Sunday, September 29, 2024

UK

Power in a union in precarious workplaces – Niamh Iliff

“rethink and reapply standard union practise, with walkouts and viral social media campaigns becoming vital tools for reaching young, precarious workers”

By Niamh Iliff

Zero-hour contracts are often toted as a win-win, one where the worker and employer can both benefit and “decide” how much they work. In reality, this flexibility is a myth – one that benefits employers, not workers. These contracts gift employers with all the power, deciding how many hours to offer while workers are left in a constant state of uncertainty, never knowing how much they’ll earn from week to week. The employer – worker power dynamic is not ‘equalised’ under zero-hour contracts, but exacerbated, representing a heightened form of exploitation leaving workers vulnerable, with little control over their employment practise or financial stability.

The rise of zero-hour contracts began in the late 1990s, gaining prominence as a tool of neoliberal policies. By 2013, there were widespread calls to ban them. Instead, the government brought in a ban on the “exclusivity” clause, allowing workers to take on multiple zero-hour contracts. The result? Workers now face the burden of juggling several precarious jobs just to survive.  

Today, over 4 million people in the UK are in insecure work, with more than 1 million on zero-hour contracts, a significant increase from 200,000 in 2012. This employment practise does nothing to offer true flexibility. Real worker autonomy comes from secure jobs with set hours, not contracts that threaten basic rights like guaranteed income, holiday pay and sick leave.

The danger is clear: unless we actively challenge and dismantle zero-hour contracts, they will continue to become the norm across the economy. As the UK deindustrialises and traditionally unionised jobs disappear, more workers are being forced into the insecure service sector, where these contracts are the norm. Without resistance, this precarious form of employment threatens all workers. The broader trade union movement must not only make space for organising the gig economy and prioritise marginalised workers in union structures, but place resources and support the workers actively organising in the sector.

In zero-hour contract workplaces, workers are deliberatively pit against one another, creating a climate where securing hours often depends on staying in management’s good graces. This breeds competition and division, undermining workplace solidarity. Organising in these conditions presents unique challenges the labour movement hasn’t seen for decades, demanding fresh approaches to worker solidarity.

Campaigns are being led by Unite, GMB and the Bakers’ Union against these contracts. Worker led strikes, protests, community led campaigning and political lobbying are emerging as critical tools in the fight against zero-hour contracts. These efforts are more than workplace grievances; they represent a broader movement to reclaim our collective rights and resist the erosion of job security. We must rethink and reapply standard union practise, with walkouts and viral social media campaigns becoming vital tools for reaching young, precarious workers and building community between atomised staff.

Unite Hospitality, the union representing thousands of young people on zero-hour contracts exemplifies this shift. By collaborating with grassroots movements and social campaigning with local communities, we’ve managed to secure recognition agreements in venues across the UK, protecting workers victimised by these contracts. Young people, at the forefront of this movement, are proving that we can build power and workplace democracy in precarious workplaces one case at a time.

While the Labour government has proposed the banning of zero-hour contracts in their New Deal for Working People, we cannot wait passively for legislative change. The struggle to abolish these contracts and challenge the power dynamic of employers will only succeed through collective organising and grassroots action. Without pressure from below, any legal reform will be hollow.

Unions like GMB and Unite offer resources specifically designed for workers in precarious roles, helping us organise, understand our rights and build solidarity in our workplaces. The first step is communication; talk to your colleagues, share your experiences and recognise that your struggles are shared, and join a union. It is only through collective action that we can confront the system that survives on our exploitation.

Organising at work and in our communities is a radical act of resistance against zero-hour contracts that thrive on isolating workers. The contracts are not merely a symptom of inequality, but a mechanism designed from the systemic exploitation of young and precarious workers. To end this, we must confront it head-on through collective action, both in the workplace and beyond.

A world where secure, dignified work is a reality for all is completely possible, but we must fight for it. It will not be gifted to us for free. Young and precarious workers stand on the frontlines of this struggle, and it is through our united efforts that we can dismantle these oppressive systems and build a future where exploitation is a thing of the past.



UK

Thousands of Bolt Drivers Fight for Worker Status and Compensation Over Unpaid Holiday Pay and Wage Discrepancies



Published by Laetitia at September 29, 2024
STUDENT LAWYER
Article written by Olga Kyriakoudi

More than 12,500 Bolt private hire drivers are contesting their employment status at the Central London Employment Tribunal, with hearings starting on 11 September. Represented by Leigh Day, a leading employment law firm, the drivers are pushing to be recognised as workers rather than independent contractors. Achieving this status would entitle them to crucial employment rights, such as holiday pay and the National Living Wage. They argue that Bolt exerts significant control over their working conditions, a situation comparable to Uber drivers who secured a landmark victory at the UK Supreme Court in 2021.

In the UK, employment law recognises three primary categories: employees, limb (b) workers, and independent contractors. While workers and employees are entitled to protections like holiday pay and the National Living Wage, employees enjoy broader rights, such as the ability to bring unfair dismissal claims. Independent contractors, however, fall outside these protections. Bolt, the Estonia-based ride-hailing app, treats its drivers as independent contractors, promoting flexibility and the ability to set their own hours. However, Leigh Day argues that Bolt’s drivers fit the legal definition of workers due to the company’s significant control over key aspects of their work, much like Uber’s drivers.

