Usery v. Whirlpool Corp., Civ. No. C-74-359.

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Writing for the CourtDON J. YOUNG
Citation416 F. Supp. 30
Docket NumberCiv. No. C-74-359.
Decision Date21 June 1976
PartiesW. J. USERY, Secretary of Labor, Plaintiff, v. WHIRLPOOL CORPORATION, Defendant.

416 F. Supp. 30

W. J. USERY, Secretary of Labor, Plaintiff,
v.
WHIRLPOOL CORPORATION, Defendant.

Civ. No. C-74-359.

United States District Court, N. D. Ohio, W. D.

June 21, 1976.


416 F. Supp. 31

Mark D. Katz and Gregory B. Taylor, Dept. of Labor, Cleveland, Ohio, for plaintiff.

Robert E. Mann, Chicago, Ill., and E. Thomas Maguire, Toledo, Ohio, for defendant.

OPINION

FINDINGS OF FACT AND CONCLUSIONS OF LAW

DON J. YOUNG, District Judge.

This cause is before the Court on a complaint filed by the Secretary of Labor against the Whirlpool Corporation (hereafter Whirlpool), pursuant to § 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c)(1) (hereafter the ACT). The Secretary is seeking lost wages, expungement of written reprimands and injunctive relief for two Whirlpool employees who were allegedly discriminated against due to their refusal to subject themselves to possible serious injury or

416 F. Supp. 32
death arising from a hazardous condition at their workplace

There is little dispute over the facts in this case and, therefore, the Court will not dwell on them at great length. The defendant corporation maintains a facility at Marion, Ohio, where it manufactures household appliances. Present in the Marion plant are mechanical conveyors which are used to move parts from point to point within the plant. A guard screen is utilized in order to protect the employees working beneath the conveyor from the hazard of falling materials. Said guard screen is suspended approximately twenty feet above the plant floor and covers about 295,800 square feet hung under 65,000 linear feet of conveyor. The guard screen was suspended over about 36% of the total plant floor area.

It is among the duties of the maintenance department employees to clean the guard screen. This includes the removal of parts after they may have fallen from the conveyor and the placing of paper used to catch oil and grease drippings.

On June 28, 1974, a maintenance employee, George Cowgill, fell approximately twenty feet from the guard screen into a parts box. Hours after the accident, Mr. Cowgill died. An investigation by the Occupational Safety and Health Administration (hereafter OSHA) followed Mr. Cowgill's death. OSHA cited the defendant, charging a serious violation of the general duty clause of the ACT, 29 U.S.C. § 654. The citation required immediate abatement and proposed a $600.00 penalty. Said citation is being contested by the defendant in a matter now pending before the Occupational Safety and Health Review Commission.

The complainants in this case are also maintenance workers charged with the duty of cleaning the guard screen. On July 10, 1974, the complainants, Mr. Deemer and Mr. Cornwell, reported for work and were told by their foreman, Gale Price, to clean the guard screen except for three areas where he did not feel that screen was adequately supported to walk on. Upon receiving the order, the complainants refused to obey it, stating that they believed that the screen was unsafe. They were then taken to the office of the personnel director where they were issued written reprimands and sent home losing six hours pay.

The defendant attempted to prove at trial that the complainants walked off their jobs not because they felt it was unsafe, but rather because they wanted an increase in pay for performing such work. The Court, however, is not willing to accept this contention and expressly finds that the employees refused to perform the cleaning operation because of a genuine fear of death or serious bodily harm. This is supported by the fact that the foreman was not willing to allow them to use the Verta-lite procedure for cleaning the screen. Said procedure was an alternative to walking the screen developed after Mr. Cowgill's death. Furthermore, given that death, it is perfectly understandable that surviving employees would be reluctant to subject themselves to the possibility of a similar accident. The Court further finds that the threat of death or serious bodily harm was real and not something which existed only in the minds of the employees. While the defendant had begun to replace the original mesh panels of the screen with panels constructed of heavier gauge metal mesh having spiral wire connections, at the time in question only about one-third of the entire screen had been replaced. Certainly the fact that a man had fallen through the screen and been killed is the strongest possible evidence that it was unsafe and dangerous. Thus the Court...

