Dole v. HMS Direct Mail Service, Inc.
| Decision Date | 10 December 1990 |
| Docket Number | No. CIV-88-168S.,CIV-88-168S. |
| Parties | Elizabeth DOLE, Secretary of Labor, United States Department of Labor, Plaintiff, v. H.M.S. DIRECT MAIL SERVICE, INC., a Corporation, Harb Publications, Ltd., H.M.S. Print-Mail Ltd., and Henry Stepien, Individually and as President. Defendants. |
| Court | U.S. District Court — Western District of New York |
Robert P. Davis, Sol. of Labor, Patricia M. Rodenhausen, Regional Sol., Percy S. Miller, New York City, for plaintiff.
Joel Brownstein, Borins, Setel, Snitzer & Brownstein, Buffalo, N.Y., for defendants.
DECISION/ORDER
The case herein is before this Court for a decision on the merits following a two day bench trial which began on November 13, 1990.
Plaintiff, the Secretary of Labor, United States Department of Labor, brings this action pursuant to § 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c) ("OSHA"). Plaintiff alleges that defendant H.M.S. Direct Mail Service, Inc. ("Direct Mail") violated OSHA § 11(c) by suspending and later discharging its employee James Malek ("Malek") because Malek refused, upon orders of a supervisor on two separate occasions, to operate machinery, the operation of which Malek perceived posed a threat of serious injury. Plaintiff has sued H.M.S. Print-Mail, Ltd. ("Print-Mail") and Harb Publications, Ltd. ("Harb") as successor corporations to Direct Mail. Plaintiff also has sued Henry Stepien ("Stepien") as principal shareholder of Direct Mail and Print-Mail and as principal officer and manager of Direct Mail, Print-Mail and Harb.
Plaintiff seeks the following relief: an injunction prohibiting defendants from further violation of OSHA § 11(c); an order requiring defendants to expunge from all relevant personnel records derogatory references or entries in connection with the discharge of Malek; an order requiring defendants to post notice for sixty (60) consecutive days of this Court's decision; and an order requiring defendants to pay back earnings to Malek plus interest. Plaintiff also seeks costs.
The Court makes the following findings of fact and conclusions of law.
1. Plaintiff is the United States Secretary of Labor suing in its official capacity.
2. Since October 1982, and until the present, defendant Stepien has been and remains principal officer and manager of a printing and direct mailing business having its principal place of business located at 2299 Military Road, Tonawanda, New York.
3. In October 1982, the printing and direct mailing business located at 2299 Military Road was Direct Mail, a New York corporation.
4. In 1988, Direct Mail became known as Print-Mail, a New York corporation.
5. Presently, the printing and direct mailing business located at 2299 Military Road is known as Harb, a New York corporation.
6. Direct Mail, Print-Mail and Harb have conducted substantially the same business, using the same premises, machinery and employees.
7. Stepien is principal shareholder of Direct Mail and Print-Mail.
8. Malek commenced employment with Direct Mail in October, 1982. Malek performed various production and service jobs at Direct Mail.
9. One of Malek's duties at Direct Mail was the operation of a paper collating and binding machine known as the Muller-Martini (the "Martini").
10. The Martini contains both a stitching and a cutting mechanism. The cutting mechanism is comprised, in part, of knives.
11. During the course of the Martini's normal operation, from time to time, paper fed into the Martini can "jam" either in the stitching or cutting mechanism. The paper jam must be cleared manually when the Martini's operation has been brought to a halt.
12. The Martini contains a braking mechanism ("the brake") which can be triggered by several safety switches attached to the Martini. When functioning properly, the brake brings the Martini's total operation to a relatively abrupt halt.
13. On the evening of May 9, 1985, Malek's assignment was to operate the Martini. Believing the Martini was not safe to operate because the brake was malfunctioning, Malek telephoned a supervisor, Blanch Cena ("Cena"). Malek told Cena that, due to his safety concerns, he would not operate the Martini. Cena directed Malek to operate the Martini and gave Malek no alternate work assignment. Malek refused to operate the Martini, attached a warning note to the Martini that it was not safe to operate and went home.
14. On the morning of May 10, 1985, Stepien suspended Malek for three days because of Malek's failure to operate the Martini.