This legal action follows the pivotal Uber case in 2021, where the Supreme Court ruled that Uber drivers were workers rather than independent contractors. That decision clarified that, despite having flexibility in their hours, Uber drivers were subject to the company’s control over payments and contracts, which eroded their independence. It also reinforced that actual working relationships should take precedence over contractual terms, a move aimed at preventing companies from misclassifying workers through sham contracts—a frequent issue in the gig economy.

Leigh Day contends that Bolt drivers should be similarly classified. They argue that Bolt’s recent decision to offer holiday pay and guarantee the National Living Wage, effective from August 2024, does not address years of unpaid entitlements. The firm seeks compensation for unpaid holiday pay and wage shortfalls from previous years, which remain unaddressed by Bolt. In response, Bolt maintains that its business model allows drivers the flexibility and independence to set their own hours and rates, a setup that many drivers prefer. However, Leigh Day asserts that Bolt’s control over work conditions and pay means drivers are entitled to worker protections under UK law.

The hearing, expected to last three weeks, will hear from drivers about their working conditions. If successful, the drivers could receive significant compensation, and the ruling could spark similar claims from other gig economy workers.

As this case unfolds, it highlights broader trends in the gig economy and the strategies used by platform companies to defend their business models. As noted by James Muldoon, a senior lecturer in political science at the University of Exeter and the Head of Digital Research at the Autonomy think tank, in his 2024 article, companies like Bolt often begin with regulatory activism, lobbying for legal interpretations that align with their interests when they enter new markets. Bolt’s announcement of offering holiday pay and the National Living Wage may be seen as an attempt to placate regulators and avoid larger legal consequences. However, strategic litigation, such as the one currently playing out at the Central London Employment Tribunal, remains a common defensive tactic for platform companies. Bolt, like Uber before it, is attempting to preserve its business model by contesting its classification of drivers as independent contractors.

Labour’s proposed employment reforms could further complicate the situation for companies like Bolt. With a focus on ending exploitative practices like zero-hours contracts and ‘fire and rehire’ tactics, Labour aims to establish clearer distinctions between employment categories in the gig economy. As Muldoon explains, platform companies often adapt their tactics as regulations evolve. If Bolt’s legal defences fail, it may have to consider compromises, such as negotiating with unions or subcontracting drivers, to maintain a degree of distance from its workforce while offering limited employment rights.

Globally, platform companies rarely shut down operations when faced with legal challenges instead opting to adapt or delay compliance. As seen in California, these companies use aggressive legal strategies to carve out exemptions and, if necessary, threaten to withdraw services. As Muldoon points out, such tactics allow companies to preserve their business models and serve as warnings to lawmakers in other jurisdictions to enact similar laws. The outcome of the Bolt case will not only affect UK drivers but also contribute to the growing international debate over how gig workers are classified and protected.

As the gig economy continues to evolve, this case could pave the way for further legal claims from drivers and other workers seeking employment protections. While this shift promises better safeguards for workers, it will undoubtedly increase pressure on both companies and the legal system to uphold these evolving standards, reshaping the landscape of worker rights across the sector.
UK

McDonald’s and supermarkets failed to spot slavery


William McLennan, Phil Shepka and Jon Ironmonger
BBC England Investigations
BBC
Nine victims of modern slavery were forced to work at a McDonald's branch in Cambridgeshire


Signs that modern slavery victims were being forced to work at a McDonald’s branch and a factory supplying bread products to major supermarkets were missed for years, the BBC has found.

A gang forced 16 victims to work at either the fast-food restaurant or the factory - which supplied Asda, Co-op, M&S, Sainsbury’s, Tesco and Waitrose.

Well-established signs of slavery, including paying the wages of four men into one bank account, were missed while the victims from the Czech Republic were exploited over more than four years.

McDonald’s UK said it had improved systems for spotting “potential risks”, while the British Retail Consortium said its members would learn from the case.


Six members of a family-run human trafficking network from the Czech Republic have been convicted in two criminal trials, which were delayed by the Covid pandemic.

Reporting restrictions have prevented coverage of much of the case, but BBC England can now reveal the full scale of the gang’s crimes - and the missed opportunities to stop them.

Nine victims were forced to work at the McDonald’s branch in Caxton, Cambridgeshire. Nine worked at the pitta bread company, with factories in Hoddesdon in Hertfordshire and Tottenham in north London, which made supermarket own-brand products. There were 16 victims in total across both sites, as two worked at both McDonald’s and the factory.


Facebook
Pavel, left, and Roman waived their anonymity to share their stories of being trafficked to the UK and forced to work in a McDonald's branch


The victims - who were all vulnerable, most having experienced homelessness or addiction - earned at least the legal minimum wage, but nearly all of their pay was stolen by the gang.

While they lived on a few pounds a day in cramped accommodation - including a leaking shed and an unheated caravan - police discovered their work was funding luxury cars, gold jewellery and a property in the Czech Republic for the gang.

On several occasions, victims escaped and fled home only to be tracked down and trafficked back to the UK.

The exploitation ended in October 2019 after victims contacted police in the Czech Republic, who then tipped off their British counterparts.

But warning signs had been missed for at least four years, the BBC has discovered by reviewing legal documents from the gang’s trial and interviewing three victims.

The undetected red flags include:Victims’ wages were paid into bank accounts in other people’s names. At the McDonald’s, at least four victims’ wages - totalling £215,000 - were being paid into one account, controlled by the gangVictims were unable to speak English, and job applications were completed by a gang member, who was even able to sit-in on job interviews as a translatorVictims worked extreme hours at the McDonald’s - up to 70 to 100 a week. One victim worked a 30-hour shift. The UN’s International Labour Organization says excessive overtime is an indicator of forced labourMultiple employees had the same registered address. Nine victims lived in the same terraced home in Enfield in north London while working at the bakery

“It really concerns me that so many red flags were missed, and that maybe the companies didn’t do enough to protect vulnerable workers,” said Dame Sara Thornton, the former independent anti-slavery commissioner, who reviewed the BBC’s findings.

