Jellico Agreement of 1893: Jellico Agreement of 1893
(Photo of child laborer at a mine near Jellico, TN in 1910. Part of a larger collection of photos documenting working children by Lewis Hine. Citation)
In 1893 in Jellico, TN, workers from at least eight area mines established an agreement that allowed workers to refuse work “if he thought the mine was dangerous through failure of his bosses to supply enough support timber.”
Federal Law: Passage of the National Labor Relations Act, 1935
(Seal of the National Labor Relations Board, established by the NLRA)
The NLRA, passed in 1935, affirmatively garunteed the rights of workers to form and join labor unions, and the right of those labor unions to bargain collectively with employers over terms and conditions of employment. § 7 of the NLRA establishes that workers have the right to engage in protected concerted activity for mutual aid or protection. This right has been interpreted as covering non-unionized employees who stop or refuse to perform work because of working conditions.
Federal Law: N. L. R. B. v. Washington Aluminum Co., 370 U.S. 9 (1962)
(Aluminum Press machinary Citation)
On a cold Baltimore morning, eight employees of an aluminum manufacturing plant gathered together on the shop floor. The boiler in the plant was broken, and would not be repaired that day. After a brief discussion, and minutes after the start of their scheduled shift, seven of the workers walked off the job, stating that it was “too cold to work.” These men were promptly fired. The National Labor Relations Board decided, and it was affirmed by the Supreme Court, that the workers, in protesting the frigid working conditions, were exercising their rights under § 7 of the NLRA by participating in protected concerted activity for mutual aid and protection.
Federal Law: Passage of the Labor Management Relations Act, 1947
(Political cartoon depicting the rhetoric surrounding the passage of the LMRA in 1947, known as the Taft Hartley Act. Citation)
The Labor Management Relations Act, known more popularly as the Taft Hartley Act was widely viewed by labor as a rolling back of the protections granted in the NLRA.
Section 502 of the Labor Management Relations Act, 29 U.S.C. § 143, provides that “the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees [shall not] be deemed a strike.”
Section 502 therefore creates an exception to the “no-strike” clauses in collective bargaining agreements that would make it otherwise illegal to strike for certain kinds of employees except over specific issues at specific times.
Federal Law: Gateway Coal Co. v. United Mine Workers of Am., 414 U.S. 368 (1974)
(Tipple at the Gateway Coal Mine, then known as the Emerald Coal Mine, circa 1930. Citation)
Miners at the Gateway Coal Mine refused to work following the re-instatement of a supervisor who had been falasifying airflow readings in the mine. They based this refusal on § 502 of the LMRA. The Supreme Court set the standard for protection under § 502 for refusing dangerous work higher than the text of the Act suggested. The court interpreted § 502 as requiring “‘ascertainable, objective evidence supporting [the] conclusion that an abnormally dangerous condition for work exists.”
The court found that the miners' refusal to go to work in a gassy mine (a mine prone to gas build-up and explosion) where the supervisor was known to have falsified airflow records did not meet this standard.
Federal Law: Passage of the Occupational Saftey and Health Act, 1970
(Occupational Safety and Health Administration Logo)
Following large scale mobilization over issues of workplace safety and health, Congress passed the Occupational Safety and Health Act of 1970 amidst great optimism that this legislation could change workplace health and safety for the better.
The right to refuse dangerous work has been inserted under § 11(c) of the OSH Act. This was done initially through a regulation, 29 CFR § 1977.12 promulgated by OSHA in 1973. This right to refuse is actually a protection against retaliation under § 11(c) for a worker refusing to perform dangerous work.
This regulation has strict requirements:
1. Reasonable apprehension of death or injury
2.Insufficient time to eliminate the danger through regulatory channels (danger must be brand new, not a lingering problem)
3. Seeking remedy from employer, and not getting it.
This very narrow standard really only applies in emergency situations.
This regulation creating a right to refuse dangerous work in certain circumstances was upheld in Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980).
Federal Law: Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980)
(Image of the factory floor in the Whirlpool plant at Marion, OH. Not pictured: high ceilngs and unsteady grate. Citation)
After a fatal fall from an unsteady grate a week earlier, workers in the Marion, Ohio Whirlpool plant refused a supervisor’s order to go against company policy and climb on an elevated grate to clear debris that had fallen from the conveyor line above. These workers were disciplined, and sent home from work for the day without pay.
The claim proceded under 29 CFR § 1977.12(b)(2), and Whirlpool challenged the validity of this regulation under the OSH Act.
The court upheld the regulation, but its holding as to the right to refuse was very narrow:
29 C.F.R. § 1977.12 "simply permits private employees of a private employer to avoid workplace conditions that they believe pose grave dangers to their own safety. The employees have no power under the regulation to order their employer to correct the hazardous condition or to clear the dangerous workplace of others."
