4A MATTER OF INCREASINGLY PUBLIC RECORD

Workers’ right to know is law.

—Local 1557, United Steelworkers of America, 1971

Twenty-one years before the United Steelworkers (USW) local in Clairton, Pennsylvania, made this triumphant declaration, Frank Burke, the union's safety director, participated in the annual meeting of the American Conference of Governmental Industrial Hygienists (ACGIH). A presentation by any labor official at the ACGIH meeting was quite an unusual phenomenon at that time. Besides the membership of hygienists employed by state government and other public agencies, the association always hosted a sizable contingent of corporate representatives. Vastly outnumbered but unintimidated, Burke announced that he would speak from “bitter experience.” After conceding that “labor is far behind management and government in the field of industrial health,” he contended that “labor has a right to participate in industrial hygiene programs.” The refusal of state agents to divulge their findings particularly troubled Burke. “There have been far too many instances,” he observed, “when union people made complaints to State health departments about conditions in particular plants, and then when the industrial hygiene people proceeded to make their investigations, the reports of those investigations were given only to plant management.” He insisted that “the workers are the people exposed to these hazards, and they have a right to know exactly the outcome of a complaint to their own government.” This assertion of workers’ rights sounded a note seldom heard in the discourse of occupational health professionals during that period.¹

Burke's angry presentation did not spark any reconsideration of policies within the ACGIH, however. The organization had been over this ground before and was not prepared to return to a controversial topic. In 1944, the conference discussed sharing the results of its work with the workers and unions affected. Opinion was divided. On one side, some expressed fears that expanded access to their findings would lead to entanglement in lawsuits or workers’ compensation cases. Not unexpectedly, J. J. Bloomfield, the Public Health Service's (PHS) chief liaison with the ACGIH, warned that reports in the hands of a union “might be used in a manner not conducive to further cordial relations between the official agency and management.” Manfred Bowditch of the Massachusetts Department of Labor and Industries, that is, not a representative of a health department, worried that divulging data to unions would result in management withholding needed information in the future. On the other side, a few participants in this debate maintained that transparency would promote employee cooperation in hazard control programs. “I really can’t understand what harm would come from exposing the results of an inspection to a responsible organization,” argued Irma West of the California Department of Public Health. “I can see a great good accomplished in the development of trust.” Herbert Walworth, chief industrial hygienist at the Tennessee Department of Public Health, concurred. “As soon as the plant study is under way,” Walworth claimed, “opportunities for education are presented. The long accepted policy that industrial hygienists should not discuss the plant study with employees is not practical. If a worker is interested enough to inquire as to what the industrial hygiene study is about, he should be shown the courtesy of a concise and uninvolved explanation. Certainly the uninformed worker will not have any great desire to cooperate in your or the plant's efforts for maintaining a better working environment.” Despite a decade of indoctrination by the PHS on the dangers of distributing facts about health hazards and despite the strong influence of corporate players in this organization, cracks appeared in the façade of official opacity. Note that some dissent emanated from within health departments and that some officials in labor agencies did not uphold the value of transparency. Nonetheless, the dominant orientation continued to be that of maintaining secrecy.²

Legal barriers also blocked action on the nondisclosures criticized not only by the USW in 1950 but also by the United Auto Workers (UAW) several years later. Numerous states had statutes on the books in the 1950s and 1960s denying public access to or use of investigatory findings. Less than a year after Herbert Walworth announced a receptivity to explaining his work with employees, his state passed a law that kept his office's findings out of lawsuits and compensation proceedings. In 1967, one state even took the commitment to keep secrets one step further. Texas made it a crime for a state employee to divulge information that could be construed as a business secret. As local health departments became more involved in examining workplace hazards, the PHS counseled them to avoid providing detailed data to anyone other than management. In 1959, the PHS engineer Charles Yaffe counseled local health officers that “if there is any question about the release of certain information, it should be cleared with the proper company officials.” As a legitimate exception to the general guidance to sequester specific investigatory determinations, Yaffe gave the example of a study of sodium fluoride at Republic Steel Corporation. “When our findings were made available, absolving sodium fluoride of any toxic effect,” he reported, “the union printed and distributed the report.” The episode of the disclosure of exonerative information underscored that the primary consideration remained solicitude for the employer's interests. Conversely, the handling of this affair also might suggest that whenever government officials refused to come forth with information, they were concealing a hazard. Obviously, the underlying principle was not preservation of confidentiality but rather the preservation of amicable relations with management.³

Despite these obstacles, the years after 1950 witnessed a series of labor challenges to the prevailing policies and practices and to the values that underlay them. These challenges drew strength from a more favorable context, particularly with regard to promoting the availability of information from government agencies. The historical sociologist Thomas Schudson observed that “the term ‘right to know’ did not appear in any Supreme Court opinions or even in popular rhetoric until 1945.” Schudson's luminous study of the emergence of that right after 1945 captures a transformation in government openness about its own activities. Beginning with the passage of the Administrative Practices Act of 1946 and culminating in the passage of the Freedom of Information Act in 1966, Congress gave Americans much-enhanced access to documents held in federal offices. A number of states enacted public records legislation during this period. Pennsylvania put in place an open records law in 1957. Although the statutes harbored exemptions and restrictions related to confidentiality, they constituted a profound shift in orientation. These reforms altered the expectations that citizens had about their entitlement to information that they themselves, with their tax dollars, had created. Beyond expanding the range of observable government materials, the larger movement for transparency extended to new requirements for improved product labeling to better inform consumers. Mandated warning messages began to appear on cigarette packages in 1966. Despite the changing tenor of public policy, the supposed imperative to protect trade secrets would continue to obstruct union-led campaigns for transparency.⁴

