*2
еes,
refusing
per-
to
Jimmy
Simpson,
D.
for
RONEY,
WISDOM,
and
Before
CLARK
rea-
task “under
which
form a
conditions
Judges.
him
there
caused
to conclude
sonably
Circuit
of death
a real and
was
immediate
CLARK,
Judge:
Circuit
CHARLES
injury
performed
to
if he
or serious
him
of
660(c)(2)1
the
work,”2
that,
to 29
assigned
Simpson’s
Pursuant
U.S.C.
since
§
Health Act of
Safety and
to work
conditions
Occupational
refusal
under these
seq.,
651 et
id.
(1976),3
by
the United States
1977.12
protected
C.F.R.
§§
§
660(c)(1)4
filed a com-
(Secretary)
of Labor
Daniel violated
U.S.C.
which
Secretary
§
of
of
alleging
employer’s discharge
any
an
proscribes
in the district court
plaint
potential
workplace.
unsafe conditions at the
660(c)(2) provides:
§
1. 29 U.S.C.
Hazardous conditions
be violative
which
Any employee
has been
who believes that he
by
ordinarily
the
of the Act will
employer,
corrected
be
discharged
or
discriminated
otherwise
brought
once
If
to his attention.
by any
against
person
of
[29
violation
accomplished,
corrections are
if there
not
or
thirty days
660(c)(1)] may, within
§
U.S.C.
hazard,
dispute about
the existence of a
occurs,
complaint
file a
after such violation
employee
normally
opportunity
the
will
have
Sеcretary alleging such
with the
discrimina-
request inspection
workplace pursu-
of the
Upon
complaint,
receipt of such
the
tion.
8(f)
Act,
ant to section
of the
or to seek
investigation to
shall cause such
be
public agencies
of
assistance
other
appropriate.
upon
he
made as
investigation,
deems
If
such
responsibility
have
in the field of
determines that
circumstances,
health. Under
fore,
there-
such
660(c)(1)]
provisions of
§
U.S.C.
have
[29
ordinarily
an
be in
would not
violated,
bring
any
he
an action in
been
shall
taking
11(c) by
violation of
section
action
appropriate
States district
United
court
discipline
per-
employee
refusing
for
person.
any
against such
such action the
In
job
alleged
form normal
activities because of
juris-
States
courts shall have
United
district
safety or health hazards.
diction, for cause shown to restrain viola-
However,
(2)
might arise
occasions
when
660(c)(1)]
order
tions
all
[29
U.S.C.
employee
is confronted with a choice be-
rehiring
appropriate
including
relief
or rein-
performing assigned
not
tasks or sub-
tween
posi-
employee
of the
former
statement
tо his
jecting
injury
himself to
or death
serious
pay.
back
tion with
arising
from a
condition at
hazardous
precise
2. The
facts
were not
occurrence
workplace.
employee,
reason-
If
with no
court,
before the district
we decline
alternative,
good
ex-
able
pose
refuses in
faith to
consider them for the first time here.
condition,
dangerous
himself to
he
protected against subsequent
dis-
would
(1976) provides:
29 C.F.R.
1977.12
causing
crimination. The
ployee’s
the em-
condition
(a)
employees
protecting
In addition to
apprehension
injury
or
of death
complaints,
proceedings,
file
who
testify
institute
or
such
must be of
a nature that a reasonable
proceedings
under or related to the
person, under the circumstances then con-
11(c)
employees
protects
section
also
fronting
employee,
would conclude
occurring
from discrimination
because
there is a real
of death or serious
any right
by
exercise “of
this Act.”
afforded
time,
injury
due
and that
is insufficient
there
rights
explicitly provided
Certain
Act;
are
situation,
urgency
eliminate
example,
right
partici-
for
there is
danger through
regular
statuto-
resort
pate
party
proceedings
as a
10).
in enforcement
addition,
ry enforcement channels.
(sec.
rights
by
Certain other
exist
neces-
circumstances,
employee, where
such
sary implication.
example, employees
For
sought
possible, must also
from his em-
may request
Occupa-
information from the
obtain,
ployer, and been
a correc-
unable to
Safety
Administration;
tional
and Health
dangerous
tion of
condition.
requests
such
would constitute the exercise
660(c)(1) provides:
4. 29 U.S.C.
Likewise,
by
aof
afforded
the Act.
person
discharge
any
employees
by agents
shall
or in
manner
interviewed
of the Sec-
No
retary
against
employee
inspections
any
because
course of
or investi-
discriminate
employee
any complaint
gations
subsequently
could
or
be discrimi-
such
has filed
any pro-
against
cooperation.
nated
their
instituted or caused to be instituted
because of
(1)
hand,
(b)
ceeding
or has
On
other
review of
Act
under
related to [OSHA]
legislative history
testify
and examination
dis-
or is about to
such
testified
proceeding
that,
matter,
general
as a
there is
the exerсise
closes
no
because of
others
afforded
the Act which would entitle
such
on behalf of himself or
any right
by [OSHA],
employees to
afforded
walk off the
because of
rights
which are the
to request inspections
right af-
exercising any
its
employees
The district court
workplace
forded under OSHA.
and to seek mandamus
legal
no
basis
provided
found that OSHA
relief
when he arbi-
of 29
Secretary’s interpretation
trarily
injunctive
fails to
relief to
660(c)(1)
protecting
dangerous
abate
To ensure
conditions.5
work in the face
hazard-
ee’s refusal to
will not be intimidated or
*3
complaint
and dismissed the
ous conditions
deterred from exercising
express
their
12(b)(6)
Procedure
under Federal Rule Civil
660(c)(1)
id.
rights,
§
upon
for failure to state a claim
may
ees
file a complaint
Secretary
with the
Secretary’s
relief
The
granted.
could be
alleging
employer
that their
has discharged
We affirm.
appeal timely followed.
or otherwise discriminated
them for
exercising any right afforded under the
Congress adopted
Occupational
Safe
Act.
