by Eyal Press
Spraying chemicals inside industrial slaughterhouses had another, less noticed effect, which was to sicken many of the workers who inhaled them. Poultry plants were required to post Material Safety Data Sheets to warn workers about the potential health risks associated with the use of these chemicals. For PAA, these risks included “damage [to] most internal organs, including the heart, lungs and liver.” In 2011, an inspector at a poultry plant in New York State where PAA and chlorine were used died after his lungs bled out. In the years that followed, complaints about the air quality in poultry plants surfaced with growing frequency. At the workshop I attended in Bryan, Texas, I heard such complaints again and again—from poultry workers in Arkansas, from their peers in North Carolina, from Flor Martinez, who told me that her throat and lungs were constantly irritated when she worked at Sanderson Farms. “Your throat—it feels like you have this burning,” she said. Yet neither the USDA nor the Food and Drug Administration had reviewed whether exposing workers and its own inspectors to the chemicals was safe. Nor had the government set any permissible exposure limits for PAA.
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By the spring of 2020, the workers in America’s industrial slaughterhouses had reason to fear breathing in something else: respiratory droplets laced with the novel coronavirus that causes the potentially deadly COVID-19. Like prison guards, the people who toiled on the kill floors of these slaughterhouses were designated “essential workers” during the pandemic and instructed to continue doing their jobs. And like prison guards, many discovered that this designation did not entitle them to personal protective equipment or safe working conditions, much less to the kind of public recognition bestowed on medical workers and first responders. According to the Centers for Disease Control and Prevention, more than sixteen thousand slaughterhouse workers had tested positive for COVID-19 and eighty-six workers had died by the beginning of July. The actual toll was likely far greater, both because of delays in identifying outbreaks and because only twenty-one states had submitted data to the CDC. Though incomplete, the CDC data was nevertheless revealing, showing which communities were absorbing the devastation and which were not. Of the meatpacking workers who had died of COVID-19, 87 percent were racial or ethnic minorities.
One of the states that did submit data to the CDC was Colorado, which was home to a beef slaughterhouse in Greeley where, in April, an outbreak of COVID-19 caused a wave of infections and three worker deaths. After a county analysis showed that 64 percent of employees who’d tested positive had continued reporting to work—reflecting what one local health official called a “work while sick” culture at the plant—Colorado ordered the slaughterhouse to close. Yet eight days later, the facility reopened and the outbreak continued to spread. Soon, three more workers were dead, all of them minorities. As The Washington Post revealed in a story published a few months later, in the intervening period, JBS, the company that owned the plant, had enlisted a powerful ally—the White House. Soon thereafter, Robert Redfield, the director of the CDC, called Jill Hunsaker Ryan, the head of Colorado’s health agency, apparently at the behest of Vice President Mike Pence. “JBS was in touch with the VP who had Director Redfield call me,” Ryan wrote in an email to a county health official. According to the email, Redfield wanted the state to permit the company to send “asymptomatic people back to work even if we suspect exposure but they have no symptoms.” In its story, the Post traced the effects on the family of Bienvenue Chengangu, a Congolese refugee who began to cough and develop a fever after completing a night shift. Chengangu soon tested positive for the virus and ended up infecting his mother, who was seventy-three and had high blood pressure. Although Chengangu recovered, his mother did not, leaving him to wonder whether his decision to flee the civil strife in the Congo for the apparent safety of the United States had been wise. “I’m realizing America isn’t the paradise we believed it to be,” he said.
The JBS plant in Greeley was not the only slaughterhouse that the federal government pressured state officials to keep open. On April 26, 2020, a full-page ad about the dire situation in the meatpacking industry appeared in The New York Times—dire not for the workers dying and falling ill but for consumers who might be deprived of meat. “The food supply chain is breaking,” proclaimed the ad, an open letter from John Tyson, the CEO of Tyson Foods. “As pork, beef and chicken plants are being forced to close, even for short periods of time, millions of pounds of meat will disappear from the supply chain,” the ad warned. “As a result, there will be limited supply of our products available in grocery stores until we are able to reopen our facilities.”
