COMMENT Unions' Right to Information About Occupational Health Hazards Under the National Labor Relations Act* Michelle C. Mentzert Recent union efforts to gain disclosure of the identity of workplace chemicals under the NLRA section 8(a)(5) duty to supply information have been met with a number of employer defenses, including trade se- crecy. After a criticalanalysis of a trilogy of recent Boardopinions in this area, the authorproposes first, that health hazardinformation be consid- eredpresumptively relevant to unions' representationalfunctions,and sec- ond, that employers be requiredthoroughly to substantiateclaims of trade secrecy before unions are required to bargain over methods of disclosure to protect that secrecy. The identity of chemicals to which workers are exposed should always be obtainablein some manner or another. I INTRODUCTION A. The Importance of Being Informed The issue of workers' right to know about occupational health hazards has received much legislative' and administrative2 attention in * The author wishes to thank Professor Jan Vetter and Larry Drapkin for their advice and assistance in the preparation of this comment. t J.D., 1984, University of California (Berkeley), B.A., 1977, Wesleyan University. 1. At least seven state legislatures have passed some form of worker right-to-know law since 1980: California, CAL. LAB. CODE §§ 6360-6399.9 (West 1982); Connecticut, CONN. GEN. STAT. ANN. § 31-40c (West 1972); Maine, ME. REV. STAT. ANN. tit. 26, § 1701-1707 (1974); Michi- gan, MICH. COMp. LAWS ANN. § 408.1011 (1967); New York, N.Y. LAB. LAW § 875-883 (McKin- ney 1977); West Virginia, W. VA. CODE § 21-3-18 (1982); Wisconsin, WIs. STAT. ANN. § 101.58 (West 1973). Other state and municipal governments have considered or are considering the en- actment of worker right-to-know legislation. 2. See Occupational Safety and Health Administration (OSHA) Rule on Access to Em- ployee Exposure and Medical Records, 29 C.F.R. § 1910.20 (1982), revision proposed, 47 Fed. Reg. 30,420 (1982); OSHA Proposed Rule on Hazard Identification, 46 Fed. Reg. 4412-53 (1981), with- drawn, 46 Fed. Reg. 12,020 (1981); OSHA Proposed Rule on Hazard Communication, 47 Fed. Reg. 12,092 (1982). 248 INDUSTRIAL RELATIONS LAW JOURNAL [Vol. 5:247 recent years, and is currently being explored within the framework of collective bargaining under the National Labor Relations Act (NLRA).3 This comment focuses on recent union efforts to bring health and safety information within the terms of the section 8(a)(5) duty to bargain in good faith 4-specifically, the duty to supply information. The right to know about occupational health risks has become a major point of concern for several reasons. Access to information is crucial, first, because health hazards are frequently invisible. Many toxic substances have no sensory characteristics signalling their lethal effects, and diseases resulting from exposure often carry no immediate symptoms and have long latency periods.' Moreover, many occupa- tional diseases create clinical symptoms indistinguishable from the or- dinary diseases of life,6 making it difficult for a physician to recognize and effectively treat them.' While some diseases have been linked to specific occupational exposures,8 many more are not recognized as such, since a lack of knowledge of what substances workers are exposed to makes it difficult to discover cause-effect relationships.' Personal autonomy-the worker's interest in making free and in- formed decisions in an area of vital personal concern-provides a sec- ond reason for informing workers about the inherent risks of their 3. 29 U.S.C. §§ 151-169 (1976). 4. Section 8(a)(5), 29 U.S.C. § 158(a)(5) (1976), provides: It shall be an unfair labor practice for an employer. to refuse to bargain collec- tively with the representatives of his employees... Section 8(d), 29 U.S.C. 158(d) (1976), provides: For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment... 5. See N. ASHFORD, CRISIS IN THE WORKPLACE: OCCUPATIONAL DISEASE AND INJURY 77-80, 411-13 (1976); W. LOWRANCE, OF ACCEPTABLE RISK 69 (1976) (latency tables for some known human carcinogens). 6. U.S. DEP'T OF LABOR, AN INTERIM REPORT TO CONGRESS ON OCCUPATIONAL DISEASES 68 (1980) [hereinafter cited as DOL INTERIM REPORT]. See OSHA Proposed Rule on Hazard Communication, supra note 2, at 12,094. 7. See PROCEEDINGS OF THE INTERDEPARTMENTAL WORKERS' COMPENSATION TASK FORCE CONFERENCE ON OCCUPATIONAL DISEASE AND WORKERS' COMPENSATION, 94TH CONG., 2D SESS. 399 (Appendix C) (Comm. Print 1976) (statement of Dr. Thomas Mancuso, Professor of occupational health, University of Pittsburgh); OSHA Proposed Rule on Hazard Communication, supra note 2, at 12,094. 