(OSHA)
of 1970
“to
ty and Health Act
every working man
possible
assure so far as
Secretary
has interprеted section
and woman in the Nation safe and health
660(c)(1)
protect
employees
the exer-
working
preserve
ful
conditions and
our
cise of rights
by necessary impli-
that exist
in any
affecting
human resources”
business
cation as well as those
that are
rights
ex-
651(b).
interstate
29
commerce.
U.S.C. §
pressly afforded under OSHA. 29 C.F.R.
end,
Secretary
To this
is authorized to
1977.12(a) (1976).
imple-
As a means of
§
and, in limited in
promulgate permanent
menting
interpretation,
stances, emergency safety and health stan
has determined that
implicitly
OSHA
af-
(standards) applicable
dards
to the work
employees
fords
to refuse to work
655;
place, id.
see Florida Peach Growers
§
“under
.
.
. circumstances then con-
Department
Ass’n v. United States
of La
fronting
workplace
[at
bor,
(5th
1974),
123-24
F.2d
Cir.
would
him
conclude that
which]
[cause
to]
and to enforce
in appropri
those standards
there
is a real
of death or serious
proceedings.
657-660(a), (b);
ate
Id.
see
§§
injury
time,
and that
there is insufficient
Roofing
OSHRC,
Atlas
v.Co.
518 F.2d
situation,
due to the
elim-
urgency of the
(5th
1974),
995-1000
aff’d,
Cir.
430 U.S.
inate
danger through
regular
resort to
97 S.Ct.
51 L.Ed.2d
(1977).
statutory
enforcement
channels.”
Id.
Employers
charged
are
with
1977.12(b)(2) (1976); see
supra.
§
note 3
“separate
but dependent
responsibilities Our task in the instant case is to determine
with
rights
respect
achieving
safe
validity
of this regulation.
and healthful
conditions
.
. .”
working
The district court
dismissed
Secre-
651(b)(2).
29 U.S.C.
For
em
example,
tary’s complaint under Federal Rule Civil
ployers have affirmative duties to furnish
12(b)(6).
Procedure
appeal
We review this
their employees
“employment
and a
under the “accepted
complaint
rule that a
.
.
.
place
employment
free from
should not be dismissed for failure to state
.
recognized
causing
hazards
.
.
appears beyond
claim unless it
doubt that
physical
or serious
likely
are
to cause death
plaintiff
can
set
prove no
of facts
pro
harm”
with standards
comply
and to
support of his claim which
entitle
would
654(a);
mulgated under the Act.
Id.
see
Gibson,
him to
Conley
relief.”
v.
355 U.S.
OSHRC, (5th
Sheeting
Repair
Ace
&
Co. v.
41, 45-46,
5.
the worker of his
decision. If the
.
.
. .”
under
responsibilities
[the Act]
validity
satisfied, however,
657(g)(2).
pro-
the notice
U.S.C. §
“will be sustained so
regulations
Secretary’s
grounds
vides him with reasonable
to be-
‘reasonably related to the
long
[they
exists,
lieve that an imminent
are]
”
legislation’.
.
enabling
.
purposes of
enter
workplace
OSHA
Service,
Publications
Mourning
Family
v.
to inspect
investigate
premises,
“all
1652, 1661,
356, 369,
Inc.,
411 U.S.
conditions, structures, machines,
pertinent
Thorpe v.
(1973), quoting
'¡H inspector An must upon OSHA conclude 662(c). Employees Id. relief. junctive workplace inspecting federal district petition are entitled to en- prevented through cannot normal against the for a writ of mandamus court procedures requires but immedi- forcement arbitrarily capriciously if he injunctive ate relief and recommend to injunctive requested relief fails to seek (3) that he seek relief. The Sec- 662(d). inspector. Id. OSHA inspector conclude that retary must granting purpose Congress’s apparent (4) federal court. A proceed correct and inspections for workers the find that an federal district court must them to be dangers is to enable imminent exists at the worksite imminent inspectors pri- who adjuncts to OSHA injunctive re- such that immediate requires conducting mary responsibility permit work- point At no does the Act lief. employer’s compliance inspections danger- that a ers to make a determination inferred from This also be premises. and that their ous condition exists fact 657(c) that an the fact that id. § employer’s or their business employment is enti- employee representative authorized be halted their refusal to operations may inspector the OSHA accompany tled Secretary, promulgat- work. Indeed the inspection conducting physical when 1977.12(b), acknowledged has ing regulation that, in the absence of the worksite and following language: this with the OSHA representative, such a of the Act and examination of “[RJeview about safe- employees present must consult that, legislative history discloses as a purpose for the ty and health matters matter, general there is nо afforded *5 A worker’s exercise aiding inspection. by employees the Act which would entitle inspections facilitates on-site rights of these job potential of to walk off the because the enforcement efforts of and thus aids workplace.” unsafe conditions It also assures a inspection forces. OSHA’s 1977.12(b)(1)(1976). We now con- C.F.R. § part on their greater degree of involvement arguments that Secretary’s sider the investigation process in the and serves to right may implied existence of this be them and make more conscious history, and analo- legislative its in the work- practices health conditions and gous case law. place.8 Right B. An Implied Workers that workers Congress While envisioned Refuse to Work When Confronted integral achieving role in the salu- play Dangerous With Conditions healthful tary purpose assuring safe and conditions, working prevent- in relation to Pointing legislative history, to the Act’s ing dangers, expressly imminent that Secretary asserts that it reflects that work- provides part the contours (1) Congress employees desired to enlist Secretary play: (1) They may notify ers private compliance officers аs means of they and that practices those conditions policing the millions of worksites covered present an imminent and believe Act; (2) by employer-employ- informal inspection, (2) an immediate and request ee the most effica- provide communications they provide with infor- conditions; abating cious means of unsafe during investigation. mation Before (3) posi- since are often workers best however, enjoined, four imminent identify tion to discover and hazardous integrated must independent judgments conditions, open and communica- practices (1) The calculus: decision-making employers, their employees, tions between the worker’s Secretary Secretary implement- must conclude are crucial to and goals of the Act. We grounds ing be- the enforcement notice reasonable adopting (2) agree with the danger exists. lieve that an imminent U.S.Admin.News, pp. S.Rep. provision. In an effort to make his bill a new OSHA, employees Congress granted members, sought Repre- that more attractive to House rights important set of sentative achieving ultimately safe and Daniels offered a set of a vitаl role they play floor to his own workplace. committee-ap- amendments at the conditions healthful which,