The budding environmental movement contributed to a growing sense of entitlement to scientific and business information. Activist scientists like the ecologist Barry Commoner advocated democratization of access to information as a matter of societal and global survival. More than anything else, the publication in 1962 of Rachel Carson's best-selling Silent Spring, with its demands for hazard disclosure, reframed the discourse on toxic chemicals. Carson drew on this declaration by the French biologist and philosopher Jean Rostand: “‘The obligation to endure gives us the right to know.’” Not quoted in Carson's book but illustrative of the subversive thinking occurring at the time was Rostand's call for wider participation in decision making: “The time is clearly coming when the man in the street will have his say with regard to the great social, national, international, and moral issues latterly raised by certain applications of science.” Coming from scientists who might have maintained an elitist, technocratic stance, such encouragement of lay engagement with complex, often abstruse issues signaled a fresh empowering perspective.⁵

Carson's revelations placed the right to know about toxic chemicals on the national policy agenda. In a book that revealed numerous accounts of workplace intoxication, her contention that “we have subjected enormous numbers of people to contact with … poisons, without their consent and often without their knowledge” helped shape the federal inquiries into pesticides that she precipitated. A presidential advisory committee decried the paucity of studies of occupational pesticide exposure and the lack of knowledge about pesticides among physicians. The committee's report in May 1963 called for “initiation of a broad educational program delineating the hazards of both recommended use and misuse of pesticides.” This document helped shape the terms of debate for Senate hearings two months later. At those hearings, chemical manufacturers, agricultural employers, and their allies in the US Department of Agriculture (USDA) and elsewhere in government mounted a spirited defense of both the innocuity of pesticides and the sufficiency of their current labeling. Lawmakers devoted little scrutiny to endangered workers, compared with that fixed on household users. Nonetheless, the deficits in hazard awareness found among at-risk fieldworkers did surface as a matter of concern for some witnesses. In the view of the Cornell entomologist Edward Smith, “Specific attention should be directed to the education of personnel employed as agricultural workers.” Less worried about the home gardener than some others, Smith maintained that, because of transitory relationships, “the most difficult problem is that of educating the help the farmer employs.” Although these deliberations yielded no breakthrough in policy formation regarding rights, they did bring to the surface the need to enhance awareness of chemical agents of occupational disease, an important preliminary step.⁶

The difficulties of unlocking evidence about hazards held by health administrators dominated one of the first systematic initiatives mounted by organized labor in the postwar period. Beginning in the early 1950s, the United Mine Workers of America (UMW) and its Welfare and Retirement Fund pressed the PHS to conduct a prevalence study of coal workers’ pneumoconiosis, a chronic disease they believed to be rampant among active and retired union members. Rebuffed by that agency, the unionists turned to the Pennsylvania Department of Health, which was receptive to this proposition. However, the department encountered opposition from employers. In 1957, a representative of the Bureau of Industrial Hygiene learned that those in charge of the mining operations at US Steel “had the attitude that it would be much better to leave sleeping dogs lie than to stir up matters.” According to Leslie Falk, the UMW fund's administrator in Pittsburgh who was at the center of this affair, the faltering coal industry feared that mass screening of miners and apprising them of their condition would generate countless compensation claims, which would bankrupt many firms. The coal operators grudgingly agreed to participate after the attorney general's office provided the assurance that Pennsylvania law prohibited disclosure of diagnoses in such inquiries. In 1958 and 1959, in conjunction with the state's Department of Mines and Mineral Industries, the Department of Health proceeded to examine about eighteen thousand current and former mine workers, who were not notified of their diagnoses. The project discovered widespread dust-induced respiratory disease, especially in the anthracite fields.⁷

The state adopted a different approach with the wealth of data they gathered on underground dust concentrations during this project. In the aftermath of the revelations of the extent of disease and its causation, the Pennsylvania Department of Mines and Mineral Industries embarked upon an ongoing dust-monitoring program. In 1961, the department's Roger Howell told his colleagues in the Mine Inspectors’ Institute of America that “all dusts, whether they contain silica or not, are harmful, and this is particularly true in the mining industry.” Howell informed his fellow inspectors that the practice now in Pennsylvania was to give the UMW a copy of reports on the hazard. Three years later at the Governor's Conference on Pneumoconiosis, Gordon Smith, the deputy secretary of the mining department, defended what had become established policy: “This spread of information makes possible further study and interpretation of collected data, along with contributing to the general knowledge of the situation.” Such a departure represented a promising breakthrough, one that contrasted strikingly with the stance of their counterparts in the health department.⁸

Although the Pennsylvania coal workers’ project did not produce any breach in the Department of Health's ironclad policy, that study did serve the strategic purposes of the UMW. Under the pressure generated by fresh and compelling evidence of the magnitude of this disorder, the PHS finally acceded to the union request to perform a national prevalence study. Beginning in 1963, federal epidemiologists ran a major investigation across several bituminous mining regions that confirmed the pattern discovered in Pennsylvania. The federal agency refused to share diagnostic findings of pneumoconiosis with the thousands of workers examined. The PHS rationalized nondisclosure by expressing its fear that, “if release of information were permitted, the study would immediately become a compensation study.” The union thus won the validation of the extent of the pneumoconiosis plague that it had sought for many years, but at the price of the withholding of valuable information that might well have substantiated valid claims made in workers’ compensation cases or lawsuits. Even that limitation was surmounted to a significant extent, however, by the increase in general awareness of occupational disease in the coalfields that flowed from the state and federal fieldwork. The elevated rates of compensation claims in Pennsylvania so infuriated coal operators there that they instigated the removal of Jan Lieben, the head of the occupational health unit in the health department. In a sense, prior to his ouster Lieben inhabited the worst of both worlds. His disclosures of general information antagonized mine owners; his (and his colleagues’ and his successor's) repeated refusals to deliver specific data on working conditions exasperated labor.⁹

