[3]

The Origins of the OSH Act

The OSH Act, on one level, dramatically restructures the relations between employers and employees. It creates new rights to health and safety and empowers the federal government to enforce them. On another level, however, the new law is conventional. In form, the program builds on and reflects the assumptions of the old system. The state continues to rely on a few narrowly defined kinds of state action. The agency uses administrative rulemaking to set standards, and rulemaking is based on the expertise of professionals. Enforcement depends on penalty-based inspections rather than workers; the workplace remains depoliticized.

This chapter considers the factors that led to the creation of these new rights and the decision to deepen rather than replace the liberal approach to protection. To understand why these rights were created, I focus on the transformation of the policy agenda in the mid and late 1960s. The decision to give workers a right to safe and healthy work can be understood only in the context of the larger shift in the nature of American liberalism during the halcyon days of the Great Society. In this case, rank-and-file discontent over work combined with the radical visions of labor activists, environmentalists, and public-interest reformers to feed the issue of working conditions into the swelling tide of demands for reform.

The decision to retain the older forms of intervention was shaped by similar forces. The same reformers who sought to extend public authority failed to grasp the nature of the problem they hoped to solve. Caught in the grip of economism, the unions preferred to transfer responsibility for work safety to the state rather than challenge the power of employers at the workplace. The environmental and public-interest movements also failed to question the existing forms of public authority. Although these groups proposed a new view of the workplace—it was an “indoor environment”—and took rank-and-file participation more seriously than the unions did, they failed to grasp how capitalist relations of production structured work and shaped the problem of occupational health.

As a result, these groups demanded federal regulation, not a fundamental reorganization of work. They succeeded in placing the first issue on the agenda, but the second was not raised. Consequently, most of the debate over the OSH Act involved the details of program design rather than the relationship between capitalism and occupational safety and health. On this terrain, the legislation developed incrementally, building on previous efforts. Since these efforts were based on factory legislation, this approach provided the foundation for the new law.

The Transformation of the Agenda

Occupational safety and health became a political issue in the 1960s as a result of the intersection of a complex set of social forces, including rank-and-file discontent over work, union efforts to reform existing state programs, middle-class movements for environmentalism and consumer product safety, and White House interest in the development of a new policy agenda. Beginning as distinct movements in the mid 1960s, these social forces coalesced after 1966 to produce a groundswell of support for social regulation.

The “Labor Revolt” and Working Conditions

The 1960s were years of social protest, and although it is common to view the decade as one of black and student rebellion, industrial workers fought battles of their own, including a struggle against oppressive working conditions. This discontent did not lead to a movement by rank-and-file workers or the unions for the reform of the workplace. But it played a pivotal role in sparking and legitimating the efforts of a small group of Washington-centered health and safety activists, who translated that discontent into a movement for federal regulation of occupational safety and health.

Beginning in 1964, American workers became more militant and labor relations became more conflictual than had been the norm since the late 1940s. Increased rank-and-file discontent shows up clearly in the data on strikes and worker attitudes. In 1966 and the first half of 1967, the incidence of strikes reached a 10-year high. Wildcat or “during term” strikes, which are taken by many labor observers to be a proxy for discontent with working conditions, rose dramatically between 1967 and 1969.¹ Opinion polls suggest that the conditions of work played an important role in these developments: the University of Michigan Survey of Working Conditions reported that health and safety hazards headed the list of problems considered “sizable” or “great” by production workers in 1969.²

Nonetheless, the ideological and institutional arrangement of the accord resisted collective action around occupational safety and health. Workers were expected to ignore the workplace, and unions were encouraged to focus on economic issues rather than working conditions. Conforming to these expectations, the vast majority of worker protests over working conditions were spontaneous and disorganized. Wildcat strikes did not result in permanent organizations or even significantly different union strategies at the bargaining table.

Two genuine grass-roots health and safety movements did emerge from this ferment. Coal miners protesting health and safety conditions in West Virginia and Kentucky organized at the grass-roots level in 1969 and won a variety of concessions from employers and government. Working through the Black Lung Association and in conjunction with medical doctors and labor activists—initially against the wishes of the United Mine Workers—43,000 miners shut down West Virginia’s mines for three weeks. They also marched on the state capital to demand workers’ compensation for black lung disease.³ Ultimately the threat of a wider coal miners’ movement forced congressional action, helped to pass the Coal Mine Safety and Health Act of 1969, and generated support for the OSH Act. Rank-and-file uranium miners in Utah also attempted to defend themselves against workplace hazards. Frustrated with the delay and indifference of state workers’ compensation boards to their claims for disability payments for radiation-induced lung cancer, they sought judicial relief and won national media attention.

Organized Labor and Workplace Reform

For the most part, union officials remained indifferent to these demands. The AFL-CIO was not opposed to workplace reform; it simply failed to take it seriously. Neither George Meany, AFL-CIO president, nor Andrew Biemiller, Meany’s chief aide and the federation’s head lobbyist, took social regulation in general seriously; the AFL-CIO did not make occupational safety and health its first priority until 1970, when a bill was certain to pass.

Union leaders who were not skeptical or indifferent seem to have been unaware of the hazards that workers faced. For example, despite the mounting evidence of radiation hazards and the union’s organizational interest in the issue, OCAW officials accepted the Atomic Energy Commission’s (AEC) position that there were no cumulative effects from low-level radiation exposure. The Steelworkers (USWA), presented with evidence by a concerned researcher that coke-oven emissions caused cancer, dutifully accepted the report and then forgot it.⁴ Some union leaders later admitted their role in burying these issues. Testifying before the 1969 House Select Subcommittee on Labor, Steelworkers President I. W. Abel asked Congress to “make up for lost time . . . that we, too, have lost.”⁵

Given the attitudes of the union leadership, the responsibility for turning rank-and-file discontent into a union demand fell to a small group of Washington-centered labor activists, public health reformers, and interested bureaucrats in BOSH and LSB. Working on the margins of the labor movement, they helped make occupational safety and health a national issue. Of these, the labor activists were by far the most important single influence. They were full-time unionists and lobbyists with access to union officials and the middle levels of the executive bureaucracy. Working with public health professionals in and around state agencies, they built a movement that folded rank- and-file discontent over work into the general movement for health and safety.

Three men played critical roles in building this movement. George Taylor, a staff economist in the AFL-CIO research department, came to the issue in the early 1960s. A few years later, Anthony Mazzochi of OCAW joined him. At the time, Mazzochi was an OCAW organizer; later he became its citizenship-legislative director, and eventually a union vice-president. In 1967 both men were joined by John J. Sheehan, an aide to I. W. Abel and a legislative lobbyist for the Steelworkers.

