5NO NEED TO ALARM EMPLOYEES

We believe that the employer has the responsibility to inform his employees about the substances they work with and that every employee has the right to know how his job may affect his health.

—John Finklea, 1976

The Occupational Safety and Health Act opened new channels through which to pursue a wider right to know about workplace health risks. A number of unions representing workers in the manufacturing sector had fought hard to secure passage of this landmark legislation. Those organizations and their allies naturally sought to explore the possibilities presented by the system of federal protections. Their interest was heightened by decades of frustration in seeking redress from state-level officials and their patrons and advisers in the Public Health Service (PHS). Testing the willingness and ability of the Occupational Safety and Health Administration (OSHA) and its partner the National Institute for Occupational Safety and Health (NIOSH) to safeguard the workforce became one of the most important initiatives for partisans of a wider right to know about hazards of occupational disease after 1970. In this exploratory process, the proponents of legally guaranteed informational rights enjoyed widespread, authoritative support for the principle of transparency. John Finklea declared his commitment to the right to know while serving as a senior official in the conservative administration of President Gerald Ford testifying before a congressional committee in his capacity as the head of NIOSH. Yet translating acceptance of an abstruse principle into concrete national policy and administrative practice proved difficult. Advocates of an expansive interpretation of workers’ entitlement to lifesaving information met obdurate opposition at every turn. As a result, the record of advances toward more complete access to facts about hazards in the early years under the new federalized system was very mixed.

A clearer awareness of the magnitude of the problem lent a sense of urgency to the quest for transparency after 1970. However limited, the evidence available at the time pointed to an immense and growing threat of occupational disease. In the mid-1970s, NIOSH estimated that about 25 million workers could be exposed to at least one of the approximately eight thousand chemical substances and physical agents that it had already identified in its National Occupational Hazards Survey. This survey found that almost three-fourths of hazard exposures involved trade-name products and that neither employees nor their employers knew the chemical composition of 90 percent of those products. The fact that American workers had come to view improvements in their precarious working conditions as a top priority further encouraged their representatives to venture into the forbidding territory of bureaucratic regulatory processes.¹

Revelations about the carcinogenic potential of numerous substances previously considered innocuous intensified worries. By the second half of the twentieth century, cancer trailed only cardiovascular disorders as a cause of death in the United States. When the National Cancer Act of 1971 declared a “war on cancer,” the legislation reflected the depth and breadth of public fear of this mysterious category of disease. But victory over cancer seemed to remain forever over the horizon, which only deepened that prevalent fear. In 1976, NIOSH's Joseph Wagoner used the two-hundredth anniversary of the first discovery of a work-induced cancer (scrotal tumors among English boys who cleaned chimneys) to reflect on the current scene. “Today,” Wagoner observed, “the problems of occupational carcinogenesis are greater, more visible yet more subtle, and more pervasive than they were in the past.” The ever-expanding roster of confirmed or suspected etiological agents found in the workplace included both familiar old substances like asbestos and unfamiliar recent formulations like dibromochloropropane. Wagoner commented insightfully on both categories of hazards. He reported that eighty years after aromatic amines were proven to cause bladder cancer and several nations had banned them, “thousands of American workers were literally sloshing in them.” He also found especially worrisome the estimates that most of the hundreds of new chemicals entering the workplace had had no prior testing of their potential to cause malignancies. A 1977 assertion by the United Steelworkers (USW) of a general right of workers to know about occupational hazards focused on carcinogens, citing recent revelations about vinyl chloride, kepone, and bischloromethyl ether. The USW found these revelations not only disturbing but infuriating as well. The union pledged that for employers who “just don’t give a damn” about their workers, “It's our job to make them give a damn.” There was plainly a growing recognition that this emerging public health crisis warranted both drastic federal intervention and determined union representation.²

Against this backdrop, endangered workers and their unions sought to take advantage of the tools now available to them under federal law in order to gain useful information. Of course, more complete knowledge of the perils of the job was sought not as a matter of enlightenment but as a necessary resource for preventive interventions. Unions and individual employees filed complaints that led to OSHA inspections. Both participation in the inspections themselves and inspectors’ posting of citations that enumerated violations served to illuminate unhealthful conditions. Labor organizations initiated NIOSH Health Hazard Evaluations (HHEs) that often brought to light evidence of health risks. When fresh evidence led NIOSH to issue a hazard alert about a substance, the Oil, Chemical and Atomic Workers sent copies to the locals whose members were exposed to it.³

Beyond the responsibilities imposed in its foundational statute, OSHA from its inception had other chances to dispense hazard information to workers. These were not opportunities that the agency seized initially. Most early-phase educational work targeted employers, not employees. The emphasis of the Office of Training and Education on worker carelessness failed to address the larger challenges before it. One critique of this victim blaming derided the way that the educational unit had “squandered its funds on childish radio commercials” that revisited the tired trope. Another indication of misplaced focus was the inordinate attention devoted to workplace injuries, at the expense of the larger, little-understood phenomenon of occupational disease.⁴