Det Sgt Chris Acourt, who led the Cambridgeshire Police investigation, said there were “massive opportunities” that were missed to detect the slavery and alert authorities sooner.

“Ultimately, we could have been in a situation to end that exploitation much earlier had we been made aware,” he said.

For seven years, vulnerable victims of trafficking were forced to make food for major high street chains. How did their exploitation go undetected for so long?

Like many of the victims, Pavel - who has waived his legal right to anonymity - was homeless in the Czech Republic when he was approached by the gang in 2016.

He says he was lured in with the false promise of a well-paid job in the UK, where he could at the time work legally.

But the reality of what he experienced has left lasting scars, he said.

“You can’t undo the damage to my mental health, it will always live with me.”

He was given just a few pounds a day in cash by his exploiters, despite working 70-hour weeks at the McDonald’s branch, he said.

The gang - led by brothers Ernest and Zdenek Drevenak - confiscated the passports of all their victims and controlled them through fear and violence, police found.

“We were afraid,” Pavel said. “If we were to escape and go home, [Ernest Drevenak] has a lot of friends in our town, half the town were his mates.”


Pavel was targeted by the gang while homeless in the Czech Republic

The gang “treated their victims like livestock” feeding them just enough “to keep them going”, according to the Met’s Det Insp Melanie Lillywhite.

She said victims were controlled by “invisible handcuffs” - monitored by CCTV, prevented from using phones or the internet and unable to speak English.

“They really were cut off from the outside world,” she said.

While the gang has been convicted in court, Pavel believes McDonald’s also shares some responsibility.

“I do feel partially exploited by McDonald’s because they didn’t act,” he said.

“I thought if I was working for McDonalds, that they would be a little bit more cautious, that they will notice it.”

Two former colleagues told the BBC the extreme hours the men worked - and the impact it had on them - was plain to see.


Facebook
Gang leaders Zdenek Drevenak, left, and his brother Ernest controlled their victims with fear and violence

Like most McDonald’s, the Caxton outlet - on the A428 - is a franchise, which means an independent business pays the fast-food giant to allow it to run the restaurant.

While victims worked there between 2015 and 2019, it was run by two different franchise-holders. We contacted both, but they did not respond.

McDonald’s UK declined our offer of an interview, but provided a statement on behalf of the corporation and its franchisees.

It said the current franchisee - Ahmet Mustafa - had only been “exposed to the full depth of these horrific, complex and sophisticated crimes” in the course of his co-operating with police and the prosecution.

The company said it cares “deeply” about all employees and promised that - working with franchisees - it would “play our part alongside government, NGOs [Non-governmental organisations] and wider society to help combat the evils of modern slavery”.

It also said it commissioned an independent review in October 2023 and had taken action to improve its ability to “detect and deter potential risks, such as: shared bank accounts, excessive working hours, and reviewing the use of interpreters in interviews”.
Met Police
The gang used their victims' wages to finance luxury cars and a three-storey house in the Czech Republic

The bakery company - Speciality Flatbread Ltd - ceased trading and went into administration in 2022.

None of the supermarkets detected the slavery while victims worked at the factory between 2012 and 2019.

Dame Sara said she would have expected the retailers to be doing “pretty thorough due diligence”, adding that they normally “take much greater care about their own brand products because that’s their reputation that’s on the line”.

Sainsbury’s said it stopped using the company as an own-brand supplier in 2016.

The others only stopped sometime after police rescued the victims in 2019.

Asda told the BBC it was “disappointed that a historic case has been found in our supply chain”, adding that it would “review every case identified and act upon the learnings”.

It said it had made three site visits, but focused solely on food safety, and had stopped using the factory in 2020.

Tesco said inspections - supported by information from anti-slavery charity Unseen - “revealed concerning working practices” and the company “ceased all orders from the supplier” in 2020.

Waitrose said it pulled out in 2021 after its audits led to “concerns about factory standards and working conditions”.

The Co-op said it made “a number” of unannounced inspections, including worker interviews, but found no signs of modern slavery, adding that the company “actively work to tackle the shocking issue… both in the UK and abroad”.

M&S said it suspended and delisted the company in 2020 after it “became aware of potential breaches of ethical labour standards via the modern slavery helpline”.

The British Retail Consortium said workers’ welfare was “fundamental” to retailers, who it said acted quickly when concerns are raised.

“Nonetheless, it is important that the retail industry learns from cases like this to continually strengthen due diligence,” it said.


Met Police
Nine victims lived in a house in north London; some were forced to sleep in an outbuilding in the garden



Speciality Flatbreads’ director Andrew Charalambous did not respond to written requests for comment, but in a phone call from the BBC said he had supported the police and prosecution, adding that the company had been “thoroughly audited by top law firms” and “everything we were doing was legal”.

He added: “From our perspective we didn’t break the law in any way, having said that, yes, maybe you’re right in that maybe there were certain telltale signs or things like that, but that would have been for the HR department who were dealing with it on the front line.”

The Modern Slavery Act requires larger companies - including McDonald’s and the supermarkets, but not the factory - to publish annual statements outlining what they will do to tackle the issue.