proved among things, bill other de- which series of events Two principal pay” provisions leted its “strike with consideration of Congress’s during occurred gave employees conclude the Act cause us to immediately inspect grant workers a not intend that OSHA did premises. explanation His to the House for with job when faced to walk off the proposed the amendment with its substitu- work dangerous to be a they believe what revealing: tions is condition. provisions employees losing on pay generally was so misunderstood that Jersey of New Daniels
Representative we drop have decided to it. We have no dealing several bills with sponsored one of provision payment employees who working conditions that safe and healthful want risk to absent themselves from Representatives considered the House of harm; instead, we have this amendment Bill, 1969 and 1970.9 The Daniels during employees subject which enables to a risk reported which was to the house get of harm to into the Labor, con- Committee оn Education making pro- situation Instead of quickly. employ- tained a subsection entitled visions for when their employees absent themselves from the ees to providing workplace, er is not a safe we pay exposed when to substances which had strengthened enforcement harmful potentially toxic or effect when provision try this amendment and min- found or used at certain levels the work- imize the amount that will be appro- place, provided unless their subject to risk of harm. protective equip- labels and priate warning carry ment which allowed them to out their Cong.Rec. (1970), reprinted 38377-78 being work without harmed.10 Opponents Legislative History Steiger 1009. The Bill *6 Daniels labeled this sub- quickly to the Bill right the give employees request did not to the guaranteeing right section as workers inspection workplace. immediate pay,” proved to “strike with a label which bills, In the two the choosing between after the epitaph. be its Two months adopted Steiger the Bill.11 ultimately House committee, reported Daniels Bill was out of occupational safety and health bill ulti- Wisconsin, an Ed- Representative Steiger permitted mately аdopted by the Senate ucation and Labor Committee member who in- request workers to Bill, opposed had the Daniels introduced a premises they when spect employer’s substitute bill on the floor of the House practice believed that a condition or pay” which a “strike with an imminent dan- present did not contain which created 16785, Sess., 19(a)(5) During years, occupa- Cong., these 2 a total of six H.R. 91st 2d 9. (1970), History safety reprinted Legislative in tional and health bills were introduced in 755-56. 843, 3809, 4294, 13373, accompanying report provides H.Rs. 91st The committee’s the House. Cong., 16785, 19200, (1969); explanation provisions. 1st Sess. H.Rs. for the H.R.No. 1291, (1970), reprinted Legis- Cong., (1970), Cong., 2d Sess. 91st 2d 29-30 91st Sess. re- 599, 629, 659, 679, 721, History printed Legislative History lative 763. Of 859-60. these, principal two received the attention of Congress: (Daniels Bill), H.R. 16785 which was (teller vote), Cong.Rec. 11. 116 38723-24 labor, supported by organized and H.R. 19200 (roll votes), (1970), reprinted call (Steiger Bill), mainly by supported which was History adopt- 112-15. When the House Gross, Republicans. generally Bill, See The Occu- Steiger pay” provi- ed the the “strike with Safety pational & Health Act: Much Ado sion had been deleted the Daniels Bill. Loy.Chi.L.J. 247, Something, 3 (1970), reprinted Legis- About 249-51 Cong.Rec. lative
7^3 pay. Whеn the Steiger Bill and the notoriety extent of Wil- ger.12 pay” provision gained “strike with is evi- liams Bill were submitted to the conference by denced the statement of Senator Wil- committee, the House acceded provi- to this Jersey introducing liams of New when sion in the Williams Bill.14 occupational the Senate his principal The second series of events in- reported health bill13 after it had been out volves the legislative evolution of the Act’s apprising of committee. his fellow so- section, danger” “imminent 29 U.S.C. § lons that his bill not contain a did “strike provisions of which were discussed pay” provision, with Senator Williams re- originally reported above. As out of com- marked: mittee, permitted Daniels Bill add, I should also despite some wide- inspectors to issue administrative orders spread contrary, contentions to the which “prohibit[ed] employment the committee bill does not contain a presence individuals on locations or strike-with-pay provision. so-called under conditions where ... an immi- raising possibility Rather than a for end- danger exists, nent except to correct or less disputes employees over whether rеmove it” but which could not remain in were entitled to walk off with full effect for more than days. five A United pay, it was in committee to en- decided States district court in an action compliance hance prospects Secretary was given such means as through giving authority enjoin spe- operations greater lengths business for Department investigation cial Labor The Steiger Bill vested authority time.15 inspection. only courts, upon petition of the Secretary, enjoin imminent dangers at Cong.Rec. (1970), reprinted the workplace.16 As a