8. Among the most well-recognized cases of occupational disease are asbestosis and the lung cancer mesothelioma resulting from inhalation of asbestos fibers; the liver cancer angi- osarcoma from exposure to vinyl chloride; pneumoconiosis (black lung) from inhalation of coal dust; the lung disease silicosis from inhalation of silica dust; and byssinosis (brown lung) from inhalation of cotton dust. See ASHFORD, supra note 5, at 75-80. 9. See OSHA Proposed Rule on Hazard Communication, supra note 2, at 12,094. 1983] UNIONS' RIGHT TO INFORMATION jobs.'" Without full knowledge of these risks, workers cannot be said to have accepted them voluntarily or to have knowingly undertaken them in exchange for higher compensation." Furthermore, workers may fail to follow precautionary measures if they are unaware of the magnitude 2 of the risk involved in exposure.' The absence of knowledge about risks also creates an economic unfairness to the worker and his or her family who, under the current workers' compensation system, carry most of the economic burden of occupational disease.' 3 The U.S. Department of Labor estimates that only five percent of employees severely disabled by occupational dis- ease receive workers' compensation, and those who do receive only about one-eighth of their lost wages. 4 Of course, workers' compensa- tion provides no recompense for the intangible costs of pain, suffering and a shortened life.' 5 This economic unfairness to the worker means that the employers do not bear the full social costs, or externalities, of their activities. They have correspondingly little economic incentive to reduce health risks and a positive incentive to prevent the release of information that would show that an injury was job-related.' 6 On the other hand, where risks are known to workers, the exaction of extra compensation for fac- ing those risks creates an incentive for employers to make expenditures to abate them.' Finally, the lack of exposure information makes it difficult for col- lective bargaining representatives to bargain intelligently about health and safety issues--to make demands in this area or to trade them off 10. Note, Occupational Health Riyks and the Worker's Right to Know, 90 YALE L.J. 1792, 1799-1801 (1981) [hereinafter referred to as Yale Note], 11. Id at 1801-02. 12. OSHA Rule on Access to Employee Exposure and Medical Records (supplementary in- formation), 45 Fed. Reg. 35,212, 35,214 (1980). 13. Some reasons for the undercompensation of this system include: the difficulty of recog- nizing and reporting a disease as occupationally caused; the legal problems of proving causation even where it is statistically well-established; and generally low awards under workers' compensa- tion statutes. See ASHFORD, supra note 5, at 411-16; D. BERMAN, DEATH ON THE JOB 67-69 (1978). 14. DOL INTERIM REPORT, supra note 6, at 3-4 (1980). 15. See, e.g., N.Y. WORK. COMp. LAW § 14 (McKinney 1965); CAL. LAB. CODE §§ 4451-4855 (West 1971); ILL. ANN. STAT. ch. 48, §§ 172.42-.43 (Smith-Hurd 1969). 16. See ASHFORD, supra note 5, at 408, 417. 17. Yale Note, supra note 10, at 1802, citing recent studies finding that where workers are aware of the risks of their jobs, market forces do lead to higher wages in risky professions. The studies cited are Nichols & Zeckhauser, Government Comes to the Workplace.- An Assessment of OSHA, PUB. INTEREST, Fall 1977, at 43; M. BAILEY, REDUCING RISKS TO LIFE 35-47 (1980); R. SMITH, THE OCCUPATIONAL SAFETY AND HEALTH ACT 28-30 (1976). Together with economists, courts have long spoken of a connection between risks and wages. See Farwell v. Boston & W. R.R. Co., 45 Mass. (6 Met.) 49, 57 (1842) (a servant "takes upon himself the nature and ordinary risks and perils incident to the performance of such services, and in legal presumption, the compensation is adjusted accordingly"). 250 INDUSTRIAL RELATIONS LAW JOURNAL [Vol. 5:247 for other benefits.'" Unions cannot assess the adequacy of an em- ployer's preventive measures without knowing the nature of the sub- stances to which employees are exposed. 9 B. Protection versus Empowerment Problems of the workplace have traditionally been approached in one of two ways. The Fair Labor Standards Act of 193820 is an exam- ple of legislation designed toprotect the worker: it forbids certain em- ployment practices (e.g., child labor) and sets minimum standards of conduct for employers (e.g., minimum wages and maximum hours).2 ' The National Labor Relations Act of 1935,22 on the other hand, was designed to empower workers by creating a set of legal rights to better enable them to negotiate collectively for their own terms and condi- tions of employment. The problem of health and safety in the workplace has been ap- proached in both of these ways. Under the empowerment approach of the NLRA, health and safety are considered "conditions of employ- ment" and thus they constitute a mandatory subject of bargaining.2 3 The Occupational Safety and Health Act, on the other hand, is primar- ily protective in nature.