The court also held:
29 CFR § 1977.12 "does not require employers to pay workers who refuse to perform their assigned tasks in the face of imminent danger. It simply provides that in such cases the employer may not 'discriminate' against the employees involved”
The power to refuse dangerous work is further weakened by the fact that there is no private right of action for retaliation under 11(c), so enforcement is dependent on OSHA pursuing complaints of retaliation for exercising the right to refuse. An additional weakness is the incredibly short 30 day statute of limitations under § 11(c).
State OSHA Plans
State OSHA plans are devised by states under the OSH Act, and allow a state to create and administer their own safety and health standards. These plans (in theory) must meet all the minimum requirements of OSHA, but may go further in providing protections and setting standards.
Twenty-six states and territories (including Puerto Rico and the U.S. Virgin Islands) have state OSHA plans. States without state plans fall under the authority of the Federal OSH Administration.
(States with state OSHA plans appear in purple)
MIOSHA: Walt Indus., Inc. v. Dep't of Labor, No. 180124, 1997 (Mich. Ct. App. Apr. 11, 1997).
Cosgrove, an employee at Walt Industries was terminated after refusing to work on a polishing machine from which safety guards had been removed. Following a hearing, the department determined that Cosgrove had been discriminatorily fired for exercising his right, under the Michigan Occupational Health and Safety Act (MIOSHA), M.C.L. § 408.1001 et seq.; MSA 17.50(1) et seq ., to refuse to remove a mandatory safety guard and to refuse to work on a machine without the guard. Relying on Whirlpool, and the identical language in MIOSH and OSHA, the court held that, since MIOSH could not be interpreted more narrowly than OSHA, Cosgrove had a right to refuse to work with the polishing machine.
CalOSHA: California Labor Code Section 6311
California Labor Code § 6311 provides that workers shall not be discharged or discriminated against for refusing work where"any occupational safety or health standard or any safety order of the division or standards board will be violated, where the violation would create a real and apparent hazard to the employee or his or her fellow employees.” This right to refuse, although it provides for an explicity cause of action for wages, is litigated through the common law doctrine of discharge contrary to public policy (with CA Labor Code § 6311 providing the public policy).
“In Minnesota, the law provides that an employee who has refused in good faith to perform assigned tasks and who has not been assigned to other work by the employer shall receive pay for the work which would have been performed if two things happen: first, the employee requests the Commissioner of the Department of Labor and Industry (MnOSHA) to inspect and determine the nature of the hazardous condition and second, the commissioner determines that the employee would have been placed in imminent danger of death or serious physical harm by performing the assigned tasks.”
WISHA: Ballinger v. Dep't of Soc. & Health Servs., 104 Wn.2d 323
WISHA provides that every employer shall provide a place of employment free from recognized hazards that are causing or likely to cause serious injury or death. RCW 49.17.060(1). WAC 296-360-150, moreover, provides that workers may refuse to work if they face a real danger of death or serious injury. In this case, a group of 27 Correctional Officers refused to work under conditions that they believed presented a risk to their lives and safety (there had been violent incidents involving correctional officers and incarcerated individuals at the facility). The court found that many safety measures had been implemented, and “there was substantial evidence supporting the conclusion of the Personnel Board that conditions at Walla Walla were not abnormally or imminently dangerous so as to justify the refusal of plaintiffs to work. Our conclusion that the refusal to work was not justified is substantially supported by the fact that plaintiffs failed in good faith to exhaust their administrative remedies under the Washington Industrial Safety and
Health Act of 1973, RCW 49.17”
Pennsylvania Unemployment: McLean v. Unemployment Comp. Bd. of Review, 476 Pa. 617, 620, 383 A.2d 533, 535 (1978)
In an unemployment case, the employer was challenging the worker’s claim on unemployment based on the assertion that the worker was terminated for ‘willful misconduct’ in refusing to drive a truck that had twice been repaired inadequately by a garage, and was going to be sent again for repairs at the same garage. The court held that the employee’s actions could not have been ‘wilful misconduct’ because: “In light of the demonstrated inadequacy of CNS’s repair services, the employer’s demand that appellant drive the truck was unreasonable to the extent that the employer insisted it be repaired only by CNS. The employer had no right to expect an employee to rely upon a repair service which had twice failed in making repairs
essential to safe operation; hence, the employee did not disregard a reasonable employer’s request.” The case was remanded to the state unemployment board to be resolved in accordance with this finding.
Texas Common Law: Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985)
(Coast Guard anti-dumping placard Citation)
Texas is a federal OSHA state, meaning that Texas does not administer a state plan, and relies on federal OSH for enforcement and monitoring of workplace health and safety.
Even states that are federal OSH states may have doctrines under common law, or statutory rights under certain kinds of whistleblower and employment laws that may allow employees to refuse dangerous work in certain situations. Texas is not one of these states.
At will employment is the standard employment arrangement in Texas, as it is in most of the country, and in Texas, the only exception to this doctrine that is not contractually created is in the case of the termination of an employee being contrary to public policy. The only way this can manifest in Texas is if an employee is fired for refusing to perform work that is illegal. Mott v. Montgomery Cnty., 882 S.W.2d 635, 637 (Tex. App. 1994). This right can only be exercised where the illegal act in question carries criminal penalties.