response to Legislative History Clearly, 416. Sen- Steiger Bill, Representative ate Daniels committee intended that workers be amend- given ed the imminent request inspections section of his bill so employer’s premises only in lieu of provision the courts had the authority to entitling them leave premises with enjoin an employer’s business operations.17 12. Cong., 8(f)(1) (1970), proposing S. 91st 17. When his amendments Legislative History House, Representative 550. Daniels offered the fol- lowing explanation permitting only Cong., (1960), reprint- enjoin United States S. 91st 1st Sess. district courts to an em- Legislative History ployer’s in ed 1. An amended ver- business: reported sion of the Williams Bill was out of provisions While administrative shutdown the Senate Committee on Labor and Public are contained in the laws of 36 States and the Welfare, (1970), S. 2d Sess. Columbia, groups District of business expressed great potential fears about the accompanying report. S.Rep.No. committee They power abuse. believe that the to shut *7 1282, reprinted Legislative History in 141 and plant down a should not be vested in an reprinted U.S.Admin.News, p. in 1970 5177. inspector. fear, While there is no documentation for this 14. H.R.No. 1765, Cong., (1970), 91st 2d Sess. 37 recognize very prevalent. we that it is 1190, Legislative History in and re- capacity respond Courts have shown their to printed U.S.Admin.News, p. in 1970 5234. quickly emergency situations, and we be- availability temporary lieve that of re- 15. H.R. Sess., Cong., 12(a) 91st 2d straining orders will be sufficient to deal with (1970), reprinted emergency situations. Under the Federal accompanying report 955-56. The committee’s procedure, rules of civil these orders can be explanation provision. an for this parte. ex used If the uses the Sess., Cong., (1970), H.R.No. reprinted 91st 2d authority given efficiently that he is and Legislative History 855. Several expeditiously, get he should be able to a minority members, however, expressed their court order within a matter of minutes rather provision. dissatisfaction with this than hours. 38378, reprinted Legislative History Id. H.R. Sess., Cong., (1970), 91st 2d 12§ 1009-10. granted terminate disrupt and their em- an imminent Bill contained The Williams however, operations as a of ployer’s authoriz- business form which
danger provision, Apparently upon receiving the intimidation or harassment. inspector, ed an OSHA believing might attempt also regional La- that workers appropriate an concurrence of official, to unduly inspectors to issue an admin- influence if bor OSHA Department given authority these officials were to restraining employer’s an istrative order restraining 72 issue orders an period up for a to administrative operations business employer’s operations, Congress was to be exercised business authority hours. This authority had courts the sole to gave insufficient federal when the only petition, enjoin, upon Secretary’s a an obtain court-ordered time to seek only employer’s then required business and injunction, review to extent eradicate the imminent procedures necessary to provide appropriate to danger. to obtain immediate re- permit employers inspector’s of an administra- consideration In lieu of workers with the providing When the Williams Bill and tive order.18 right pay,” to with the Senate com- “strike submitted to confer- Bill were Steiger legislation providing mittee em- approved committee, ence receded Senate ployees request to right with the provision inspectors its OSHA to permitting Secretary immediately inspect the employ- orders.19 issue 72-hour administrative premises they er’s when believed balancing gener- imminent exists at the workplace.
“Instead of various workers this experience construing ultimately granting right to alized axioms specific history adopted for the legislation, regard inspections, Congress pro- a that culminated in cedure that workers to legislative process permitted partici- solid pate now before us affords more the enforcement efforts under the Act appropriate meaning.” Yet time in ground giving providing Act. at the same statutory four requiring indepen- v. Universal Credit scheme United States C.I.T. 227, 230, 97 dent the existence vel non of Corp., 344 evaluations of U.S. prior (1952); dangerous see Southern Pacific condition to allegedly L.Ed. 260 Usery, permitting enjoin F.2d Transportation employer’s Co. a court 1976). procedure business it created a (5th operations, Cir. potential prevent would abuse Congress Both considered chambers from the indiscriminate exercise of worker’s work- specific provisions designed afford right unnecessary avoid confronta- rights no rights ers certain whatsoever tions between prac- with conditions or when confronted might disruption cause a the em- danger of tices an imminent presenting ployer’s operations. business injury to workers. While physical death or pay” with before the provision Secretary’s regulation “strike so-called literally applied to condi- court to achieve an end today designed Daniels Bill health consistent the Act. dangerous purposes tions rather than condi- safety, upon employees the wholesale Yet it dangerous expressly tions confers deliberately rejection Congress demonstrates that chose not provision grant inspectors: concern of was its overriding employment might rights prac- fеar that workers abuse the determine in fact that an (1970), danger provision minent of the Williams Bill S. *8 History reprinted Legislative in The and the 56-57, in the Daniels Bill. Id. 561-64. one contained History 195-96, reprinted Legislative accompanying report pro- Senate committee’s U.S.Admin.News, reprinted p. procedure. S.Rep. explanation in 1970 this vides an 152-53, 12-13, 5221. U.S.Admin.News, pp. reprinted in 1970 expressing Wil- 1765, (1970), In his views on the 2d Sess. 40 H.R.No. 19. Bill, Senator Javits of New York was liams re- U.S.Admin.News, im- printed p. to note the distinction between the careful 5236. 1970
715
any
...
proceeding
tified
.
