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By Root 427 0

there are Puritans among us who are deeply distressed by the idea that someone, somewhere might be having fun, there is a certain kind of conservative obsessed with the idea that some malingering worker somewhere might be getting away with something. One does occasionally find a case of a worker on disability who appears to be able to lift his bass boat off the trailer without difficulty, but in fact those few cases are so savagely outweighed that American workplaces are regularly scenes of carnage. About six thousand people are killed at work every year, twice as many as died on September 11, but government pays little attention. In addition, 165 people die of occupational diseases every day.

A weary Judge Joseph Vittone granted Scalia an additional five minutes to complete his questions—but only if he promised not to come back again. After two days and eight hundred pages of testimony, Scalia was back, this time complaining about the department’s bias, lecturing the judge, and laying the groundwork for a legal challenge of the worker protections. “He’s like a little bulldog,” says AFL-CIO safety and health director Peg Seminario.

Clients pay their lawyers for tenacity, and Scalia qualifies as a pit bull. He so zealously believes in the anti-ergonomics cause that he took his fight to op-ed pages and right-wing foundation bulletins, sources of much of the right’s culture wars and ideology. Ergonomics regulation, he claimed in a 1997 article, is a union scam that would “reduce the pace of work, thereby pleasing current members.” It would also require companies to hire more workers and “union membership (and dues) would increase, thereby pleasing union leaders.” Ergonomics measures, he wrote, were merely aimed at making the workplace “more comfortable.” Heaven forfend. In an article for the Cato Institute, Scalia ridiculed an OSHA investigation of complaints by workers at Pepperidge Farm. Could workers be injured by “lifting the top of a sandwich cookie from one assembly line and placing it on top of the bottom of the cookie on another assembly line, flicking a paper cup onto a conveyor belt with the thumb and placing a cookie in the cup?” He failed to mention that the high-speed production line requires those same repetitive motions thousands of times every hour, day after day, week after week, year after year. In a National Legal Center white paper, Scalia again scoffed at the government’s case against Pepperidge Farm. The biggest workplace risks workers faced on the cookie-production line, he claimed, were “boredom or compulsive snacking.”

Scalia did not represent Pepperidge Farm in its fight with OSHA, but he couldn’t leave the case alone. In a piece for the op-ed page of The Wall Street Journal, not noted for its blue-collar readership, Scalia was more concerned about the “delightful Milano cookie” than the workers who make it. His description of OSHA’s Pepperidge complaint made it appear Washington bureaucrats are so far from reality they actually claim flicking and cupping cookies can cause “death or serious physical harm.” He did not explain that without the ergonomics rules he was seeking to defeat, OSHA’s only recourse was to invoke the cumbersome “general duty clause,” which requires employers to protect workers from death or serious physical harm. “Hard work is tiresome and sometimes uncomfortable,” concluded Scalia, the Connecticut Avenue lawyer, sententiously. “Work less and you’ll feel better. Why, I’ve experienced the very thing myself!”

It is a cultural imperative that business will oppose any government effort to regulate the workplace. “It’s almost a knee-jerk reaction,” said a labor lobbyist who has devoted most of her career to ergonomics. “But what Gene did was turn the usual business response, which we deal with all the time, into a philosophical opposition. It was not an opposition to the rule, it was opposition to ergonomics.”

Scalia created opposition by redefining the debate. Labor advocates were no longer defending the proposed rules, they were defending ergonomics itself. The ghastly possibility