Lieben's dismissal came despite his willingness to comply with his department's nondisclosure position. With regard to his knowledge of the risks associated with beryllium, this compliance went to great lengths. In 1962, he refused to testify in a product liability suit against the Beryllium Corporation unless ordered to by his superior. In this case, he was asked to testify only about work that had appeared in published form. But once again, the presumed need to maintain cordial relations with management precluded any expert testimony. After Lieben apprised C. Earl Albrecht, the deputy secretary of health, of his expectation of future involvement with the company, Albrecht replied, “It is my advice that you should not appear even in support of your paper, since your work in the Department of Health must continue with all parties concerned.” The “parties concerned” apparently did not include the victims of beryllium-related disease and their representatives. The desire to accommodate Beryllium Corporation management took other forms as well. In 1965, Marlin Brennan of the UMW asked Lieben to investigate conditions at this firm's plant in Hazleton, Pennsylvania, by making a surprise visit. Brennan complained that “in the past when inspections were made, the Company was completely prepared” and had cleaned up prior to the state agents’ arrival. When the Oil, Chemical and Atomic Workers replaced the UMW as the Hazleton workers’ bargaining agent at the end of the decade, it met similar obstruction. That union's request for a copy of a state hazard survey received the standard response about the imperative of protecting possible trade secrets. The behavior of the Pennsylvania health officials regarding the beryllium hazard belied claims of impartiality to the extent that solicitude for employers undercut their ability to identify and evaluate hazards.¹⁰

The dissatisfaction of the USW with the secretive and biased ways of the Pennsylvania Department of Health mounted over the course of the 1960s. In 1966, Frank Burke asked the state industrial hygienist Haven Williams for the results of the state's monitoring of manganese dust at the Johnstown, Pennsylvania, plant of Bethlehem Steel Corporation. He was told that he would have to get the report from the company. Burke exploded: “I do not intend asking Bethlehem Steel for a copy of your survey. I do not work for Bethlehem Steel, and neither do you.” Williams responded that he was following settled policy in order to protect possible Bethlehem trade secrets, without suggesting that there were any such secrets at stake in this situation. When Burke appealed to Williams's boss, E. J. Baier, he received the same vague invocation of the sanctity of trade secrets. Burke's other attempts to extract information from senior administrators in the Department of Health received curt denials that claimed, without substantiation, that long experience had shown that their stance was objective and acceptable to labor organizations. These bland assurances did nothing to placate the determined unionist.¹¹

A more protracted and much more consequential contest over access to hazard data began in the late 1960s involving the USW locals that represented Pennsylvania coke oven workers. Coke ovens cook coal to remove impurities and thereby convert it into a more efficient fuel for smelting iron ore. This process has the unfortunate side effect of liberating numerous cancer-causing chemicals that attack the lungs and kidneys of workers who load and unload the ovens and perform other tasks around the coking apparatus. Because coke-making jobs were insufferably hot, dirty, and otherwise unpleasant, they had for decades been largely reserved for African American and Latino men. Among the several branches of the union that became immersed in this controversy, the leading role was taken by USW Local 1557, composed of employees at the Clairton Works of US Steel, near Pittsburgh, Pennsylvania. At that time, this facility, which processed about thirty thousand tons of coal per day, was the largest coke producer in the world.¹²

The initial attempt by USW Local 1557 to gain a better understanding of the risks associated with the gases and dusts around the Clairton ovens brought familiar frustrations. In October 1967, Frank Rudman, the chair of the local's safety committee, asked the Department of Labor and Industry to look into the conditions at the coke batteries. That department referred the matter to the Department of Health, which conferred at once with US Steel management. Neither Rudman nor any other union representative was invited to this meeting. The parties arranged for a preliminary survey of the coke plant, which the state conducted on November 1. At this event, in which no union officials participated, the Department of Health took no measurements of the concentrations of coal tar pitch volatiles, benzene, or any other health hazard. Instead, the two industrial hygienists assigned to this project contented themselves with observing that the workers present were wearing respirators and accepting managerial assurances that coke workers were always provided with the personal protective equipment. W. C. Mawhinney, one of the state technical experts involved, concluded that “no bona fide hazard to health” existed at the site. Perhaps unaware of feasible engineering controls of emissions by use of closed systems, Mawhinney fatalistically dismissed the “condition of general air pollution” in this working environment as inevitable but inconsequential because of the use of respirators. His confidence in the efficacy of respirators did not rest on any data gathered on the substances comprising the emissions that would have confirmed the suitability of this particular type of respiratory protection. It apparently did not rest on any assessment of the fit, maintenance, or daily availability of the protective devices. D. A. Tyler, the other professional staff member involved, sent US Steel a minimal report that recommended continued use of respiratory protection. He gave the company an extra copy of this document for its possible discretionary delivery to the union. In this instance, perhaps because of its exonerative nature, US Steel transmitted the copy to the union.¹³

Notwithstanding its seeming disinclination to engage seriously with the issue of coke oven emissions at Clairton, the Pennsylvania Department of Health undertook a comprehensive study of the problem. The department's hygienists measured coal tar pitch volatile levels in all twelve coke oven plants in the state between 1966 and 1969. Beginning on April 30, 1969, representatives of the Division of Occupational Health, accompanied by managers but no unionists, spent three days monitoring the air around the hundreds of ovens operating in Clairton. The concentrations of respirable pitch volatiles in this facility exceeded the recommended threshold limit value (TLV), that is, the standard devised by the ACGIH for permissible exposure (a weak, unprotective limit), for thirty-six of the thirty-nine samples. Fifteen samples came in at ten or more times the TLV, including one that registered fifty-two times the limit value. In its report to plant superintendent James Plasterer on June 13, the division's director conveyed nothing like alarm. E. J. Baier told Plasterer only that “results indicate that exposures may exceed the threshold limit value.” Baier did advise a number of remedial steps, including to “investigate methods to alter equipment and/or operating procedures.” His recommendations did not extend to having management warn or educate the at-risk workforce. Baier sent no report to Local 1557. A month earlier, he had appeared at the ACGIH annual meeting and pleaded with his colleagues to make their profession more “people oriented” by focusing on parameters such as the numbers of people at risk and being protected from hazards, not the number of evaluations conducted. This professed interest in reorientation unfortunately did not extend to sharing information with the four thousand at-risk workers in Clairton.¹⁴

