Oxford campus courtyard, comma not pictured

By Square = Circle

Grammar Nazis are like shamans – always hated and outcast until they are desperately needed.

There have been several recent stories about the Oakhurst Dairy case, which was decided by a debate over the so-called ‘Oxford comma,’ which English professors are supposedly charmingly obsessed with, but which is too arcane for normal citizens to understand.

As a former college English teacher who moved into a profession in which I frequently deal with the often-incomprehensible intricacies of labor law (i.e. construction management), I am here to disabuse you of the notion that it is the grammar rules, and not labor law itself, that suffer from being over-arcane.

The case involves rules governing which labor classifications do and don’t get overtime pay, and hinges on whether, in the text of the law detailing overtime exemptions for various dairy workers, the phrase “for shipment or distribution” modifies the word “packing” or whether “packing for shipment” and “distribution” are two different items in a list of trades exempted from overtime rules. If the former, those who distribute the dairy’s products are not exempt from overtime rules, only those who pack are. If the latter then those who drive the trucks are exempt, too. The union, unsurprisingly, argued the latter and prevailed upon appeal (meaning overtime pay for distribution, but not for packing).

Exemptions of this kind are common in fields where work comes in surges rather than being predictable day-by-day.

The most-publicized rationale behind the decision was that since there is a comma before “packing,” “packing” could be the final item in the series, modified by the rest of the clause, since that’s how you would interpret the sentence if this comma were an ‘Oxford comma,’ i.e. a ‘serial comma’ preceding the final item in a list, so that the last item is “packing for shipment or distribution.”

Presumably, there’s follow-up logic that says “and since there’s controversy over the ‘Oxford comma’ the rule is ambiguous and per state law ambiguities are to resolve in the employee’s favor.”

But while the different varieties of comma (such as serial vs. parenthetical, the two that are relevant here) have superficial resemblance (i.e. they use the same mark on the page), their functions are entirely different, and they should not be confused, any more than the ‘th’ in “fathom” should be confused with the ‘th’ in “Chatham” (pronounced “Chat-ham”).

This may seem a pedestrian observation, but it is just such a confusion that underlies the wrong decision in this case.

The recent article by A. Barton Hinkle, for example, which I link above, eagerly utilizes amusing examples of misused parenthetical commas to show how ambiguity in commas can seriously affect meaning (if one doesn’t know the context and/or is a little dim), such as ““When @LouiseMensch reported on the FISA tap, she included details that implicated Putin’s own daughters, Carter Page and Paul Manafort.”

If we pretend that the comma after ‘daughters’ is a parenthetical comma, rather than a serial comma, it sounds like the sentence is saying that Carter Page and Paul Manafort are Putin’s daughters.

While these examples can be fun, they don’t have anything to do with serial commas, which don’t impact meaning. The “Putin’s daughters” example is one in which a serial comma could be read as a parenthetical comma – if one doesn’t know anything at all about the context of the sentence. It is the structure of the sentence, not the lack of the comma, that creates that ambiguity.

The ‘Oxford comma,’ as it’s known to stuffy people who wear tweed, is specifically a superfluous serial comma added after the penultimate member of a series: “the flag is red, white, and blue.” The comma after ‘white’ is the ‘Oxford comma’ and is now considered by many to be over-fussy as it pointlessly doubles the function of the conjunction. “The flag is red, white and blue” is in no way less clear, and while style guides of the 1950s encouraged comma usage (“when in doubt, do”), style guides of the 1990s did the opposite (“when in doubt, don’t”).

Regardless of how you feel about the ‘Oxford comma’ and whether it is acceptable to omit it, the reason the jury in the Oakhurst Dairy case decided wrongly is that the real grammatical requirement is that no matter how long or complex the series is the final member of the series grammatically requires a conjunction. “The flag is red, white, blue” is ungrammatical, as is the union’s interpretation of the clause that is at issue in the lawsuit.

As noted above, we are being asked to take the phrase ‘for shipment and distribution’ as a modifier of ‘packing.’ That means we can remove that element of the sentence and the sentence itself will remain grammatical. Here is the sentence if we remove that modifier:

“The canning, processing, preserving, freezing, drying, marketing, storing, packing of agricultural produce. . .”

vs. the not-ungrammatical

“The canning, processing, preserving, freezing, drying, marketing, storing, packing or distribution of agricultural produce. . . .”

While ambiguities are to be construed in favor of the employee, I see no ambiguity here. If there were an ‘and’ or ‘or’ between ‘storing’ and ‘packing’ then it would not be ambiguous whether you use the ‘Oxford comma’ or not: “The canning, processing, preserving, freezing, drying, marketing, storing, or packing for shipment or distribution of agricultural produce. . . .” This version also lacks the ‘Oxford comma,’ yet somehow manages to be perfectly unambiguous in the packing being “for shipment or distribution.”

Because it’s about the conjunction, not the comma. The ‘Oxford comma,’ like Communism, is a red herring.

But as with so many things, the whole stupid debate could be avoided by simply getting the government out of the equation. My understanding is that Maine has a style guide for laws explicitly stating that they don’t use the ‘Oxford comma,’ yet this standard isn’t applied consistently, so the courts couldn’t use it. Legislators are not motivated by pragmatism (or competence), their decisions don’t have to pass the workability test, and they will not be held accountable for their failures. In politics, it is about the gesture, not the result. A law was made mandating overtime pay universally, and then myriad exceptions had to be carved out of it because, as the Devil once said, “one law for the Lion and the Ox is Tyranny.”

Even in a collective bargaining situation, had the Dairy simply been able to negotiate directly with the union without a body of poorly written but ‘well-intended’ legislation to try to interpret, hundreds of thousands if not millions in legal fees could have been saved, and perhaps even distributed to the workers by way of resolving the negotiations.

In fact, absent the labor laws the points in dispute would likely have been directly and explicitly negotiated, rather than silently passed over because both parties thought they understood a pre-existing regulation and so never discussed it.

But I wouldn’t hold my breath waiting for the lawyers and legislators to decide that repealing these regulations would be a ‘pragmatic’ development.