Marshall v. Whirlpool Corp.

Decision Date04 April 1979
Docket Number76-2144 and 76-2261,Nos. 76-2143,s. 76-2143
Citation593 F.2d 715
Parties7 O.S.H. Cas.(BNA) 1075, 1979 O.S.H.D. (CCH) P 23,334 Ray MARSHALL, Secretary of Labor, Appellant, v. WHIRLPOOL CORPORATION and Empire-Detroit Steel Division, Detroit Steel Corporation, Appellees. WHIRLPOOL CORPORATION, Cross-Appellant, v. Ray MARSHALL, Secretary of Labor, Cross-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

E. Thomas Maguire, Robison, Curphey & O'Connell, Toledo, Ohio, Robert E. Mann, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for appellees in No. 76-2143 and cross-appellant in No. 76-2144.

George Cohen, Bredhoff, Cushman, Gottesman & Cohen, Washington, D. C., for amicus Industrial Union.

Dennis K. Kade (argued), Michael H. Levin, Thomas L. Holzman, William J. Kilberg, Benjamin W. Mintz, U. S. Dept. of Labor, Washington, D. C., for appellant in Nos. 76-2143, 76-2261 and cross-appellee in No. 76-2144.

Michael A. Fulton, Beirne & Wirthlin, Cincinnati, Ohio, for appellee in No. 76-2261.

Before EDWARDS, Chief Judge and KEITH and MERRITT, Circuit Judges.

DAMON J. KEITH, Circuit Judge.

This case presents a legal question of great significance to American workers and their employers: Whether under the Occupational Safety & Health Act of 1970, 29 U.S.C. §§ 651 Et seq., the Secretary of Labor may limit the right of an employer to discipline or discharge an employee who refuses to work in the good faith belief that to do so would subject him to danger.

In a carefully circumscribed regulation, 1 the Secretary of Labor (Secretary) has interpreted the Occupational Safety and Health Act's retaliatory discharge provision 2 as protecting an employee who withdraws from danger on the job under certain conditions: The employee's fear must be objectively reasonable, the employee must have sought correction of the dangerous condition and resort to normal OSHA enforcement procedures must be inadequate. Two district courts below ruled that this regulation is invalid because it has no statutory support and because OSHA's legislative history reveals Congressional intent at odds with the regulation. The district courts have sanctioned an employer's right to make workers choose between their jobs and their lives.

We cannot agree that the statute was ever intended to require placing an employee in such an untenable position. Since we find that the Secretary's regulation is consistent with the stated purposes of the Act and its legislative history, and that it represents an appropriate employment of the regulatory power conferred upon the Secretary by the statute, we reverse a ruling to the contrary entered without trial by one District Judge, and remand for further proceedings. As to the other appeal, where the District Judge, after evidentiary hearing, found violation of the regulation but denied relief because of his belief that the regulation was invalid, we also reverse and remand for appropriate remedy.


The regulation in question here provides:

S 1977.12 Exercise of any right afforded by the Act

(a) In addition to protecting employees who file complaints, institute proceedings, or testify in proceedings under or related to the Act, section 11(c) also protects employees from discrimination occurring because of the exercise "of any right afforded by this Act." Certain rights are explicitly provided in the Act; for example, there is a right to participate as a party in enforcement proceedings (sec. 10). Certain other rights exist by necessary implication. For example, employees may request information from the Occupational Safety and Health Administration; such requests would constitute the exercise of a right afforded by the Act. Likewise, employees interviewed by agents of the Secretary in the course of inspections or investigations could not subsequently be discriminated against because of their cooperation.

(b)(1) On the other hand, review of the Act and examination of the legislative history discloses that, as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee will normally have opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.

(2) However, occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination. The condition causing the employee's apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would 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. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.

Pursuant to 29 U.S.C. § 660(c)(2) 3 the Secretary, on behalf of three workers, separately sued defendants Detroit Steel Corporation and Whirlpool Corporation in federal district court for wrongfully retaliating against the workers' exercise of "(a) right afforded by (the Act)", 29 U.S.C. § 660(c)(1) namely, the right conferred by the regulation, Supra to withdraw from the risk of serious danger on the job.

In No. 76-2262, Marshall v. Detroit Steel Corp., the district court dismissed the Secretary's complaint, ruling that it failed to state a claim upon which relief could be granted. For purposes of this appeal, we must assume that the allegations in the complaint are true and that Detroit Steel violated the regulation. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Thus, we are directly faced with the pure issue of whether the Secretary's regulation is valid. In No. 76-2143, Marshall v. Whirlpool Corp., 4 the district court also found the regulation to be invalid but only after conducting an evidentiary hearing and concluding that the Secretary's complaint was factually correct: the regulation had been violated. An examination of the facts in that case 5 illustrates that this issue is no mere academic exercise, but literally one of life and death.

The Whirlpool Corporation maintains a manufacturing plant at Marion, Ohio where it produces household appliances. The Marion plant has 13 miles of overhead conveyors which transport appliance components throughout the plant. In order to prevent injury should an appliance component fall from one of the overhead conveyors, the Company installed a huge guard screen approximately 20 feet above the plant floor. The guard screen is suspended over one-third of the total plant floor area. As part of their regular duties, maintenance employees must remove fallen parts from the screens and replace paper spread on the screen to catch grease drippings. In addition the overhead conveyors occasionally need maintenance. In order to perform their duties, maintenance workers must step onto the steel mesh screen itself.

The original steel mesh used 16 gauge panels although starting in 1973 the company began to replace these panels with heavier mesh which could better withstand the stresses imposed upon it. The questionable safety of the 16-gauge screens is demonstrated by several incidents where workers fell partly through them and at least one incident where a worker fell to the plant floor below but survived. A number of maintenance employees reacted to these "near-misses" by frequently bringing the unsafe screen conditions to the attention of their foremen. Their complaints were to no avail, and on June 28, 1974, a maintenance employee fell to his death through the guard screen in a section where stronger wire mesh had not yet been installed. 6 Although Whirlpool did respond to the fatality by issuing a general order directing maintenance employees to clean guard screens without walking on them and to effectuate some repairs where the screens were weak, two employees who regularly worked on the screens pointed out that many hazardous areas remained. When the company did not respond to their fears regarding these areas, the two employees asked the company safety director to provide them with the local OSHA area office's phone number. The "safety director" gave them the number but made veiled threats that the men should watch what they were doing and took their names and clock numbers.

The night following this incident the two men punched in on their shift and awaited their assignments. They were ordered onto the screens to do their maintenance work. When the men refused, citing the company safety directive saying such work should be done without stepping on the screens, they were peremptorily ordered to the company personnel office, disciplined and issued written reprimands for insubordination.


Congress provided in the 1970 Act for measures intended to correct unsafe work place conditions Before any job refusal over danger or employer...

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