Although their efforts were not formally coordinated, a natural division of labor quickly developed among them. As the AFL-CIO’s representative on health-related commissions and task forces, Taylor worked with mid-level bureaucrats in government and the labor movement. Mazzochi publicized the issue among the rank-and-file and argued labor’s case to the wider public. Under his leadership, OCAW organized a conference on “Hazards in the Industrial Environment” and made links with environmental activists. Sheehan lobbied on Capitol Hill and served as organized labor’s representative on top-level commissions and task forces.

Taylor proved adept at using the state as a platform for mobilizing support for worker health and safety. His first success occurred in 1965 when he helped to organize the task force that issued “Protecting Eighty Million American Workers,” or the “Frye Report.” This effort began modestly. When the PHS proposed to abolish the Division of Occupational Health, a small research agency, Taylor and a group of public health doctors in HEW sought to save it. In response to their activities, HEW appointed a task force to outline a new rationale for the beleaguered agency.⁶

The Frye Report proposed to turn the small agency into an empire and, in doing so, argued for a major change in the nation’s approach to occupational safety and health. The PHS was urged to give the Division of Occupational Health major regulatory powers and a budget of $50 million a year. Most important, the report urged the PHS to take an aggressive approach to the problem and adopt a holistic view of worker health.

In its general statement of purpose, the report reminded the PHS of the New Deal vision of state-led social reform. “In America today,” it stated, “it is not acceptable that any worker should pay with his health or his life for the privilege of having a job.” It defined health hazards broadly to include damage from toxic chemicals and psychological stress. Moreover, it treated the workplace as an entry point for monitoring and controlling the general health problems of a majority of the population. In fact, it obliterated the line between occupational and other diseases. The national goal of the program was to “eliminate or control any factor in the work environment which is deleterious to the health of workers,” including the “promotion of good health and well being.” The workplace was simply one among many institutions that could serve as part of a national program of expanded health care.⁷

The Surgeon General rejected the report’s ambitious recommendations, but Taylor and his colleagues had succeeded in bringing the issue to the attention of the AFL-CIO. The report also helped make public health professionals aware of the problem. From 1965 on, every discussion of occupational health in Congress and the executive branch had to respond, in some fashion, to its radical vision.

Taylor used the government’s authority over atomic energy in a similar way: to focus union and public attention on the problem of worker health. There had been a major expansion of uranium mining in the United States in the late 1940s as part of the nuclear weapons program. In mining uranium, workers had been exposed to radioactive gases and dusts. As late as 1966, preventive measures to protect uranium miners were absent or inadequate. Despite success elsewhere with controlling airborne radiation with ventilation equipment, American firms resisted changing methods on economic, technical, and scientific grounds.⁸

The government suspected that exposure to radiation was dangerous. The PHS, the AEC, and state health departments in the Colorado Plateau (the lion’s share of uranium mining occurred there) began studies of the problem in the 1940s. By 1960, the evidence strongly suggested a causal link between exposure to radon gas and lung cancer and the likelihood that many of the miners who had received large cumulative doses of radiation would die from it.⁹

None of the interested agencies acted to protect the miners. Regulatory jurisdiction over uranium mining was divided among four organizations: the AEC, the Bureau of Mines in the Department of the Interior, the PHS, and the labor department. The Bureau of Mines and the Department of the Interior and the DOL deferred to the AEC on national security grounds. The AEC deferred to its contractors. In effect, the subcontractors were left to regulate themselves. As a result, nothing substantial was done to alleviate the hazard.¹⁰

The federation and several individual unions protested the situation, but these efforts were halfhearted. Leo Goodman, a staff member in the AFL-CIO’s social security division and an adviser to the UAW on atomic energy, attempted to generate support for regulation in the 1950s and early 1960s but was rebuffed by the union leadership and government. Taylor learned of the hazard as the AFL-CIO’s representative to a task force on atomic energy; he also appealed to the federation to lobby the labor department to use its Walsh-Healey jurisdiction to protect uranium miners. Again, the AFL-CIO’s response was perfunctory. When the Department of Labor resisted—national defense was involved, and the AEC tenaciously defended its jurisdiction—the federation backed off.

Eventually, the miners’ own efforts, pressure from Washington-based activists, and national media attention forced the labor department to act. Assistant Secretary for Labor Standards Esther Peterson, a longtime ally of the labor movement, took a well-publicized visit to a western uranium mine in 1967. On her return, she urged Secretary of Labor Willard Wirtz to act. The DOL then exercised its jurisdiction despite opposition from the AEC. To be sure, the department’s efforts remained limited. It deferred to the policies of the affected states on workers’ compensation and accepted the AEC’s recommendations on exposure levels. But the DOL did issue new exposure standards. Most important, the publicity surrounding the case generated interest in occupational health, and the reformers won a second victory in their effort to force government to take responsibility for the conditions of work.¹¹

As they sought to draw the federal government into workplace safety and health, labor activists also lobbied their own unions to take up the issue. Given the labor movement’s general indifference to occupational safety and health, this step was critical to the movement’s success. Given the unions’ indifference, it was also as difficult as the effort to win federal support. Predictably, the first breakthroughs came with the activists’ own unions: OCAW and USWA Then, using them as platforms, and the political power of the Steelworkers as leverage, they committed the AFL-CIO to reform.

Despite OCAW’s reluctance to demand strict regulation of radon gas, it did have a vested interest in health and safety because many of the workers that it sought to organize were in dangerous industries. That this could lead to union gains became clear when union organizers used the health-hazard issue to defeat an effort to decertify the OCAW local at the United Nuclear Fuels plant in New Haven. After that, Mazzochi was able to use OCAW as a platform for his wider activities.¹²

Because of the ambitions of its president, the USWA also proved receptive to making health and safety reform a political issue. Abel’s own fortunes were bound up with his claim to speak for the rank and file, and he tried to use health and safety to make that claim compelling. The labor revolt challenged labor leaders such as Abel at the same time that it threatened employers. National and local opposition slates appeared more frequently and were often successful in defeating incumbents during the 1960s. The sitting presidents of the American Federation of State, County, and Municipal Employees and the International Union of Electrical Workers were upset by internal revolts. Abel himself had defeated his predecessor in 1965 by appealing to rank-and-file discontent with the union bureaucracy.¹³ But Abel did not redeem his promises. He did not democratize the union or win major economic concessions from industry after coming to office. In 1968 he faced a disillusioned rank and file and the threat that the same kind of discontent that had brought him to power could unseat him. Emil Narick, a relatively unknown staff lawyer, challenged Abel for the union presidency and won more than 40% of the vote.¹⁴

