Marshall v. Daniel Const. Co., Inc., No. 76-1465

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore WISDOM, CLARK and RONEY; CHARLES CLARK; WISDOM
Citation563 F.2d 707
Parties6 O.S.H. Cas.(BNA) 1031, 1977-1978 O.S.H.D. ( 22,312 F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Appellant, v. DANIEL CONSTRUCTION COMPANY, INC., Defendant-Appellee.
Decision Date21 November 1977
Docket NumberNo. 76-1465

Page 707

563 F.2d 707
6 O.S.H. Cas.(BNA) 1031, 1977-1978 O.S.H.D. ( 22,312
F. Ray MARSHALL, Secretary of Labor, United States
Department of Labor, Appellant,
v.
DANIEL CONSTRUCTION COMPANY, INC., Defendant-Appellee.
No. 76-1465.
United States Court of Appeals,
Fifth Circuit.
Nov. 21, 1977.
Rehearing and Rehearing En Banc Denied Dec. 30, 1978.

William J. Kilberg, Sol. of Labor, U. S. Dept. of Labor, Michael H. Levin, Counsel for Appellate Litigation, Dept. of Labor, Dennis K. Kade, Benjamin W. Mintz, Associate Sols. for Occupational Safety and Health, Washington, D. C., for appellant.

Robert M. Weinberg, George H. Cohen, Washington, D. C., for Industrial Union Dept. of AFL-CIO, amicus curiae.

Homer L. Deakins, Jr., Gregory B. Tobin, Robert T. Thompson, John P. Campbell, Atlanta, Ga., for defendant-appellee.

Page 708

Appeal from the United States District Court for the Northern District of Georgia.

Before WISDOM, CLARK and RONEY, Circuit Judges.

CHARLES CLARK, Circuit Judge:

Pursuant to 29 U.S.C. § 660(c)(2) 1 of the Occupational Safety and Health Act of 1970, id. §§ 651 et seq., the United States Secretary of Labor (Secretary) filed a complaint in the district court alleging that defendant, Daniel Construction Company (Daniel), had discharged one of its employees, Jimmy D. Simpson, for refusing to perform a task "under conditions which reasonably caused him to conclude that there was a real and immediate danger of death or serious injury to him if he performed his assigned work," 2 and that, since Simpson's refusal to work under these conditions was protected by 29 C.F.R. § 1977.12 (1976), 3 Daniel violated 29 U.S.C. § 660(c)(1) 4 which proscribes an employer's discharge of any of

Page 709

its employees for exercising any right afforded under OSHA. The district court found that OSHA provided no legal basis for the Secretary's interpretation of 29 U.S.C. § 660(c)(1) as protecting an employee's refusal to work in the face of hazardous conditions and dismissed the complaint under Federal Rule Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. The Secretary's appeal timely followed. We affirm.

Congress adopted the Occupational Safety and Health Act of 1970 (OSHA) "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and preserve our human resources" in any business affecting interstate commerce. 29 U.S.C. § 651(b). To this end, the Secretary is authorized to promulgate permanent and, in limited instances, emergency safety and health standards (standards) applicable to the workplace, id. § 655; see Florida Peach Growers Ass'n v. United States Department of Labor, 489 F.2d 120, 123-24 (5th Cir. 1974), and to enforce those standards in appropriate proceedings. Id. §§ 657-660(a), (b); see Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 995-1000 (5th Cir. 1974), aff'd, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977). Employers and employees are charged with "separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions . . . ." 29 U.S.C. § 651(b)(2). For example, employers have affirmative duties to furnish their employees with "employment and a place of employment . . . free from recognized hazards . . . causing or are likely to cause death or serious physical harm" and to comply with standards promulgated under the Act. Id. § 654(a); see Ace Sheeting & Repair Co. v. OSHRC, (5th Cir. 1977) 555 F.2d 439. Employees are responsible for complying with the Secretary's standards and "all rules, regulations, and orders issued (under OSHA) which are applicable to (their) own actions and conduct." Id. § 654(b). The Act also affords numerous rights to employees, among which are the rights to request inspections of the workplace and to seek mandamus relief against the Secretary when he arbitrarily fails to request injunctive relief to abate dangerous conditions. 5 To ensure that employees will not be intimidated or deterred from exercising their express rights, id. § 660(c)(1) provides that employees may file a complaint with the Secretary alleging that their employer has discharged or otherwise discriminated against them for exercising any right afforded under the Act.