Former Prime Minister Baroness Theresa May, who introduced the act as home secretary in 2015, accepted the law failed to protect victims in this case, and believes it needs to be “beefed up”.

The former PM - who now leads the Global Commission on Modern Slavery and Human Trafficking - said the case was “frankly shocking” and shows “large companies not properly looking into their supply chains”.

She said the global commission was reviewing what new laws are needed “to ensure action is being taken by companies”.

Responding to the case, the government said it would “set out next steps on the issue of modern slavery in due course”.

It said it was “committed to tackling all forms of modern slavery” and would “pursue gangs and employers with every lever at our disposal while ensuring that victims are provided with the support they need”.



Additional reporting by Mary O'Reilly and Maria Jevstafjeva
The Death Penalty Is Always an Atrocity, Not Just for the Wrongfully Convicted

The death penalty should be applied neither to the guilty nor the innocent. We must abolish it.
September 29, 2024
Source: Truthout


Marcellus Williams was executed in Missouri on September 24, 2024 despite the St. Louis County prosecutor's motion to vacate Williams' conviction based on DNA testing. (Photo from the Innocence Project)

Nearly two centuries ago, Alexis de Tocqueville gave a warning about the United States. “While society in the United States gives the example of the most extended liberty,” Tocqueville said, “the prisons of the same country offer the spectacle of the most complete despotism.” Tocqueville’s words still hold true to this day — the prison is a cruel place and the extensions of it, including the death penalty, are no different.

On September 24, at around 6:00 pm Central Time, the State of Missouri executed Khaliifah ibn Rayford Daniels, whose legal name was Marcellus Williams, by means of lethal injection. Khaliifah spent almost 24 years of his life in prison, many of those years on death row awaiting his imminent execution.

Khaliifah’s case had become a symbol of injustice and the urgent need to abolish the death penalty. Convicted in 2003 for the 1998 murder of Felicia Gayle, a social worker and reporter in St. Louis, he was sentenced to death based largely on testimony from his girlfriend and an alleged confession to a cellmate. But Khaliifah may have been innocent.

Newly discovered DNA evidence suggested that someone else, not Khaliifah, may have been responsible for Gayle’s murder, challenging the integrity of his original conviction. Additionally, allegations of racial bias surfaced when it was revealed that the prosecution improperly excluded Black prospective jurors, undermining the fairness of his trial.

And still, despite overwhelming public support for clemency, with over 1.4 million citizens petitioning to spare his life, Gov. Mike Parson denied clemency, and Khaliifah remained scheduled for execution.

Khaliifah ibn Rayford Daniels should still be with us today.

Instead, his execution has become another product of an unjust system. His execution is a devastating reminder that our criminal legal system is deeply unjust and must be transformed. Where can we start? By abolishing the very practice used to end Khaliifah’s life — the death penalty.

Abolishing the death penalty is not a rhetorical or utopian demand. For decades advocates and organizers have been calling for its end, highlighting its deep-rooted injustices, racial biases and the irreversible mistakes that have led to innocent people being executed.

And while the United States should not be comfortable with wrongfully sentencing incarcerated individuals to death — as in the case of Khaliifah and countless others — we need to push the conversation several steps further. Relying on the binary of innocence versus guilt as the prerequisite for the death penalty only serves to justify its continued existence. This framework implies that executing someone who is actually guilty of their crime is acceptable. Let me be clear: The death penalty should not be an option, regardless of innocence or guilt. The reason, in part, lies in historical injustices.
Modern-Day Lynching and Racism

Khaliifah is not an outlier among victims of the death penalty. As a Black man, he fits neatly within a punishment apparatus through which people of color are more likely to be prosecuted for capital murder, sentenced to death and executed, especially if the victim in the case is white.

The death penalty in the United States directly traces back to the era of lynching. From the enslavement of Black people all the way through the Jim Crow era, lynchings became a form of public execution that promoted racial terror to maintain white supremacy. Though estimates of these numbers vary, between 1882 and 1968, roughly 4,743 lynchings occurred throughout the U.S.

Yet it’s important to note that by 1915, the number of court-ordered executions exceeded lynchings for the first time. Black people soon comprised two-thirds of those executed in the 1930s, a disproportion that persisted over the years.

In the South, racial disparities in executions were abundantly clear. Even as Black people made up only 22 percent of the southern population by 1950, they accounted for 75 percent of executions in the region.

In 1972, the Supreme Court struck down the death penalty in the landmark case Furman v. Georgia, highlighting its similarities to “self-help, vigilante justice, and lynch law.” The court noted that if there was any discernible pattern in who was sentenced to die, it was based on race — a basis that is constitutionally unacceptable.

Southern legislators accused the court of destroying the governmental system and quickly passed new death penalty laws. Advocates for Georgia’s revised statute called for more hangings and even suggested public executions as a deterrent. And while the Supreme Court upheld Georgia’s new death penalty law in 1976, ruling that capital punishment did not violate the Eighth and Fourteenth Amendment’s ban on cruel and unusual punishment, racism and racial bias have continued to be baked into the death penalty.

A decade later, in McCleskey v. Kemp, the court reviewed evidence showing that defendants in Georgia were over four times more likely to be sentenced to death if the murder victim was white rather than Black. While the court accepted the data to be true, it refused to overturn death sentencing, stating that racial bias in sentencing is “an inevitable part of our criminal justice system.” From the court’s perspective, proving racial bias required showing intentional discrimination rather than a broader pattern of it. With this decision, the court effectively closed its doors to claims of racial discrimination in sentencing. So long as capital punishment exists, the state will continue to take lives under the guise of justice — but it does not have to be that way.
Normalizing Violence

Supporters of the death penalty often stand on the side of retribution as a true measure of justice. They might say that the death penalty makes communities safer because it ensures that violent people will never return. This perspective, however, fundamentally misunderstands the essence of justice.