US Steel management did not see fit to give Local 1557 a copy of this damning information. The union's inquiry into this subject at the monthly joint safety committee meeting received a vague, deflective response. Management conceded only that “some exposures may exceed” the state limits on safe exposure. On June 20, 1969, James Plasterer sent a reassuring letter to all employees. The works superintendent declared that the recent state survey had determined that no employee who wore this respirator was in danger, even though the state had done nothing to assess the efficacy of that protective equipment. Plasterer advised that “each person working in such areas owes it to himself and his family to make absolutely certain to use the respirator provided.” This placing of responsibility entirely on the exposed employees ignored engineering and administrative controls for oven emissions, which the state had urged the firm to consider. The senior manager's letter did not acknowledge the difficulties of wearing cumbersome respiratory equipment for workers whose lung function was already impaired. It also failed to identify what was at stake for those exposed in terms of adverse health effects.¹⁵

If Plasterer sought to lay to rest anxieties raised by the presence of government investigators, he did not achieve that objective. Instead, he had the opposite effect. The Department of Health rejected Local 1557 President Daniel Hannan's request for a copy of the report itself and, as usual, told him to ask the company for it. This incensed Hannan, who, along with his safety committee, had been instrumental in prompting the study. In Hannan's view, Plasterer's letter had “managed to distort the truth and give a slanted version of these results.” Whereas the militant local president refused to ask US Steel for the report, his safety leader Frank Rudman did. The company denied Rudman's request.¹⁶

Hannan took the matter to his state senator, Edward Zemprelli. He reminded Zemprelli that discontent with the high-handed stance of health administrators had previously led him to encourage the senator to sponsor corrective legislation. “Nothing has been done,” Hannan complained, “and our members are becoming disturbed.” He told the legislator that “the people that you represent should have the same considerations as industry” regarding knowledge of state-produced information. The exasperated unionist also expressed indignation at the unilateral ability of managers to accompany and guide government inspectors. Zemprelli professed his shock and anger at the situation and promised to address the issue of impounded information. Hannan used his regular column in the next issue of the local's newsletter to lambaste the “lack of cooperation that we receive from State agencies that we are asked to support with our tax dollars.” His article was accompanied by a copy of the much-sought-after hazard-monitoring report, with its specific details of the astronomical levels of coal tar pitch volatiles at numerous locations around the ovens. The USW's state legislative committee had gotten a friendly political leader, Herbert Fineman, Speaker of the House of Representatives, to force the Department of Health to hand over the document. Fineman, who also chaired the Appropriations Committee, was simply in a position to threaten bureaucrats dependent on legislative funding.¹⁷

The coke workers’ demands for changes, both in their immediate working conditions and in the state law governing the distribution of information, took on added urgency as the stakes in human health became clearer. A growing body of evidence indicated the carcinogenicity of oven emissions. In 1955, drawing on British research over the past two decades, Wilhelm Hueper called attention to the elevated rates of respiratory system cancer among coke workers. In 1960, an expert consultant supporting the workers’ compensation claim of the dependents of the deceased Clairton coking worker William Scott described the toxic substances he inhaled for many years as “accepted … industrial carcinogens.” Those without the standard credentials of professional expertise contributed equally compelling insights. Daniel Hannan (whose formal education ended with graduation from high school) pointed to workplace cancer hazards in the union newsletter in 1967 and numerous times thereafter. He used his testimony in hearings in the House of Representatives in 1969 to apprise federal lawmakers of “the terrible working conditions in the coke plants of America.” “I am deeply concerned,” he told the congressional panel, “about the documented evidence in our possession showing some members of our local union are and have been suffering from lung cancer, silicosis, pneumoconiosis, pulmonary fibrosis, emphysema, and other occupational diseases.” This accumulation of troubling facts resonated with daily observations of coworkers in failing health and their frequent attendance at funerals. In December 1969, the Clairton health and safety activist Howard Holmes reflected on the recent funeral of Jeff Craig, who spent twenty-three years around the coal-baking apparatus: “It's not surprising when an employee on the batteries becomes ill or develops an ailment such as arthritis, emphysema, heart trouble or even lung cancer.” For rank-and-file workers, especially the African Americans like Holmes who disproportionately got the worst assignments, it was common knowledge that extreme exposure to contaminated air wrecked one's health. Some coke workers turned down promotions to jobs on the tops of the ovens, where the pollution was most severe. Taken together, this stream of evidence pointed to the existence of serious problems.¹⁸

More systematic exploration confirmed the danger posed by the dusts and gases emitted by the ovens. In the late 1960s, William Lloyd, a doctoral student at the University of Pittsburgh, undertook epidemiological analysis of the cancer mortality rates in the coking workforce. The research by Lloyd and his colleagues yielded a series of articles in the Journal of Occupational Medicine, the first of which appeared in June 1969. These articles painted a grim portrait. For those employed in close proximity to the ovens, deaths from respiratory system cancer occurred at almost three times the rate expected across the steel workforce as a whole. Among men who worked five years or more atop the ovens, the vast majority of whom were black, the mortality rate observed was ten times that expected. Daniel Hannan was one of those who saw Lloyd's publications as an important breakthrough in winning general recognition of the widespread hazards and their ill effects.¹⁹

