After Ludlow, workers’ rights still off-balance

[dropcap]A[/dropcap]s an employment lawyer, I hear lots of stories that are at once sad and infuriating.

People come to me when their work lives have run amok.  A conscientious worker loses his job for no other reason than that the new manager doesn’t like him as much as the old manager did. A woman gets fired on a trumped-up charge, when it’s really because she filed a sexual harassment complaint. A 63-year-old, loyal to his company for decades, empties his desk into a cardboard box before security escorts him past his colleagues, then out the door.

Most of our waking hours aren’t spent at home or with our families, but on the job with co-workers who become friends, supporters, our tribe. Whether we clean floors, treat sick people or make widgets for a living, we define ourselves in large part by our work. But in a flash, the job that fed the family, paid the doctor and framed our identities can be yanked away. Getting sacked can feel like getting kicked, spat upon. It hits in the gut.

When prospective clients come to my office, each has the same fear, shame, and rage in his or her face. I hear them out and find myself fumbling for consoling words. I’m sorry. Raw deal. But empathy isn’t why they call me. They want to fight.  They want to counterattack, to take back what they feel is rightfully theirs. Faithfully, and often naively, they expect prompt justice from a court of law.

Problem is, the law offers little to set things right.

I acknowledge that some workers are slackers and malcontents who fully deserve to get fired. And I understand that it’s not easy to be the boss.

But the deadbeats who had it coming seldom waste my time. They know better. More often, I meet people who got shafted. I feel for them. And, like most folks, I root for the underdog. Take away someone’s livelihood for no reason — or worse, for a stupid reason — and anger is anyone’s natural response.

It’s an uncomfortable fact of my profession that the law favors the employer in subtle and complex ways. Employment law is so convoluted that rather than expounding on torts and case law with prospective clients, I turn to history. I tell them what happened here in Colorado during a snowy April 100 years ago this week. It’s a true story. And it’s far more tragic than anything going down in workplaces today.

Ludlow is, in part, a parable. I tell the story as a way to make a distressing, but necessary point to potential clients: That no matter how unjustly they’ve been treated, no matter how righteous their indignation, the employer — and the employer’s money – still has the upper hand. Ludlow is also a rallying cry. Despite the many reforms and regulations put in place since the Great Colorado Coal War, the folks who come seeking my help aren’t alone in a struggle that – although far less overtly than a century ago – continues among workers today.

II.

Just a few generations back, in the coal camps between Trinidad and Walsenburg, Colorado’s coal miners banded together and went on strike against the Colorado Fuel and Iron Company.  CF&I was a multi-million dollar conglomerate controlled by John D. Rockefeller Jr. and a consortium of eastern millionaires.

The youngest child of the richest man in the world, JDR Jr. was complex, to say the least   At Brown University, he had studied social sciences and read the works of Karl Marx. In 1910, he headed a grand jury that investigated human trafficking in New York. That same year he and his father founded the Rockefeller Foundation, endowed with $100 million to “promote the well-being of mankind throughout the world.” He donated thousands of acres for conservation that would become Grand Teton National Park. Over their lifetimes, he and JDR Sr. gave more than a billion dollars to charitable causes.

 Despite his philanthropy, JDR Jr. was appallingly unaware, if not indifferent, to the suffering in his Colorado coal mines. Miners – most of them immigrants, uneducated and poor — were dying in scores from fires, explosions, cave-ins and poisonous gas. They were cheated out of wages, deceived about dangers and confined to “company towns” that were little more than internment camps.

As early as 1900, the United Mine Workers of America (UMWA) began organizing miners to negotiate with mine owners.  A staunch anti-unionist, JDR Jr. would have none of it.  Early In 1913, the UMWA presented CF&I with a demand for an eight-hour workday, better pay and safer working conditions. The company refused. On September 23, 1913, thousands of miners went on strike. The company retaliated by evicting all of them and their families from their homes. The union constructed makeshift tent villages near various CF&I mines. In these, the strikers dug in for the coming winter.