Apart from internal reform or aggressive wage bargaining, Abel had few ways to rebuild support among union members. Operating under these constraints, he took the offensive and attempted to shift the union’s agenda. Like the politicians around him, who rushed to endorse the new “quality-of-life” issues, Abel lectured the rank and file about the importance of nonwage demands: environmental and occupational health and safety became union priorities. In 1968 the USWA became actively involved in air-pollution-control efforts in Pittsburgh, where its headquarters were located. It held a conference on air-quality control and urged the rank and file to become involved in the environmental movement. Abel also pressed worker health and safety in collective bargaining, and he took a personal and well-publicized role in lobbying for the OSH Act. Busloads of workers were brought to Washington to lobby their representatives and senators. To make sure that the entire membership got the message, the union showered the rank and file with reports of its efforts in their behalf.¹⁵

The federation was harder to convince. Urged on by Taylor, the AFL - CIO endorsed the Frye Report when it was issued. It petitioned the labor department to establish federal standards for uranium miners. It urged reform of the workers’ compensation system and grants-in-aid to the states. The annual convention at Bal Harbour, Florida, in 1967 resulted in a formal resolution calling on the Department of HEW and the DOL to cooperate in a national program focused on occupational health. But George Meany and the Executive Council were more concerned about trade policy, repeal of Sec. 14b of the Taft-Hartley Act, and President Johnson’s endorsement of a voluntary wage-restraint program. Occupational hazards remained a marginal issue, and when the PHS rejected the Frye Report, the federation acquiesced. It also accepted the AEC’s position on the dangers of uranium mining.¹⁶ In general, the issue of health and safety was left to those unions most interested in it.

The Steelworkers’ interest in workplace regulation provided the stimulus needed to commit the federation to the movement for reform. After Walter Reuther withdrew the UAW from the AFL-CIO, the USWA became the largest and most important union in the federation. Most significantly, the UAW’s departure gave Abel control of the federation’s Industrial Union Department (IUD), the organizational basis for coordinating political activity among unions in the mass-production industries. In keeping with his strategy to make occupational safety and health a union priority, Abel used this position to commit the federation’s resources to lobbying for federal regulation of working conditions. In 1968 Sheehan became the lead lobbyist for an occupational safety and health bill, and Abel mobilized the federation’s political resources behind the movement for reform.

Middle-Class Movements

As they did in the movements for consumer product safety and environmental regulation, middle-class reformers and radicals played a role in the demand for workplace regulation. Their role is easily exaggerated, however, and it is important to consider carefully the part they played. Occupational safety and health reform never became a principal demand of the public-interest or environmental movements. The issue never caught the public’s attention or attracted the media coverage that air and water pollution did.¹⁷

The middle class fed the demand for reform in other ways. By calling attention to noneconomic issues and the indifference of many industrial corporations to the environmental effects of their market activities, writers such as Rachel Carson (author of Silent Spring) and reformers such as Ralph Nader prepared public opinion for workplace reform. At the same time, professionals and bureaucrats in state agencies joined labor activists to legitimate the idea of federal regulation of work. Finally, in coalition with labor groups, environmental and public-interest lobbyists intervened at key junctures in the legislative battle over the OSH Act and helped mobilize wavering senators and representatives.

The public health professionals and medical doctors who worked with unions and rank-and-file workers were particularly influential because they were able to counter the antistatist views of the industry-oriented private professional organizations. Some doctors worked with rank-and-file movements to gather basic data on health hazards and do the kinds of research that corporations, state agencies, and private professional groups did not do. Dr. Selikoff’s study made asbestos a national issue. Drs. Hawey Mills and Lorin Kerr did the same for black lung. Dr. I. E. Buff helped publicize the hazards of cotton dust. Other doctors worked within government to press agencies to take worker health more seriously. Their role was necessarily more circumspect, and they were often more moderate in their political orientations than the doctors who worked with rank-and-file activists. Nonetheless, they played strategic roles, as the effort to save the Division of Industrial Hygiene illustrates. Other public health doctors and environmental activists educated unionists about the relationship between the work environment and occupational diseases. Given the labor movement’s traditional emphasis on safety rather than health, these efforts were indispensable.¹⁸

Public-interest and environmental organizations and activists also played a key role in the congressional debate over OSHA Their presence suggested that workplace reform was in the public interest rather than in the “special” interest of the unions. The labor activists knew they needed to make this case and worked to build bridges to these other movements. Aside from organized labor’s long-standing allies, legislators were notoriously unsympathetic to “union” issues that seemed to serve the organizational needs of the labor movement. They could be swayed, however, if convinced that more general “worker” interests were at stake.

These efforts to build alliances paid off. In 1968 a coalition of more than a hundred labor, consumer, religious, and environmental groups formed to lobby for the OSH Act, giving the impression of widespread support for this reform. At the climax of the legislative battle, the environmental movement publicly urged Congress to adopt the strongest possible bill. As hoped, its support helped the health and safety reformers rebut industry claims that the Democratic bill served the special interests of unions rather than the general interests of workers. Environmental Action issued a letter, signed by a group of notable scientists, that explicitly drew occupational safety and health under the broader umbrella of the new environmental consciousness. “The in-plant environment,” it stated, was “merely a concentrated microcosm of the outside environment. The environmental health hazards that workers face affect the entire population.”¹⁹

Ralph Nader included the movement for workplace reform under his public-interest banner. In the summer of 1969 he assigned the second generation of raiders to investigate how the Departments of Labor and HEW handled occupational health and safety. The raiders uncovered evidence of lax enforcement and cozy relationships between state and industry, and their reports were widely circulated. As the environmentalists had done, Nader’s efforts served to cast the issue in the widest possible terms and force industry onto the defensive.²⁰

The White House Interest in Social Regulation

From 1966 on, President Lyndon Johnson and his closest aides also worked to make occupational safety and health a political issue. The Johnson White House was interested in a post-civil rights policy agenda and, in particular, new symbols of reform in an increasingly cost-conscious political environment. It seized on social regulation and, within this broader frame, occupational safety and health.

It is hard to overestimate the importance of political entrepreneurship of this sort to the success of social regulation and workplace reform. The postwar accord had little to say about health, safety, and the environment. As was true with the workplace safety and health activists, the consumer and environmental movements were small and poorly organized. Widespread public support for air- and water-pollution control did not emerge until the second half of the 1960s. Militant and politically sophisticated environmental groups—for example, the Friends of the Earth, the Environmental Defense Fund, and the Natural Resources Defense Fund—were founded in the late 1960s and early 1970s. The consumer lobby amounted to one organization—the National Consumers League—with one full-time staff person until Ralph Nader organized Public Citizen in the late 1960s. By then, however, the executive branch had supported and Congress had passed legislation covering air and water pollution and motor vehicle and product safety.²¹

The White House’s interest in social regulation was natural and logical in the political environment of the mid and late 1960s. First, the party’s majority status increasingly rested on new middle-class voters. Educated professional, managerial, and technical workers who had previously voted Republican were shifting toward the Democratic party, and the party could benefit from signs that it was responsive to their concerns.²²

Social regulation was also a relatively costless way for the Democratic party to demonstrate its continuing commitment to reform. After 1966, growing concern over the fiscal demands of the Great Society made Congress increasingly cost conscious. “Big ticket” programs were scrutinized more carefully. Health, safety, and environmental regulation, however, did little to increase the federal budget. The administrative costs of running a regulatory program were relatively low; the important costs were borne by groups in society. This also appealed to the Johnson administration.²³ Finally, Congress had taken the lead in this area and had all but forced Johnson to respond if he was to take any credit for consumer and environmental legislation.