The death penalty fails to deliver true justice or enhance safety. Instead, it operates as a form of politically motivated state terror, having claimed the lives of 1,598 individuals in the U.S. since 1973. This misuse of justice does not translate into safer communities but rather perpetuates a cycle of violence and fear.

Many countries worldwide have recognized the failings of the death penalty, leading over 70 percent of nations to abolish it in law or practice. So why has the United States — a nation that purportedly prides itself on upholding human rights — lagged behind, especially when evidence indicates it fails to make our communities safer?

Current statistics surrounding the death penalty reveal its profound flaws. Two hundred people have been exonerated and released from death row since 1972 — individuals who were innocent and on the brink of having their life taken away by the state. Inflicting the death penalty was not only a moral and societal failure, but a miscarriage of justice.

The death penalty not only fails as a deterrent to crime or a means of keeping communities safe — it actively perpetuates cycles of violence. It is murder. By valuing vengeance over rehabilitation and institutionalizing killing as a form of punishment, the state legitimizes the very behavior it seeks to condemn.

The U.S. is sending a dangerous message that taking a life is an acceptable response to wrongdoing, effectively normalizing violence within society. We must ask ourselves: Why are we okay with the state killing someone when the same act is illegal for everyone else?
Justice Is Restorative

It is long overdue to not just acknowledge that the death penalty is an archaic, cruel and inhumane practice that undermines the very principles of justice it purports to serve, but to abolish it. The death penalty has always been — and will forever remain — a tool of oppression. The underlying premise remains rooted in power and retribution rather than rehabilitation.

This movement to abolish the death penalty is not just about opposing a form of punishment; it is about addressing a system that disproportionately affects marginalized communities, perpetuates cycles of violence and fails to provide true justice. It is to say that our definition of justice should not be in how we display our power through taking the life of someone by means of execution, but how we can nurture life in its presence.

Justice is restorative. It is forgiving. It heals, it transforms and it is graceful. We should believe that people can become better; that they should not be ascribed to a mistake of their past — whether innocent or guilty.

Our definition of justice must be grounded in healing, transformation and the reaffirmation of human dignity. That means continuing to build and create rehabilitative measures, like restorative justice, that address the needs of both individuals who have harmed and those who have been harmed.

At the same time, justice must reckon with the current state of violence in this country. It requires addressing the nearly 2 million people in jails and prisons, the millions of people who have been displaced, the legacy of slavery and the price of reparations unpaid, and centuries of disinvestment — organized abandonment — of Black and Brown communities which have left neighborhoods without the resources needed to thrive.

We must remember, too, that to advocate abolition of the death penalty and a better form of justice is not to say that communities should not be kept safe. It means, however, that we must go beyond attending to symptoms of inequity, racism and injustice. Safety then means ensuring that communities can access affordable housing, mental health services and health care, quality education, clean air and water, and a living wage that affords individuals the opportunity to care for themselves and their family.

By abolishing the death penalty and shifting our frame of justice, we can take a stand for human rights, affirming the value of every life — the life of Khaliifah and the countless others — and perhaps take a step toward a more just society.


Mustafa Ali-Smith

Mustafa Ali-Smith is a social justice advocate who has worked around criminal justice issues for several years. You can reach Mustafa by visiting his website at www.mustafaalismith.com. He tweets at @MustafaAliSmith.


Landscape Ecology and National Forest Mismanagement



 September 24, 2024
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Mature deciduous forest, Mogan Ridge Roadless Area, Hoosier National Forest. Photo: Jeffrey St. Clair.

The verbiage in US Forest Service (“FS”) scoping letters (“SL”) and environmental assessments (“EA”) would have the public believe that all you have to do get your desired floristic composition (such as more oaks) is open up the canopy with chainsaws. This disinformation campaign, however, ignores the fact that there is far more influencing conditions on the ground and tree regeneration than simply the amount of canopy openness that exists. Numerous interacting factors at multiple spatial scales generate structural and compositional heterogeneity in forest habitats (Braun 1950, Runkle 1991a, Franklin et al. 2002, McEwan et al. 2010, Schlenker et al. 2024).

Shifting Mosaic

In terms of landscape ecology, a National Forest exists as a mosaic of patches (Urban, D.L. et al. 1987). The various patches composing a landscape mosaic are heterogeneous in space and time due to the interactions of three pattern‐forming templates (Swanson et al. 1988, Pickett & Rogers 1997, Angelstam 2003, McEwan et al. 2010):

‐ site‐specific physical conditions — including soil, slope aspect, hydrology, climate

‐ natural disturbance regimes
       ‐ biotic interactions — such as mutualism (including such mutualists as mycorrhizal networks (MNs)), competition, parasitism, predation (which includes browsing/grazing by Deer).