An infusion of funds from the National Cancer Institute gave OSHA the resources to tackle one critical set of issues more constructively. To develop principles for reaching those facing carcinogens, the partners turned to the National Research Council for guidance. The council formed the Committee on Public Information in the Prevention of Occupational Cancer. This committee's symposium in December 1976 aimed to “assure mobilization of the best information on occupational cancer education.” The meeting gave various parties their chance to define the issue. Protecting workers from frightening messages, not granting them rights to information, preoccupied some participants. If carcinogens could be euphemistically termed as only suspected agents of dread disease (pending further, perhaps endless research), then apprising workers of possible risk was a mistake. Robert Eckardt of the Exxon Corporation argued against needlessly scaring the workforce. Benjamin Van Duuren, professor of medicine at New York University, also counseled caution: “Until this [experimental] data is evaluated I do not see any reason why the worker should be scared stiff or why they should be told that they are dealing with a potential carcinogen.” In contrast, the Episcopal theologian Joseph Fletcher saw possible anxiety as a small price to pay. From Fletcher's viewpoint, “dangerous knowledge is never half as dangerous as dangerous ignorance.” Andrea Hricko of the Labor Occupational Health Project at the University of California, Berkeley, held that workers, former workers, and the surviving family members of deceased workers were entitled to know everything that management knew. Hricko deplored reliance on trade secrets claims as “most reprehensible” and “unconscionable.” To David Wegman of the Harvard School of Public Health, “The idea of frightening workers by frankly informing them is absurd.” Undoubtedly drawing on his experience with rank-and-file worker activists in Massachusetts, Wegman maintained that “we continually underestimate the ability of workers to know or understand about cancer, about their bodies, about science.”⁵

Beyond debating what substantive messages were appropriate, the conferees considered the proper design of an educational program. Paul Kotin, a physician and senior executive at the Johns Manville Corporation, a leading manufacturer of asbestos products, appeared to be more interested in designating the best messenger than in tailoring the message. Conceding the workers’ right to know, Kotin sought to place company doctors at the center of any system of transferring cancer knowledge. Citing the attempted cover-up of the asbestos catastrophe at Johns Manville, Andrea Hricko told the federal officials that corporate self-regulation had had its chance. Speech communication expert Herbert Simons criticized the top-down approach that dominated health education and confessed that “people in my field do not know a lot about bottom-up approaches.” But based on his familiarity with the effective confrontational information-gathering methods of the Philadelphia Area Project on Occupational Safety and Health, this Temple University professor explained that “one of the premises of a bottom-up approach is that education and action go hand in hand.” Simons challenged OSHA to produce publications that promoted worker activism and to “experiment with bottom-up programs.” In the discussion of Simons's presentation, Paul Cornely, a professor of preventive medicine at Howard University, expressed disappointment with the absence of worker participation in the symposium. Cornely considered it “a pity that we are talking among ourselves.” Indeed, only one member of the endangered working class appeared on the program at this meeting. Richard Marco, an autoworker from the Chicago area who made clear that he had no college degree, offered the practical suggestion to enclose educational materials in employee pay envelopes, to underscore the risk involved in earning a living. Marco called on federal officials to advise workers about how to request a hazard evaluation from NIOSH. Delivered in the waning days of the Ford presidency, these provocations in all probability helped to reorient educational policy for the incoming administration of President Jimmy Carter. The subsequent report of the Committee on Public Information in the Prevention of Occupational Cancer to OSHA proceeded from the premises of the right to know and the duty to inform. The committee dismissed the notion that workers could not handle the disturbing facts about the risks they encountered. Although hardly a strong declaration of support for subaltern empowerment, the group did urge that information “be sufficient to permit the worker to assist, to the limit of his capability, in monitoring and improving the environment of his workplace.”⁶

OSHA standard setting held out great potential for expanding knowledge rights, which in turn meant that it would become a major site of conflict over those potential rights. Upon assuming authority, OSHA confronted the immense task of regulating innumerable chemical, physical, and biological threats to workers’ health. As an expedient first step, the agency chose in May 1971 to adopt the preexisting standards established by the American Conference of Governmental Industrial Hygienists (ACGIH). These skeletal regulations set exposure limits (often of a weak nature) but did not impose on employers labeling or other disclosure requirements for toxic chemicals. Adoption of the ACGIH rules did carry with it, however, an obligation to post warning signs for exposures associated with both ionizing and nonionizing radiation. In addition, containers holding materials that emitted ionizing radiation had to display a warning label. But these were exceptions to the prevalent pattern of obliviousness for the approximately four hundred chemical substances covered in this blanket interim regulation. In belated acknowledgment of its inadequacy, OSHA and NIOSH announced in 1974 the Standards Completion Program whose objectives encompassed the addition of information distillation sections to the chemical standards. The following year, perhaps in response to prodding from reform advocates, NIOSH officials insisted that they did plan to move ahead to supplement the interim standards with mandatory warning messages for employees. Despite this assurance, in the end, the Standards Completion Program stalled and did nothing to alter the rules regarding access to hazard information.⁷