The administration’s interest in occupational safety and health regulation makes sense given the Democratic party’s relationship to organized labor. Although the Democrats courted new middle-class voters, the party’s political fortunes continued to rest on the Democratic affiliation of blue-collar voters and the organizational commitment of the union movement. The 1966 midterm elections suggested that white workers had begun to rethink their traditional affiliations. A poll of union members commissioned (and then suppressed) by the AFL-CIO confirmed this impression: resentment of welfare state policies directed at the poor, fear of urban unrest, and opposition to tax increases to pay for new social programs fed working-class discontent with the party.²⁴

The Democrats’ relationship to organized labor was also problematic. The party was indebted to the unions. President Truman had promised to repeal the Taft-Hartley Act in 1948; Adlai Stevenson had repeated the commitment in 1952; and Lyndon Johnson promised to lead a movement to repeal Sec. 14b in 1964. The unions did their part and helped to turn the Great Society into law in 1965. They expected to be paid back with labor-law reform and were encouraged by large Democratic majorities in both houses of Congress. But Congress rebuffed the unions in the mid 1960s. Although organized labor remained on good terms with President Johnson, his failure to secure the repeal of 14b strained the relationship. Some in the labor movement complained that Johnson had traded labor-law reform for southern Democratic support for civil rights legislation. Other Johnson positions, including his endorsement of legislation restricting picketing on construction sites and his campaign for voluntary wage restraints, put added stress on his alliance with the unions.

In this context, occupational safety and health was an opportune response to all these forces. It simultaneously affirmed the party’s commitment to the new politics of middle-class reform and the traditional concerns of organized labor, concerns that were often seen as mutually exclusive if not directly competitive. As one kind of social regulation, worker health and safety was an important symbol of the administration’s commitment to the public-interest and nascent environmental movements. Unlike more traditional forms of labor legislation, it spoke to the interests of all workers, whether unionized or not. Carefully packaged, it could also be used to pacify organized labor.

There has been a good deal of speculation about how occupational safety and health came to Johnson’s attention. The standard explanation is that a presidential speechwriter who had a brother in BOSH managed to slip a few references to the issue into Johnson’s speeches. This somehow caught the president’s eye. Although accurate in one respect—the fraternal connection was real—this account is misleading. It suggests that the policymaking process in this instance was more serendipitous than it actually was, and it argues for the view that the issue and the OSH Act were poorly understood or thought out.²⁵ Actually, occupational safety and health entered the White House policy agenda through another route. That route was indirect, but the issue was taken much more seriously than previous accounts have indicated.²⁶

Occupational safety and health became part of the administration’s policy agenda in an effort to develop new “quality-of-life” issues to take to the electorate when Johnson ran for reelection in 1968. Workplace reform was not the central issue, to be sure; consumer product safety was more important. Johnson proposed the Highway Safety Act in his 1966 State of the Union Message and endorsed four other pieces of consumer legislation that year. Air- and water-pollution control were also higher priorities.

Nonetheless, Johnson’s aides searched widely for related issues, and occupational safety and health came up in that context. In 1966 Joseph Califano, Johnson’s chief domestic policy adviser, organized a search for new quality-of-life issues under the general rubric of “accident prevention.” All interested departments were asked to identify areas of responsibility that fit this frame. The Department of Labor mentioned “occupational safety” along with a host of other topics. While the DOL did not press it, Califano thought it a natural part of the new emphasis. In this way, workplace reform became part of the White House’s policy agenda.²⁷

Given that organized labor was more interested in other issues, Johnson had to work hard to sell workplace regulation to the unions. In his first public reference to the issue, in May 1966, he urged the labor movement to rethink its agenda. Speaking to a group of labor journalists, he asked the unions to give up their preoccupation with “bread and butter” issues and “join with us in the effort to improve the total environment,”²⁸ and his administration went to work on a bill. For the next year and a half, the Bureau of the Budget (BOB), under Califano’s direction, pressed both the DOL and HEW to propose a strong occupational safety and health program to be included in the president’s 1968 program for labor.

In the end, Johnson’s efforts proved decisive in placing the issue of workplace safety and health on the policy agenda and legitimating the demand for federal intervention. While labor activists were still trying to convince the federation to make OSHA a priority, the administration introduced its bill to extend federal regulation to most of the labor force. Moreover, it defined the issue in exactly the way that labor activists had pressed organized labor to do, giving it the broadest possible appeal.

Speaking for the administration, Secretary of Labor Wirtz placed the bill in the quality-of-life framework that Johnson had urged on the unions in 1966. It was, he said, a victory for a new view of politics, a view in which social values took precedence over economic values. There was, Wirtz told Congress, a new tendency to pay attention to “human concerns”—to “measure progress in qualitative as well as quantitative terms”; to forsake “human sacrifice for the development of progress.” Our priorities, he maintained, had been permanently reshaped by economic advances: “Now higher value is placed on a life, or a limb, or an eye.” Wirtz was explicit about the underlying choice in the proposal to extend federal regulation in this way. The administration’s bill, he claimed, “asserts the absolute priority of individual over institutional interests and of human over economic values. . . .” In this fashion, it “faces up to the most basic issues of contemporary thought and values.”²⁹

Why Business Failed to Stop OSHA

Most affected business interests rejected the idea of federal regulation of work. Yet the Johnson administration introduced its bill in 1968, and Nixon recommended a revised version in 1969. In short, the policy agenda had been dramatically altered against the opposition of a broad spectrum of business lobbies. Almost all theories of business power in America suggest that this reform should have failed, particularly against the concerted opposition of so many business groups. Why, then, did it succeed?