To keep the mines running, CF&I shipped in carloads of new workers, also mostly immigrants, to replace the strikers. The replacements trudged toward the mines, only to be taunted and jeered as “scabs.”

The winter of 1913-1914 was the coldest in memory with snow packed on the ground.  The company hired the private security contractor, Baldwin Felts, to terrorize the strikers into submission. Baldwin came armed with a truck mounted M-1895 Colt-Browning machine gun that fired 450 rounds per minute. The gun-truck, plated with steel, was dubbed the “The Death Special.” Baldwin used the truck for drive-by shootings, raking the tents with machine gun fire. On October 28, 1913, the Death Special put nine bullets into a young boy’s legs and wounded a young girl in the face. Strikers dug pits beneath the tents so they and their families could take cover from the strafing fire.

The miners were far from passive. Armed with rifles and pistols that were bought by the union, they returned fire whenever fired upon. Firefights and skirmishes erupted throughout the winter. Casualties were taken on both sides.

The mines kept operating with replacement labor, and the company kept pressure on the striking miners. There were skirmishes back and forth. The standoff was gaining national attention. Then on March 10, 1914, the lifeless body of a replacement worker, a scab, was found lying by the railroad tracks near one of the smaller tent camps.

The National Guard commander ordered that all the strikers be removed from the tent villages.  The clearing operation began with the smaller encampments that were spread over 16 miles of prairie from Ludlow south to Trinidad. The militias took their time getting to Ludlow, the largest and strongest of the camps.

The suffering of thousands on the frigid steppes of Southern Colorado and the ongoing conduct of state-ordered military operations had come to the attention of Congress. On April 6, 1914, JDR Jr. was called to Capitol Hill and questioned for four hours. He testified that, despite his controlling interest of CF&I, he knew little of the situation in Colorado, but added that he would rather shut down the mines than recognize the union under the circumstances. When asked about the labor war being waged over his employment practices, he told Congress members that he maintained “absolute confidence” in the officers of CF&I.

Just two weeks after Rockefeller’s testimony, the Colorado National Guard launched an armed assault on the Ludlow camp.

At 10 a.m. on April 20, 1914, a burst of flares signaled the militia members to attack the tent village. They fired rifles and automatic weapons. The strikers dug in, returning fire, and the battle raged throughout the day. By nightfall the militia had the field. Many of the strikers had fled. The militia overran the camp, torching every tent with burning brooms.  Eleven children and two women died while taking cover in one of the shelter pits beneath a burning tent. Their bodies were pulled from the smoldering ruins at dawn the following day.

The blaze of media coverage about the bloodshed and plight of Colorado coal miners triggered national outrage and pledges of investigation and reform by Congress. But reform was a long, slow fuse — too slow to help the men and their families who fought, bled and died at Ludlow.

After burying their dead, the miners struck out in a rampage. They dynamited mines, burned buildings and murdered mine guards. They torched a cabin where Japanese replacement workers had taken shelter. Every man inside was burned to death

In the end, the Ludlow workers lost. Surviving miners were blacklisted from work. Union leaders were murdered. And the perpetrators walked scot-free, without prosecution from local or state officials who were in the pockets of the Rockefellers. Though the union, the UMWA, gained recognition in other mines and still is organized today, it was never recognized by CF&I.

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III.

In my own life, labor struggles played an early role.

When I was three, my family lived in the Bootheel of Southeast Missouri, a forgotten remnant of the old South jammed into Northeast Arkansas, across the river from Tennessee.  People were poor and labor came cheap. “Beggars can’t be choosers,” as the saying goes.

My father worked at a bakery for the mid-century southern wage of fifty cents an hour. There were labor troubles at the bakery.  As I kid, I heard frightening words like strike and fired.  When I first heard of a man getting fired, I imagined he was set ablaze like a kindling stick in a wood stove. I listened to my dad telling my uncles about dynamite thrown at a strike. I knew what dynamite was, having seen a cartoon cat holding a big fire-cracker with a hissing fuse. After the cartoon dynamite exploded the cat had a black face and frizzled hair. Over the years, I’ve often wondered about the talk of dynamite in the bakery. I never asked.