Two days after the Tyson ad appeared, President Donald Trump invoked the Defense Production Act to order meatpacking plants to remain open, overruling states and localities that had temporarily shuttered them for health reasons. “It is important that processors of beef, pork, and poultry (‘meat and poultry’) in the food supply chain continue operating and fulfilling orders to ensure a continued supply of protein for Americans,” the executive order affirmed. As press accounts soon revealed, supplying protein for Americans was not the meatpacking industry’s top priority. In the same month that its full-page ad appeared in the Times, Tyson shipped 2.5 million pounds of pork to consumers in another country—China. Smithfield, whose CEO also raised the specter of meat supply shortages in U.S. grocery stores, exported 18 million pounds of pork to China. “In all, a record amount of the pork produced in the United States—129,000 tons—was exported to China in April,” noted an article in the Times.
The revelations did not stop the Trump administration from helping the meatpacking industry with another matter it saw as urgent: protection from lawsuits filed by workers forced to toil in crowded, unsanitary plants overrun with COVID-19. As long as companies made “good faith attempts” to comply with the CDC’s health and safety guidelines, they would not be held legally responsible for exposing workers to the virus, a memo issued by the administration affirmed. The memo came from the Department of Labor and was cosigned by Loren Sweatt, the principal deputy assistant secretary for the Occupational Safety and Health Administration. OSHA was founded in 1970, with the mission “to provide a safe and healthy workplace for every working man and woman in the Nation.” Fulfilling this mandate had never been easy, both because of limited resources—OSHA’s budget is roughly one-tenth the size of the Environmental Protection Agency’s—and because of strong opposition from the business community, which invariably depicted the agency’s rules as an unwarranted intrusion on the free enterprise system. Even so, when the pandemic struck, it stood to reason that OSHA would assume a more prominent role. One thing the agency could have done was to impose an emergency temporary standard requiring companies to follow specific rules to protect workers from COVID-19. The template for such a directive already existed, thanks to the 2009 H1N1 pandemic, which prompted the Obama administration to launch an initiative to develop an infectious disease standard for work sites. As the death toll from COVID-19 climbed and meatpacking plants across the country reported outbreaks, some staffers at OSHA prepared a version of the standard that they hoped would be rolled out.
No emergency standard was issued. Instead, OSHA put out a series of memorandums listing guidelines that various industries could follow—guidelines that were not binding and that companies were explicitly told created no new legal obligations. The lax approach led some union leaders and worker-safety advocates to accuse OSHA of shirking its mission. It did not surprise anyone familiar with the background and beliefs of Eugene Scalia, who was secretary of labor at the time. The son of the late Supreme Court justice Antonin Scalia and a partner at the white-shoe firm Gibson, Dunn & Crutcher, Scalia did not come to the Department of Labor with a reputation as a stalwart advocate of workers’ rights. He did come to it with intimate knowledge of government rules and regulations, including worker protections enforced by OSHA—regulations he’d spent much of his career trying to weaken and undermine.
Scalia first rose to national pro
minence in the spring of 2000, at a hearing that the Department of Labor organized to solicit input from the public on a draft version of a new ergonomics standard that OSHA had been developing. The standard was designed to address musculoskeletal disorders such as carpal tunnel syndrome and tendinitis, injuries that afflicted hundreds of thousands of workers every year, including an untold number who worked in poultry slaughterhouses like the one I’d visited in Bryan. Labor unions had been pushing for such a standard for years. But business lobbyists opposed the idea. At the hearing, which was held in a windowless auditorium on the ground floor of the Frances Perkins Building in Washington, D.C., Scalia did their bidding, grilling witnesses who came forward to testify in support of OSHA’s draft rule and questioning the research linking musculoskeletal disorders and workplace risk factors. The evidence supporting such a link was voluminous, including a National Institute for Occupational Safety and Health review of more than six hundred studies that found “a consistent relationship between MSDs and certain physical factors, especially at higher exposure levels.” Scalia was unimpressed, portraying ergonomics as ‘junk science’ both at the hearing and in a report for the Cato Institute, which argued that “supposed musculoskeletal disorders” correlated more with “psychosocial factors” such as whether workers liked their jobs than with occupational risk factors.
