4. Critique of State Action

State factory legislation and enforcement gradually came under close scrutiny from historians, social scientists, and even state legislatures. They traced the origins of workers' safety and health laws and the history of factory inspection, and evaluated the system that had developed. Some looked closely at one state, while others surveyed the national picture. They published extensively. Some of their criticisms were very specific and limited. Some were broad and sweeping. Critics conceded that it was very difficult to gauge one state's laws or enforcement against another's because of the wide differences in conditions, and harder still to measure beneficial effects on working conditions. They often disagreed in their evaluation of state laws and enforcement efforts. By highlighting the general problems and particular failings of state regulation of workers' safety and health, they strongly influenced the system and laid the groundwork for major changes in it.

The critics revealed a multitude of problems and unanswered questions regarding factory legislation. The historian of Maine's factory laws found that the 1893 inspection law had given the inspectors the additional and completely irrelevant duty of enforcing certain safety requirements in school buildings — "one of those mistakes which result from poor drafting of legislation.84 A much later critic wrote in 1976 about problems in Missouri's inspection laws that must have been apparent when they first took effect. There was a serious fragmentation of coverage, with separate laws for railroad workers, trolley operators, bakeries, tenement workshops and mines. This was a problem in many other states, and it was compounded in Missouri by the failure of the legislature to provide adequate funds or to indicate clearly which government body was to enforce a particular law.85 Leonard Hatch, writing in 1911, criticized the vagueness of many factory laws. He noted with disapproval that "The most common provision for ... power driven machinery, the principal... source of factory accidents... is the single declaration ... that such machinery 'shall be guarded.’”86 In a 1911 article on "Legal Protection from Injurious Dusts," insurance statistician Frederick L. Hoffman pointed out that, although dust is the most insidious industrial health hazard, laws on dust control and ventilation were generally ineffective. They covered only the most obvious hazards, without setting specific minimum requirements for air purity and so on. Hoffman argued that "drastic legal requirements" were badly needed.87 On this matter of specificity, a special study done on Massachusetts noted that there were two schools of thought. There were those who favored very specific and precise safety and health requirements. They argued that inspectors needed fixed standards in the law for effective enforcement. Others favored generally worded flexible laws. These latter claimed that an inspector with flexible rules could obtain a higher level of performance.88

One of the greatest concerns of students of occupational safety and health regulation was the degree of variability between states. After noting the similarities and dissimilarities between states' factory laws, Leonard Hatch found problems with both aspects. He found it curious that, despite the fact that many industrial dangers were widespread, there was great variability in coverage. Pennsylvania, for example, had a law requiring the covering of shaft holes in floors, yet neighbor state Ohio had no such requirement. On the other hand, there were many provisions which appeared in almost identical words in different states' laws, such as the "striking uniformity" with which various states began their lists of dangers to be guarded with "vats and pans." Hatch believed that states sometimes copied each others' laws verbatim, in order to at least give the appearance of doing something for safety. Hatch concluded pessimistically that safety laws bore no "evidence of having been formulated in the basis of careful study" and that the trend in factory legislation was "toward the simple propagation of early forms and not toward progressive development."89

Most commentators recognized the drawbacks of the lack of uniformity between states, but balked at handling the problem at the federal level. J. Lynn Barnard noted that with the states rather than the federal government in control the more progressive states could move at a faster pace, but it made the whole problem harder because "there are forty five battles to fight instead of one." The Massachusetts study mentioned earlier noted that the expense of providing a safe and healthful place to work would not be shared equally among all employers until all the states had uniform legislation. Lower standards for competitors outside a given state such as Massachusetts encouraged firms inside the state to resist legislative improvements. There was a movement among employers around 1905 for a national safety law. The Factory Inspector journal considered this an unwise idea because, "that which might apply with the best results in Maine would perhaps be a grave injustice in California" as well as possibly infringing on states' rights. Local inspectors would understand local problems and conditions better than would federal agents. At the same time, the journal argued that state laws should be fairly uniform and that the states should be aware of what each other were doing.90

In a study of the labor laws of Connecticut, Alba Edwards noted that, in general, state labor legislation was frequently inadequate to deal with the existing conditions and was usually delayed until well after the initial need arose. The growth of protective legislation lagged the development of the industrial system, Edwards argued, because of deep rooted social conservatism: "the people clung to their old laws after they had adopted a new system of production." When new laws were passed, they were often marred by carryovers from the past. For example, Edwards noted that frequently the authority to enforce laws was divided and delegated to local officials, following a tradition from colonial times. As a result of this social conservatism, new laws were "wholly inadequate to meet the new conditions."91

Two of the principal critics, and probably the two most influential figures in the early development of government regulation of job safety and health, were John R. Commons and John B. Andrews. Commons taught economics at the University of Wisconsin and was a state labor official. Andrews was secretary of the American Association for Labor Legislation and investigated occupational hazards. Both men were active throughout the early — l900s. They summarized their criticisms and recommendations in Principles of Labor Legislation, which they coauthored in 1916.