After much conversation about firings, strikes and dynamite, my family moved to St. Louis where my father joined the International Association of Machinists as an apprentice mechanic. We lived in an old brick apartment row on Ridge Street where coal first entered my life. Coal-fired furnaces heated all the buildings. There was a coal room in the basement below our apartment. My parents and the neighbors would shovel the chunks into a big pot furnace, making it growl with fire. I liked to play with coal, breaking it, throwing it, scratching it on the concrete. In the winter, the air stank of it burning, and its black soot blackened the snow.

I started my first day of school in St. Louis, where my teacher told us there were three kinds of coal: anthracite, bituminous, and lignite.  Anthracite was the best, she said — hard and slick and burns real clean.  Bituminous coal, the coal mined in Colorado, was OK. And lignite was dirty and not very good. When I learned that coal was from plants and animals from a million years ago, I liked it all the more.

When I was seven years old, we moved to a lumber town in Oregon where my dad rejoined the IAM.  Years later he took a different job and joined the Teamsters Union.  He was always a union man, body and soul, serving proudly as president of his local. He retired modestly, but comfortably, with the help of union pension funds. He raised me, his only son, on union propaganda — stories about work-related injuries and deaths, about twelve-hour workdays and seven-day workweeks, about the chump-change-pay and the “haves” constantly cheating the “have-nots.”  I learned about company thugs armed with baseball bats, and Mafiosi coming to the workers’ rescue.

“The companies hired guys to push us around, so we hired gangsters,” my dad would tell me. “Fire with fire.” It all made sense to an unformed mind. Basic playground politics.

Later, in college I met the children of another narrative – one about thrifty, industrious entrepreneurs. These were executives’ kids who were raised on Horatio Alger stories and management propaganda about lazy workers, whiners and sloths, and the coddling wet-nurse of a government that fed their insatiable sense of entitlement. I couldn’t help but notice that they seemed rather coddled themselves — nice cars, off-campus housing, and Christmas trips to Aspen. That said, their narrative was compelling. I half believed it might be essential to take a few years of ease before assuming the helm as a captain of industry.  And despite the fact that I bussed tables, dug ditches and made rounds as a night-watchman in college, I wondered if my kind did have some genetic latent slothfulness.

Where I had grown up in Oregon, I became fascinated with the abandoned gold and copper mines that dotted the landscape.  I would ignore stern warnings and explore the dark rock labyrinths where workers had blasted and hauled the ore out of the rock walls. Like they did so many years before me, I would creep underground with nothing against the dark but a carbide lamp and its stinking flame. My youthful foolery paid no heed to the possibility of ground-collapse. Only luck spared me from blackdamp gas and death by suffocation.

The abandoned metal mines of my childhood exploration, though treacherous enough, weren’t nearly as dangerous as any working coal mine. I have never entered an underground coal mine, and have no plans to do so.

I’ve held but two jobs that came even near to the experience of a coal miner. In my first year of college, I worked in a charcoal factory where we breathed coal dust and some of my coworkers were burned in a flash fire. More recently, I returned from two years working as a legal advisor in Afghanistan, where death by explosion was an occupational reality.

IV.

The Ludlow Massacre was but one of many industrial horrors in the early past of the last century. Three years earlier, in 1911, employees of New York’s Triangle Shirtwaist Factory were locked behind chained doors so they couldn’t take unauthorized breaks. When the factory caught fire, 148 workers – mostly women and many of them teenage girls — burned to death.  From 1927 to 1932 workers in the Hawk’s Nest Tunnel in West Virginia were ordered to tunnel into rock that contained large quantities of the mineral silica, whose dust causes a fatal lung disease. The workers  were never warned about the dangers of silicosis, nor were they supplied with the protective respirators that managers wore when inspecting the work site. Ultimately, 700 to 1,000 workers died from dust induced silicosis.

