Category Archives: Law & Law Enforcement

Ethics Dunces: The 8th U.S. Circuit Court of Appeals

I don’t understand this ruling at all.

In 2011, Cooper Tire & Rubber Co. had locked out union workers. After the company later settled a contract dispute, they all returned to work except for Anthony Runion, who had been fired. Runion had shouted at a van carrying replacement workers onto the company’s grounds: “Hey, did you bring enough KFC for everybody?” and “Hey, anybody smell that? I smell fried chicken and watermelon,” the opinion noted, adding that most of the replacement workers were black.

In the 2-1 ruling for the fired worker, Judge William Duane Benton cited the law protecting unions, strikers and pickets, 29 U.S.C. § 157. Section 7 of the Act guarantees employees the right to “assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7
gives locked-out employees the right to picket. Section 8(a) prohibits an employer from interfering with, restraining, coercing, or discriminating against employees in the exercise of their Section 7 rights.

How would firing  a worker for uttering undeniable racially hostile verbiage in the process of striking? Benton writes, citing various cases in the line of labor decisions:

“One of the necessary conditions of picketing is a confrontation in some form between union members and employees.” Chicago Typographical Union No. 16, 151 NLRB 1666, 1668 (1965), citing NLRB v. United Furniture Workers of Am., 337 F.2d 936, 940 (2d Cir. 1964). “Impulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers.” Allied Indus. Workers No. 289 v. NLRB, 476 F.2d 868, 879 (D.C. Cir. 1973) (internal citation omitted). This court analyzes picket-line conduct under the Clear Pine Mouldings test: a firing for picket-line misconduct is an unfair labor practice unless the alleged misconduct “may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.” NMC Finishing v. NLRB, 101 F.3d 528, 531 (8th Cir. 1996), citing Clear Pine Mouldings, Inc., 268 NLRB 1044, 1046 (1984), enf’d, 765 F.2d 148 (9th Cir. 1985). The test is objective.

Wait: racially prejudiced rhetoric is “impulsive behavior”? Not by non-racists, its isn’t. Non-racists don’t suddenly start talking like racists on impulse. Anthony Runion unmasked himself as a racist by his behavior on the picket line. It may not have been “picket line misconduct,” but it was certainly unacceptable workplace and employee conduct, with a strong indication of more to come. Benton wrote that there was no evidence the black “scabs” heard Runion’s racist words, though dozens of others nearby did, and that the comments were not directed at any individual. Wait again: is the judge arguing that using racial epithets in the workplace isn’t a firing offense as long as the offender can say, “I didn’t mean you” ?

The lone dissenting judge, Judge C. Arlen Beam  dissents by stating the obvious: Continue reading

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Morning Ethics Warm-up: 8/17/17

Good Morning!

1. I got back late last night from my pilgrimage to say thanks to the Impossible Dream team, and now I’m on my way out to teach an ethics seminar for D.C. government attorneys. I haven’t caught up with the comments yet; I’m sorry. Things should be back to normal hear by this afternoon. Here are the surviving members of that 1967 Red Sox team that changed my life:

Incredibly, the Red Sox barely promoted the event, and had no memorabilia, not even a T-shirt, available at the souvenir stands. I asked one of the sales people, who said the team had given them nothing, figuring that the typical fan was too young to remember or care.

And people wonder why I object to tearing down statues…

2. …which the unethical Mayor of Baltimore ordered to be done yesterday in the dead of night. From the Times:

It was “in the best interest of my city,” Mayor Catherine Pugh said Wednesday, as she explained why she ordered Confederate monuments removed under the cover of darkness, days after violence broke out during a rally against the removal of a similar monument in neighboring Virginia.

“I said with the climate of this nation,” Ms. Pugh said later, “that I think it’s very important that we move quickly and quietly.”