The Secretary has interpreted section 660(c)(1) to protect employees in the exercise of rights that exist by necessary implication as well as those rights that are expressly afforded under OSHA. 29 C.F.R. § 1977.12(a) (1976). As a means of implementing this interpretation, the Secretary has determined that OSHA implicitly affords employees the right to refuse to work "under . . . circumstances then confronting the employee (at the workplace which) would (cause him to) conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels." Id. § 1977.12(b)(2) (1976); see note 3 supra. Our task in the instant case is to determine the validity of this regulation.

The district court dismissed the Secretary's complaint under Federal Rule Civil Procedure 12(b)(6). We review this appeal under the "accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); followed, e. g., Robinson v. Price, 553 F.2d 918, 919 (5th Cir. 1977).

The Secretary issued regulation 1977.12(b) pursuant to his grant of authority to "prescribe such rules and regulations as he may deem necessary to carry out (his)

Page 710

responsibilities under (the Act) . . . ." 29 U.S.C. § 657(g)(2). The validity of the Secretary's regulations "will be sustained so long as (they are) 'reasonably related to the purposes of the enabling legislation'. . . ." Mourning v. Family Publications Service, Inc.,411 U.S. 356, 369, 93 S.Ct. 1652, 1661, 36 L.Ed.2d 318 (1973), quoting Thorpe v. Housing Authority, 393 U.S. 268, 280-81, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969). Moreover, as the Secretary's interpretation of OSHA's requirements is entitled to "great weight," Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir. 1974), Daniel has the burden of proving that the Secretary's regulation is inconsistent with his congressional grant of authority. See, e. g., Springdale Convalescent Center v. Mathews, 545 F.2d 943, 951 (5th Cir. 1977). Nonetheless, our examination of the statutory scheme and the legislative history of the Act compels the conclusion that Daniel has satisfied its burden and that the regulation is invalid because it is beyond the Secretary's grant

of authority under the enabling provision. A. The Statutory

Rights of Workers When Confronted With Imminent Dangers

29 U.S.C. § 657(f)(1) entitles workers who believe that an "imminent danger" exists at the workplace to notify the Secretary of the danger. 6 If the Secretary determines an inspection is unnecessary, he must notify the worker of his decision. If the Secretary is satisfied, however, that the notice provides him with reasonable grounds to believe that an imminent danger exists, an OSHA inspector may enter the workplace to inspect and investigate the premises, "all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials . . . and . . . question privately any such employer, owner, operator, agent or operator." Id. § 657(a). If, upon inspection and investigation, the OSHA inspector believes that the employer has violated the Act, he must issue the employer a citation, notifying him that the unlawful condition or practice must be abated within a prescribed time. The citation must be prominently posted at or near the place of the violation within six months of the alleged violation in order to apprise employees of the offense. Id. § 658.

If the OSHA inspector believes, however, that practices or conditions exist in the workplace which present a danger of death or serious physical harm immediately or before the danger can be eliminated through other enforcement procedures, the OSHA inspector must recommend to the Secretary that immediate injunctive relief against the dangerous practices or conditions be sought. Id. § 662(a), (b), (c). 7 The inspector must notify employees at the affected workplace that he believes such conditions exist and that he is requesting injunctive

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relief. Id. § 662(c). Employees are entitled to petition the federal district court for a writ of mandamus against the Secretary if he arbitrarily or capriciously fails to seek the injunctive relief requested by the OSHA inspector. Id. § 662(d).