Eric Frumin, who was then the health and safety director for the Union of Needletrades, Industrial, and Textile Employees, also attended the OSHA hearings. Even as he dismissed ergonomics as “junk science,” noted Frumin, Scalia was representing companies such as UPS that had adopted ergonomic principles to prevent their own workers from sustaining injuries. Frumin likened the strategy to oil companies that publicly denied the scientific evidence of climate change even as they privately accepted its validity. “The level of deceit is every bit as vicious as what we’ve seen on climate change, or what Purdue said about Oxycontin,” he said. “It doesn’t get the same level of attention, because it’s about workers who break a sweat every day. But it’s every bit as dangerous in blocking the use of science to protect people from severe preventable risks to their health.”
As it turned out, Scalia’s efforts did not succeed in blocking OSHA from adopting an ergonomics standard, which it announced in November 2000. The regulation would prevent as many as four million workers from sustaining occupational injuries over the next decade, the agency predicted, sparing untold numbers of workers in warehouses and poultry slaughterhouses from suffering. But the rule didn’t last long. After George W. Bush became president in 2001, Republicans invoked a provision of Newt Gingrich’s “Contract with America” that allowed Congress to conduct expedited reviews of government regulations and voted to overturn it. Without an ergonomics standard on the books, workers exposed to repetitive strain injuries were left to rely on OSHA’s General Duty Clause, which required employers to create an environment “free from recognized hazards.” The statute’s vague language made enforcement difficult and time-consuming, raising the burden of proof for corroborating violations. In 2002, United Food and Commercial Workers International submitted a complaint to OSHA about a poultry slaughterhouse in Lufkin, Texas, owned by Pilgrim’s Pride that it thought might meet the burden. “I haven’t seen conditions like this in 20 years,” Jackie Nowell, director of the UFCW’s safety and health office, said after visiting Lufkin and talking to workers at the plant, many of whom were undocumented immigrants too frightened to say anything to management. The UFCW filed the complaint in the hope that even in the absence of an ergonomic standard employers would be held accountable for egregious violations. But the conditions that shocked Nowell were not enough to move OSHA, which dismissed the complaint.
“COMMERCIAL SHACKLES”
Had the ergonomics standard remained on the books, the lives of the workers at the Pilgrim’s Pride slaughterhouse in Lufkin, like the lives of Flor Martinez and the other workers I met in Bryan, might have been different. They might have not only sustained fewer physical injuries but also suffered fewer indignities, the blows to the spirit that Angela Stuesse described. Politicians and public officials could have done plenty of other things to lessen these blows, from strengthening the penalties that OSHA could impose on companies that willfully violated health and safety standards to slowing the line speeds in slaughterhouses.
What stopped these things from happening were not immutable structural conditions but political forces that mobilized to prevent them and real people driven by specific ideas and agendas. In a different country or simply a different era, one of the forces that might have mobilized to push for slower line speeds and better working conditions in America’s slaughterhouses was organized labor. But as in so many other sectors of the U.S. economy, the power of unions had radically declined in the meatpacking industry since the 1970s. Unlike the master agreements negotiated by the United Packinghouse Workers after World War II, unions often had little control over wages and working conditions even in plants where they were still around. Their clout was especially limited in the poultry industry, as was apparent at the Sanderson Farms plant in Bryan, which actually had a union—a union that was unable to prevent management from subjecting workers to degrading treatment (none of the workers I interviewed belonged to it).
While the power of unions had diminished, the influence of another force—organized money—had grown. OSHA’s ergonomics standard might well have survived if not for the National Coalition on Ergonomics, an industry lobby created by the National Association of Manufacturers and the U.S. Chamber of Commerce that spent years portraying such a rule as a threat to American competitiveness. One of the lawyers representing the lobby was Eugene Scalia. Among the ideas that drove Scalia was the conviction that government regulation of the private sector was harmful and illegitimate. Since the Reagan era, this belief had grown increasingly influential and widespread, propagated in reports put out by conservative think tanks such as the Cato Institute and nurtured at institutions such as the University of Chicago, where Scalia attended law school. (The school was home to the influential law and economics movement, which applied the principles of neoclassical economics to legal reasoning, an approach championed by many of the conservative judges appointed to the federal bench by the Trump administration.) Critics of regulation were sometimes fond of quoting James Madison’s observation that “commercial shackles are unjust, oppressive and impolitic” and that industry and labor should therefore be left alone, free from interference by “enlightened legislatures.” As his performance at the ergonomics hearing in 2000 attested, Scalia was a dedicated proponent of this view. A decade later, he trained his attention on another set of “commercial shackles,” the regulations codified in the Dodd-Frank Act, which Congress enacted in 2010 to rein in the reckless conduct that precipitated the 2008 financial crash. After the law went into effect, Wall Street hired a phalanx of high-powered lawyers to challenge its provisions in court, a role Scalia took up with such alacrity that some staffers at the Securities and Exchange Commission jokingly referred to Dodd-Frank as the “Eugene Scalia Full Employment Act.”