On the political front, the USW knew that its members could not just rely on the sort of pressure tactic that had succeeded in gaining the release of the Clairton monitoring data. After the Division of Occupational Health evaluated the air quality at the ovens of the Aliquippa Works of the Jones and Laughlin Steel Corporation later in 1969, USW Local 1211 was thwarted in its attempt to see the survey findings. In reaction, maneuvering to amend the state's Right to Know Act intensified. In September 1969, Democrats in the Pennsylvania Senate introduced a proposal to close a loophole in the 1957 law. The problematic provision declared that “the term ‘public records’ shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency … or which would operate to the prejudice or impairment of a person's reputation or personal security.” This section of the statute gave state health administrators all the authorization they needed for the secrecy that facilitated the maintenance of amicable relations with business firms and associations. Conservative forces in the Senate kept the reform bill from coming to a vote. This move prompted an angry letter to all senators from the USW's chief Pennsylvania political operative, Julius Uehlein. The Steelworkers leader told the senators that passage of this measure would help address the problem that “ignorance of mass proportion dominates the whole field of occupational health and safety.” Speaking on behalf of the quarter million members of the largest union in the state, Uehlein took a militant yet moderate position: “The United Steelworkers believe in free enterprise. We do not believe, however, that free enterprise has a divine right to exploit workers to the point of death.” He underscored the modest objective of the bill under consideration, placing it in the context of the minimal policing of working conditions. “The ratio of game wardens as compared with state safety inspectors is astronomical,” Uehlein maintained. “However, if Senate Bill 1072 was enacted the workers would at least be in a position to know whether or not the company is complying with results of the investigation.”²⁰

The union and its allies kept up the pressure. After their failure in the upper chamber, the proponents of the right to know shifted their attention to the Pennsylvania House of Representatives. A bill introduced into that body in June 1970 passed within a month and made it through the Senate a few months later. Republican governor Raymond Shafer vetoed the measure just before leaving office. In the next legislative session, Shafer's successor, Democrat Milton Shapp, approved the reintroduced proposal in June 1971 and declared himself “delighted” to do so. This amendment to the 1957 statute changed the definition of accessible public records to encompass “reports filed by agencies pertaining to safety and health in industrial plants.” The newsletter of the Clairton coke workers, whose troubles had catalyzed the reform campaign, triumphantly announced that their “right to know is the law.”²¹

In Clairton and other coke-making sites, the USW made profitable use of their newfound trove of information and their right to obtain more of it. The hazard evaluation data collected by the state aided disabled coke oven workers in winning workers’ compensation benefits. In the 1974 round of contract negotiations, the union pressed for implementation of closed systems and other forms of engineering controls, relegating burdensome and often ineffective respirators to a marginal role. The agreement reached at Clairton brought a breakthrough provision for employee access to their company medical records. Armed with data on the severity of the risks they faced and motivated by resentment over the long denial of access to that data, the USW also mobilized a campaign for a strong federal regulatory standard for oven emissions, as will be discussed in chapter 5.²²

The rancor that characterized the US Steel-USW conflict paled in comparison to the dispute between California grape growers and their adversaries—the National Farm Workers Association and the Agricultural Workers Organizing Committee, groups which, in August 1966, merged to form the United Farm Workers Organizing Committee (UFWOC). (Seven years later, the organizing committee became the United Farm Workers of America.) Whereas the coke oven emissions case involved a long-established union dealing with an oligopolistic corporation within the context of settled relations, the embryonic farmworkers’ group posed their demands regarding pesticides against agricultural firms in the context of an organizing drive in a sharply competitive industry. The collision occurred in the midst of a crucial battle in that drive, the strike of grape workers around Delano in the San Joaquin Valley of central California that began in September 1965. This was a marathon contest that raged for almost five years, extended far beyond the Delano area, and drew widespread national attention and support from diverse conscientious supporters. Throughout this struggle, the workers’ organization lacked most of the traditional sources of strength that a union could command. They had to maneuver with great creativity to find leverage against powerful adversaries.²³

Unhealthful conditions in the vineyards became a big issue in the union-building project in central California. Awareness of the threat of pesticide intoxication had risen across the state and, to a lesser extent, beyond it by the mid-1960s. In 1935, Robert Legge, a professor of public health at the University of California, Berkeley, identified some salient threats. Legge advocated cautioning all those at risk throughout the nation: “Every state board of health, workmen's compensation commission, state and agricultural college, farm advisory board, etc., should use its offices and bulletins to spread information concerning the methods by which the occupational hazards of the agriculturist may be decreased.” Government officials contributed to elevating the visibility of the chemical threat and conferring legitimacy on it. During his relatively brief tenure as head of the Bureau of Adult Health in the California Department of Public Health, Herbert Abrams illuminated the growing menace. Public health officials continued to pursue this matter after his departure. Physician Irma West led the effort to protect the state's agricultural workforce of roughly a quarter million. At a session of the American Medical Association Congress on Occupational Health in 1963, she noted the exceptionally high rates of occupational disease among California's farmworkers and identified heat stress and pesticides as the leading hazards facing them. Explaining the need for special oversight of this group, she maintained that “agricultural workers, because of migrant status, seasonal work, language barriers, substandard education, marginal health, and poor hygiene, are the least able to protect themselves against occupational hazards.” Her department had begun to tabulate and publish statewide statistics on fatal and nonfatal intoxication of workers in the 1950s. Of course, this data collection system captured only a fraction of the total number of cases of illness. In 1963, West relied on this source to advise a US Senate subcommittee that, in 1961, more than five hundred of her state's farmworkers (more than one-third of whom had Spanish surnames) had suffered chemical poisoning. Two years later, on the eve of the Delano strike, she observed that “employers were often either uninformed themselves or reluctant to provide adequate occupational safety information because they did not want to alarm workers.” By that time, the Department of Public Health was calling for bilingual labels on pesticide containers. The bureaucratic activism of Abrams and West contrasted with the role played by their colleagues in the California Department of Agriculture. Robert Rollins, chief of the Division of Chemistry in that department, considered agricultural chemicals to be exceptionally heavily regulated. In a 1963 article in the American Journal of Public Health, Rollins stated his belief that existing labeling requirements had taken care of this problem. He contended, without any corroborating evidence, that aspirin killed more people than did all pesticides. In the same vein, a gubernatorial committee three years earlier dismissed California's increasing rates of pesticide-induced occupational illness as simply the result of carelessness. This whitewashing body addressed the carelessness issue by concluding, “There appears to be some need for public information concerning the lack of a significant public health problem, and a supportive educational program to emphasize the proper use of these substances.” The advocacy work of West and her colleagues in opposition to powerful entrenched forces helped to confer legitimacy on the health claims of farm workers and made the curt dismissal of such claims impossible.²⁴