Strategic errors by the business lobby undermined industry’s ability to control the agenda in the 1960s. Most important, business lobbyists refused to admit the need for change and chose to deny the problem and defend the existing private professional groups and state and local regulatory efforts despite their obvious failures. They blamed the workers themselves or questioned the motives of the labor movement. The influx of younger workers and the breakdown in labor discipline caused increased accident rates, they maintained. The unions were trying to increase their power at the workplace, not to protect workers from hazards. The Chamber of Commerce spoke for this coalition, and its position suggests the nature of its opposition. The unions, the chamber suggested, were trying to create a labor “czar” with life-and-death powers over industry. Nation’s Business, the chamber’s magazine, warned its readers that formerly unemployed welfare clients would return as OSHA inspectors to seek revenge on American capitalism.³⁰

Several more positive approaches were available to employers. They might have offered to implement a federal program through joint health and safety committees organized in such a way that they could be dominated by employers. They could have acknowledged the toll taken by occupational hazards and argued for liberal compensation to injured workers funded by public moneys, or for in-plant occupational health clinics subsidized by the state. They might have proposed a regulatory system that exempted “safe” firms and concentrated on the most hazardous industries and companies.

There was also general support among many corporate leaders for social reform in this period. Many executives understood that the market had failed to protect society against the hazards of industrialism and believed that reform was inevitable. Henry Ford II of Ford Motor Company, for example, urged his colleagues to accept that “the terms of the contract between industry and society are changing.” He told them to lobby instead for quality-of-life programs that were compatible with capital investment and that relied on market incentives to translate social goals into public policy.³¹ Sol Linowitz of Xerox Corporation advised corporate executives to lead the quest for social justice by internalizing the new values.³²

But employers reacted defensively to demands for workplace regulation. Even many of the most “safety conscious” firms fell into this trap. They tried to strike a more conciliatory tone, but their basic position was similar to that of the Chamber of Commerce. The American Iron and Steel Institute (AISI), speaking for the steel industry, argued that “basic progress in occupational safety and health has been made, primarily, on the basis of voluntary action.” There was no place for “compulsion” in a comprehensive safety and health program. “The really important progress in occupational safety and health,” their lead lobbyist suggested, “would require far more consideration of the man rather than the environment.”³³ The chemical industry took great pride that “continuing strides in occupational safety and health have been achieved through the voluntary efforts of businessmen, both individually and through trade associations.”³⁴ The former president of the Industrial Medical Association summarized the views of professionals working for the larger firms: “In many of the major industries the programs in occupational safety and health are successful, are well advanced, and have been developed to the point where the most important remaining problem is human failure.”³⁵

Two factors explain this strategic failure. First, employers traditionally saw occupational safety and health as a potentially explosive labor-management issue. As the preceding chapter indicates, firms sought to control conflict over working conditions in order to maintain their control over the labor process. From this vantage point, employers considered organized labor’s effort to use federal power to regulate the workplace as a tactic in the ongoing power struggle between employers and employees. Unions, they believed, sought occupational safety and health regulation as another resource that might be brought to bear in collective bargaining. The threat of a federal inspection by an agency sympathetic to organized labor might cause employers to make concessions on other issues. As the AISI lobbyist confided to Congress, “practical operating managers know” that “safety or health issues are frequently alleged merely to build up a case” against employers.³⁶

This strategic failure was also a result of an organizational lacuna that had developed within the business community in the 1960s. No peak association existed that could speak for employers as a whole and negotiate these issues with organized labor and government. This was particularly important because employers were divided among themselves. Most important, different firms faced different cost and control problems: some industries were more hazardous then others; some firms upgraded their control technologies as they invested in new plant and equipment; others did not reinvest in new machinery and, consequently, worked with less-safe facilities.

These differences might have been resolved by class-conscious leadership, but none emerged. The insurance industry was best situated to attempt it. Companies that underwrote workers’ compensation had an economic interest in safe workplaces. They also had reliable information about the hazards of work and the problems that reformers faced in seeking to change employers’ behavior. But the insurers chose to defend their own interests rather than those of firms as a whole. Instead of taking a leading role in the debate over regulation, the insurance industry focused its efforts on defending the states’ workers’ compensation programs against proposals to reform or possibly federalize them.

The two preeminent liberal business organizations—the Committee for Economic Development and the Business Council—failed to take any position at all on occupational safety and health. They concentrated on economic policy in the mid 1960s and were generally unprepared for health and safety legislation. The private health and safety groups functioned as policy think tanks and public relations organizations for the safety-conscious firms, but they also failed to respond flexibly to the challenge. The NSC staff recommended that the organization endorse a strong federal program but the executive board overruled them and lobbied for a limited program that left enforcement to the states.³⁷ Other private health and safety groups opposed federal standard setting altogether; the AIHA, AMA, and ASSE rejected the concept of mandatory standards. As a result, the Chamber of Commerce took over the leadership of the movement against reform and designed a defensive strategy poorly suited to the political climate of this reformist period.

Designing the Program

As is often true in American politics, once the agenda was transformed, the conflict over workplace reform focused on the details of state intervention rather than basic principles. At this level, three related issues were paramount: (1) the precise relationship between federal and state power, including the fate of the workers’ compensation system and the public health program proposed by the Frye Report; (2) the role that private professional and standard-setting groups would play in the program; and (3) whether standard setting and enforcement would be concentrated in a single executive department or divided among a number of agencies.

The Decision for a Federal Program

Although the business lobby, the private professional groups, and the state agencies fought it, the decision to federalize the program was made easily. The trend everywhere in government at this time was toward national power; the Great Society was premised on it. As Chapter 2 detailed, there were no compelling reasons to change direction in this instance; it was clear from the evidence that most states had done a terrible job of regulating occupational hazards. It was also clear that few states could be counted on to improve their own programs on their own. Indeed, the states had resisted federal grants-in-aid designed to upgrade their activities. As a result, the Johnson administration assumed from the start that the new program would expand federal authority.

Nonetheless, it took a year of pushing and hauling to turn this decision into a concrete policy proposal. Not surprisingly, HEW’s and DOL’s institutional lethargy was hard to overcome. The secretaries of both departments were not attentive to the problem of working conditions, and neither responded enthusiastically to Califano’s requests.

Taking its lead from the Frye Report, the White House first gave HEW responsibility to develop a program, but the department was indifferent.³⁸ Despite the Frye Report’s recommendation that HEW regulate the workplace as part of an expanded public health effort, neither HEW nor the PHS was interested. Of course, Secretary of HEW Wilbur Cohen and, later, Secretary John Gardner had other priorities; their department was responsible for developing and implementing many of the Great Society’s new social welfare programs, from education to social security. As a result, they had more than they could easily handle and were willing to leave workplace safety and health to the labor department.