These and many other tragedies prompted conditions to improve slowly and grindingly. By the New Deal era of the 1930s, much of industry was unionized, giving workers rights to collective bargaining agreements that raised wages, humanized conditions and improved safety.

Given the labor horrors of the early 20th century and the tremendously improved working conditions today, workers’ demands for more from employers can smack of a griping, sniveling ingratitude.

We now have strong laws limiting hours of work. We have powerful agencies enforcing safety and child labor laws. We have workers’ compensation to help people hurt on the job. Unemployment benefits soften the hit of termination. Legislation reins in discrimination based on age, gender, religion, disability, race, ethnicity or color. The list of constraints on employers and protections for workers is long and growing. Even over the past year, Colorado has strengthened anti-discrimination laws for workers. The new state law goes further than federal law in prohibiting discrimination based on sexual preference.

The private sector, too, is in some ways progressing. By allowing flex-time, job-shares and the ability to work at home, for example, some corporations are making revolutionary advancements toward improving the lives of their workers. There are reasons why everyone wants to work for Google which, with its free meals and nap pods, is building better bosses and happier workers at the speed of light.

There’s no doubt that the Google workplace is several galaxies beyond the working conditions of CF&I in 1914. But, truth is, Google is a fluke – a much-hyped, Kodachrome version of the American workplace. Conditions for most U.S. wage earners fall far below the Googleplex ideal. Multinational corporations ingratiate themselves to communities with promises of enlightened management and plentiful jobs, only to start outsourcing jobs in a bait and switch. Increasingly, the eight-hour work day is a thing of the past, with longer work hours causing a rise in workplace fatalities and a vast decrease in the amount of time parents spend with their children. Two-earner families have become the norm. Age discrimination is on the rise, while older workers are increasingly too poor to retire.

As my father’s son, my interests and sympathies for labor are no coincidence. But I no longer share his zeal for unions. Though I’m grateful for what they did for my family, I’ve worked closely enough with unions to know that they can be just as petty and bureaucratic as any overgrown organization, or worse. Organized labor was a promise never fulfilled, leaving the children of our parents’ generation largely unprotected as businesses chip away at hard-earned workers’ rights. Nationwide, union membership peaked in 1954 when 28 percent of all workers were union members. The percentage has steadily declined ever since and the national average now stands at below 12 percent. Likewise, Colorado union membership has steadily dropped since state records began in 1987. Only 8 percent of Colorado workers are unionized.  The remaining 92 percent – the kind of folks who show up for my legal advice – have scant recourse if their employer turns against them. As they see it, unions are dead

Despite legal and regulatory progress over the past century, there is a common thread that runs from the mines at Ludlow and wraps around our cubicles today: a fundamental lack of liberty and justice at work.

Back then and today, the basic operating theory in the American workplace has been the employment-at-will doctrine (also known as the employment-at-whim doctrine). Management can discipline, cut wages, slash benefits, decrease hours, change work assignments, fire people and switch the rules without warning, and with no consequences whatsoever. It’s the law in every state but Montana.

The problem with hinging workers’ livelihoods to the arbitrary and capricious impulses of their bosses plays out every hour of every day throughout the nation. In Iowa, for example, dental assistant Melissa Nelson worked ten and a half years for a boss who admits that she was one of his best employees. Still, Dr. James Knight fired Nelson because he was attracted to her and he and his wife feared he might be tempted to act on it. Nelson, who is raising two kids with her husband, told a local news station that Dr. Knight’s concerns about having an affair were “ridiculous.”

“I’m not attracted to him. I’ve never been attracted to him. An affair to me was completely out of the question,” she said.

Nelson sued the dentist for unlawful termination based upon sex discrimination, which is one legal exception to the at-will doctrine. The case was heard by the Iowa Supreme Court, which ruled that her firing was not sex discrimination, leaving Nelson no remedy for being fired. Her termination stands.

