Hazard or Hardship

Crafting Global Norms on the Right to Refuse Unsafe Work

Jeffrey Hilgert

• Publisher: ILR Press
• Year: 2014
• eBook ISBN: 9780801469237
• Topic: Politics & International Relations
• Subtopic: Labour & Industrial Relations
• Index: Politics & International Relations

Today, hazardous work kills 2.3 million people each year and injures millions more. Among the most compelling yet controversial forms of legal protection for workers is the right to refuse unsafe work. The rise of globalization, precarious work, neoliberal politics, attacks on unions, and the idea of individual employment rights have challenged the protection of occupational health and safety for workers worldwide. In Hazard or Hardship, Jeffrey Hilgert presents the protection of refusal rights as a moral and a human rights question.Hilgert finds that the protection of the right to refuse unsafe work, as constituted under international labor standards, is a failure and calls for a reexamination of worker health and safety policy from the ground up. The current model of protection follows an individual employment rights framework, which fails to protect workers against the inherent social inequalities within the employment relationship. To adequately protect the right to refuse as a human right, both in North America and around the world, Hilgert argues that a broader protection must be granted under a freedom of association framework. Hazard or Hardship will be a welcome resource for labor and environmental activists, trade union leaders, labor lawyers and labor law scholars, industrial relations experts, human rights advocates, public health professionals, and specialists in occupational safety and health.

1

HUMAN RIGHTS AND THE STRUGGLE TO DEFINE HAZARDS

Protecting basic refusal rights where workers face the most dangerous working conditions has had wide public support generally. Definitions of workplace hazards, however, are socially contested; meaning workers and employers often disagree about the definition of workplace hazards. The right to refuse typically has been wedded to some threshold, defined legally, that describes the degree of occupational hazard a worker may refuse. The phrase “imminent and serious danger” is one such legal standard that is used to determine when a worker can refuse unsafe work.

One can argue over the specific hazard threshold that will be covered by the right to refuse. At a more fundamental level, however, is the question of who should have the right to define hazardous work in the first place. The typical decision makers are the legislators, regulators, and ultimately judges. An alternative view is that the workers themselves should be the ones to decide. Many people have a visceral negative reaction to the idea that a single worker should be empowered to define the very nature of a workplace hazard to which they are exposed. It runs counter to a host of deeply held values. This is especially the case in the United States, where worker commodification is the norm in law. Arguments against this worker freedom range from an objectivism rooted in scientific rationality to the view that workers are not capable of making such important decisions. Indeed, the scientific infrastructure erected around occupational safety and health in the last generation plays into a basic logic that a technocratic view has the capacity to solve all health and safety concerns. This perspective also views power relations at the workplace as less important, believing instead that if objective science can identify a hazard to human health, a broad social consensus necessarily follows in response.

Labor history is instructive on this point. Where commodification is strongest, as in Anglo-American countries, workers have struggled to refuse unsafe work on their own terms and according to their own definitions of hazardous work. Workers have held a different idea about the right to refuse unsafe work compared to not only employers but to progressive policymakers, regulators, and judges. The struggle for the right to define the nature of a hazard has, therefore, been as much a struggle as have those against particular hazards. These are two sides of the same coin, indivisible throughout labor history. In recounting this rich heritage, I open the debate about who gets to decide the nature of a hazard and thus when society protects the right to refuse. Although the aim of this book is a detailed examination of international labor rights norms, I use Anglo-American labor history to elucidate this key question underlying the global debate, namely, who decides the definition of a hazard at work?

Empowerment to Define Hazards at Work

As a subject of struggle by unions in collective bargaining, the right to refuse was protected as early as the Jellico Agreement of 1893, which covered eight Appalachian mines and was at the time “one of the most advanced agreements of any miners in the country.” It allowed a miner “to refuse to work if he thought the mine was dangerous through failure of the bosses to supply enough support timber.”1 James Grey Pope has called conflicts where workers had unique ideas about their rights constitutional insurgencies.2 Militant strikes by miners in the 1920s clashed with the Kansas Industrial Court, an early U.S. experiment in industrial relations law. Progressive middle-class reformers maintained that “constitutional rights in the economic sphere blocked adaptation to change” and strikes “amounted to ‘industrial warfare’ that should give way to peaceful administration” as fundamental principles “interfered with pragmatic bargaining.”3 The miners disagreed, as did other workers. Quoting Carter Goodrich’s The Miner’s Freedom, these workers were active self-advocates:

They develop informal rules governing such matters as the distribution of coal cars, the ‘proprietary’ rights of the miner to his own space on the seam, and the principle that a man ‘ought to know when he is tired’ and therefore decide for himself when the working day is done…. Violations of the code were adjudicated and punished by co-workers, applying sanctions ranging from sour comments to ostracism and, occasionally, physical assault. At the core of the most successful, pioneering industrial unions were groups of workers with especially strong traditions of informal jurisgenerative practice: Deep shaft miners in the United Mine Workers, tire builders in the United Rubber Workers, and the skilled metal trades in the United Automobile Workers.4

This “effective freedom” originated from a “popular rights consciousness” that was distinct from the prevailing legal norms, labor’s professional legal representation, the business community, and Progressives who sought to advance their own politics.

After the enactment of the U.S. National Labor Relations Act of 1935 (the Wagner Act) and adoption of Wagner Act principles in Canada in the 1940s, the right to refuse unsafe work gained ground as a viable subject of collective bargaining in North America. Collective labor agreements would become the only way to circumvent the strict common laws on the termination of employment that had commodified workers in the United States and Canada. Refusal rights were not effectively enforced before agreements with labor unions and the passage of new labor laws that facilitated collective bargaining.5

By the 1960s and early 1970s, collective bargaining had strengthened the right to refuse in the United States and Canada. Some labor arbitrators—although not all—had stepped back from a “work now, grieve later” standard, often with the aid of explicit contractual language protecting the right to refuse. Just cause termination in labor agreements also altered the common-law rules for terminating employment, affording more protection to workers refusing unsafe work. These trends did not extend the right to refuse to all, but they did protect against liberal discharge norms for millions covered by collective agreements.

How collective bargaining affected the right to refuse unsafe work is seen in the breadth of these protections. In a survey from the early 1970s of 1,724 labor agreements, each covering more than one thousand workers, health and safety was addressed in 93 percent of the agreements. Agreements covering over 1.9 million employees recognized “the right to refuse to work under unsafe conditions or to demand being relieved from the job under such circumstances.” A smaller group of agreements gave the union the authority “to remove a person from the job.”6

Canadian provincial labor law began requiring that collective bargaining agreements include clauses that discipline could only be for just cause.7 Canadian labor arbitrators slowly were becoming more and more comfortable with independently using the language available within a labor agreement to protect a worker’s right to refuse unsafe work:

A more expansive right to refuse unsafe work has been fashioned by arbitrators from several basic elements of the law of collective bargaining…. Arbitrators are empowered to reinstate an employee who has been wrongfully discharged, to award back pay and to substitute a lesser penalty for the one imposed by management. Shaping this legal raw material into an elementary right to refuse was an easy task. Disobeying an order, even an improper one, is generally cause for discipline. An employee must comply with the maxim “work now, grieve later,” because the grievance and arbitration process, not the shop floor, is the preferred forum for dispute resolution. A refusal to perform unsafe work is recognized as an exception to this rule.8

The first published arbitration decision in Canada to recognize the refusal exception to the “work now, grieve later” standard was in 1963 in B.A. Oil Company.9 The leading case after this jurisprudence became Steel Company of Canada in 1974, a case that was cited favorably throughout the 1970s.10 Some Canadian arbitrators at the time adopted an undue imminent hazard standard. More conservative arbitrators used as a yardstick “risks which are normal for a grievor’s workplace” and gave those risks “the arbitrator’s stamp of approval.”11 As Richard Brown noted, with Steel Company and other decisions labor arbitrators exercised more discretion in protecting workers against health and safety discrimination:

Blind acquiescence in risks normally associated with a job is wrong because the production process is largely controlled by management with little input from workers. In addition, the practice of a single employer may fall below industry standards. The Steel Company award recognized the danger of relying exclusively upon management’s judgment and found that a procedure which had been consistently followed by a foreman was not acceptably safe. The grievor had been instructed to use a poker to dislodge debris overhead, but had refused when a falling brick struck his partner’s arm. After the grievor was suspended, the other members of his crew were taken to the roof to complete the task from that location with the aid of extensions on their pokers. The arbitrator’s conclusion that a danger existed was supported by evidence that a safer procedure was possible…and that a minor injury had occurred.12