Given its long-standing jurisdiction in the area of worker health, the PHS might have been expected to press for a piece of the new program; BOSH was authorized to conduct studies, undertake field investigations, and mount demonstration projects to help detect occupational disease. It also advised the private standard-setting bodies. The PHS did not rise to the challenge. It generally eschewed statist solutions to public health problems and supported states’ rights in health-related areas. Even when concern over the health effects of smoking and air pollution catapulted the agency into the public limelight, it recommended against legislation that preempted local jurisdiction. This pattern held. Since the Frye Report contradicted the PHS’s traditional approach, the Surgeon General rejected its recommendations.

Jurisdictional disputes between the Departments of HEW and Labor further hampered efforts to develop a bill. Although the PHS rejected the idea of federal regulation, it jealously guarded its organizational prerogatives and resisted efforts to augment LSB’s role. Despite orders from the White House to come up with a “strong and imaginative” program, several interagency task forces established in 1966 fell victim to disputes between HEW and Labor and HEW’s general indifference. Dr. Phillip Lee of HEW, the head of one of these efforts, rejected the Bureau of the Budget’s request for a bill. “The knowledge and resources,” he observed, “are simply not at hand, either at the Federal, state or local level.”³⁹

Frustrated by a year of delays, the White House broke this impasse by taking the program away from the Departments of Labor and HEW and giving it to the BOB. Through the fall of 1967, BOB officials worked on the program quietly. Top officials at HEW and the DOL were shut out from the deliberations, and middle-level staffers were called in to provide BOB with the details of existing programs. The bureau resolved the jurisdictional issues itself. For a variety of reasons, including organized labor’s preference for this arrangement, the program was given to the DOL. Budget decided to extend the program to as many private-sector workers as constitutionally possible, to give the DOL standard-setting powers, to secure compliance through penalty-based inspections, and to reject the Frye Report’s call for publicly funded in-plant clinics. Johnson’s advisers were apprehensive about civil penalties for recalcitrant employers, but they agreed to all of BOB’s recommendations. Once these decisions were made, Secretary of Labor Wirtz and Assistant Secretary Peterson were called to the White House and asked to propose legislation to implement the program that the bureau had designed.⁴⁰

The administration also decided against reforming the workers’ compensation system, although that program’s manifest failures made reform logical. Organized labor considered this as important, if not more important, than a federal regulatory program, and Johnson’s own advisers were attracted to the idea of rehabilitating the system to provide economic incentives to employers to improve working conditions. But Wirtz met with insurance industry representatives to test the waters and returned to recommend two very limited reforms: a grants-in-aid program to improve state research and administration, and a congressionally appointed National Commission on Workmen’s Compensation.⁴¹

Johnson’s advisers clearly understood the economic and political interests at stake and the problems they faced if they chose to tackle workers’ compensation directly. After reviewing the history of the program, both the Council of Economic Advisers (CEA) and BOB concluded that comprehensive changes were unlikely to succeed in Congress. Gardner Ackley, chair of the CEA wrote Califano that “even innocuous government efforts to improve the system have been vigorously assailed and strongly resisted as precursors to a Federal ‘take-over’ of the system.” “Given the entrenched power of the defenders of the status quo,” he concluded, minor gains were all that could be expected. Budget concurred. “In our view,” the agency argued, “the basic problem is the unwillingness of State legislatures and employers to pay the large costs involved in establishing adequate benefits.” Although unenthusiastic about it, BOB endorsed the idea of the commission in the hopes that a public study might stimulate future reform.⁴²

After more than a year of internal debates, Johnson finally proposed the OSH Act in his Manpower Message in January 1968. Introduced into Congress as the O’Hara-Yarborough bill, it followed the outlines of the BOB plan and gave the Department of Labor the authority to set and enforce federal health and safety standards for almost all private-sector employees. In many respects, this version of the bill was rudimentary: it lacked provisions for worker rights; the standard-setting process was poorly specified; the federal-state relationship was left ambiguous. But O’Hara-Yarborough foreshadowed the final act. Standard-setting and enforcement powers were concentrated in the same agency. The secretary of labor was given broad discretionary power to adopt standards that departed from those developed by private organizations, and standards did not have to take costs into account.

Where Should the Agency Go?

From the employers’ point of view, the situation did not improve dramatically with the election of Richard Nixon. Many business groups thought that, as a Republican and an advocate of what he called the New Federalism, Nixon might oppose federal regulation of work. And Nixon was much more sympathetic to employer interests: he helped business lobbyists prepare and propose a series of bills that would have substantially altered the Democratic program. But the Nixon administration never seriously considered abandoning the idea of a federal regulatory program.

To the Nixon administration, two circumstances argued against opposing federal regulation of work. To begin with, Nixon’s political options were limited. Occupational safety and health was already on the agenda when Nixon took office. The first Democratic bill had died in Congress after Johnson announced that he would not run for reelection. But, as Nixon’s transition advisers warned him, the issue remained alive, and many legislators supported reform. The coal miners’ protests and congressional deliberations on the Coal Mine Health and Safety bill had sustained interest in occupational hazards. The Democrats intended to introduce a revised version of O’Hara-Yarborough in the new session of Congress; they also seemed to have enough votes to pass it. Thus the Republicans had to propose their own bill if they were to play a central part in crafting the new program.⁴³

In addition, workplace reform appealed to the Nixon White House for some of the same reasons that it appealed to the Johnson administration. Like Johnson, Nixon courted blue-collar voters; racial conflict and white backlash made it possible to compete with the Democrats for their support. As Kevin Phillips’s The New Republican Majority suggested, a political strategy that targeted this group could make the Republicans the majority party for the first time in 40 years. Nixon’s advisers took Phillips’s advice and developed just such a “blue-collar strategy.” Nixon’s ability to appeal to the material interests of workers was limited, however. His economic policies—he engineered a recession to reduce inflation as soon as he entered office—had alienated organized labor. Nonetheless, support for OSHA carefully qualified, could contribute to the pursuit of working-class votes; it could symbolize the administration’s concern for the “silent majority.” Nixon made this point clear when he signed the OSH Act. It was, he claimed, “probably one of the most important pieces of legislation, from the standpoint of 55 million people who will be covered by it, ever passed by the Congress of the United States.”⁴⁴

Once it became clear that federal regulation was inevitable, the struggle over reform focused on the specific institutional arrangements to implement the program. Here, employers had several concerns. They did not want the Department of Labor to set standards; they did not want standard setting and enforcement concentrated in the same agency; and they wanted costs taken into account in setting exposure levels.