Broad- and fine-scale distributional patterns of understory and overstory forest vegetation result from synergies of these site-specific physical conditions, disturbance regimes, and biotic interactions (Watt 1947, Braun 1950, Swanson et al. 1988, DeMars and Runkle 1992, Callaway 1997, Pickett and Rogers 1997, Hutchinson et al. 1999, Angelstam 2003, Dyer 2006, Dyer 2010, Matlack and Schaub 2011, McEwan and Muller 2011, Chapman and McEwan 2012, Anning et al. 2014). In addition to moisture, edaphic, and topographic gradients (Ashe, W.W. 1922, Lawrence, D.M. et al. 1997, Stephenson and Mills 1999, McEwan, R.W. and R.N. Muller 2006; McEwan and Muller 2011), canopy gaps are a major factor structuring understory and overstory vegetation in deciduous forests of the eastern United States (Glasgow, L.S. and G.R. Matlack 2007a). All of these natural factors lead to multi-habitat landscapes with increased diversity and improved functionality (Hackett et al. 2024).

These templates must be considered and maintained to sustain the broad spectrum of diversity of habitat, communities, and ecosystems in our NFs. The physical environment includes such features as edaphic conditions (e.g., soil pH), elevation, slope inclination and aspect, temperature, and precipitation (Whitaker 1956). These factors influence fine-scale microclimatic patches and gradients that affect patterns of vegetation composition and structure (Jackson and Newman 1967, Chen et al. 1999, Stephenson and Mills 1999, Dyer 2009, Dobrowski 2010, Fleming 2012, Anning et al. 2014).

Disturbances (intermittent stochastic disruptions) occur in the canopy as well as in the understories, independently or in concert (Runkle, J.R. 1991b). The sheer age (seral stage) of forest tracts can influence the herbaceous community present there; generally, disturbance sensitive species are underrepresented in secondary forests (DeMars and Runkle 1992, Dyer 2010, Matlack and Schaub 2011). It may take decades and even centuries for plant species to colonize and populations to stabilize (see, e.g., Honnay, O. et al. 2005).

Thus, it is obvious that vegetation diversity and tree regeneration/recruitment results from far more than just the amount of canopy openness at a site.

The FS analyses and decisions neglect to fully and fairly consider this ecology (related to purpose & need rationale, existing conditions, and effects of the proposed actions) and their consideration/disclosure is inadequate and fraudulent.

Natural ESH                    

Due to natural processes early successional habitat (“ESH”) is constantly created in forests. Yet the agency repeatedly fails to fully and fairly consider/estimate/inventory/analyze all these amounts in their decision-making process. The only ESH they recognize is that fabricated by human logging and cutting. And the agency disregards the significant negative aspects associated with such fabrication (Kellet et al. 2023).

The FS does not properly consider the contribution of natural processes to maintaining habitat diversity, particularly “early successional habitat”, on the George Washington, Hoosier, and countless other National Forests (“NF”). The FS planners fail to properly consider and analyse natural ESH patches, particularly those under two acres in size (the scale of many canopy gaps). As a consequence, the NF managers constantly use a fallacious “need” to fabricate such habitat as a rationale for cutting down valuable and important mature and old-growth sites.

The truth is that our maturing and recovering NFs naturally contain a spectrum of developmental stages of forest growth due to regeneration at canopy gaps created by disease, snow & ice, lightning strikes and resultant fire, insect outbreaks (including Gypsy Moths), tree senescence, windthrow, Beavers, drought, flooding, and other small-scale natural disturbances (Braun, E. 1950, Rentch, J. 2006). The Forest Service does not and can not provide evidence that these factors do not operate in project areas on NFs.

A disturbance regime of small-scale, within-stand gap processes dominated the natural forests in the Eastern region (Rentch, J. 2006, Runkle, J. 1985, 1991a). Further, it is critical to consider that intensive logging operations not only significantly directly alter habitat conditions, but in addition they interfere with, impede, truncate, and/or prevent the expression of the natural disturbance regime. Something that one would not want to do if actual “restoration” was the goal.

The simple fact is, natural disturbances small and large are constantly happening somewhere throughout the National Forests, forming a shifting mosaic of habitats (see Shugart, H. and D. West 1981, and Harris, L. et al. 1996). With the sporadic nature of natural disturbances (see, e.g., JNF FEIS 3-107, 109), early successional habitat is naturally patchy or spotty and species are adapted to this.

The fact that the FS managers/planners might not formally inventory or monitor this natural early successional habitat or for some reason do not like its floristic composition does not alter the reality of its de facto existence on the ground. It must be fully and fairly estimated and assessed and properly considered.

A full and accurate appraisal of the “existing conditions” is the sine qua non of informed decision-making and honest public disclosure of impacts and rationale. Without this, logging decisions on NFs are unreasonable, an abuse of agency discretion, and illegal (in violation of the National Environmental Policy Act and Administrative Procedures Act).

Hardwood forests on Canaan Mountain, Monoghela NF. Photo: Jeffrey St. Clair.

Heterogeneous Species Composition

At any site, multiple successional pathways are possible post-disturbance (Egler 1954, Connel and Slatyer 1977). Various factors are responsible for this (e.g., site-specific physical conditions or the abundance of browsers), but it partially depends upon the starting point (see “initial floristic composition” in Egler 1954, Roberts 2004). For tree taxa in particular this means the existence of a seed bank and advanced regeneration (the seedlings already growing at a particular site) (Brokaw and Busing 2000). The cutting supposedly for oaks proposed for the HNF Buffalo Springs and GWNF North Shenandoah Mountain project areas and on a multitude of other NFs is NOT confined to sites with lots of advanced oak regeneration.