 Free speech can also cost workers their jobs. Employers are free to prohibit freedom of expression, even when the expression has no impact on the work at hand. Few would defend the firing of Retired Air Force Colonel Morris Davis who had resigned from military service in protest over prisoner mistreatment at Guantanamo during the Bush Administration, only to be fired from his later job at the Congressional Research Service for publishing an op-ed mildly rebuking the Obama Administration for inconsistency in its approach to the Guantanamo trials.

What happened to Nelson and to Davis – like so many others – shows the fundamental unfairness of the at-will system. Workers are essentially powerless, lacking rights that are fundamental to democracy, such as the presumption of innocence in Nelson’s case, and free-speech rights in Colonel Davis’ case.

Today, no worker is more powerless than an undocumented immigrant caught up in an immigration raid — a 21st-century twist on workplace turbulence that deserves its own story at another time. But this we know: With SWAT-team precision, federal officers from Immigration and Customs Enforcement (ICE) have swept into plants and factories, arresting employees on a variety of charges, most of them relating to the fact that they are in the country illegally.

In 2006, officers raided the Swift and Company meatpacking plant in Greeley, devastating families and the community as 261 wage earners lost their jobs and many their ability to work at all. Nearly 10 percent of Swift’s workforce vanished in the raids at Greeley and five other plants across the country, and company officials reported losses of $30 million as production slowed.

The Aurora Detention Facility, which holds detainees for Homeland Security’s Immigration and Customs Enforcement (ICE), is packed with immigrant workers who, much like the Ludlow miners, had come to this country on the unwritten social contract that they would work for cheap in dangerous jobs that most natives wouldn’t do.

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V.

Ludlow – specifically news of the women and children killed in the pit – infuriated the nation. The name of the tent camp became synonymous with the worst kind of corporate exploitation and greed. John D. Rockefeller Jr. responded to public pressure by implementing reforms that substantially improved the earnings and safety of CF&I workers. In 1915, he visited miners in the Colorado coal camps and told them, “We are all partners in a way.”

John R. Lawson, a UMWA organizer in Colorado at the time, acknowledged that Rockefeller’s “efforts will probably result in some betterments, which I hope may prove to be permanent.” “However,” he noted, “Mr. Rockefeller has missed the fundamental trouble in the coal camps. Democracy has never existed among the men who toil under the ground — the coal companies have stamped it out. Now, Mr. Rockefeller is not restoring democracy; he is trying to substitute paternalism for it.”

 Democracy still isn’t at work in the American workplace. When Melissa Nelson got sacked because her boss was attracted to her, when Colonel Davis was fired for speaking his mind, the law didn’t protect them. It was up to them, not their bosses, to prove an exception to the at-will rule. Proving exceptions – especially against an employers skilled at covering tracks — takes financial clout for legal representation, resources for investigation, money for court fees, and enough savings to ride out court proceedings that may clunk along for years. Courts aren’t free, and in most cases it’s the employer, not the worker, who has far more financial muscle to withstand protracted court litigation. Most workers, particularly those who’ve been fired, don’t have the financial clout to take on an employer, especially a very powerful one.

Lawson’s memory and legacy live on at the UMWA. He saw the need for democratizing the workplace as a cornerstone to reform. His ideal is hardly unattainable. “Workplace democracy,” as the approach has come to be known a century later, is now the norm in every industrialized democracy in the world except the United States. Germany has enacted it into law, as have Canada, Holland, Scandinavian countries and the United Kingdom. The Chinese are working on democratizing their employment sectors. And the 12 percent of American workers still protected by collective bargaining agreements are working under democratized conditions, despite increasing efforts over the past three decades to bust their unions.

A democratic workplace is not a form of socialism. It doesn’t translate into a guaranteed income or a guaranteed job — nor should it. It recognizes that a business must continue to profit for the benefit of employees as well as owners, managers and investors. In a democratic workplace, management can still discipline or fire workers for misconduct or poor performance, and lay them off out of financial necessities such as lost revenues or an economic downturn. Today,  international, employers throughout economically advanced countries — other than in the U.S. — are aggressively pursuing growth and profits while respecting the human rights of their employees. Given that other countries are managing to thrive while also protecting the dignity of their workers, it is inexplicable that the U.S. still clings to the master-servant school of management.