Actually, a small group of safety-conscious firms and private-sector health and safety professionals first raised the issue of where to locate the new program in 1967 during two sets of meetings with organized labor and the Johnson administration. Seeking to reach a labormanagement consensus before the submission of a bill, they were willing to concede the issue of federal authority if the administration would agree to locate the program somewhere other than in the DOL. A Department of Labor Task Force on Occupational Safety provided the forum for the first set of meetings. The second set, organized by Dr. David Goldstein, medical director of the New York Times and president of the Industrial Medical Association, occurred behind the scenes and looked promising. A substantial number of safetyconscious companies took part, including Kodak, Du Pont, American Telephone & Telegraph, and General Electric, and all agreed on the principle of federal regulation. But both sets of meetings failed to resolve the issue. The business representatives refused to accept a program lodged in the Department of Labor, and organized labor and the Johnson administration refused to relocate it.⁴⁵

The Nixon administration’s effort to secure a bill that protected employer interests also focused on where to locate OSHA. The Department of Labor, charged with developing the Republican bill, found an ingenious solution. An independent board of professionals would set standards, the DOL would inspect workplaces, and the courts or some other agency would determine fines and hear employer appeals.

Given the administration’s unwillingness to challenge the principle of federal authority, the Nixon plan made sense from a business perspective. Aggressive implementation would be hampered by the division of authority among a number of agencies. Since the vast majority of health and safety professionals and almost all of the occupational health and safety organizations were sympathetic to the employer’s point of view, standard setting was likely to compromise employer and employee interests. The courts, in turn, were more likely to be sympathetic to employers’ property rights than the DOL would be.

Most business groups and private professional organizations recognized the logic of the approach and fell in line, but some business and professional groups argued for further limits on federal authority. The Chamber of Commerce asked that a joint federal-state program be set up, to be directed by a National Advisory Board drawn from private professional organizations. The NSC suggested that, whenever possible, standards be based on existing consensus standards and that future standards development be left to private organizations. It also urged that an advisory board be created, drawn from “the involved industries and groups,” to oversee the standard-setting process. Like the Chamber of Commerce, it wanted enforcement left to the states.⁴⁶ In a March 1969 memo to the DOL, Secretary of Commerce Maurice Stans summarized the remaining reservations. Employers were concerned, he wrote, that the administration adopt an approach that restricted federal standards to privately developed proposals and subjected standards to mandatory economic review procedures to control costs.⁴⁷

Secretary of Labor George Shultz and Undersecretary John Hodgson, in charge of drafting the administration bill, were sympathetic to these proposals but balked at the most restrictive ones. The DOL endorsed the idea of maximizing the states’ involvement in enforcement and allowing the board to use private standards where they existed. But it rejected limits on the board’s power to adopt and revise standards on its own, and rejected a statutory commitment to economic and technical feasibility.⁴⁸

Eventually, the White House crafted three different bills designed to protect employer interests. The first, Javits-Ayres, created the tripartite division of authority referred to above. Standards were to be set by a National Occupational Safety and Health Board of experts; the Labor Department was to conduct inspections; the courts were to enforce DOL citations. This bill also limited federal authority in other ways. The board was required to promulgate ANSI and National Fire Protection Association standards—“national consensus standards”—where they existed. The Democrat’s “general-duty” clause that required employers to provide healthy and safe workplaces was replaced with an obligation to conform only to board standards. Finally, employers were allowed to depart from board standards if they provided workers with conditions that were “substantially equal” to those mandated by board rules.

The second administration bill, the “Steiger substitute,” was worked out in concert with AFL-CIO officials, Representative William Steiger (R-Wisc.) of the House Labor Committee, and several committee Democrats. Like Javits-Ayres, it lodged standard setting in an independent board. But it shifted enforcement from the courts to the board, increased worker rights to information, and provided for research on worker health.

These concessions were designed to win the support of moderate Democrats and the more cautious union officials and thereby split the forces supporting reform. They almost succeeded. The federation helped draft and then recommended the Steiger substitute. Unenthusiastic to begin with, Biemiller, Meany’s assistant, counseled Sheehan of the USWA that a stronger bill would be defeated on the House floor, where southern Democrats and Republicans had more influence than they did on the labor committee. The subcommittee chair. Representative Dominick Daniels (D-N.J.) and the full committee chair, Representative Carl Perkins (D-Ky.), both long-time labor allies, agreed with Biemiller’s position. Only Sheehan’s opposition prevented the Democrats on the committee from recommending the Steiger substitute in place of the original Democratic bill.⁴⁹

The third administration compromise located standard setting and enforcement in the board but substantially augmented health-hazard monitoring and worker rights to participate in enforcement. The negotiations that led up to this bill included Democrats and Republicans on the House Labor Committee and Nader aide Gary Sellars, and were personally supervised by Hodgson, who had replaced Shultz as secretary of labor. In this compromise, the administration sought to split the public interest-union coalition by appealing to the Naderites’ interest in institutional arrangements that facilitated citizen participation in administrative regulation. Again, the administration almost succeeded. Nader praised the draft bill; he was personally willing, he reported, to move OSHA from the DOL in return for “some of the most ingenious self-enforcing provisions in any regulatory law.”⁵⁰ Once again, however, the USWA rejected the compromise, and this bill also failed in committee.

Congress finally passed the union-Democratic bill in the fall of 1970; the business campaign against OSHA had failed. As Biemiller and Perkins had predicted, there were problems on the House floor. The conservative coalition of southern Democrats and Republicans rejected the Democratic bill and passed the Steiger substitute. But, as Sheehan had gambled, the Senate and the conference committee sided with the unions. While the OSH Act has Steiger’s name on it, it contains almost none of his provisions. The Williams-Steiger Act is far stronger than the original O’Hara-Yarborough bill. Each new Republican proposal had ceded more ground than the last. In late 1970, faced with the choice of vetoing or accepting a bill that included almost all of organized labor’s demands, Nixon signed and took credit for it. American business was forced to accept a program that it had unconditionally rejected in 1968.

Even the more carefully targeted efforts to win industry-specific concessions were largely unsuccessful. The petroleum industry, concerned about the costs of comprehensive recordkeeping and information gathering, failed to limit standards to situations where substances could be easily monitored. The construction industry failed to win exemption from the program. The steel industry, concerned that inspections would be used by workers to pressure employers in collective bargaining, was only partially successful in limiting worker rights to participate in enforcement.⁵¹

A Radical Liberal Reform

The Occupational Safety and Health Act of 1970 is a remarkable piece of legislation. From industry’s point of view, it represented the worst of both worlds. White House efforts to win Democratic support for the board led House Republicans to accept several provisions dealing with worker rights—including the right to participate in inspections, have access to information about citations, and contest agency actions—that remained in the act even after the conference committee eliminated the board.

More important, the OSH Act codified a new, more radical, vision of worker rights. Conventional liberal ideology linked health and safety to individual, voluntary action in markets. But the OSH Act created a universal and substantive right to safety and health. Employers could not buy the opportunity to risk workers’ health and safety, despite some workers’ willingness to sell it. Moreover, this right was enjoyed by all workers regardless of their market position, income, or occupation. In sum, the act promised all workers a minimum level of health and safety regardless of the extent to which they were politically and economically organized, their income, or their market position.