..”
danger of
“a real
presents
condition
tice or
there is
injury and that
the United
Court of
physical
Phillips
Ap
or
States
death
time,
urgency of
due to the
held
peals
insufficient
for the District of Columbia
that
through
situation,
eliminate the
to
provision prohibits
employer
an
29
statutory procedures.”
regular
resort
discharging
employee
an
who had notified
Moreover, by
1977.12(b)(2)(1976).
C.F.R. §
safety
his foreman or authorized
committee
upon
to refuse work
employees
permitting
possible safety
man of
violations
determination,
regula-
such a
making
mine. The court found that the
employer’s
equivalent
authority
them
provides
tion
activity
protected because it
employee’s
was
issuing an
inspector when
that of an OSHA
step
constituted the initial
in an internal
right
stop work order —a
administrative
agreed upon by the em
procedure
review
withheld
deliberately
Congress
also
ployer
employee’s representative
and the
A
abuse
inspectors.20 worker’s
from OSHA
processing employee safety complaints
for
regula-
afforded under
authority
Act.
Safety
under the Coal Mine and
163
cripple
employer’s
an
disrupt
tion could
111-113,
U.S.App.D.C. at
717 time, that there is insufficient due to the dismiss, we the motion to purpose For situation, to would be able to of the eliminate the plaintiff urgency assume that through regular which are resort danger set of facts statuto- following prove addition, alleged the facts enforcement channels. ry the ambit of within circumstances, Company- where employee, Daniel such complaint. Construction possible, sought as an ironworker must also have from his Jimmy Simpson employed obtain, the construc- and been unable to employer, steel in connecting structural dangerous condition.”2 correction of buildings. job required tall The tion of with heavy steel beams fitting place into recognizes a defer- majority properly The windy day Simpson of a crane. One aid review of the ential standard for our Secre- ground. 150 feet above working was However, interpretation of the Act. tary’s strong imperiled wind grew The so spirit of the apply it does not seem to high on the his life. He came down to sustain Supreme injunction Court’s working. had been skeleton where he steel interpretation, “we nеed not find such rest of his crew. A foreman did the So only construction is the reasona- [his] Simp- to work. ordered the crew to return one, or it is the result we ble even was fired. son refused. He arisen question would have reached had judicial proceed- in the first instance in majority’s holding importance Tallman, 1965, ings”. 380 Udall U.S. effect of far this case. The beyond extends 792, 801, 616, 625, 13 L.Ed.2d S.Ct. an anti-social dilem- holding is force quoting Unemployment Aragan, Comm’n v. who face imminent ma on workers 143,153, 245, 250, U.S. occurring of a hazard then and there L.Ed. Brennan v. See Southern have no immediate relief available but to Service, Contractors Cir. F.2d working refuse to continue in an unsafe 498, 501. which the statute place. procedures to correct unsafe condi- expressly provided II. come to the worker’s rescue in tions cannot regulation reasonably This related to immediate dan- exposed time when he is begins Act. The Act purposes of the ger to life or limb. purpose. with this statement regulation question provides: be its pur- “The it to declares “(2) However, arise when might occasions so pose and ... to assure policy with a choice employeе is confronted man working possible every far as assigned tasks or performing between not healthful in the Nation safe and woman injury or subjecting himself to serious preserve our and to working conditions death from a hazardous condition arising human resources.”3 employee, at the If the workplace. Act, 29 11(c)(1) of the Section alternative, good reasonable refuses in no 660(c)(1), specific foundation dangerous expose faith to himself to regulations. for these condition, against protected he would be discharge any or in man- person The condition “No shall subsequent discrimination. any employee ner discriminate causing employee’s apprehension any has filed com- employee nature because such injury death or must be of such a caused to be insti- plaint the cir- or instituted or person, that a reasonable under related to any proceeding under or tuted confronting cumstances then or is about to ee, a real this Act or has testified would conclude that there is or because testify proceeding such injury of death or serious regula- S.D.Ohio, 8, 1976, 1977.12(b) (1976). Div., Corp., This Heekin June 2. 29 C.F.R. Can interрretation C-1-75-43, dismissed, adopted appeal as an No. 76- tion C.A.No. Cir., April (regulation 1977.2 Act. See C.F.R. held inval id). 651(b) (1970). 3. 29 U.S.C. 1977.12(b) was Regulation promulgated employee such on be- exercise reasonably gap. If the to fill any right or others half of himself danger of that he is in imminent believes Act.” by this afforded *11 bodily harm and believes death or serious protect to the mandate Following his inadequate to outlined above procedures a worker, Secretary has filled American may he withdraw prevent danger, that majority As the in the Act. gap dangerous gives This penalty. work without from make a worker to out, Act allows points protection interim employee an essential federal for immediate a written being are fol- statutory while the remedies worker believes whenever inspection limited. The protection This is lowed. The danger. in imminent to be himself employer to cannot order government an whether such must determine and, apparently, changes, make any it is If he finds warranted. inspection is pay to receive is neither entitled worker parties not, complaining notify he must to refuse working, privileged nor while not is, he must wins alternаtive, merely If he finds He writing. safe work. danger. practica- exposure as soon as investigation freedom order determine then must ble. The ways justify two different There