As OSHA and NIOSH set out to make rules on workplace health risks, they grappled with another legacy of the preceding era of corporate control besides the ACGIH standards. After endeavoring for almost three decades to minimize the disclosure of information and to establish themselves as the national authority in that area, the chemical industries were not prepared to step aside for a freshly commissioned team of Washington bureaucrats. The Manufacturing Chemists’ Association (MCA) recognized the threatening ramifications of a federal takeover for control of the dissemination of facts about hazards. As the association's Task Group on OSHA Regulations put together recommendations for the government in 1972, its Labels and Precautionary Information Committee stressed the need for adherence to the guidance in their manual. G. Robert Sido, the chair of the labeling committee, delineated this aim for the MCA board of directors on January 9, 1973: “The committee objective now is to see to it that Manual L-1 is recognized and used as the labeling pattern or working document by the Department of Labor (DOL), the National Institute of [sic] Occupational Safety and Health (NIOSH), and other involved standards-making associations such as the American Society for Testing and Materials.” Sido told the board that “to insure Manual L-1 influences OSHA label regulations,” he had nominated one of his predecessors, C. Boyd Shaffer of American Cyanamid Company, for a place on a proposed OSHA Advisory Committee on Labeling and Hazardous Materials. (And Shaffer would play an active role in pressing industrial interests within that advisory body, as we shall see.) A month later, Frank Mackison, a NIOSH guest at an MCA labeling committee meeting, received a blast of criticism for his institute's failure to involve the chemical association sufficiently in constructing a labeling system. The committee got no reassurance from Mackison's statement that the top consideration for NIOSH in its warnings was the well-being of workers, not the erection of an effective defense against lawsuits for work-related disease. Because Mackison's superior, Charles Powell, had previously delivered a similar message to MCA's Occupational Health Committee, the priorities at the national institute could not have been clearer, or less welcome. The new federal agency had, in a sense, affixed a stark warning label on itself that alerted the chemical producers to a political hazard. Further frustration for MCA stemmed from NIOSH officials’ failure to consult with it when they solicited commentary on a draft of their labeling scheme in early 1973. Despite this setback, the association continued maneuvering to gain a larger role in shaping informational policymaking.⁸

The NIOSH apparatus for devising a model warning framework did not accommodate formally the MCA. However, corporate presence therein was hardly nonexistent. The institute's roster of ten review consultants had five corporate representatives and no labor representatives. Although the members of the MCA Labels and Precautionary Information Committee from Shell Chemical Company and Olin Corporation did not gain review positions, both had coworkers on the panel. Nonetheless, producer influence was now circumscribed. The NIOSH recommendations for a hazard identification system sent to OSHA in December 1974 demonstrated that MCA hegemony had ended. The proposal for an identification system made plain that federal decision makers had considered and rejected existing models, an obvious dismissal of the long-standing MCA program. Of particular importance, the ingrained practice of trivializing chronic outcomes of hazard exposure came in for unprecedented criticism. “It is essential,” NIOSH declared, “that delayed or chronic health effects must be given the same attention as are immediate or acute problems.” A fresh perspective was beginning to take hold under federal auspices.⁹

When the battlefield for creating an overarching design for warning workers shifted from NIOSH to OSHA, the struggle over transparency continued unabated. NIOSH envisioned a system comprised of three components—symbols, labels, and material safety datasheets. Another noteworthy indication of the shifting of forces underway was the insistence of the labor and government representatives on the OSHA Advisory Committee on Hazardous Materials Labeling on supplementing those components with requirements for employee education. Despite employer resistance, the committee decided to advocate inclusion of educational and training activities never advocated under the MCA regime. Their report of June 6, 1975, proposed a “total systems approach” because “the most sophisticated use of hazard placarding and labeling may not accomplish the desired objectives unless coupled with an effective program of employee education and training.” They recommended that new employees receive training prior to their first job assignment and that additional training occur at least yearly, with topics to include hazards of chronic exposure.¹⁰