In contrast with the at-will approach, a worker in a democratic employment system can, in exchange for diligent performance and loyalty, reasonably expect job stability so long as there is work to do. Workplace democracy requires employers to show “just cause” for the discipline or firing of employees. There is no unfettered right to act on arbitrary and irrational impulses. Instead, management must engage and bargain in good faith and with fair dealings – the same principles underlying contract law and the Uniform Commercial Code in the U.S. In addition to being the basic employment law in every developed country except the United States, just cause is also the prevailing principle in the increasingly few U.S. workplaces where unions remain in place.

Post-Ludlow, when Rockefeller attempted reconciliation in Colorado by saying “We are all partners in a way,” his words echoed a deep fiction about U.S. employer-worker relations: That the at-will rule is a covenant between equals.

The fiction has it that the at-will system is fair because it allows either party to end the so-called “partnership” at any time and on equal footing. The employer can fire the employee and, likewise, the employee can quit. Left unexamined, the arrangement seems balanced, and that balance – “we are all partners” — is the very symbol of justice.

But then there was the rest of Rockefeller’s sentence: that we’re all partners “…in a way.” With those words, JDR Jr. let slip the falsity of the partnership in Ludlow in 1914 that still prevails in employment relations today. The truth is that employers can do more than simply fire workers. They can also discipline them, cut pay and benefits, change work hours and job assignments and make other one-sided changes. Other than quitting, workers have no equivalent powers, no ability to grant themselves a raise in pay or restore benefits or control working conditions. Rockefeller as much as said it: The work deal is lopsided, a gross imbalance between a low-powered individual in need of money – sometimes paycheck to paycheck — and a high powered organization with discretionary funding. When a big corporation fires an employee, the economic, social and psychological impact to the worker usually is severe. If the worker quits, it’s typically a manageable inconvenience. That’s hardly an equitable partnership.

VI.

My small employment law practice in Boulder is busy enough with clients whose cases can be pursued through anti-discrimination laws and other exceptions to the at-will doctrine. I take satisfaction in helping the relatively few clients that I can. But, even after 30 years of practice, I’m as frustrated as ever by having to turn away potential clients who’ve been exploited or shafted neatly within the iron shield of their employers’ at-will rights. Those are the bulk of my potential clientele. Without just-cause laws with which to protect them, I have little more to advise them than to apply for unemployment benefits and check the want ads.

Looking at the mishmash of employment policies today, there is too much law and too little justice. The at-will-rule, modified by a tangle of exceptions, serves neither side well. While the mistreated worker sifts through a maze of legal exceptions, hoping that one will fit for a lawsuit, the employer lives in fear of having run afoul of obscure and numerous exceptions to the rule. The confusion of laws and ever-present fear of getting sued weighs especially heavy on small businesses.

UMWA’s Lawson cut to the heart in 1915 when he said the fundamental problem was that companies had stamped out democracy.

Ironically though, it was Lawson’s nemesis, John D. Rockefeller Jr., who made a bold, perhaps even noble, attempt to reinstate democracy in the workplace. It was JDR Jr., not the union, who implemented revolutionary reforms by spending unreturned millions trying make amends for the Ludlow Massacre, democratizing conditions at CF&I and ushering in a program of worker management cooperation rarely seen before. What JDR Jr. established at CF&I is now known as an Employee Representation Plan (ERP) where workers and managers sit together on committees, exchanging ideas, voicing dissent, resolving disagreements and settling disputes in an atmosphere of cooperation and free speech. During the 1920s and 1930s, ERPs flourished in other industries as companies embraced them as an alternative to union inroads.

JDR Jr’s efforts came too late. So deep and so righteous was the outrage against him that his message was not heard.  His reforms were resoundingly dismissed by organized labor as a “sham union.”