Commons and Andrews provided a rationale for legislation to prevent casualties in the workplace and categorized such laws into three classes: reporting, prohibition, and regulation. Reporting of accidents and illnesses was essential as a basis for effective legislation. Prohibition was a clear cut but drastic way to deal with dangers in the workplace, either by banning a hazardous substance or process, or limiting the employment of what were considered susceptible groups, such as women and children, in dangerous situations. They felt that this method was appropriate only under "severe provocation." Since most people were not willing to give up certain dangerous machines and processes that were essential parts of the industrial system, it was more practical, Commons and Andrews recognized, to use the method of regulation, based on the idea of toleration of hazards up to certain limits. While employers had a recognized duty to provide protections for their workers, they were not all equally responsive to this obligation, hence the need for public authority to assure that protections will be provided.92

There were four main flaws in state labor legislation, including that on occupational safety and health, according to Commons and Andrews: incompleteness, absence of well defined standards, absence of direct responsibility, and the lack of responsiveness to change. Many laws were incomplete because they narrowed down too specifically the hazards and industries to be covered, and left the rest alone. The authors of Principles of Labor Legislation give the example of a law in one state that required that poisonous fumes generated in a manufacturing process be removed from a work area. The law did not apply to maintenance during "down time," however, and two men varnishing inside brewery vats died from fumes that accumulated there. Often because of a lack of knowledge, legislators would set only vague requirements such as having machinery "sufficiently guarded," and left it up to the inspector to use his discretion on enforcement. Many laws placed no duty on employers to provide protection or take any measures until they were inspected and ordered to do so. When detailed standards were set by a legislature, changing conditions and technology often quickly rendered the rule obsolete. "The impracticability of embodying in statute law specific danger points and specific remedies became clear."93

Laws on reporting accidents were far from satisfactory, in the judgment of Commons and Andrews. A number of states enacted such laws early on, but because of lax enforcement and lack of cooperation, the results were not good. Often companies did not want accidents publicized. Prosecution of offenders was rare, and penalties even rarer. Reporting laws and enforcement improved over the years and spread to more states, but there were wide variations. A key item, such as the definition of a disability meant vastly different things in different areas, ranging from only fatalities to all injuries resulting in as little lost time as two work days.94

Commons and Andrews surveyed the body of labor laws that regulated safety and health hazards, and found much to criticize. They noted that ventilation of factory air was one of the most widely recognized needs and one of the most frequently covered in legislation. There were laws on it in half the states, but they were all vaguely worded until 1909 when Illinois set exact amounts of fresh air to be provided under various circumstances. Lighting had long been a neglected part of working conditions. Artificial lighting in most factories was "notoriously bad," yet few states had laws on it, and those laws were vague and useless. Few states regulated temperature or humidity either, even though these were recognized hazards.95

Enforcement of factory laws was criticized even more severely than the laws themselves. Some of the shortcomings in enforcement followed from legislation; others were the fault of the enforcing officials. Some of the critics, such as John B. Andrews and Dr. George Price, looked at the national picture; most focused on individual states.

Expectations exceeded performance in most states with factory inspection. Barnard's study of Pennsylvania's inspection program deplored the state's failure to assume "her rightful place of leadership in this splendid experiment in... social politics." Although the Pennsylvania factory act gave inspectors the power to freely enter workplaces at any time, Barnard charged that some deputies failed to exercise this power effectively when employers resisted them. Further, he charged that machine guarding, "the very heart" of factory inspection, was neglected because of incompetence and political influence. Barnard said of the state's inspectors that "the sort of machinery with which they have the best working knowledge is that of their respective wards and voting precincts."96 In Connecticut, the law required that when inspectors found a violation they were to file a complaint with the state attorney. This made enforcement a "dead letter," in the opinion of political scientist Alba Edwards, because, as often happens with such divided authority, neither officer took responsibility for enforcing the factory inspectors' orders.97 The 1911 Massachusetts study deplored the fact that in that state, an inspector could only enter a workplace in response to a specific complaint from a worker.98 In Wisconsin, a later study revealed that in the early 1900s, employers felt that inspectors had too much latitude in specifying methods of abating hazards and took advantage of loose phrases in the laws, such as "where the inspector considers it necessary."99