The OSHA advisory body attempted to find symbols that would unmistakably and instantly apprise workers of a hazard to their health. In this exercise, the advisers acknowledged the significant number of hazard-exposed, non-English-speaking laborers who could comprehend an image placed on a label on a container but who might not grasp other types of warnings. The committee benefited from the recent belated willingness of the MCA to accept the value of pictorial warnings, after two decades of opposition to the set of images published by the International Labour Organization (ILO), an affiliate of the United Nations. Nonetheless, the Standard Oil representative held out against adoption of any such symbol, contending that the mere presence of a label on a container constituted sufficient warning. After much debate, the committee offered a qualified endorsement of the preexisting Department of Transportation symbols that were based on the UN system. As the best symbol to alert illiterate and non-English-speaking workers of highly or extremely toxic substances, the committee supported use of the widely recognized traditional skull and crossbones, an image used in the UN system.¹¹

With C. Boyd Shaffer chairing the labeling subcommittee, it was predictable that the OSHA Advisory Committee on Hazardous Materials Labeling sought continued use of some basic elements of the MCA scheme. Without settling on the particular circumstances under which the terms would be applied, the committee accepted the three conventional signal words—“caution,” “warning,” and “danger”—and the possible application of the term “poison.” The extent to which the committee ended up supporting perpetuation of the MCA labeling methods, along with other concerns, led the four union members to file a formal dissent with the Secretary of Labor. The dissenters criticized the proposed warning labels for failing to require that components be listed by chemical name. They also objected to the difficulties that those not literate in English would encounter in understanding warning messages on these labels. For carcinogenic hazards, the group put forward the euphemistic phrase “suspected cancer agent” because they were unable to acknowledge the existence of confirmed workplace carcinogens. In line with the MCA template, the advisers also called for mandatory hazard descriptions, precautionary measures, and first aid steps. Taken as a whole, the advisory committee guidance reflected the fraught, fluid, and laborious nature of the regulatory process as it pertained to setting general rules.¹²

Nothing came of this advice. OSHA continued slowly to study varied perspectives on a general plan for hazard communication. More than a year and a half after receiving the advisory committee report, the agency gave notice formally soliciting further input on this subject. One measure of the broadening horizons was the request for comments on “appropriate training requirements and other means of informing the employees.” But this reopening of the topic, with OSHA under the more hospitable authority of the newly inaugurated Carter administration, proved to be a false dawn. Pressure from the Health Research Group and other progressive advocates could not overcome business resistance to any substantial reform. A belated proposal to establish systematic informational requirements for all health standards offered during the final week of the Carter presidency was stymied by the Ronald Reagan administration's imposition of a moratorium on all new regulations.¹³

Unable to devise a sweeping regulation for information disclosure, OSHA moved forward throughout the 1970s with the promulgation of specific standards for which right-to-know factors often came into play. Asbestos presented a critical early test case for willingness to warn workers exposed to a highly dangerous hazard. In anticipation of the conflict to come over numerous facets of federal rulemaking on this substance, the industry in 1970 created the Asbestos Information Association. As Gerald Markowitz and David Rosner have shown, this group crafted and carried out a wide-ranging, strenuous public relations campaign to minimize the risks of this hazard. The association had its work cut out for it. By the 1970s, asbestos was well on its way to killing hundreds of thousands of American workers. By that time, its ability to cause cancer of the lungs and other organs was well established. Yet in neither of its first two regulatory actions—inclusion of asbestos under the consensus standards adopted in May 1971 and issuance of an emergency temporary standard seven months later—did OSHA mandate any hazard notification. In the latter instance, that oversight ignored a request by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) for just such a provision.¹⁴

Because the temporary standard had to expire in six months, OSHA was under pressure to move quickly. In January 1972, it published a notice of a proposed permanent standard. This draft remained silent on the question of labeling containers but offered text for warning signs for work areas with hazardous conditions. The proposed language went so far as to broach the subject of carcinogenicity: “Asbestos dust may cause asbestosis, a severe lung disease, and is implicated in the development of certain cancers.” Further guaranteeing conflict, the proposal would give employees’ own physicians the right to see the results of their required medical examinations.¹⁵

OSHA's Advisory Committee on Asbestos Dust took up these controversial disclosure-related issues in February 1972. The proposals and positions of the employers’ side consistently demonstrated a determination to cut off as many opportunities for employee enlightenment as possible. But in this setting, unlike in similar discussions held by the MCA, the deliberative body of five had only one employer member, along with one union leader and three government officials.