With no immediate public notice, no fund-raising, and no plan for a permanent location for the monuments once they had been excised — all things city officials once believed they would need — the mayor watched in the wee hours on Wednesday as contractors with cranes protected by a contingent of police officers lifted the monuments from their pedestals and rolled them away on flatbed trucks…

David Goldfield, a professor of history who studies Confederate symbols at the University of North Carolina at Charlotte, said the removal of the monuments in Baltimore was likely to be part of a “rolling cascade” of cities and states ridding themselves of, or at least relocating, similar statues.

”You’re going to see another wave of these removals.” Mr. Goldfield said. “The fact that it’s done fairly expeditiously is not surprising because if you do it quickly the opposition can’t build up, and the confrontations that we’ve had, not only in Charlottesville but elsewhere, will not materialize.”

By all means, move quickly and without notice or due process so lawful protests and expressions of public opinion “can’t build up.” “It was in the best interests” is such a versatile rationalization for unilateral government action.

Democracies don’t undertake controversial actions in the night. Dictatorships do. Pugh and others nascent fascist of the left are as responsible for “the climate of this nation” as much or more than anyone else, and now want to exploit the dangers of that climate to stifle dissent.

Perfect. Continue reading

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More Perspective On Charlottesville, The Left, And The First Amendment

I’ve been spending the day pointing out the bias and hypocrisy of various Facebook friends who posted emotional, warped, virtue-signaling junk assuming they would be greeted with the sounds of a thousand well-trained seals clapping. I’m not sure why I bother: it gets close to the cartoon about the guy who tells his wife, “Someone is wrong on the internet!” I feel like the alternative is to  just let a brain virus run amuck. These once intelligent people just know the President is secretly a white supremacist. He’s obligated to specifically condemn the white nationalist group, because they were “emboldened” by his election. And, they say, their “side’s” violence is “less disgusting” than the violence of the bad people….because, though they don’t say this, the ends justify the means.

I think the reason I subject myself to the sneers and abuse—did you know I must be a Donald Trump supporter and a white nationalist?—is that the Left’s assault on free speech, which is the cornerstone of democracy,  has to be opposed, called out and condemned every single time, until they either embrace the Constitution, move to Canada, or haul us off to re-education camps. White supremacists aren’t a danger to the nation, because that kind of prejudice is antithetical to core American values, and no credible, respectable institutions and individuals support them, or ever will. Fascism of the Left is a real danger, because it is seductive and misleading, and it is infecting the most powerful and influential institutions we have. We saw it in Charlottesville. In a college town indoctrinated in the progressive cant that the wrong opinions don’t deserve to be heard because they constitute harm and violence by spoken word, the state and local government  combined to use violence to stifle political speech.

One of the best and most objective political, government and ethics websites around is City Journal; I really should cite it more often. Today Bob McManus posted an excellent essay which began with this… Continue reading

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Morning Ethics Warm-Up, Charlottesville Aftermath Edition: 8/14/2017

Charlottesville, Virginia.

Good Morning?

1. Just a side note before the serious stuff: WordPress spell-check thinks “Charlottesville” is misspelled. It says the correct spelling is “Chancellorsville.”

And you wonder why I have so many typos…

2. Either one believes in, supports and will fight for freedom of speech, expression and assembly, or one does not. Those who do not also do not genuinely believe in democracy, the Constitution, civil rights or the core principles of the United States of America. This group, which has been slowly—not so slowly, really—taking over the progressive movement and the Democratic Party, and with them that party’s institutional allies, the U.S. education system and journalism, is far, far more dangerous than the alt-right, racist fools who tried to exercise their own rights over the weekend.