Rachel Carson's best-selling Silent Spring prepared the ground for consumer receptivity to the union's nationwide boycott of all California table grapes, launched in 1967. Grocery shoppers’ fears of toxic pesticide residues became another weapon of the weak in this struggle. In the recruitment campaign to win and retain the support of grape workers themselves, the organizing committee raised the pesticide issue as a matter of health and respect. A community-organizing approach led it to run a service center that delivered various forms of assistance to union members in need. Her experience working at the center gave Jessica Govea firsthand experience dealing with the victims of poisoning. When Govea transferred to the UFWOC legal office in 1968, she advised the attorney Jerry Cohen of the frequency and severity of this problem. The savvy lawyer took up this matter as both important in its own right and something that might well garner public sympathy for the workers’ cause.²⁵

On August 22, 1968, Cohen visited Sheldon Morley, the county agricultural commissioner, to review records of pesticide use in his possession. Morley not only denied Cohen access to these public records but immediately obtained a temporary restraining order. The rationale for the order was that the pesticide formulations constituted trade secrets. A subsequent judicial decision upheld the legality of the order. Negotiations with both grape growers and pesticide providers over access also failed. The UFWOC was stymied in gathering publicly held information on hazardous conditions endured by its members.²⁶

The secondary benefits of this withholding of facts offset the disadvantages of the ignorance perpetuated by this legal setback. The UFWOC president Cesar Chavez and other union leaders and activists pounced on this obstruction, demanding to know what the employers and their subservient public agent had to hide. As the Chavez biographer Miriam Pawel noted, “Boycotters relied on Chavez and the Delano crew for a steady stream of fresh outrages to generate consumer support” so that, in this case, “the growers handed him a perfect issue for the boycott.” Beyond the opportunity to publicize the possible risks for the grape-eating public, criticism of the pesticide coverup became itself another component of the boycott campaign. From the perspective of Robert van den Bosch, a biologist at the University of California, Berkeley, who testified for the union in its challenge to the restraining order, the denial of access to the pesticide spraying records constituted “one of the most shocking acts of collusion between public officials and a vested interest of which I am aware.”²⁷

Besides its outreach to sympathizers, the UFWOC used this episode to focus and activate rank-and-file members and recruit new members. The union-affiliated newspaper El Malcriado passed along Cohen's contention that he sought hazard information for future bargaining over contractual health protections. The newspaper reported on a court hearing on the request to see the impounded documents under the headline “What Are They Hiding?” and relayed Commissioner Morley's claim that he had never heard of any cases of workers injured by pesticides. The cover of the January 15, 1969, issue of El Malcriado displayed the image of a grotesque spider-like creature whose head was a human skull, surrounded by three detached skulls, over the caption “Economic Poisons: A Threat to Workers and Consumers.” The drawing was credited to the early-twentieth-century Mexican illustrator Jose Guadalupe Posada. The imagery thus not only conveyed in easy-to-grasp, dramatic terms the lethal peril of pesticides but also connected the farmworkers’ struggle to previous progressive movements for social change in their homeland. In the same vein, Cesar Chavez avoided the use of arcane, incomprehensible medical terminology and instead described the diffuse syndrome of headaches, nausea, muscle weakness, and other symptoms that often resulted from chronic exposure simply as “walking death.”²⁸

The union leadership shrewdly raised the priority of pesticide poisoning in its bargaining strategy. The growers’ refusal in early 1969 to enter into negotiations limited solely to this issue brought them further negative publicity. El Malcriado advised its readers that the only way to get proper training in pesticide use was to win a union contract that required it. These agreements authorized the union's safety committee to use its bilingual capability to instruct those tasked with handling dangerous chemicals. As the UFWOC leader Dolores Huerta told a US Senate subcommittee in April 1969, “Many of the workers that apply the pesticides don’t speak English and they do not know what they are doing.” Later that year, in an appearance before a different Senate panel, Cesar Chavez praised the recent signing of an agreement with one vineyard that gave the union access to company pesticide records. Jerry Cohen contrasted that situation with the one prevailing in Delano workplaces: “We don’t see any [warning] signs at all. We have no way of knowing whether or not there should be signs because we don’t have access to the records indicating what the growers have used.” Cohen also gave the lawmakers a glimpse of the state of knowledge of one widely used toxic substance when he pointed out that “about seventy percent of the workers we have talked to don’t even know what parathion is.” This set of hearings also heard a witness from the California Department of Agriculture defend the unavailability of records based on their trade secrets and a San Joaquin Valley physician's rejoinder. Dr. Lee Mizrahi told the Subcommittee on Migratory Labor, “It is totally wrong that one man's trade secret or payroll size should preclude another man's appropriate and/or emergency medical care.” During 1969 and 1970, the union gained a series of grape contracts that established health and safety committees with the right to be informed on all pesticide-related matters and to examine all relevant records. The unionization drive in the grape industry culminated in July 1970, when the twenty-six growers in the Delano area finally came to terms with the UFWOC. That agreement followed precedent in granting the union committee broad rights to know about pesticide use, as well as imposing outright bans on the deployment of a number of highly dangerous formulations. These hard-won employer concessions represented monumental breakthroughs for this group of poor workers of color.²⁹