The absence of any provision in OSHA's proposed standard for the affixing of warning labels on containers caused employers no difficulty. The NIOSH criteria document had urged the affixing of labels with the stark warning that dust inhalation “may cause asbestosis, pleural or peritoneal mesothelioma, or lung cancer.” The Textile Workers Union offered language for a strongly worded label that would not only alert workers to a cancer hazard but also call attention to the need for adequate ventilation (a management responsibility). When it became clear that majority sentiment within the advisory committee favored a requirement for labeling of containers, Isaac Weaver of Raybestos-Manhattan suggested that use of the weakest signal word, “caution,” would suffice. Weaver saw this term as helpfully fixing responsibility on the endangered employee: “I recommend caution because I feel that that denotes action on the part of the person. It is up to the individual to do something to avoid exposure.” He advocated glossing over the possible risk of cancer: “In small print, I propose the words inhalation of asbestos over long periods of time may be harmful.” Fellow committee member Jack Baliff of the New York Division of Industrial Hygiene called this “an excellent label for management, but not for labor.” Baliff preferred branding asbestos dust dangerous, not merely worthy of caution. He also supported identifying the dust as cancer-causing. Weaver held his ground and predicted dire consequences for application of the more severe term: “I think if you put ‘danger’ on there, they’ll get guys so scared they won’t even open the bag or container. And I don’t think that's necessary. It will have an adverse effect on sale and use of asbestos-containing products above and beyond the actual hazards.” As a senior manager at a firm that relied substantially on sales of asbestos-containing brake shoes and clutch plates, Weaver knew well the stakes in this contest.¹⁶

Much the same dispute played out over the phrasing of warning signs. Isaac Weaver called for the placement of signs only in locations where asbestos contamination was known to exceed the limit for permissible exposure, a proposition that took no account of the variability of hazardous conditions and the frequent lack of definitive, up-to-the-minute data on those conditions. Like other attempts to limit knowledge, that proposal met considerable resistance. Here, too, the industry member's preference for the more innocuous signal of “caution,” rather than “danger” and for exclusion of any references to cancer encountered stern opposition.¹⁷

On February 25, 1972, the advisory committee presented its decisions to the Department of Labor. The committee concluded that both the warning sign and the container label carry the signal word “danger.” It urged language in the hazard statement that included the wording “may cause asbestosis and cancer.” On the thorny matter of the availability of medical records, both Isaac Weaver of Raybestos-Manhattan and Andrew Haas of the Asbestos Workers dissented from the majority judgment to allow access to the physicians of the workers examined. Haas doubted that records of procedures conducted by company doctors and retained in the employer's custody could be prevented from being used to the detriment of employees. Acceding to a request from the Textile Workers Union, the committee advised that employees have the right to see the findings of the mandatory air-monitoring exercises that determined the extent to which they were at risk. This set of decisions brought no comfort to the employer side. Weaver sent an angry letter to George Guenther, the assistant secretary of labor in charge of OSHA. In his view, the failure to allow testimony from industry experts had rendered the committee proceedings “patently biased.” This purported impropriety meant that “the recommendations of the committee are totally invalid and must be disqualified from consideration in the proposed rulemaking.”¹⁸

When OSHA held open public hearings on its proposed standard in March 1972, both capital and labor, as well as their allies, took full advantage of their opportunities to plead their cases. Advocates of strong protection showed no inclination to fall back in the face of the asbestos industry's fierce and often defiant opposition. One witness on the first day of hearings argued that workers should have more than just access to their medical examination records. Sidney Wolfe, director of the Naderite Health Research Group, maintained that “access to these records should be controlled by workers, not management, lest they be arbitrarily used to fire or demote workers because they show evidence of disease.” Anthony Mazzocchi of the Oil, Chemical and Atomic Workers believed that the proposed examination provision “truly allows the fox to guard the chickens” because of the tendency of management-paid practitioners to fail to recognize cases of occupational disease. Mazzocchi agreed with Wolfe's diagnosis but not his prescription. He favored allowing workers to select their own examining physician and have the records stored with NIOSH. Witnesses for corporate medicine recoiled at the notion of allowing employees to select their medical examiners. Norbert Roberts, president of the Industrial Medical Association, feared the likelihood that employees would choose less competent examiners. Roberts joined his colleague Lain Tetrick of the American Iron and Steel Institute in declaring practitioners in their specialty to be objective experts dedicated to the welfare of their patients. He denounced as deplorable any use of findings to weed out potential litigants or compensation claimants. In the view of these leaders of occupational medicine, employer-retained health-care providers had to control both the administration of examinations and the records created in order to fulfill their professional responsibilities.¹⁹

Discussion of signage appropriate for asbestos work areas found industry representatives mounting a diversified attack. Their primary objective was to avoid any association between their products and cancer. One stratagem, one so well characterized in the title of David Michaels's book Doubt Is Their Product, was to portray a causal link to the dread diseases as premature. In support of his contention that there was “no need to alarm employees with inflammatory and suggestive signs,” Bruce Phillips of Certain-Teed Products Corporation counseled patience. He offered no refutation of the accumulation of damning scientific evidence of carcinogenicity. On the advisability of posting signs only when a permissible limit was being exceeded and then with a message that left out any mention of cancer, Phillips offered this rationale: “Before using such scare tactics in the workplace, we feel much more should be known about the relationship between cancer and asbestos than is known at present.” Another gambit was to plead for exemptions for products in which asbestos fibers were bound up so tightly as to not become airborne and were thus rendered harmless. Charles Neumann of Kentile Floors asserted that his firm's products were innocuous due to the encapsulation of mineral fibers. This argument, which held a kernel of truth, failed to address the probability of the release of dust when products were sawed, sanded, or otherwise treated in ways that liberated the immobilized material. On the labor relations front, Neumann worried that frightening signage could “only result in employment discouragement, excessive demands, difficult attitudes and lowering of morale.” From this vantage point, the best alternative was for signs that urged caution rather than warning of danger and that were devoid of references to cancer or, better still, any disease.²⁰