In eastern deciduous forests species composition is not spatially or temporally uniform (Dyer 2006, Dyer and Hutchinson 2019). In much of the East, Oak-Hickory dominance was naturally localized – typically on the drier sites (Paulus et al. 2018). In West Virginia Rentch and colleagues (2005) found the lowest herbal richness in Chestnut Oak forests; these tracts were associated with acidic soil conditions (Fleming 2012). In Kentucky, oak plots were in the driest most nutrient poor sites, while maple species were in the more mesic and nutrient rich sites (McEwan and Muller 2011). In the “Mesophytic” and “Beech – Maple – Basswood” regions, oak dominance across large broad areas is not to be expected everywhere and may exist in some places as a more-or-less unnatural condition facilitated/fabricated by major human disturbance —  fires and large openings (using the FS’s own logic) and Chestnut blight and Ash borers and agricultural legacies and Deer killing (see, e.g., McEwan et al. 2010). After the Europeans invaded and took over, there were a lot more fires taking place over far more area. So, centuries of human-caused fires here can be expected to have resulted in an excess of oaks and other taxa called fire-tolerant. And this pyromania is what some in the FS are intent on “restoring” (follow the money).

In other words, oaks, just as other species, are naturally localized due to the synergies of the three landscape templates. See, e.g., Donaldson’s Woods and Pioneer Mothers, and Peters Mountain North and Frozen Knob, old-growth forests in Indiana and Virginia: these places are a mosaic of all-aged hardwood forests (natural templates in action). And in some locales, oaks are a dominant canopy species.

FS proposals such as the Buffalo Springs (Hoosier NF) and North Shenandoah Mountain (GWNF) projects are all about trying to force an artificial disturbance regime and manipulated composition upon thousands of acres and alter the overall forest type (e.g., mixed mesic) and forest structure (make it younger and even-aged).

Oak regeneration/recruitment is NOT simply a function of canopy openness. The FS would have the public believe that all it has to do is reduce the canopy tree cover with chainsaws across hundreds of acres and then oaks will  crop up all across the landscape like magic. Not only is regeneration NOT due to simply opening the canopy with chainsaws, but that is certainly not all that is necessary for the FS to do — no, lots more tax dollar spending make work/job security must be inflicted ad nauseum, and that’s left out or obfuscated in the FS documentation and PR for the projects.

Indeed, and of great importance and that CANNOT BE EMPHASIZED ENOUGH:

Much of the agency’s intensive even-age logging does NOT typically result in oak-hickory stands. Subsequent additional “treatments” are always needed, such as “timber stand improvement” (mechanical and chemical), pre-commercial thinning, crop tree release, and commercial thinning. Finally, after the application of lots of tax dollars and other cultural/economic/energy inputs that alter stand structure and composition, oak-hickory dominant stands might result.

If the even-age logging imposed by the FS actually resulted in oak forests, they would NOT need to repeatedly go back to these sites over decades and manipulate the tree composition there – i.e., cutting/killing the “undesirable” (i.e., not of greater commercial value) species there.

And that is explicitly part of the management proposed for the Buffalo Springs, North Shenandoah Mountain, and many other areas (see the EAs and scoping letters).

Oak-Hickory forest, Panther Hollow, Hoosier NF. Photo: Jeffrey St. Clair.

MNs and Oaks

The landscape template of biotic interactions includes such mutualists as fungal mycorrhizal networks (MNs), which generally fall under two separate categories: Ectomycorrhizal (ECM) fungi and Arbuscular (AM) fungi. These two classes of MN have some fundamental differences and appear to compete with one another (Johnson et al. 2018 – research done at an old growth forest in southern Indiana). Species such as oak, hickory, and beech are served by ECM networks, whereas maples and tulip poplars are served by AM networks. ECM trees typically produce slow-decaying leaf litters with lower nutrient content relative to co-occurring AM trees, resulting in distinct biogeochemical nutrient economies. Because ECM fungi possess the ability to mine nutrients from detritus, whereas AM fungi do not, ECM trees may be most competitive in their own soils (Johnson et al. 2018). ECM networks are especially sensitive to intensive harvesting regimes.

Research has shown that ECM fungi decline overall, regardless of ecozone, due to harvesting (Wilhelm et al. 2017). In contrast, AM populations increased in harvested plots likely due to their common symbioses with successional plant cover (Wilhelm et al. 2017). By implication, the removal of mature ECM trees and the corresponding disruption of ECM networks may facilitate AM invasion and succession from oak-hickory to Maple-Tulip Tree ecosystems. In addition, soil compaction from harvesting profoundly affects ECM fungi abundance, structure, and function; it therefore raises concerns regarding forest productivity, juvenile tree regeneration/recruitment and long-term ecosystem functioning (Hartmann et al. 2014).

And yet, the FS consistently proposes/inflicts intensive cutting with extensive canopy removal and soil disturbance on hundreds of acres, supposedly to increase oaks. These impacts to and from MNs are significant issues that have not been fully considered in FS project analyses/decisions.

The fact that when some “maturing oaks and hickories age and die they are being replaced by trees such as maple and beech” (SL) does not mean that ALL of them are or that it is happening everywhere —  the trajectories are heterogeneous in space and time due to the interactions of the three pattern‐forming templates. Because of this, at some sites oaks naturally may actually increase in number. And climate change modeling predicts that oaks will EXPAND their range northwards at places in the East. Further, oaks have the ability to remain in the understory for decades, biding their time, building up amounts of advanced regen and waiting for a natural disturbance release event.

 “White oak usually becomes dominant in the stand because of its ability to persist for long periods of time in the understory, its ability to respond well after release, and its great longevity.” (Burns & Honkala 1990) Vol.2 at pg. 610) (emphasis added) “If regeneration of a white oak stand is the desired goal, then the implementation of a slower, more gradual approach to opening up the canopy may be necessary.” (Rebbeck et al. 2011 at pg. 2229)

A slower more gradual approach is natural processes operating over long periods (hundreds of years), i.e. proforestation (Moomaw et al. 2019.