By the end of the 1960s, Washington, DC, had become the main venue for criticism of asymmetrical access to hazard information as demands grew for comprehensive reform of occupational safety and health. By that time, government at the state and local levels had had more than a century to demonstrate that they could adequately safeguard the nation's workers from work-related injury and illness. A 1968 review concluded that the occupational health programs in about half the states carried out “token activity” or only responded to requests for assistance and took no initiative. Another analysis found a “general pattern of neglect” in understaffed state offices. The performances were especially poor regarding emerging epidemics of often insidious, chronic, work-induced disease. Irving Selikoff, the nation's foremost authority on asbestos-related disorders, came to this dismal conclusion: “It might be better to dissolve the meager industrial hygiene divisions in most states than to have them continue as ineffectual shells.” The states, with a few exceptions, had failed in their duty of public protection. Pressure mounted for legislation that gave the federal government primary responsibility for protecting workers.³⁰

This sad state of affairs plainly implied an indictment of the deficient vision of the designer and promoter of this system. Nonetheless, the PHS responded to the unavoidable evidence of its sorry performance of its institution-building project by seeking a mandate for a larger leadership role in occupational health. The agency justified its 1965 proposal for expanded powers and resources in part on the basis of experience disseminating informational materials, but the reforms it sought to lead made no significant commitment to expanding workers’ rights to know. In any case, as Nicholas Ashford observed in his postmortem on the midcentury regime, the service's self-aggrandizing plan died quietly, “unnoticed by Congress and the public.”³¹

Opponents of the status quo vigorously attacked the lack of transparency in the state-run system. The refusal of public officials to share findings with workers and their organizations came in for repeated criticism. In Senate committee hearings on reform legislation commencing in November 1969, union officials delivered a chorus of complaints. Thomas Boyle, a representative of the International Chemical Workers, described the typical procedure of state agents investigating illness in a workplace. Boyle contended that investigators gave advance warning that enabled the company to alter conditions and generally kept their findings and prescriptions secret from the workers affected. The USW legislative director John Sheehan made the same critique and demanded that reforms require the granting of workers’ access to state and federal inspection reports.³²

When the Senate conducted field hearings in early 1970, local and district unionists underscored and elaborated on the complaints and demands made by top-level leaders. After the UAW local at Climax Molybdenum in Langeloth, Pennsylvania, brought in a state official to study the toxic fumes, their request for a copy of his report was rejected. A USW district safety and health coordinator insisted that workplace union representatives had a right to know what government investigators found regarding hazards. The Clairton local USW president Daniel Hannan reviewed his difficulty learning about measurements of coke oven emissions. Hannan told the senators, “We receive almost no cooperation from the State safety and health inspectors of the Pennsylvania Department of Health.” His comrade George Cope of the USW branch representing coke workers at the Jones and Laughlin Hazelwood plant in Pittsburgh discussed receiving the same noncooperation in his attempts to understand the emissions situation.³³

The activist attorney Ralph Nader joined the unionists in advocating a robust right to know in his appearance before the Senate panel. Nader assailed a provision in the Nixon administration's bill that prohibited the use of government investigatory findings in civil lawsuits for damages and barred public employees from testifying in such cases. To Nader, these restrictions would add “another weight to the privileged scales so heavily tipped toward industry and commerce.” As evidence of how the scales were currently rigged, he cited both the California pesticide situation and the long-standing policy of opacity maintained by US Department of Labor inspectors who policed federal contractors, under the terms of the Walsh-Healey Act. He denounced the administration proposal as a whole as “a giant loophole, a sham.”³⁴

At the same time, labor witnesses presented the House Select Subcommittee on Labor with a thorough indictment of the inequitable failings of the current system. The USW secretary-treasurer Walter Burke, citing the experience of his Clairton local, among others, called for the amendment of his organization's favored proposal to require “full disclosure of an inspector's report.” Daniel Hannan followed up with a characteristically blistering denunciation of the prevailing secrecy and called out the names of former Clairton coworkers suffering from industrial disease and “living on borrowed time.” (US Steel was sufficiently impressed by Hannan's performance to transfer him immediately to a location where he would be less likely to cause them trouble in the coke plant.) Paul Jennings, president of the International Union of Electrical Workers, echoed Walter Burke's suggestion that legislation mandate that unions receive copies of inspection reports. Jennings also underscored his USW colleague's criticism of federal enforcement of the Walsh-Healey Act. Although his union had had its share of impossibilities getting information from noncooperative government agencies, Anthony Mazzocchi of the Oil, Chemical and Atomic Workers focused his fire on uncooperative managers. His survey of 130 locals determined that management at more than two-thirds of the plants that conducted employee medical tests refused to divulge any findings. According to Mazzocchi, “Most companies have rung down a curtain of secrecy. They deny to workers an opportunity to improve their own lives, individually or through their union.”³⁵