Industry witnesses took perhaps an even more adamant stance with regard to labeling. Besides reiterating the main objections offered against strongly worded signs, corporate officials envisioned dire consequences when labeled packages scared away previously ignorant customers. Matthew Swetonic, an employee of the Johns Manville Corporation representing the Asbestos Information Association, predicted that a label that cited asbestosis and cancer “would surely spell the demise of a number of major product lines of the industry.” Swetonic advised that adoption of the labeling requirement put forward by the OSHA advisory committee would “result in the unnecessary loss of millions of dollars in sales each year” and cause “large-scale unemployment.” His Johns Manville colleague Fred Pundsack elaborated on this future scenario of unwarranted fear and havoc, with the elimination of thousands of jobs, that would result from “unnecessarily frightening and alarming” labels. For their part, unionists endorsed the stronger language under consideration. George Perkel of the Textile Workers Union testified that many asbestos-exposed workers resented not having been advised of their peril. Sheldon Samuels of the AFL-CIO Industrial Union Department urged OSHA to order placement of the well-understood skull-and-crossbones emblem on containers.²¹

The asbestos standard brought forth by the Nixon administration on June 7, 1972 (i.e., in the early stages of the incumbent's reelection campaign), gave the industry the relief it sought on characterization of the severity of the hazard. OSHA leadership decided that “words such as ‘danger’ and ‘cancer’ are unwarrantedly alarming.” Neither the prescribed signs nor labels warned of any risk of cancer. Instead, signs had to state “Breathing Asbestos May Be Hazardous to Your Health,” and labels had to warn that “Breathing Asbestos Dust May Cause Serious Bodily Harm.” Label specifications called for the term “caution,” not “danger,” and did not include any requirement to display the easy-to-grasp skull-and-crossbones symbol. This permanent standard imposed no obligations on employers to offer any training on the nature of the hazard or the means of controlling it. However, the agency did allow employees access to records of the monitoring of their dust exposure. When hazard monitoring determined that workers had been subjected to dust levels above the permissible limit, the regulation required the employer to provide written notification to those affected within five days of such a finding. It permitted the employee's personal physician to see their medical records. However, OSHA refused to have medical findings withheld from employers. The standard's authors offered this reassurance: “There is no intention to allow employers to abuse medical information obtained pursuant to the Act, to the detriment of employees. Therefore, the administration of the medical records requirement will be closely watched.” In its protest petition, organized labor focused on the deficiency of the warning terminology, which it held “grossly understates the true nature of the threat.” The petitioners contended that the alarming quality of the proposed terms only had bearing if that characterization of the hazard was inaccurate, something the industrial agents had failed to prove. On the opposing side, the Asbestos Study Committee of the Friction Materials Standards Institute, chaired by Isaac Weaver, rejoiced that OSHA had selected “caution,” the “least sensational” of the signal words.²²

Despite its manifest shortcomings, the 1972 asbestos standard did advance transparency significantly. The rights of access to hazard and medical information represented new entitlements of some importance. Because this was the first original health standard developed by the infant agency, these breakthroughs set precedents for subsequent rulemaking. Although the final standard fell short of requiring that management educate or train dust-exposed subordinates, forceful argumentation on that issue helped to lengthen the agenda for future deliberations. When OSHA revisited this standard three years later, one item in its proposed plan for revision was the addition of an educational component.²³

Subsequent early OSHA regulatory activity with right-to-know dimensions witnessed conflict along the same lines as the initial engagement over asbestos. Any acknowledgment of carcinogenicity remained a flash point for the industries involved. On May 3, 1973, OSHA responded to a petition by the Health Research Group and the Oil, Chemical and Atomic Workers by setting an emergency temporary standard for fourteen carcinogens deemed to pose “a grave danger to employees.” Employers had to display signs warning of a “cancer-producing agent” wherever these substances were present. Containers of contaminated clothing, equipment, and materials had to be marked with this label: “Danger/Contaminated with Cancer-Producing Agent.” In the face of heavy industry criticism, the agency altered the warnings by changing “cancer-producing agent” to the more ambiguous “cancer-suspect agent” for all fourteen substances. Despite the recommendation of the Standards Advisory Committee for a stronger description of the hazard, the permanent standard published on January 29, 1974, retained the softer language for all fourteen substances, including even those few recognized by the MCA and other chemical organizations to be carcinogenic for humans. The final standard did heed the advisory committee's recommendation, however, for requiring an extensive employee-training component. Education and training provisions of this sort reflected recognition of the need to close the gap between information and the right to know.²⁴