At the center of the implicit rejection of the freedom to say, express, demonstrate for and hold whatever wise, creative, idiotic or hateful opinions and ideas a U.S. citizen chooses were the despicable and anti-American comments of Virginia Governor Terry McAuliffe, ( WordPress thinks I should spell his name “Cauliflower”) who told a group of U.S. citizens that they were not welcome in his state, and that there was no place for them in the United States of America—you know, like the German Nazis told the Jews. Pathetically and dispiritingly, knee-jerk defenders of McAuliffe have spun this as mere “opprobrium,” a deflection that we technically refer to as “baloney.” When the leader of a government points to any group and says, “Get out!” based solely on what the group says and believes, that’s totalitarian oppression. It also paints a bullseye on the backs of every member of that group. Continue reading

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Morning Ethics Warm-Up: 8/13/2017

1. Is the concept that people and groups who have ugly or even essentially un-American beliefs and positions still ave the right to express them, advocate them, and do so without being attacked, and once attacked, have the right to defend themselves like any other citizen really so hard to grasp? Is it also controversial after all these years? Based on the echo-chamber garbage I’m reading on Facebook and on blogs like The Huffington Post, it would appear so.

2. I haven’t been following the Taylor Swift groping lawsuit, have you? I’m not sure it justifies following, though it does follow the path of campus sexual assault accusations. To summarize for those of you with higher priorities, pop superstar Taylor Swift was in the midst of a 2013 tour when  she hosted a meet-and-greet for fans in Denver. David Mueller, then a DJ for the radio station KYGO, came to the event and posed for a photo with Swift and his girlfriend. Here is the resulting photo, courtesy of gossip site TMZ:

Swift said that Mueller reached under her skirt and molested her from behind. Her security team ejected the DJ and complained toMueller’s employer, KYGO, which fired him. fired him. In 2015,  Mueller filed a defamation suit against Swift,  denying that he touched her intimately and demanding millions in damages for his lost job and sullied reputation. She has counter sued for a single dollar.

As with many sexual assault cases tried in a civil setting or by a university kangaroo court, this lawsuit will come down to who the jury believes, and the photo, which is the only evidence. (Mueller says that he recorded a two-hour phone call with KYGO the day after he learned of  Swift’s complaint, and had a copy of the audio file on his laptop and on an external hard drive, and  his cell phone too, but he spilled coffee on and then lost the laptop, while the external hard drive inexplicably stopped working. Then he threw out the cell phone.  Sure. ) In its article about the case, Vox says,

“America has long had an unspoken understanding that famous women have no real right to bodily autonomy. Women in general aren’t understood to have much right to bodily autonomy in America: hence rape culture, hence comments about rape like, “if a man walked around with a suit made of $100 bills, he’d expect to be robbed, wouldn’t he?” that make women’s bodies analogous to money. But because fame already comes with diminished expectations of privacy, celebrity women are considered to be especially fair game.”

Fake history. I was certainly not taught this, nor did I “understand it” to be true. There are, and have always been, pig assholes who think like Vox describes, but they have been regarded as assholes for decades. This is feminist bigotry at work, stated as fact. As a civilized male who was raised to respect women and their bodily autonomy, I find the trope that all men, especially those on college campuses, are nascent rapists political propaganda of the most despicable kind, and not worthy of the seriousness accorded it by female Democratic Senators, publications like Vox, Obama’s Education Department and feminists. My reading of the case is that Swift made the unfortunate but understandable choice of continuing to pose for the picture while this creep was fondling her butt, but that Mueller will have a difficult time proving defamation—the burden is on him, not her—and is likely to lose, not in small part because Swift, a trained PR whiz, was a spectacularly effective witness. ( Question from the plaintiff’s counsel: Why did your skirt look undisturbed in the photo if my client had his hand under it as you claim?  Swift: “Because my ass is located in the back of my body.” Continue reading

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KABOOM! I Thought I Had Seen The Most Ridiculous Theories Of How President Trump Obstructed Justice, But I Was Wrong!

To be clear, the KABOOM! in this case, which is the announcement that something has made my head explode, is not because of the ridiculous theory itself, but because I was wrong to believe that theories coming out of the Trump Deranged Who Were Once Smarter Than This couldn’t get worse.  I thought the theory that it was obstruction of justice for President Trump to fire an employee and subordinate, James Comey, whom not only he clearly had the authority to fire, but that just about everyone in the country in both parties had declared inept, biased, or criminal at one time or another over the past 12 months, and who had clearly committed firing offenses under Trump.