are exists. If he whether imminent 11(c)(1). of section interpretation this does, to inform required finds that it he is interpreted as First, can be regulation bring an action in Secretary, may who rights” men- one of the “other embodying injunction. federal district court for an safe conditions 11(c)(1), a tioned mandamus, The use a writ of employee may in the entire law. implicit force the equivalent,4 or its as an Second, can be seen regulation these events take properly. act While enforcement employee part essential of the worker, place, presumably in imminent protected by and envisioned ma- danger, according has no relief It both increases the incen- that section.5 Jimmy Simpson In case would jority. protec- use the Act’s tive for worker to skeleton, required stay high on the that the re- and it ensures tive mechanism handling heavy attempting steel and to bal- during the porting worker will be available himself, strong ance no matter how proceedings. inspеction any later Simi- became, winds or lose his are contained in other labor provisions lar —until injunction. district court issued an A liter- the National Labor legislation, including reading Act,6 al of the statute in this situation Safety Relations the Coal Mine Act,7 late. Title VII of the Civil tragically make its remedies Health 4. The Act mandamus, Danger’ ished in federal Oldham, and placed writ of the enforcement Subcommittee on on Labor and History], Cong. below as 1970 Safety (Comm. Congress, state 91st & Admin.News great and Health Act mandamus, however, Cases, Print O.S.H.A. Cong., aware of the reliance on occupational 1971) Public practice. 60 A.B.A.J. U.S.Admin.News]; H.Rep. of the Act. See May 2d Sess. Labor of Senate Committee [cited specifically Welfare, pp. Not Work in ‘Imminent Sess., 22, employee 852; F.R.Civ.P. 662(d) (1970). below of the shortage 11-12, [1970] has been abol- 92d 5188-89 [cited for a writ of Occupational assistance reprinted in 81(b). inspectors, Legislative at 151-52 Cong., Cong.Rec. S.Rep.No. U.S.Code federal See No. 1st 6. “It shall be an unfair “No Act). Legislative Labor 799-802. Cf. sional intent in Coal has filed way discriminate under this Act.” § lations Operations 104, 110-114, [because . . Occupational discriminate person Lawyеr’s . (remarks charges filed, he] ... History Appeals, 29 U.S.C. § any alleged shall Phillips 500 F.2d instituted . Overview, or otherwise discharge Safety . 8(a)(4), at 1034. See also Rep. v. Interior Board of Mine Mine 1974, . discharge 158(a)(4) (1970). employee labor notified the . violation or and Health Act: 33 Ohio St. L.J. Dent), National Labor Re- Safety against any 778-82 . given practice . U.S.App.D.C. or otherwise reprinted because he and Health . testimony (Congres- [agency] testified danger, . Cohen, miner 788, A No clause in the Act leads to the conclusion given Act of 1964. Courts Rights constructions, fur- broad provisions statutory system these is the exclusive by making purposes Instead, Acts thering remedy: implies the Court enforcement In Scrivener easier. merely congressional unwillingness to di- NLRB, 1972, 92 S.Ct. U.S. rights, these rectly grant congression- but a upheld a Supreme 31 L.Ed.2d Court prohibition al on this use of the provision of the NLRA construction power. My reading legis- Labor’s who made written statements to workers history majori- lative convinces me that the protected by were the board’s examiners ty wrong. “testimony”. spoke only statute pay provision present strike Opera- v. Interior of Mine Board Phillips *12 Bill, reported in the Daniels by the Hоuse U.S.App.D.C. Appeals, tions on Committee Education and and Labor Court, context of 500 F.2d supported strongly by organized The labor. read working arrangement, that particular provision located in dealing the section language protect a miner who similar with federal research on toxicity. pro- It to work The refused for reasons. vided employers that or could employees a com- considered the refusal to work Court request an HEW determination of the tox- which, under the at that plaint procedures icity any workplace. materials in their mine, in motion started the administrative sixty determination, days Within of that 110-113, 500 process. U.S.App.D.C. the employer require could not em- that an Kallir, Philips, 778-81. In F.2d at EEOC exposed ployee greater be toxic than Inc., 1975, Ross, S.D.N.Y., F.Supp. unless the concentration in- employee were seeking an had been employee fired for hazards, symptoms formed of the asso- about her from some complaint information substance, ciated with the proper pre- employer’s of her customers. court dealing Furthermore, cautions for with it. she was endeav- proteсted held that in that had to employer furnish the properly or the Act. The by majority personal with proper protective equipment. are points precedents out that these not met, If those conditions were not em- controlling. do, however, They furnish ex- subjected be ployee could toxic sub- judicial of broad amples construction he only stance if could “absent himself from Secretary’s regula- similar provisions to the necessary such risk of harm for the period tion.8 danger regular to avoid such without loss of for such compensation period”.10 III. rejection of that has little proposal does not dispute rationality The Court this bearing regulation. on It was written Instead, regulation. it its con- rests problems to deal increasing with concen- clusion on its his- reading legislative substances, trations of toxic not immediate exclusion tory. provisions by of two spoke only dangers, hazards. It pay” toxicity so-called “strike —the require it original danger and the did not imminent threat provision, imminent life, remedy only it provision majority Con- and was be invoked —convinces employer not intend that have the after 60 without actiоn. Un- gress days did workers 1977.12(b). regulation ques- like provision, regulation embodied VII, any Rights proceeding . . U.S.C. . . . . Title Civil Act of 820(b)(1) (1970). 