OSHA grappled with the challenge of reaching workers who could not comprehend messages written in the English language. In the agricultural sector, a diverse workforce composed in large part of non-English-speaking international migrants encountered a host of toxic pesticides whose risks they often did not understand. OSHA inherited not just a daunting substantive problem but also a regulatory mess. For more than two decades, the US Department of Agriculture (USDA) had done little to require warning signs and labels that surmounted communication barriers. A 1969 congressional investigation found that agricultural regulators had often approved pesticide labels with confusing and contradictory warnings. University of Illinois consultants subsequently retained to evaluate labels confirmed these failings. Their study of 349 items concluded that the typical pesticide label was difficult to read, suitable only for those with at least ten years of formal education. Under pressure to intervene from both farmworkers’ groups and the Nixon White House, OSHA entered this territory with an emergency temporary standard covering organophosphate formulations. The emergency standard called for the posting of signs at the entrances to farm fields and at locations where workers assembled for instructions from management. The signs were to be composed “in the English language and any other language which may be necessary to communicate the warning.” The regulation also aimed to protect illiterate workers: “Where an employer has reason to believe that any employee is unable to read, he shall give the employee oral warning.” Congressional backlash against this measure led first to its suspension and then to the ceding of authority over these hazards to the rival Environmental Protection Agency (EPA). The EPA rules finalized a year later dropped the requirement for signage at work locations and gave employers the option of either displaying signs at assembly points or giving oral warnings. These rules did retain the obligation to communicate in languages other than English, wherever deemed necessary.²⁵

Further OSHA attempts to expand the use of non-English and nonverbal messages led to varied forms of frustration. NIOSH criteria documents prodded the labor agency to prescribe bilingual warnings. The institute's 1973 recommendations regarding inorganic mercury called for signs “printed in English and in the predominant primary language of non-English-speaking workers, if any.” OSHA did not see fit to overhaul the mercury standard to impose this protection. In early 1974, NIOSH wanted identical text for safeguarding the health of workers exposed to carcinogenic inorganic arsenic. OSHA did not follow this recommendation in the proposed standard it put forward the following year, and the final standard promulgated three years later carried no such provision. The NIOSH 1974 guidance for benzene, which causes leukemia, repeated the bilingual signage requirement but also gave managers the alternative of seeing that workers at risk were “otherwise trained and informed of the hazardous areas.” When OSHA issued its permanent standard four years later, the plans for bilingual signs or delivery of information comprehensible to those unable to read signs in English had vanished. The 1975 criteria document that addressed hexavalent chromium put forward the same language as for benzene. OSHA did not produce a final standard on this carcinogen until 2006. Beyond undertaking these exercises in futility, regulators appear to have given little if any serious thought to requiring pictorial warnings, in particular the widely comprehended skull and crossbones, a simple device for apprising those without English language proficiency. For several reasons, the most important of which was the strenuous resistance of the ever-more-powerful business community, federal administrators made little headway toward effectively alerting those workers who were in an especially precarious plight due to language impediments.²⁶

As the standard-setting contests of the 1970s unfolded, usually slowly and often unsuccessfully, the configuration of contestants remained nearly the same. Organized labor brought its team of top union officials and legal, medical, and technical advisers to meet their counterparts from the employer side, with federal administrators and scientists generally in a mediating role. As had been the case during the previous period under the ACGIH, rulemaking on occupational diseases under OSHA was a cloistered, technocratic affair. But much as it did in other realms of the American administrative state at this time in response to pressure for a measure of participatory democracy, the established pattern for regulating risks of occupational disease changed dramatically with the transactions that led to the standard for coke oven emissions. In this case, the USW pursued an innovative participative approach. This represented quite a departure not only for federal bureaucrats but also for the USW, which was by the 1970s among the more staid labor organizations, accustomed to a legalistic and bureaucratic style of operation. Leading the storming of the elitist regulatory ramparts was Clairton's chief activist, Daniel Hannan. High school graduate Hannan debated aggressively in the Standards Advisory Committee sessions and, more important, orchestrated the large-scale participation of rank-and-file coke workers in the public hearings. He helped to arrange for regular attendance at the Washington hearings of sizable delegations from the Baltimore, Maryland, Sparrows Point plant of Bethlehem Steel and for the testimony of more than forty workers and disabled former workers.²⁷