Specifically, the act did the following:

▪ Empowered the secretary of labor and the agency to which the secretary delegates responsibility (i.e., OSHA) to set and enforce standards governing the conditions of work of all employers except federal, state, and local government agencies.⁵²

▪ Created the National Institute for Occupational Safety and Health (NIOSH) in HEW to develop and recommend occupational safety and health standards, to compile and publish a list of toxic substances, to conduct research and experimental programs, to carry out hazard evaluations, and to promote the training of occupational safety and health professionals.

▪ Obligated employers to comply with occupational safety and health standards issued by the secretary of labor. It also created a general employer duty “to furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” (Sec. 5a). Employers were also obligated to maintain records on worker injuries and illnesses.

▪ Established civil and criminal penalties for violations of the act and the rules and regulations developed to implement it. These include fines of up to $1000 for most violations, up to $10,000 for willful or repeated violations, and up to $1000 per day for the failure to correct cited violations; fines of up to $10,000 and up to six months’ imprisonment, or both, for willful violations that cause death to an employee; fines of up to $1000 or imprisonment of up to six months, or both, for giving unauthorized advance warning of inspections; and fines of up to $10,000 and imprisonment of up to six months, or both, for knowingly making or filing false statements in response to the information-reporting requirements of the act.

▪ Created a number of employee rights to become involved in the administrative and enforcement activities of the act. These include rights to participate in standard setting, workplace inspections, and the monitoring of hazards; to have access to information about hazards and agency findings; to appeal certain agency rulings to a newly created Occupational Safety and Health Review Commission (OSHRC) and to the courts and to oppose certain kinds of employer appeals; and to be protected from employer discrimination for exercising these rights.

▪ Required the secretary of labor, when issuing standards that dealt with toxic materials or “harmful physical agents,” to “set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life” (Sec. 6b[5] ).

This last provision was exceptional and has since become the subject of intense controversy in and out of the courts. Many conservatives, industry representatives, and some policy analysts insist that Congress could not have actually meant to provide protection regardless of cost and have tried to read some sort of cost-benefit test into the act’s feasibility language. But the legislative history is clear on this point. The act contains only one reference to feasibility, and that is much vaguer than industry wanted. This was a major defeat for the steel and chemical industries in particular, which had lobbied Congress to require that OSHA standards be economically feasible. The unions objected on the grounds that such a provision would allow employers to appeal every standard and enforcement action, and the Democrats agreed. The industry proposal was rejected in committee.⁵³

At the last moment, Senator Jacob Javits successfully introduced the reference to “feasibility” in the health standards section, and much has been made of this. But the bill’s proponents and opponents knew that Javits’s reference did not meet industry objections. According to Representative Perkins, chair of the House Labor Committee, the bill, as written, provided a “congressionally recognized right to every man and woman who works to perform that work in the safest and healthiest conditions that can be provided.”⁵⁴ Republican critics agreed. Senator Peter Dominick (R-Colo.) was the author of several industry-oriented amendments that were defeated on the Senate floor. His comments, though hyperbolic, reflect industry and Republican anxiety about the act. “It could,” he claimed, “be read to require the Secretary to ban all occupations in which there remains some risk of injury, impaired health, or life expectancy . . . the present criteria could, if literally applied, close every business in this nation.”⁵⁵

Business did not lose every point. Congressional Republicans and southern Democrats were responsive to business lobbying, and the unions were forced to accept four last-minute compromises. They gave up what industry called the “strike with pay” clause that guaranteed compensation to workers who walked off hazardous jobs. The secretary of labor was denied the authority to shut down plants on his own authority. The act does not require the secretary of labor to hold a representation election to select an employee to accompany the inspector where no union exists. The Senate added OSHRC to provide employers with an independent forum in which to appeal citations.

In addition, state governments successfully lobbied for a joint program, although the states’ role was more limited than they wanted. From the start, all bills allowed the states to retain jurisdiction over existing programs, or develop new ones, if those programs met federal standards. Business support for state-level regulation helped the states make their case. Employers hoped that a joint program would reduce their costs. As one steel industry lobbyist later put it, “Everyone knew that the State commissions were in bed with industry and everyone expected that the states would start up plans as soon as this passed.” The state programs would, he expected, be a “safety valve” for employers.⁵⁶ Having insisted on federal standard setting, the Nixon administration also felt obliged to grant at least some of the demands of the states, and always responsive to local interests, Congress concurred. Subject to federal supervision, the act provided states with subsidies to develop and maintain their own programs.

The Limits of Reform

Despite the worker rights granted in the OSH Act, it is important to recognize the problems created by the decision to deepen rather than alter the existing approach to regulation. Workers had failed to challenge capitalist control of the labor process. Middle-class reformers had also failed to grasp the link between economic structure and occupational hazards. Indeed, Nader’s account of the problem was remarkably conventional and sanguine about the relationship between capitalism and work. He told Congress that “one can easily envision a state of industrial activity where most of these injuries have been eliminated, and still have industry making just as much profit and if not more than they are now.” The problem was simply that workers’ interest in health and safety was “not being represented, represented adequately, by a special interest group.” This was, he said, “the crux of the problem,”⁵⁷

Given these demands, the state had turned to conventional forms of factory legislation rather than require institutional changes in employer-employee relations. In fact, the act created a particularly narrow range of policy instruments. The state-level workers’ compensation system was left in place. The public health orientation of the Frye Report was rejected. Employers were not required to set up inplant health services, create health and safety committees, or give existing committees decision-making authority over health- and safety-related policies.

Thus the program failed to confront how the weakness and strategies of the labor movement might undermine the implementation of the act. Unions are central to the implementation of the law as it is written: they must help workers exercise their rights to participate in enforcement; they must press the DOL to develop new standards. But only a minority of the private labor force is organized, and many unions are indifferent to the problem of occupational hazards. Without public programs to help them exercise their rights, workers are unlikely to take advantage of them. But while the worker rights provisions were stronger than anyone had initially expected, they still failed to eliminate the barriers to worker action. Workers were not guaranteed compensation for participating in inspections. The law did not protect their right to refuse hazardous work. Workers were not given a role to play in the selection of company health and safety professionals. Instead, all these things remained subject to collective bargaining.

Thus the OSH Act left the existing organization of work and industrial relations essentially untouched and grafted state power onto that system. Managers remained in charge of the labor process; workers remained subordinate to them, shut out of the most important decisions about working conditions. Occupational safety and health remained a by-product of market-based investment decisions. The incentives to employers to undersupply occupational safety and health, and the disincentives to employees to participate in decisions about the conditions of work, remained in place.