15. On May 15, 1985, after serving a three day suspension, Malek returned to work.
16. On May 15, 1985, Cena directed Malek to operate the Martini. After operating the Martini for a short time, Malek believed the Martini unsafe to operate because the brake was malfunctioning and refused to operate the Martini any further. Thereupon, Cena assigned Malek to operate the web press machine ("web press").
17. Later on May 15, 1985, Stepien ordered Malek off the web press and to start operating the Martini. At that time, Malek told Stepien that the Martini was unsafe to operate and asked for an alternate work assignment. Malek continued to refuse to operate the Martini on May 15, 1985.
18. On May 15, 1985, Stepien discharged Malek from Direct Mail for failure to operate the Martini.
This court has jurisdiction of this lawsuit pursuant to 29 U.S.C. § 660(c)(2).1 Direct Mail, Print-Mail and Harb are "persons" as defined by 29 U.S.C. § 652(4). As discussed more fully below, Print-Mail and Harb are successor corporations of Direct Mail.
OSHA § 11(c) renders the discrimination against or discharge of an employee for exercising "any right" protected under OSHA unlawful. 29 U.S.C. § 660(c)(1).
The Secretary of Labor promulgated a regulation, codified at 29 C.F.R. § 1977.12, defining certain "rights" which, although not delineated by § 11(c), are protected under OSHA.
One such protected right, codified at 29 C.F.R. § 1977.12(b)(2),2 is directly at issue in this lawsuit: an employee's right to refuse to work under conditions the employee apprehends will subject him to serious injury or death. By virtue of the regulation, where an employee is confronted with a choice of not performing an assigned task or performing the task under apprehension of serious injury or death, OSHA § 11(c) protects from subsequent discrimination or discharge the employee who, having no reasonable alternative, refuses to perform the assigned task. The employee's apprehension of serious injury or death is measured by the standard of a reasonable person under the circumstances.3
To establish a violation of OSHA § 11(c) the employee's engagement in protected activity need not be the sole reason for the subsequent discharge but "a substantial reason for the action" or if the discharge "would not have taken place `but for' engagement in protected activity." 29 C.F.R. § 1977.6(b)
Therefore, based on the above discussed statute and regulation, to prevail in this lawsuit plaintiff must prove the following four elements:
This Court will address each element in seriatim.
The evidence at trial revealed that Malek's refusal to operate the Martini on May 9 and May 15, 1985 stemmed from Malek's legitimate apprehension of serious injury.
Malek testified that on the evening of May 9, 1985, when beginning his routine set-up of the Martini, he noticed the Martini braking improperly, only coasting to a stop. Malek looked into the brake housing and noticed the brake missing. Malek saw the brake on the floor.4 On May 15, Malek returned to work after a three day suspension. Malek testified that, on May 15, the brake housing was back on the machine but that the Martini still merely coasted to a stop. Stepien ordered Malek to operate the Martini. When Malek refused to operate the Martini under those circumstances, Stepien discharged Malek.
First, plaintiff presented unrebutted evidence that prior to May 1985, other Direct Mail employees had been injured by the Martini's cutting blades while attempting to clear a paper jam.5
Second, plaintiff offered unrebutted and consistent testimony of Malek and Ken Sciarino, another former employee of Direct Mail who operated the Martini, that the Martini malfunctioned just prior to May 9 and May 15, 1985. Both witnesses testified that, about March 1985, due to a malfunction which prevented the Martini from operating at all, an electrician "wired" the Martini enabling temporary operation though rendering all safety mechanisms inoperable. This interim measure was corrected before May 9, 1985.
Furthermore, Malek and Sciarino testified that, in April and May 1985, the Martini's brake housing was "hot" to the touch and smoking.6 Malek and Sciarino further testified that, as a result of the smoking, the brake was removed entirely from the Martini and taken apart by Dave Turner, a maintenance employee at Direct Mail.7
Lastly, Malek and Sciarino testified that in May 1985, the Martini was not stopping properly but only coasted to a stop. This testimony remained uncontradicted by defendants.8
Therefore, whereas in May 1985, Malek had first hand knowledge not only of past occurrences where a Direct Mail...
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