Congress's apparent purpose in granting workers the right to request inspections for imminent dangers is to enable them to be adjuncts to OSHA inspectors who have primary responsibility for conducting OSHA compliance inspections at the employer's premises. This may also be inferred from the fact that id. § 657(c) provides that an authorized employee representative is entitled to accompany the OSHA inspector when conducting a physical inspection of the worksite and that, in the absence of such a representative, the OSHA inspector must consult employees present about safety and health matters for the purpose of aiding the inspection. A worker's exercise of these rights facilitates on-site inspections and thus aids the enforcement efforts of OSHA's inspection forces. It also assures a greater degree of involvement on their part in the investigation process and serves to make them more conscious of safety and health conditions and practices in the workplace. 8

While Congress envisioned that workers play an integral role in achieving the salutary purpose of assuring safe and healthful working conditions, in relation to preventing imminent...

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13 practice notes
  • Marshall v. Whirlpool Corp., Nos. 76-2143
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 4, 1979
    ...We are aware that our holding places us squarely in conflict with that of the Fifth Circuit in Marshall v. Daniel Construction Co., 563 F.2d 707 (5th Cir. 1977), Cert. denied, --- U.S. ----, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978). However we cannot, in good conscience, adopt that court's reaso......
  • Brown Transport Corp v. Atcon, Inc, No. 77-1581
    • United States
    • United States Supreme Court
    • December 4, 1978
    ...of telephone transmission services. Marshall v. Daniel Construction Co., 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192, opinion below, 563 F.2d 707 (CA5 1978): worker has no right under Occupational Safety and Health Act to refuse to perform tasks that he reasonably believes present an immedia......
  • Whirlpool Corporation v. Marshall, No. 78-1870
    • United States
    • United States Supreme Court
    • February 26, 1980
    ...this case conflicts with those of two other Courts of Appeals on the important question in issue. See Marshall v. Daniel Construction Co., 563 F.2d 707 (CA5 1977); Marshall v. Certified Welding Corp., No. 77-2048 (CA10 Dec. 28, 1978). That question, as stated at the outset of this opinion, ......
  • Delano v. City of South Portland
    • United States
    • Supreme Judicial Court of Maine (US)
    • August 27, 1979
    ...v. Whirlpool Corp., 593 F.2d 715 (6th Cir. 1979). See also Judge Wisdom's dissenting opinion in Marshall v. Daniel Construction Co., Inc., 563 F.2d 707 (5th Cir. 6 The parties may possibly protect themselves in avoiding discrimination treatment or charges by entering into trial work agreeme......
  • Request a trial to view additional results
13 cases
  • Marshall v. Whirlpool Corp., Nos. 76-2143
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 4, 1979
    ...We are aware that our holding places us squarely in conflict with that of the Fifth Circuit in Marshall v. Daniel Construction Co., 563 F.2d 707 (5th Cir. 1977), Cert. denied, --- U.S. ----, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978). However we cannot, in good conscience, adopt that court's reaso......
  • Brown Transport Corp v. Atcon, Inc, No. 77-1581
    • United States
    • United States Supreme Court
    • December 4, 1978
    ...of telephone transmission services. Marshall v. Daniel Construction Co., 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192, opinion below, 563 F.2d 707 (CA5 1978): worker has no right under Occupational Safety and Health Act to refuse to perform tasks that he reasonably believes present an immedia......
  • Whirlpool Corporation v. Marshall, No. 78-1870
    • United States
    • United States Supreme Court
    • February 26, 1980
    ...this case conflicts with those of two other Courts of Appeals on the important question in issue. See Marshall v. Daniel Construction Co., 563 F.2d 707 (CA5 1977); Marshall v. Certified Welding Corp., No. 77-2048 (CA10 Dec. 28, 1978). That question, as stated at the outset of this opinion, ......
  • Delano v. City of South Portland
    • United States
    • Supreme Judicial Court of Maine (US)
    • August 27, 1979
    ...v. Whirlpool Corp., 593 F.2d 715 (6th Cir. 1979). See also Judge Wisdom's dissenting opinion in Marshall v. Daniel Construction Co., Inc., 563 F.2d 707 (5th Cir. 6 The parties may possibly protect themselves in avoiding discrimination treatment or charges by entering into trial work agreeme......
  • Request a trial to view additional results

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