Such arbitration decisions posed threats to the common law and, therefore, threatened management control of the workplace. Labor arbitration moved the right to refuse toward what could be called a basic “status protection” for workers, where the exercise of the right to refuse could be enjoyed based on the class status of being a worker in an employment relationship. The assessment of risk in Canadian arbitration was interpreted based on an arbitrator’s judgment and not a legislator’s interpretation of hazards at work. Arbitration decisions were imperfect and still focused on the evaluation of the hazard that workers faced before protection against termination was granted, but they represented a new and important trend to protect the right to refuse. Arbitral labor jurisprudence was in one sense becoming a more effective protection of worker refusal rights. This trend was more pronounced in Canada than in the United States, where arbitrator values also continued to treat refusal cases as basic employee insubordination cases.13

Although important, arbitration had its limits. As a general rule, arbitral jurisprudence places the burden of establishing the justification for discipline on the management. In cases of the right to refuse unsafe work at arbitration, however, an employer “need only prove disobedience before an employee is called upon to show that a refusal to work was proper in the circumstances.”14 Rarely was the management called upon to demonstrate that the work was safe for the worker as a justification for an insubordination charge.

By the 1970s, a substantial North American jurisprudence had developed. This jurisprudence, although it did not always protect the right to refuse, at least attested to what could be called a radical consciousness of health and safety held by workers and their organizations. Not bound by a narrow conceptualization of occupational safety and health, worker activists held unique interpretations of safety and attempted to exercise refusal rights while at the same time negotiating for improved workplace governance. Between 1966 and 1975, safety related work stoppages grew by 385 percent in the United States while the overall rate of stoppages increased more slowly, from 14 percent to 38 percent of all work stoppages in the base year of 1966.15 Labor conflict over health and safety was on the rise, and unions were becoming an outlet for environmental health and safety concerns.

Across North America, health and safety emerged a top issue in collective bargaining as labor inspectorates were failing in their mission to protect workers from hazards. Unions chided the U.S. health and safety inspectorate for “attitudes that show a priority compassion for the problems and inconveniences of management.”16 One OSHA official responded positively to displeasure from labor and management. “Since the criticism of the OSHA program is about equal from all sides,” he said, “we are probably steering a right course toward accomplishing the objectives of the act.”17

A team of labor researchers observed that this odd reaction from early OSHA leaders implied “the [OSHA] mission is to find a middle ground in an area of class conflict, rather than to achieve a working environment free from recognized hazards.”18

Even as OSHA came into force in the United States in 1971, union collective bargaining provided the only effective means by which workers held a voice in their working environment. It was thought that OSHA would protect workers better than decentralized collective bargaining, but even though the new agency did raise the profile of safety and health, which was at times helpful in bargaining, it was quickly disappointing for labor. It would take no longer than the first OSHA labor complaint to shatter any illusions.

Allied Chemical employed two hundred members of Local Union 3-586 of the Oil, Chemical and Atomic Workers at a plant in Moundsville, West Virginia. Charges of widespread mercury contamination, including mercury seeping through the cracked floors, were forwarded to state health officials after plant managers refused to meet a union health and safety committee to discuss the problem. Inspectors from the West Virginia Department of Health confirmed the contamination in February 1971 and in March a Walsh-Healy federal contractor health inspection also justified the workers’ concerns. Allied Chemical openly contested the findings. One month after OSHA became law, the Oil, Chemical and Atomic Workers acted on behalf of their local affiliate and made history with the first OSHA complaint.

The OSHA inspection failed to order the immediate abatement of the mercury contamination. The Labor Department ruled that health hazards were ...

Table of contents

• Acknowledgments
• List of Abbreviations
• Introduction
• 1. Human Rights and the Struggle to Define Hazards
• 2. Theoretical Perspectives on Individual Employment Rights
• 3. The Right to Refuse in International Labor Law
• 4. How Effective Are Convention 155 Refusal Rights?
• 5. Ideological Origins of the Global Framework
• 6. Negotiating “Safe” Rights versus Seeking Social Justice
• Conclusion
• Notes
• Bibliography