Expectations were particularly high in Massachusetts, whose industrial safety and health laws were considered by many the best in the country. However, its inspection system lagged behind those of some states and by 1910 it had developed serious problems from divided effort. In that year the state legislature established a special "Commission to Investigate the Inspection of Factories, Workshops, Mercantile Establishments and Other Buildings." The commission was to determine if inspections were being done properly, see if there was any duplication of effort by the different agencies involved, and recommend needed changes in inspection laws. After it got organized, the commission decided to limit its work to industrial inspections. They held hearings around the state, heard from a variety of witnesses, and journeyed to New York, Wisconsin and other states to study their systems. The focus of the investigation was on the district police inspectors, who were the primary enforcers of safety and health laws, and the state health board, which was responsible for industrial health inspections.100

A specialized factory inspection service was not created in Massachusetts by the factory law of 1877. However, in 1879 the governor was authorized to appoint local police inspectors and by 1888 an inspection department was established in each police district to ensure enforcement of labor laws, including safety and health. By 1910 there were 15 police (factory) inspectors around the state. The duties of these inspectors were to see that workers were protected from unguarded machinery, investigate accidents, inspect elevators and see that legally required safeguards were provided. When an inspector found a violation, he usually gave the employer an oral order to comply. He would follow this up with a written order and he was supposed to return to see that the employer had complied. Employers could appeal to have an order overturned, but otherwise they had to pay a fine.101

While the factory inspectors had some responsibility for health matters, such as approving ventilation, lighting and sanitation measures in new industrial buildings, the state board of health was more directly involved. The board's industrial health duties included enforcing laws on cleanliness, ventilation and lighting in factories, seeing that dust and gas removal equipment was installed where required, seeing that heat and humidity in textile mills were not excessive, and collecting information on working conditions. The health inspectors were hampered because they could not directly order changes in a workplace but had to go through the factory inspectors. The health board did have the power to exclude the hiring of minors under 18 years of age from trades, which it considered unhealthy for young workers.102

The main problem associated with the factory inspectors was a two fold, one involving personnel. Many people, including the inspectors themselves, complained there were not enough inspectors to adequately cover their districts. In most states there was a rule of thumb that each workplace should be inspected at least once a year, but Massachusetts inspectors were often unable to meet that minimum. One inspector protested that it took him two years to "make the rounds," which he considered inadequate to keep employers informed of their legal requirements. In addition, many felt that the qualifications of those hired as inspectors were too low. One critic urged the appointment of inspectors from the working classes with practical training and understanding of the workplace and the problems of working people. Another criticized the practice of giving preference in hiring to aged Civil War veterans.103

There were many other problems. Inspectors did not have complete, up‑to-date lists of the factories in their districts. While they did try to inspect each workplace in their district once before repeating, there was no set inspection route, and inspectors were constantly being diverted for investigations of emergency situations and for other reasons. In 1908, factory inspectors were given the added duty of checking the growing numbers of movie theaters. This related primarily to public safety and caused a serious diversion of manpower from job safety inspections. There was little coordination between factory inspectors within a district. One inspector, when asked by the investigating commission how they divided the work in his district, responded, "There is no division that I know of." While records were kept of all inspections, these were never analyzed or used to develop statistics. Workers protested that, whereas formerly they could complain directly to the inspector about safety hazards in their plants, now there was too much "red tape." They had to write to the chief district inspector, and wait for the matter to come to the attention of a regular inspector.104

There were also problems that related mainly to the Massachusetts health board inspectors. The investigating commission estimated that the board, which was responsible for many aspects of public health, spent only about one fifth of its inspection time on industrial health. Further, its inspectors had to spend about a third of their time on clerical work. Many of the health inspectors were physicians and, partly because of the low pay for inspectors, took time off to maintain their medical practices. Of the small portion of staff time devoted to industrial inspections, most of that was taken up with collecting data on hygiene for the state board.105