Scalia’s long record of opposing worker protections and representing financial interests explains why many union leaders viewed his nomination to serve as secretary of labor as an affront. It also explains why he was chosen for the role by Donald Trump, who campaigned in 2016 as a champion of ordinary workers but who, upon entering office, quickly made it clear that he had other priorities: cutting taxes for the rich, shredding environmental and labor protections. At the start of his term, Trump announced that all federal agencies had to revoke at least two regulations for every new one that was added. Under Alex Acosta, who served as secretary of labor during Trump’s first two and a half years in office, the Department of Labor did eliminate some regulations. But hard-liners within the Trump administration were dissatisfied with the pace of change. Acosta was eventually replaced by Scalia, who accelerated the pace, in particular by eliminating a series of little-known rules that
protected low-wage workers from wage theft and other exploitative practices. It was an odd agenda for the Department of Labor, whose official role is “to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States.” Yet it was consistent with Scalia’s other actions, including some new rules he quietly introduced that benefited more powerful actors. Among these rules was a proposal making it easier for companies to classify millions of gig workers as “independent contractors” (unlike regular employees, such contractors can be denied the minimum wage, overtime pay, and other benefits). As this suggested, Scalia’s opposition to regulations was selective, masking what appeared to be the real agenda, which was to augment corporate power—in the case of the independent contractors rule, the power of companies like Uber and DoorDash, which happened to be clients of Gibson Dunn, the law firm where he’d worked before joining the Trump administration.
As when Congress repealed the ergonomics standard two decades earlier, organized money was able to make its voice heard. As in the past, organized labor was not. On April 28, 2020, Richard Trumka, the head of the AFL-CIO, sent Scalia a letter urging the Department of Labor to issue emergency temporary standards to protect “essential workers” in meatpacking and other sectors of the economy from COVID-19. In response, Scalia insisted that doing so was unnecessary because OSHA already had the authority to penalize irresponsible companies, under the General Duty Clause. By the end of October 2020, OSHA had received more than ten thousand complaints alleging unsafe conditions related to the virus. It had issued just two citations under the General Duty Clause. The agency eventually issued a few more citations, including to two meatpacking plants. One of the plants, a pork slaughterhouse owned by Smithfield Foods in Sioux Falls, South Dakota, where twelve hundred workers fell ill and four died, was fined $13,494. The other was the beef slaughterhouse in Greeley, Colorado, where a “work while sick” culture had prevailed. It was fined $15,615. Deborah Berkowitz, who served as OSHA’s chief of staff under President Obama, described the penalties as “a slap on the wrist” to two billion-dollar corporations that, far from deterring other companies, would embolden them. “The Department of Labor’s job is to ensure that businesses that cut corners on safety will know they’ll face serious consequences if they endanger their workers,” said Berkowitz. “This paltry fine sends the opposite message, telling companies, ‘Don’t worry if workers get sick or die on the job.’” Like many observers, Berkowitz was convinced the lenient treatment was not unrelated to the fact that so many slaughterhouse workers were immigrants and people of color. “These are Black and brown workers, and I just don’t think this administration cares about them at all,” she said. Before the pandemic, the agency under Trump that paid the closest attention to what transpired in industrial slaughterhouses wasn’t OSHA. It was ICE, which, in 2018, dispatched agents to round up ninety-seven immigrants at a meatpacking plant in Bean Station, Tennessee, the largest workplace raid in a decade. During the pandemic, the raids appeared to cease, perhaps out of recognition that immigrants were actually needed to keep the lines in slaughterhouses running. Notably, however, no effort was made to call attention to the sacrifices these immigrants made to help keep the nation fed. In August 2020, Trump appeared in a video with an assortment of “essential workers”—a postal worker, some nurses, a truck driver. “These are great, great people,” he proclaimed. Filmed in the East Room of the White House, the segment aired on national television, during the Republican National Convention. No slaughterhouse workers appeared in it.
