costs while preventing nine hundred new cases of silicosis annually and avoiding six hundred agonizingly slow deaths from the lung disease.

  Trump’s Labor Department also moved to revoke a rule requiring most employers with more than ten employees to keep a record of serious work-related injuries and illnesses. The U.S. Chamber of Commerce, the top business lobby in Washington, had called the rule onerous.

  Most ominous for workers is the Chamber’s support for the Trump plan to reduce records of injuries and protections against retaliation when workers report injuries. The Chamber also supports the Trump agenda of not making such data readily available to the public. “Posting safety records online” should be prohibited, Neil Bradley, the Chamber’s chief policy officer wrote, because that “will provide unions and trial attorneys with information that can be taken out of context and used in organizing campaigns, or form the basis of lawsuits.”

  Meike Patten, a corporate safety officer in Minnesota, wrote that experience has shown her—sadly—“that unless ‘OSHA says so,’ it is often very difficult and time consuming to improve” workplace safety. “Production is usually more important than safety and despite the fact that catch phrases are being thrown out like ‘Safety is number one’ or ‘Safety is a priority,’ management quite often puts the employee’s health and safety on the back burner. That’s why we need OSHA so badly.”

  Patten also mused about “which other rules and achievements will be repealed over the next years and throw us back? We need someone in Washington who works FOR the people.”

  Barab summed up these and other Trump actions this way: “This is not a pro-worker administration, and workers will pay the price for rolling back these hard-earned protections—in injury, illness, and death.”

  * * *

  Workers are not the only ones affected by workplace safety regulations. Rules affecting bus, truck, and train operators also affect passengers and motorists. Deaths and injuries from transportation accidents have been on the rise in recent years, a trend influenced by transportation safety rules.

  Driver fatigue factors into nearly a third of truck crashes, noted Joan Claybrook. Claybrook has spent half her life trying to improve transportation safety as director of the National Highway Safety Administration under Jimmy Carter and later as president of Public Citizen, the liberal consumer advocacy organization in Washington.

  She noted that the Federal Aviation Administration has rules that ground pilots with sleep apnea unless they are treated. Those rules save lives and prevent plane crashes.

  “In 2015 truck crashes killed 4,067 people and injured 116,000 more, a 45 percent increase since 2009,” Claybrook said. “For trains, several recent horrific crashes in New York and Missouri resulted in four deaths, over 60 injuries and millions in property damage because crew members fell asleep or were highly fatigued from obstructive sleep apnea. The facts demand a federal public safety rule.”

  The Obama administration did just that in March 2016, after a series of high-profile train and truck crashes where the operators suffered from sleep apnea, which can cause people to momentarily fall asleep with no warning. The rule required testing of bus, truck, and train operators and treatment for those found to suffer from the condition.

  The Trump administration announced in August 2017 that it was withdrawing the rule.

  A notice in the Federal Register said the administration described the rule as neither effective nor worth the cost of testing. Instead, the administration said it would “continue to recommend that drivers and their employers use the North American Fatigue Management Program . . . a voluntary, fully interactive web-based educational and training program developed to provide both truck and bus commercial vehicle drivers and carriers and others in the supply chain with an awareness of the factors contributing to fatigue.”

  Killing the sleep apnea testing rule infuriated Claybrook. She saw it as the opposite of Trump’s forgotten man promise and the embodiment of wealthy privilege.

  “President Trump’s only focus is whether he or his family could be harmed, the public be damned,” Claybrook said. The president “travels by private jet and police protected and Secret Service–driven vehicles. He doesn’t care a whit about thousands of families each year losing loved ones to rolling time bombs—large trucks and trains barreling along at high speed driven by workers suffering from deadly serious sleep apnea.”

  * * *

  The justification for delaying, withdrawing, or killing these and many other rules is fostering faster economic growth. In that regard, Trump’s move to reduce significantly the number of workers eligible for overtime pay would have a dampening effect on economic growth. Many other Trump administration actions put downward pressure on wages.

  Business ledgers record expenses and sales, profits and losses, but ignore costs that are shifted onto society at large. Every exhausted truck driver who falls asleep at the wheel, every worker whose lungs deteriorate because of silica dust or the much more dangerous beryllium dust, creates costs, but they are not recorded on corporate financial statements. The more that government rules allow companies to shift costs off their books and onto society, the more the corporations may profit, but the less well the nation will do economically and socially.

  In the end, though, every cost must be accounted for on the universal ledger. There is no free lunch. The death of a worker may make a company money depending on its insurance coverage, but no record is made of the orphan crying for her daddy.

  Rules that mean more death, more injury, more pollution favor those who shirk their responsibilities and force others to bear the costs. But do these Trump policies promote faster economic growth? Can they? Will they?

  “There is no reason to believe that anyone is now expecting faster economic growth than before the election,” observed Dean Baker, a liberal economist and press critic with the Center for Economic and Policy Research.

  Rather than speeding economic growth, Trump’s actions and i
nactions were slowing it. That was not Baker’s assessment, but that of the International Monetary Fund in its World Economic Outlook. It said global growth in 2017 and 2018 would run about 3.5 percent, but that the outlook for U.S. growth was less rosy because of “difficult-to-predict U.S. regulatory and fiscal policies” and geopolitical risks.

  So how to explain rising stock prices since the November presidential election? In theory stock prices represent current estimates of future corporate profits.

  Baker noted two of many ways that Trumpian policies could boost corporate profits and thus raise stock prices while damaging the overall economy.

  One would be “facilitating rip-offs of consumers,” Baker said. Financial crimes make banks more profitable so long as they are not stopped by regulators. William K. Black discovered this when he was the key regulator exposing the savings and loan scandals of a quarter century earlier. After getting more than three thousand cases brought, and sending almost nine hundred high-level bankers to jail, Black earned a doctorate in criminology by developing a new theory of white-collar crime. When executives run a bank for their own benefit, looting it through bad loans, fat fees, and manipulating the stock price, Black calls that “control fraud.” That’s because the executives in control run the fraud.

  Control frauds not only hurt shareholders, borrowers, employees, and taxpayers, they also impose costs on honest banks because they cannot compete in the short run with crooks who manipulate prices and values that cannot be sustained for more than a few years.

  Black also showed how regulations can identify and stop control fraud without interfering in legitimate banking, not that anyone in the Trump (or Obama) administrations wants to listen to him.

  Baker pointed to the Consumer Financial Protection Bureau, created at the urging of Elizabeth Warren before she became a senator from Massachusetts, as an example of good regulation. “It was set up in large part to prevent predatory practices by the financial industry. For example, it has sought to make it more difficult for financial firms to slip conditions into contracts that no one would ever agree to if they understood them.”