The commission concluded that the basic problem with the whole system of factory safety and health inspection in Massachusetts was the lack of coordination and cooperation between the district police inspectors and the state board of health. In the first place, there was no clear definition of powers and responsibilities, although the police inspectors and health board maintained that their duties were clear to them. There was no direct communicating between the two groups. In fact, they were ordered not to communicate. There was supposedly an understanding between them that whenever an inspector from one group found a violation of laws which the other group enforced, his office was supposed to notify them. The commission found it "impossible to determine" to what extent this was practiced. This lack of cooperation was inevitable. It was only human nature, the commission maintained, that whenever two groups of men were assigned to the same general field of work the result must be "either friction, jealousy and antagonism, or absolute mutual aloofness." The commission concluded that the police inspectors and the health board "go their separate ways without assisting each other at all in the enforcement of the laws.”106

One of the strongest blasts against factory inspection in the U.S. was delivered in 1919 by Dr. George Price, who for many years had been one of the leading investigators in industrial hygiene. In the first place, Price wrote, "factory inspection has always lagged behind labor legislation." Only after legislators saw that enactment of factory acts alone was insufficient did they provide for inspection. Price believed that the inspection of factories emulated enforcement of earlier laws on woman and child labor. This was an unfortunate choice of models, in Price's opinion, because these laws were relatively simple to enforce. Unlike inspecting for hazards to safety or health, it took no special knowledge of industrial conditions or great expertise to ascertain whether there were underage workers or women or children working at prohibited occupations. Factory inspection also suffered from poor organization, inadequate definition of scope and functions, limited enforcement powers, low quality of leadership, a poorly trained inspection force, and political influence.107

The low quality of most factory inspection systems, Price charged, had led to "disregard and contempt ... among workers and employers." In investigations in 1911 and 1912, Price reported, businessmen repeatedly told him how little they trusted and how they looked down on inspectors. One employer told him that the factory inspector in general is "an absolute ignoramus" who could not "distinguish a belt shifter from a steam pipe ... His criticisms are often foolish and his recommendations ridiculous." Price had close contacts with labor unions and he asserted that workers were well aware of "the incompetence of the average factory inspector, his lack of knowledge and experience and the absence of zeal and enthusiasm for his work."108

Price's harsh judgment was that in the U.S. "factory inspection is not a profession." Whereas European inspectors were highly trained, their American counterparts were recruited from an inferior group of unqualified applicants. This was so not because of a lack of capable people, but because the job was not a desirable one. Pay was low and there was no state that provided a pension for inspectors. Tenure was uncertain and heavily dependent on the wishes of politically appointed chief inspectors. Since they were political posts, the chief inspectors changed frequently, which added to the insecurity of the inspection staffs and prevented continuity of policies.109

A more temperate analysis by John and Irene Andrews in 1911 focused on factory legislation and the difficulties it created for inspectors. "The best intentioned law for the protection of... factory workers," they wrote, "may be worse than disappointing unless it can be easily and effectively enforced." They noted that while there had been much criticism of the quality of enforcement by factory inspectors, the question was seldom raised as to whether the laws were formulated in a way that allowed them to be easily enforced. Frequently in the past, they observed, labor laws had been "hastily drafted and as hurriedly enacted into law." Because of lack of expertise and failure to carefully consider all problems and facets, labor laws were generally "confused, indefinite and full of loopholes."110

The Andrews distinguished three types of factory legislation. The first type set very general safety and health requirements and left it up to the inspector to decide whether or not they applied in a given situation. Acts of the second type narrowed the range of inspectors' discretion, limiting him to determining measures employers should take to meet the legal requirement that they provide machine guarding, dust removal, and so on. A third type, which was fairly rare in 1911, specified the exact procedures an employer had to use to come into compliance with the law.111

The second type of law was predominant, and there were many problems in enforcing it. It was up to the inspector to decide what protective measures were "suitable" or "reasonable" or "practicable." Therefore, rather than take some step that the inspector might reject, employers frequently did nothing until the inspector showed up at their door and issued his orders. The Andrews argued that this procedure of "securing protection by convincing employers one by one, until the state is covered" was too time consuming. They gave the example of laws on poisonous gases and fumes, which have no more definite directions that that harmful agents should be removed "if necessary" or “so far as practicable." Some required that a mechanical device be used, but did not say what kind. The other laws did not even go this far. Such indefinite laws allowed great variation not only between states, but also within a state, since different inspectors in the same state were free to require different measures, with widely varying costs, to comply with the same rule.112