How could anyone of any authority or expertise whatsoever come up with a more idiotic theory than that? I was certain the answer was, “They can’t.” I bet my head on it.

Ah, but the hate of “the resistance” and the professionalism-corroding power of the Anti-Trump Brain Eating Virus is stronger than even I thought. Get this, and hold on to your heads:

In a USA Today story President Trump’s counsel John Dowd—he’s the one who doesn’t use obscenities or look like an axe-murderer—acknowledged that he had engaged in communications with the Special Counsel on behalf of his client, conveying how much the President “appreciates what Bob Mueller is doing.” Dowd said that the President asked him to convey his “appreciation and greetings.”

Ah-HA! Notre Dame professor Jimmy Gurulé, a former U.S. assistant attorney general under President George H.W. Bush, told LawNewz.com that the message from Dowd could be construed as intimidation or an effort to influence the investigation. “‘I’m watching you.’ How else could it be interpreted?” Gurulé said. ‘ Thank you for conducting an investigation into my campaign. Thank you for conducting an investigation into my son and my son-in-law.’”

How else? Gee, I don’t know. I’d interpret it as, “I appreciate what a difficult task you have, and understand that we all have to do our jobs”…

…since THAT’S WHAT WAS SAID. Continue reading

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Morning Ethics Warm-Up: 8/12/17

Good morning, all!

1. I can’t keep writing the same post repeatedly as the politically correct, the historical censors, the Soviet-style Left and the gallactically stupid continue to tear down statues and eliminate honors to significant Americans who are predecessors deemed worthy.  Just hunt for the “airbrushing history” tag here and you’ll find too many already. We should note, however, how the cognitive dissonance scale is coming into play to the benefit of the unethical airbrushers.

In Charlottesville, home of the University of Virginia, this weekend will witness thousands of white nationalists and neo-Nazis demonstrating to protest a plan to remove a statue of Robert E. Lee  from a city park, because, Lee’s sub-21, infinitely wise undergrads insist, erasing Lee from history will undo the legacy of racism, or something. Of course, for the Racist Right to be the ones protesting makes this position look reasonable. White supremacists organizing the protests unjustly associates Lee with their cause, making his statue mean something it never did, and attaching him to  cause that was not his. The protests against tearing down Lee’s statue–UVA’s founder, Thomas Jefferson, will be next on the non-person list, or close to it—should be coming from historians, scholars, liberals, believers in fairness, nuance, and integrity, and those who are literate enough to understand that the life of Robert E. Lee has much to teach every child and American about loyalty, hubris, hard choices, tragic choices, hypocrisy, courage and more. Why aren’t they protesting? Two reasons, now: they don’t want to be shoulder to shoulder with the scum of the earth, and they are too timid to stand up for crucial ethical principles, unlike the censors of Charlottesville, who don’t understand them, and the Neo-Nazis and white supremacists, who don’t have them.

2. And speaking of historical airbrushing and censorship: Last year, I designated the Smithsonian Institute’s National Museum of African American History and Culture in Washington, D.C as an Ethics Dunce for omitting the second African American SCOTUS justice, Clarence Thomas from mention while devoting an exhibit to his unsubstantiated accuser, Anita Hill.  Now the museum has announced plans to honor Jim Vance.

Come on, you all know who Jim Vance is, don’t you? (D.C. area residents: shut up!) Jim Vance, who transformed America for blacks? Give up? Vance was a long-time popular local D.C. television news broadcaster, with a nice screen presence and a casual delivery.  He just died, and he was black. The museum’s founding director, Lonnie Bunch, said the broadcaster “symbolized that it was really important that America was changing and his presence was a symbol of that change.” Right, sort of….although Vance was hardly the first or the most prominent black newscaster in D.C. Clarence Thomas, however, was the first conservative black justice…which is, of course, why is being shown such disrespect by the “Nation’s Attic.”

I haven’t visited the huge, striking new museum on the mall yet, and I won’t until its shows signs of being am objective chronicler of history rather than a tool of interest group propaganda. Continue reading

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