2000e-3(a) practice employment 8. “It shall be unlawful con- 9. None of the three Acts considered above any for an discriminate language “any similar tains other op- he his posed . . . because has by phrase 11(c)(1). this Act” afforded in § any practice made an unlawful title, practice ment or he has because 19(a)(5) H.R. testified, assisted, charge, partici- made a (1970) reprinted investigation, pro- pated in manner in an 704(a), ceeding, hearing under this Title.” until the employer has been notified in an absence with provide tion does writing, signed by delegate of the- pay. Secretary, setting na- specially forth out of both House reported The bills ture and imminence of the com- danger originally contained Senate Committees pelling immediate action and the concur- administratively ordered provisions Depart- rence of an official of the Labor danger. of imminent shutdowns in cases appointed by ment the President with the provided: passed by The bill as Senate and consent of the is first advice Senatе the im- determines “If [Emphasis obtained.” added.]11 is such that immedi- minence of a necessary, ate action significantly This differed provision is not sufficient determines there regulation promulgated by the Secre- time, the nature and immi- light First, empowered an offi- tary of Labor. and obtain a danger, nence of the to seek the entire closed. operation cial to order order restraining temporary Second, in some versions it allowed the offi- requir- issue an order shall Third, spot. on the cial to order remedies ing steps such to be taken importantly, upon and most it relied action avoid, correct, or remove necessary to contrast, government. regu- prohibiting such imminent *13 lation en- provides only that those workers any of indi- employment presence or work. It not dangered may refuse to does conditions vidual in locations or under employer allow them to order the to make danger exists . where such imminent purely private it relies on changes. And in effect for not may order remain Such actions, govern- not those of the federal seventy-two more than hours from ment. If the time of its issuance. study A the legislative history of shows such an delegates authority issue Oppo- is crucial. last difference in plant, order to close a business or nents of the administrative shut-down order pro- in he shall part, whole or substantial major objections. not be issued in both two may vide that such an order houses raised Sess., 2193, 12(b) (as Cong., rowly rejected S. which would 91st 2d an amendment § Senate), Legislative passed by reprinted power in have eliminated the administrative History operations stopped. Cong.Rec. at 562-63. order 116 (1970) (roll vote, debate) 37601-05 call originally proposed, S. The Williams Act as reprinted Legislative History in Sess., at 451-61. 2193, 6(a)(2) (1969), Cong., § 91st 1st Representatives, 1, 12-13, In the House of the Daniels reprinted Legislative History in at Bill, 16785, Sess., 12(a), Cong., H.R. 91st 2d § make an order in allowed the such to issue a shut-down authorized imminent situations. The order would day Reprinted prohibited employment Legisla- 5 in all at the site ex- order of duration. hazard, History cept purpose eliminating provision report- at 742. was of tive That indefinitely H.Rep. and would have remained in effect in ed out of Committee the same form. pending pro- 1291, Sess., Cong., (1970), reprinted outcome of administrative 91st 2d 41 ceedings. emergеd As S. 2193 from the Com- Steiger- in at 871. The mittee, 19200, it limited the to 72 bill, duration of the order Sikes substitute H.R. eliminated the required regional a hours and director entirely, administrative closure order in favor Department inspector’s in the Labor concur 19200, injunctions. court H.R. of district 91st 2193, Sess., 11(b) Cong., S. 2d § order. (1970), reprinted (1970), Legis- 12 in History Legislative at in 263- 763, History Representative lative at 796-98. adopted 64. The Senate amendments to Daniels offered to amend his bill to conform to required Depart- that the Labor section respect, Cong.Rec. in this 116 the substitute 38372, authorizing inspector’s ment official actions (1970), reprinted Legislative 38378 appointed be one with the advice and consent 993, However, History Steiger- 1009-10. Senate, requiring that the adopted as a substitute to the Sikes bill was notified of the reasons for the shutdown. be amendment, by adopted. Daniels bill and then (1970), reprinted Cong.Rec. 116 37624-25 (1970) (roll Cong.Rec. 116 38723-33 call votes 508-09; History Cong.Rec. Legislative 116 amendment, bill), adoption on the (1970), reprinted Legislative Histo- 37621-22 ry considered and nar- at 499-500. Senate
721 abnormally dangerous conditions provision feared that It was this Opponents unconstitutional.12 contended work at the place emplоyment of such a government lone giving employee or employees be [shall not] with- power facility, to close down an entire a deemed strike this chapter.” under action, judicial deprive out would Safety strikes may concerted activity, of due ar- employers process law. This protected by 7 of National Labor gument only to actions taken applies by Act, Relations 29 157. In such U.S.C. government. employees may Private case, the striking workers cannot be dis violating proc- refuse to work without due charged. v. Washington See N.L.R.B. Alu ess. Co., 1962, 1099, minum 82 370 U.S. S.Ct. reason in opposition The other advanced 502 is significant L.Ed.2d be Section it provision to this was that would break it cause carves exception no-strike government’s the federal neutral role in Thus, despite clauses. generally labor-management relations.13 Congress- present express implied no-strike clauses men voiced fears that repeatedly inspectors agreements, in collective bargaining a cov would federal be- pawns become battles ered worker strike still over tween labor and But management. matters. See Knight N.L.R.B. v. Morley provision prompted could have these fears Corp., 6 Cir. 1957, denied, 251 F.2d cert. power only because involved 1370; 357 U.S. L.Ed.2d might federal That workers government. Gateway U.M.W., 1974, cf. Coal Co. walk off the could have caused U.S. 94 S.Ct. 38 L.Ed.2d itself, already these because they fears (adopting objective possessed right. test of very “abnormally similar Section Taft-Hartley conditions”); dangerous Banyard v. N.L. provides: R.B., 1974, U.S.App.D.C. 235, 241, Thus, F.2d quitting (applying Gateway).14 of labor