A worker on a ship off the coast of Texas refused to pump the bilge water overboard, which a prominently displayed placard on the ship stated was illegal. He called the Coast Guard, and would not pump the oily bilge water overboard. The worker was fired for this refusal.
The court held that this termination was not contrary to public policy because pumping the bilge overboard did not carry a criminal penalty, and therefore was not grounds for refusing the work.
Texas Common Law: Hancock v. Express One Int'l, Inc., 800 S.W.2d 634, 636 (Tex. App. 1990)
Clearly stating that an employee who refuses to perform illegal work that carries only civil penalties, will have no recourse when they are terminated for refusing the work. In this case, a pilot who had refused to fly as instructed by his employer, in a way that would violate FAA regulations lost his case at summary judgment because the violations of the FAA would have carried only civil penalties, not criminal penalties.
California Public Policy: Frazier v. UPS, 2005 U.S. Dist. LEXIS 13894, 30 (E.D. Cal. May 3, 2005)
(UPS 18-wheeler, similar to the one involved in this case)
A UPS driver refused to drive a truck he was ordered to drive because he believed the truck was unsafe because of improperly functioning spring and jake brakes. He was terminated for this refusal and brought claims for, among others, wrongful discharge in violation of public policy for refusal to perform dangerous work, relying on CA Labor Code § 6311. This claim survived defendant UPS’s motion for summary judgment on the grounds that a prima facie case for wrongful termination in violation of public policy had been made under California law. The final disposition of this case is unclear.
New Jersey Statute: New Jersey Conscientious Employee Protection Act, N.J. Stat. Section 34:19 (2007)
An employer shall not take any retaliatory action against an employee because the employee does any ofthe following…Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:...is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
New Jersey Statute: Donelson v. Dupont Chambers Works, 206 N.J. 243 (2011)
While not a right to refuse case, this is illustrative of how broadly the “public policy” in regards to worker safety will be read by New Jersey courts applying CEPA. An employee, observing the procedures plant security guards were using in randomly checking employee’s cars, complained to management and to OSHA about how dangerous it was that the employees were required to stand outside of their cars in the dark, on a busy highway, while the security officers searched their cars. The company retaliated against him for raising these concerns. as well as other concerns about the safety of the plant. The court held that: “Because CEPA is remedial legislation, it should be construed liberally to effectuate its important social goal ” to encourage, not thwart, legitimate employee complaints…One could hardly dispute that an employee’s complaint to a supervisor or his objections raised about the catastrophic consequences that he reasonably believes might occur from the unsafe operation of a reactor containing extremely dangerous chemicals falls within the activity protected by N.J.S.A. 34:19-3(a) or (c).”
Canadian Public Employee Right to Refuse: R.S.C. 1985, c. L-2 Section 128
...an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that: (a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee; (b) a condition exists in the place that constitutes a danger to the employee; or (c) the performance of the activity constitutes a danger to the employee or to another employee.
Canada: Implementation of R.S.C. 1985, c. L-2 Â§ 128
(Flowchart depicting the path of a worker refusing dangerous work under RSC 1985 c-L 2 Citation)
Canada approaches workers refusing dangerous work as more of an affirmative right, and less as a set of remedial provisions for workers retaliated against for refusing to perform dangerous work. An employee of the Canadian government or corporation formed to perform the work of the Canadian government, refusing to perform dangerous work is protected by a multi-tiered machinary wherein the employer must investigate the hazard, other employees may not be assigned to do the refused work, and if disputes about the danger arise and persist, the worker may continue to refuse the work while Minister of Labour investigates the hazard.
Canada: Ferrusi and Gaetano v. Treasury Board (Canadian Border Services Agency) (2007)
Canadian customs officers at Peace Bridge, Fort Erie, Ontario, refused to perform their work as inspectors because they did not feel they were provided with effective safety tools and equipment or training to handle particularly armed and wanted dangerous individuals attempting to cross the border into Canada. Their employer treated this refusal as a continuation of earlier, similar refusals, and withheld pay from the workers. The Public Service Labour Relations Board held that: “The point is that it is not open to the employer to make the unilateral decision to characterize situations as continuations of earlier situations, without permitting employees to invoke the procedures intended to provide them with means of obtaining an assessment of workplace dangers that is independent of the tensions and operational pressures of the workplace.” The Board ordered the employer to comply with R.S.C. 1985, c. L-2, and to pay the workers what was withheld while they were exercising their rights under the code.
About this Map
Workers’ Right to Refuse Dangerous Work
This map explores some of the components of the patchwork of rights and protections available to workers refusing to perform dangerous work in the United States. It was created with an eye toward improving practical protections for workers on the ground, utilizing what protections are available, and looking toward how these rights and protections could be improved.
Sarah David Heydemann & Jack Haycock
Northeastern University School of Law
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