Old Forests, Seral Stages, and Natural Disturbances

Habitat complexity generally increases as forests age (Franklin et al. 2002); amongst other benefits, this niche complexity provides refugia from predators (Finke and Denno 2006), a factor presumably of critical importance to small somewhat defenseless site-sensitive forest creatures who cannot run away or fly away from harm. A body of research indicates that canopy gaps, herbaceous vegetation, mushrooms, invertebrate richness or abundance, snags, and large woody debris amounts are generally more abundant in older forest habitats (Whitney and Foster 1988, Meier et al. 1995, Greenberg and Forrest 2003, Van de Poll 2004, Ziegler 2004, Webster and Jenkins 2005, Keeton et al. 2007, Scheff 2014). For instance, the stand-initiation and stem- exclusion stages of seral development (sensu Oliver and Larson 1996) (i.e., early successional habitat with high density of saplings) is commonly characterized by a depauperate herbaceous layer (Halpern and Spies 1995, Roberts 2004). A typical rationale used for timber sales is the assertion that after cutting the logged sites will have increased berry or soft mast production. However, this enhancement is only short-term (2-9 years), then the cutover sites have a very long period (30-60 years) of dense canopy with very low soft mast production (Reynolds-Hogland et al. 2006). The Forest Service consistently and unfairly disregards the harms and negative aspects of early successional habitat fabricated by logging older forest (Kellett et al. 2023).

The truth is that our maturing and recovering National Forests naturally contain a spectrum of developmental stages of forest growth due to regeneration at canopy gaps created by natural processes; though of course old-growth stages are much diminished at present, particularly in the East. A forest can be “intact” or “contiguous” yet have numerous canopy openings due to a variety of natural disturbances (see, e.g., McCarthy, J. 2001). In fact, this is the natural state of wild mature and old-growth forests in the East  (Davis, M.B. 1996). Disturbances occur in the canopy as well as in the understories, independently or in concert (Runkle, J.R. 1991b). Such processes normally occur and can be expected to occur in the future, as nature is very capable of maintaining our National Forests’ ecological integrity without the assistance of commercial logging.

Though episodic, natural canopy gaps are a regular occurrence in Eastern NFs, their rates varying depending on the scale of natural disturbance events in a particular year and the forest type studied. On the GWNF, canopy gaps are said to annually form from natural disturbances at the rate/extent of “0.4 to 2.0% of the land area” (GW-JNFs Indiana Bat EA-20). This means that in any ten-year period (this is the increment used by the agency to define age classes and wildlife habitat), up to 4-20% of a project area may have natural esh conditions. These natural processes and conditions provide desirable and suitable habitat for Grouse, Deer, Turkey, Bear and a host of other species. The 1993 GWNF FEIS had estimated abundances of game populations under each alternative for comparison. The proforestation/natural processes option (Alternative 3) was clearly estimated to supply game populations far in excess of viable populations (in the case of Bears it was said to support the greatest numbers, for Turkeys the second greatest).

The congruence and harmonization, or lack thereof, of human disturbance (viz., cutting regimes) with the spatial and temporal parameters of natural disturbance and their associated biological legacies are of great concern (Franklin, J. et al. 2002, Keeton, W.S. 2004, and Flamm, B.R. 1990). Further, it is critical to consider that intensive logging operations not only significantly directly alter habitat conditions, but in addition they interfere with, impede, truncate, and/or prevent the expression of the natural disturbance regime. Mature forests are of the age that a mosaic of habitats is gaining expression due to the operant natural disturbance regime (Franklin, J. et al. 2002; Keeton, W.S. 2004). And still more such niche complexity (including canopy openings) can be expected to develop as mature forests develop into old growth (Dahir, S.E. and C.G. Lorimer 1996). Such heterogeneous forests (of sufficient age) typically include stands or patches dominated by young early successional forest, older early successional forest, mid-successional forest, young late successional forest, and old late successional forest (Frelich, L.E. and P.B. Reich 2003).

The Forest Service likes to claim that its logging operations mimic natural disturbance. This is flagrantly absurd. Natural disturbances do NOT remove huge amounts of biomass (in the form of large trees) from a community — nothing goes to waste. They remain on-site to form niche complexity and provide nutrients. Which is exactly the opposite of the current management regime impressed upon the ecosystems — the constant removal of the organisms that would otherwise be recycled into and enrich, sustain, and recompose the system. In a naturally wild old forest it is the persistence of ecological legacy throughout the course of natural disturbances that promotes such great diversity of community composition and forest structure (Hackett et al. 2024). Ecology is about legacies — that which happened, or didn’t, in the past forms the contemporary context of the present system. Some things are here that shouldn’t be and some things are missing that should be here. In this age of mass extinction and global climate change, the greatest value our National Forests can provide is to serve as ecological preserves.

Let Them Be

Our National Forests are composed of maturing biotic communities on their way to developing/recovering something like their original condition. The fact that there are immature stems of many species right now does not mean that the sites were always that way or will always stay that way. The FS refuses to deal with the temporal reality of these developing ecosystems that are in the process of developing their uneven-age natural structure with multi-layered canopies. Instead of forcing an artificial young even-age condition on these ecosystems, here on these public lands we should take the opportunity to maintain their ecological integrity and continue to let nature diversify and heal herself.