“[T]he faith good because the idea that workers could refuse to work *14 Gateway Coal, Sess., par- 14. 1291, Cong., Court held 12. See H.R. 91st 2d 56 831, (1970), reprinted History Legislative safety dispute in encompassed at ticular was in the (minority report); Cong.Rec. 886 implied 116 37338 bargain- no-strike clause of a collective (1970), reprinted Legislative History in ing agreement. However, at 425 the Court did not (Sen. Dominick); Cong.Rec. (1970), 116 deny 37602 that 502§ would override such no-strike Legislative History (Sen. in at 453 Instead, clause. it held that for that section to Schweiker); Cong.Rec. (1970), 116 37604 re- effective, “present the union would have to printed Legislative History (Sen. in at 458 ‘ascertainable, objective supporting evidence Schweiker); Cong.Rec. (1970), 116 38372 re- abnormally dangerоus its conclusion that an ” printed Legislative History (Rep. in at 992 368, condition for work exists.’ 414 U.S. Steiger); Cong.Rec. (1970), reprinted 116 38379 386-87, 640-41, 629, 583, 94 S.Ct. 38 L.Ed.2d Legislative History (Rep. in dall); 1011-12 at Ran- (quoting 596-97 dissent in the Court of Cong.Rec. (1970), reprinted 116 38393 in Appeals). doing rejected subjective In so it Legislative History (Rep. Michel); at 1050 116 interpretation given phrase by the Third (1970), Cong.Rec. Legisla- 38713 in 1972, 1157, Circuit below. 3 466 F.2d Cir. History Robison); (Rep. Cong. tive at 1087 116 Gateway 1160. While in the result Coal has (1970), reprinted Rec. 42202 His- restricting employee rights been criticized as tory Note, (Rep. Quie). at 1205 Cf. Due Proc- intends, Atleson, than more the Act see Threats Employee Safety: ess and Conflict in OSHA Safety: Employee Self-Help to Health and Un- Procedures, Enforcement 84 Yale 1380 L.J. NLRA, der the 59 Minn.L.Rev. 647 (1975) process (general prob- discussion of due have Courts continued to find some strikes Act). lems in the immune from no-strike clauses because of See, Banyard N.L.R.B., 1974, g., § 502. e. v. 13. See H.R. 55-57 U.S.App.D.C. 235, 164 505 F.2d Plain Deal- (1970), reprinted Legislative History at Publishing er Typo. Co. v. Cleveland Union (minority report); Cong.Rec. 885-87 37346 (district # 6 Cir. F.2d (1970), reprinted at opinion appendix); court attached as United (“breakdown neutrality existing Government U.M.W., W.D.Pa.1974, Corp. States Steel v. labor-management relations”, Towеr); Sen. F.Supp. (1970), reprinted Cong.Rec. Legis- (Rep. Michel). lative Congress work- steel. felt that skeleton of not unusual. was hazardous conditions processes prescribed ers live with could Indeed, Section mentioned re- Repre- House of I cannot believe that of this Act. on this Act in debate plac- respect- was unusual was I to die for them. quired, What workers sentatives.15 plant, an entire close down power ing fully dissent. of a in the hands employees, its with all in- vulnerable federal perhaps
lowly feder- for misuse of potential
spector. Regulation Congress. power disturbed
al It is a
1977.12(b) no such threat. poses similar to but employees,
right granted the with the exactly
not coextensive By limiting 502.16
granted by Section require did powers, Congress not
inspectors’ regulation. reject lifesaving us to NORWOOD, by father Calvin her Delores IV. Norwood, al., Plaintiffs-Appellees, et this Act did not passed put intend to worker to choice—his HARRISON, Sr., al., et D. L. co-sponsors or his life. As one Defendants-Appellants. legislation said: lives, people’s talking “We are about No. 76-1865. cost of some accountants. indifference assuring the men are about talking Appeals, We United Court of States our plants and women work in who Fifth Circuit. after a gowill home they
factories that Nov. bodies intact. We day’s work with their assuring our American talking are about deadly chemicals
workers work with who accumulated a few they
that when will not have accu-
years seniority they lung congestion poisons
mulated bodies, something will strike
their they reach retirement
them down before
age.”17 Jimmy Simp- whether
We are about talking to avoid return to had to
son lose a windswept on high
dangerous work-place abnormally dangerous. in fact conditions are (1970), reprinted Cong.Rec. only Scherle). regulation requires a rea- Legislative History (Rep. See n. 14. at 1223-24 threatened sonable that the belief only provides do bodily that no-strike clauses danger § harm or 16. with imminent of severe strikes, protected by provisions affect 7 of the Act’s could not death and that the Thus, National Labor Relations cure 502 lacks in time. Thus, protected require a strike must be to be requirement does not imminence activity.” bodily v. Wash- “concerted See N.L.R.B. harm. the threat to be of death severe Co., ington 370 U.S. require Aluminum be too that other means Neither does it Regulation employee. Regulation 298. 1977.12 protect L.Ed.2d slow to employees, any employee protects require without 1977.12(b) the imminent does not Furthermore, activity. requiring “abnormal”, incorporate concerted nor does it applies only good quitting faith good requirement “reasona- faith exclusive abnormally dangerous condi- labor because bleness”. Court, Supreme As tions. construed (1970), Cong.Rec. objective, requires good faith both Yarborough). (Sen. position support at 510 that the ascertainable