Agricultural interests sought to exempt pesticides from regulation, arguing that the existing system of state regulation and federal labeling standards had created sufficient protection. The agricultural sector had long received special treatment regarding worker protections. Influential racist political forces had seen to it that coverage under the National Labor Relations Act, the Social Security Act, and other sources of social protection like workers’ compensation was denied to farmworkers. Such protection was deemed inappropriate for a workforce that contained such a large nonwhite component. Besides this larger historical context, the regulatory system created by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and anchored by the USDA had been in place for more than two decades and reinforced an expectation of separatism. At the House subcommittee session in San Francisco in November 1969, Matt Triggs of the American Farm Bureau Federation urged the exclusion of pesticides from the scope of any legislation. Triggs touted the “effective approach” of the status quo and praised federally approved labels as keys to this effectiveness, without supplying any supporting evidence for his assertion. A chart he submitted on laws governing ground application of agricultural chemicals showed that sixteen states had no legislation at all. Administrators in the California Department of Agriculture presented their state's program as exemplary. Their state required the posting of signs warning laborers to stay out of newly treated fields but did not require any training for pesticide-exposed workers. A California state witness held that the presence of labels on containers rendered training unnecessary.³⁶

Of course, the UFWOC did not share the agricultural establishment's enthusiasm for the prevailing system. The organizing committee opposed any exclusionary privileges for pesticides and disputed claims about the availability of information. Jerry Cohen maintained that worker knowledge about chemicals was crucial and recounted his experience dealing with the Kern County agricultural commissioner. Dolores Huerta controverted a California Department of Agriculture official's claim that his agency ran pesticide-training workshops for workers. Instead, she held that hazard and hazard control information reached fieldworkers only when union health and safety committees conveyed it to them. Drawing on the experience of the Delano conflict, Cohen and Huerta described recent cases in which grape workers became ill after exposure to chemicals about which they had received no oral or posted warnings. After offering her own review of the withholding of information by Kern County, Huerta urged Congress to view assertions about trade secrets with skepticism. Thomas Milby, chief of the occupational health unit in the California Department of Public Health, shared this viewpoint. Milby maintained that growers could game the system by adding a little fertilizer to their economic poisons and call the mixture a secret formula. “The use of toxic chemicals, far from being shrouded in greater secrecy, should be a matter of increasingly public record, with everyone concerned—growers, commercial applicators, foremen, workers, physicians—being as fully informed as possible,” he argued. “Due process and protections for employers are, of course, necessary,” Milby acknowledged, “but so are protections for workers, including the right of access to pertinent information.” Any aura of critical necessity surrounding business secrets did not mystify some of those most aware of the human costs of maintaining that secrecy.³⁷

The Occupational Safety and Health Act of 1970 (which did not exclude pesticides from the scope of regulation) established new rights for workers to understand their status regarding hazards and their effects. The statute's policy declaration made clear that its aims encompassed “providing for research, information, education, and training.” The federal Occupational Safety and Health Administration (OSHA) and the state programs that could continue to exercise authority if they met federal standards pursued those aims in the course of carrying out two core functions—creating safety and health standards and enforcing those standards. Regarding the former, the law mandated that all its standards “prescribe the use of labels or other appropriate warnings as are necessary to insure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions of safe use or exposure.” If it had done nothing else to expand workers’ rights to know about their risks on the job, this provision of the Occupational Safety and Health Act would have marked substantial progress toward workplace transparency in the United States. For standards that called for periodic monitoring of specific hazards, the law authorized employees or their unions both to observe the hazard evaluation process and to see the records thereof. When that monitoring detected unhealthful exposures, that is, those exceeding the regulatory limit, management had a duty to promptly notify affected employees not only of that hazardous exposure but also of what corrective action was being taken. The law also charged the Department of Labor with the task of developing regulations to force employers to maintain records of their hazard-monitoring activity, with access to the stored records guaranteed for workers and their representatives. These new entitlements departed dramatically from the prior system of voluntary labeling and withholding of investigatory findings.³⁸

In the enforcement realm as well, the 1970 act set forth opportunities for workers’ enlightenment. Employees won the right to have a representative accompany government agents during their inspections. When an OSHA inspection found violations of the law or its regulations and issued a citation to the employer, it had to “describe with particularity the nature of the violation.” The law required that a copy of the citation “shall be prominently posted … at or near each place a violation referred to in the citation occurred.”³⁹

The act established the National Institute for Occupational Safety and Health (NIOSH), within the complex of the National Institutes of Health (NIH), to provide scientific guidance to OSHA in its promulgation of specific standards and in shaping its regulatory agenda. To explore problematic situations that might shed light on previously unknown or underrecognized risks, NIOSH was authorized to administer a health hazard evaluation program. Unions gained the right to request the hazard evaluations. NIOSH had to submit its findings “both to employers and affected employees as soon as possible.” This marked a dramatic departure from and implicit renunciation of the long-standing secretive policies and practices for the assessments done by state health investigators, in other words, the behavior that Frank Burke, Daniel Hannan, and others in the labor movement found so objectionable. When the institute conducted research involving medical examinations, the employees examined could have their results furnished to their own physician. The statute obligated NIOSH to publish within six months and to update at least annually “a list of all known toxic substances by generic family or other useful grouping, and the concentrations at which such toxicity is known to occur.” Besides these particular circumstances in which facts had to be shared, the law imposed a general requirement that information obtained by NIOSH had to be disseminated not only to employers but also to workers and their organizations. Although this institute lay outside the more hospitable Department of Labor, thus perpetuating the old jurisdictional boundaries within the field, it received marching orders that compelled transfer of critical information to those at risk.⁴⁰

Taken together, the provisions of this long-overdue federal takeover of occupational safety and health represented an unprecedented embrace of transparency regarding information about health hazards. By liberating previously hidden types of information for use by workers, the law demonstrated an unprecedented national commitment to extending workplace democracy, albeit one with a number of remaining limitations. However, those limitations would immediately come under an intensifying attack by forces both inside and outside the government.