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7 practice notes
  • Marshall v. Daniel Const. Co., Inc., No. 76-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 1977
    ...Usery v. Babcock & Wilcox, E.D.Mich.1976, 424 F.Supp. 753 (regulation upheld); Usery v. Whirlpool Corporation, N.D.Ohio, 1976, 416 F.Supp. 30, appeals docketed, Nos. 76-2143, 76-2144, 6 Cir., Sept. 7, 1976 (regulation held invalid); Brennan v. Diamond Int'l Corp., Heekin Can Div., S.D.Ohio,......
  • Marshall v. Whirlpool Corp., Nos. 76-2143
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 4, 1979
    ...relief including rehiring or reinstatement of the employee to his former position with back pay. 4 Reported as Usery v. Whirlpool Corp., 416 F.Supp. 30 (N.D.Ohio 5 The District Judge's fact finding appears at 416 F.Supp. 30, 32 (N.D.Ohio 1976). In No. 76-2144, the Whirlpool Corporation cros......
  • Whirlpool Corporation v. Marshall, No. 78-1870
    • United States
    • United States Supreme Court
    • February 26, 1980
    ...denied relief, holding that the Secretary's regulation was inconsistent with the Act and therefore invalid. Usery v. Whirlpool Corp., 416 F.Supp. 30, 32-34. The Court of Appeals for the Sixth Circuit reversed the District Court's judgment. 593 F.2d 715. Finding ample support in the record f......
  • American Indus. Health Council v. Marshall, Civ. A. No. H-80-144
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 5, 1980
    ...only Section 657(g)(2), and the character of the regulation was not at issue in the Whirlpool litigation. See Usery v. Whirlpool Corp., 416 F.Supp. 30, 33 (N.D.Ohio W.D.1976), rev'd and remanded sub nom. Marshall v. Whirlpool Corp., 593 F.2d 715 (6th Cir. 1979), aff'd, 445 U.S. 1, 100 S.Ct.......
  • Request a trial to view additional results
7 cases
  • Marshall v. Daniel Const. Co., Inc., No. 76-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 1977
    ...Usery v. Babcock & Wilcox, E.D.Mich.1976, 424 F.Supp. 753 (regulation upheld); Usery v. Whirlpool Corporation, N.D.Ohio, 1976, 416 F.Supp. 30, appeals docketed, Nos. 76-2143, 76-2144, 6 Cir., Sept. 7, 1976 (regulation held invalid); Brennan v. Diamond Int'l Corp., Heekin Can Div., S.D.Ohio,......
  • Marshall v. Whirlpool Corp., Nos. 76-2143
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 4, 1979
    ...relief including rehiring or reinstatement of the employee to his former position with back pay. 4 Reported as Usery v. Whirlpool Corp., 416 F.Supp. 30 (N.D.Ohio 5 The District Judge's fact finding appears at 416 F.Supp. 30, 32 (N.D.Ohio 1976). In No. 76-2144, the Whirlpool Corporation cros......
  • Whirlpool Corporation v. Marshall, No. 78-1870
    • United States
    • United States Supreme Court
    • February 26, 1980
    ...denied relief, holding that the Secretary's regulation was inconsistent with the Act and therefore invalid. Usery v. Whirlpool Corp., 416 F.Supp. 30, 32-34. The Court of Appeals for the Sixth Circuit reversed the District Court's judgment. 593 F.2d 715. Finding ample support in the record f......
  • American Indus. Health Council v. Marshall, Civ. A. No. H-80-144
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 5, 1980
    ...only Section 657(g)(2), and the character of the regulation was not at issue in the Whirlpool litigation. See Usery v. Whirlpool Corp., 416 F.Supp. 30, 33 (N.D.Ohio W.D.1976), rev'd and remanded sub nom. Marshall v. Whirlpool Corp., 593 F.2d 715 (6th Cir. 1979), aff'd, 445 U.S. 1, 100 S.Ct.......
  • Request a trial to view additional results

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