The primary right-to-know concern illuminated by oven workers was nondisclosure of medical and industrial hygiene findings. The inaccessibility of employee medical records emerged early in the standard-setting process as a condition unacceptable to the USW. Experience with management refusal to share diagnostic findings and falsification of records had engendered suspicion and resentment. The union's critique of the NIOSH criteria document in mid-1973 pointed to the need to make all such records open to employees themselves, without the requirement for a request from their physician. The union also demanded to see employee exposure data. On March 4, 1975, USW official James Smith gave the OSHA Standards Advisory Committee this assessment of prevailing attitudes on diagnostic revelations: “In all of our discussions with coke plant workmen, we have yet to find one who sincerely believes that his employer will furnish him with the truth on such a matter unless the employer is compelled to do so.” The standard that OSHA proposed in July 1975 granted employee access to the findings of both medical examinations and emissions monitoring mandated by its rule. The USW protested the proposal's failure to allow access to those company emissions records not legally required.²⁸

At OSHA's hearings on its proposal in December 1975, rank-and-file veterans of the coke ovens apprised the government of some realities of asymmetrical class conflict over crucial medical information. The panel members from the Inland Steel coke works in East Chicago, Indiana, maintained that they didn’t know the results of their company-administered medical examinations. Witness Bobby Tompkins explained that his request to see his doctor's report was rejected; Inland management assured him that “everything is ok.” Wayne Robinson, who chaired the workers’ compensation committee of the Clairton local, described disabled workers “literally dragging themselves to the gate in the morning” to try to work. Robinson denounced the tendency of the company's doctor to advise those he examined that they had emphysema rather than a compensable, work-induced respiratory disorder. In response, his committee arranged for an independent medical consultant to evaluate workers with breathing difficulties and then assisted in the filing of numerous compensation claims in cases where a diagnosis of lung cancer or pneumoconiosis justified them. Roosevelt Johns, retired from Republic Steel due to disability, testified that his employer's examination had yielded no advice to him about his lung cancer. In addition to his grave medical situation, Johns revealed that he was currently struggling to keep from losing his home. The militant activist Eugene Pughsley, another Republic coking worker, presented quantitative data supporting his contention that “very seldom does a man live to retire.” He recounted the experience of a longtime coworker whose impairment had reduced him to taking a lower-paid janitorial job. That man learned nothing from his employer's medical examinations about the cancer that would take his life; the cancer was only belatedly disclosed to him by his personal physician. (In a previous interaction with federal authorities, the audacious Pughsley told NIOSH staff that they should be forced to write their criteria document while sitting atop a coke oven.). At the Gary Works of US Steel, management apparently dispensed medical facts selectively. According to Willie Chapman, after the annual evaluations that included chest X-rays, only benign results were conveyed. “I don’t know of anyone that they’ve given the bad news,” reported Chapman. “They give the reading if it's good.” This policy undoubtedly helped limit workers’ compensation outlays for the corporate giant, as it did for others in the industry. Four men from Sparrows Point bore witness to their employer's refusal to share knowledge. Nolie Wilson only learned of his troubling X-ray findings when he fortuitously overheard Bethlehem Steel's examining physician discussing them with a colleague. An unmistakable pattern of nondisclosure emerged from this body of workers’ testimony.²⁹

Beyond their revelations about secrecy regarding health effects, worker witnesses also enlightened OSHA on inadequacies in the distribution of facts about respiratory hazards. The Bethlehem panel complained that company training failed to cover the carcinogenicity of the emissions in which so many of them were enveloped on the job. As Louis Buchanan of the Johnstown, Pennsylvania, operation put it, “They never tell us nothing about cancer.” Their comrades from Inland and US Steel concurred.³⁰

The standard published ten months later responded to the strong indictment laid out by the USW's members. Citing the evidence that those examined were currently denied diagnostic information, OSHA required that employees given mandatory periodic examinations receive written copies of the physician's opinions. Similarly, at-risk workers gained the right to see emissions-monitoring measurements. The obligatory warning signs where oven emissions were present had to declare a cancer hazard. Mandatory training programs had to discuss the nature of the hazard. Even demanding critic Daniel Hannan deemed the standard “not that bad.” In large part the product of the activism of rank-and-file African American workers, this was the first OSHA standard whose primary beneficiaries were workers of color.³¹

Despite the eventual success in the coke oven emissions case and a number of other advances in protection, the manifold difficulties of combat on the federal regulatory battlefield had become painfully apparent as the 1970s wore on. Larry Ahern of the International Chemical Workers expressed the disappointment felt within the labor movement: “In 1970, we thought we were in heaven. We finally had a law which guaranteed a healthy and a safe working environment. That is what Congress said then, but here we are in 1977, and we find ourselves still trying to secure the names of the substances that the people work with.” The frustrations of the convoluted bureaucratic process of standard setting, coupled with many other difficulties of dependence upon the federal regulatory system—too few enforcement officers, weak penalties, the structural flaw of allowing states to choose to administer their own programs—sent many occupational health activists in search of more aggressive strategic alternatives.³²