But after a hundred years, after unions had their chance and failed with strikingly diminishing numbers, perhaps we could reconsider what JDR Jr. was trying to say. Maybe there’s something to learn from the horrors at Ludlow and the contrition of the silver-spooned mine owner whose efforts to set things right go overlooked in the history of the massacre.

The ERPs were, and are, anathema in organized labor circles, viewed as cynical and hypocritical ruses to dupe employees into rejecting unions. While the “sham union” criticisms held some truth, it is equally true that ERPs substantially increased the opportunity for employees to participate democratically in the workplace. The ERP at CF&I stood in place from 1915 to 1942. It was only after 1942 that a non-company took hold and lasted until the 1980s when a series of bankruptcies led to CF&I’s demise. Contemporary evaluations of the plan are mixed. It was neither the manipulative sham union decried by organized labor, nor the egalitarian utopia touted by the Rockefellers. In any case, CF&I miners post-Ludlow had a better arrangement than most employees have now in the post-union era.

The unions successfully lobbied for legislation against ERPs, which were ultimately outlawed by the Wagner Act of 1935. Yet in other countries, ERPs, and similar employee counsels, have flourished and are largely responsible for why countries outside of the United States have adopted far more democratic employment practices. There is even a rise in underground ERPs in the U.S. where both employers and employees are rediscovering the value of this illegal institution. These new ERPs must work informally, even covertly, as a complaint to the National Labor Relations Board could shut them down.

I’m an armchair historian who has read with more than a healthy amount of ire JDR Jr.’s prevarications about the catastrophic Colorado Coal War for which he was mainly responsible. He was, after all, an easy guy to hate. But a close look at JDR Jr. post-Ludlow and after the many media attacks and government interrogations he endured suggests that he may have been one of those rare individuals who could learn from his mistakes.

In 1941, at age 67, he shared his ideals in a national radio broadcast. “I believe in the supreme worth of the individual and in his right to life, liberty and the pursuit of happiness. I believe that every right implies a responsibility; every opportunity, an obligation; every possession, a duty,” he said. And then this: “I believe in the dignity of labor, whether with head or hand; that the world owes no man a living but that it owes every man an opportunity to make a living.”

In fact, the younger Rockefeller’s mid-20th century embrace of labor’s dignity has some urgency now, as contemporary social realities have led to immigration raids like the one at Swift’s Greeley plant eight years ago. No machine guns mowed down workers and their families, but the workplace crisis that emerged hurt employees and employer alike. In other words, both sides lost hold of the dream the junior Rockefeller envisioned:  opportunity, liberty and the pursuit of happiness for everyone, rich, poor, and in the middle.

Still, the possibility of common ground that the post-Ludlow, newly idealistic JDR Jr. saw in 1941 is within reach today. In the turmoil of unwieldy and outdated workplace and immigration policies where everyone loses, we have no choice but to find ways to reengage for the common good, to bring the lessons of Ludlow home.

It’s hard to not be skeptical about a guy who wore silk top hats and intoned about the dignity of labor after having been responsible for arguably the bloodiest labor war in U.S. history. Rockefeller’s professed hope of opportunity, liberty and the pursuit of happiness for all will only be realized if wage earners regroup and reengage. There is no other way. The unions won’t be back in force soon. Politicians aren’t moving the needle, and the legal system is full of holes. It won’t be easy. It never has been. But like it or not, we have to do business with the man in the silk hat.

practices law at Wilbur Smith PC, in Boulder, Colorado, where he focuses on employment rights, civil rights and international law. He has represented hundreds of employees on issues of racial discrimination, sexual harassment, age discrimination, employment injuries, and unlawful terminations. From 2011-2013, he was on assignment with the United States Department of State as a rule-of-law adviser to the Islamic Republic of Afghanistan, aiding in the reconstruction of that county’s legal system. In Afghanistan, he led a team of Afghan attorneys on missions to remote villages and outposts, introducing concepts such as human rights, gender justice and international legal principles.

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