The OSHA standards and the general duty clause requirements focus on employers’ obligations under the OSHAct.  As you know, the OSH Act is based on a design of pre-inspection compliance – that is, the presumption that employers will comply with the expectations of the Act without enforcement intervention.  Enforcement through inspections, citations and penalties is the backup process, and the agency is simply too small to reach every employer.  We now turn our full attention to on-the-job rights of employees – to participate in the prevention process and to retain their jobs when they raise concerns or are injured. 

This inquiry will take us back into the OSH Act – in terms of rights surrounding promulgation of standards, conduct of inspections, use of requests to NIOSH for Health Hazard Evaluations (HHEs), and protection against retaliation. 

But there is much more to think about from the vantage point of workers.  What rights do employees have to get information that is within the domain of the employer?  When do employees have job protection if they refuse to perform dangerous work?  When do employees have protection against employer retaliation if they raise concerns regarding health and safety hazards?  What protection is there if workers organize or strike over health and safety issues? Or if a union wants to bargain over safety issues? How does all of this work (or not work) for particularly vulnerable workers – those who work for small fly-by-night businesses, or are placed by staffing or temp agencies, or are undocumented?  What rights does a worker have if s/he is injured?

This is a broad set of questions. They require us to review not only specific legal issues under federal (and state) health and safety regulation, but also to venture out into other complex areas of employment law: the NLRA, collective bargaining and the right to strike; common law retaliatory discharge law; and  state workers’ compensation statutes and disability discrimination laws.  The OSH Act and the MSH Act are only one piece of a complicated puzzle.  Needless to say, we cannot possibly cover the full scope of these issues in this short course. These readings are simply intended to introduce you to the issues and questions.

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Question:

Think about all of the issues that we have been discussing – but now from the vantage point of workers.  What would you want, as a worker, if you were employed in a workplace with significant hazards? 

Under both the OSHAct and MSHAct, employees can participate in the rulemaking process (although individual employees often lack the expertise in both the law and the science to participate effectively); they can make a formal request for an inspection (sometimes called a “complaint”); they have the right to have a representative participate in the inspection when the CSHO is on site; they may challenge the abatement period set after the inspection and may elect party status in any appeal  proceedings brought by their employer.  Under the MSHAct, employees or representatives who participate in the inspection are entitled to “walkaround pay.”  The same right is not accorded employees under the OSHAct.  See Chamber of Commerce of U.S. v. Occupational Safety and Health, 636 F.2d 464 (D.C. Cir. 1980).  For as-yet unregulated or poorly understood hazards, employees can make a request to NIOSH for a Health Hazard Evaluation. This may result in a thorough investigation by NIOSH of potential hazardous situations (although the funding for NIOSH is under threat as of mid-2025, and its ability to respond effectively to these requests may be in jeopardy). 

At least in theory, complaints in which workers ask for inspections and requests for HHEs can be made anonymously. Of course, employers often know (or think they know) who the “trouble makers” are. These kinds of complaints can result in retaliation by employers. We will be discussing the potential protections for workers who suffer retaliation shortly – although it is important to remember that many of these protections lack ‘teeth’ and therefore one should be quite careful about reassuring individual workers (particularly non-union or undocumented workers) about their ‘rights.’  

Some unions, including both the traditional industrial unions (UMWA, USWA, UAW) and the newer unions representing low wage workers (UNITE-HERE, SEIU, the Change to Win coalition) have used all of these rights vigorously.  The AFL-CIO maintains an active safety department.  If you look at the comments in any major effort at rule-making by OSHA, you will find extensive comments from these groups.  

Nevertheless, in reading the OSHAct and regulations, rights of employees are remarkably tangential to the preventive thrust of the Act.  Again, the focus of the regulatory framework is on employers, not employees:  It is the employer who is responsible for maintaining the health and safety of the workplace. 

As the density of unions declined, new worker advocacy formations have grown – including workers’ centers and broader alliances such as the National Guest Worker Alliance – and the question has arisen: how can the rights of workers in these processes be expanded?

Several strategies have emerged.  For example, workers and their advocates are investigating hazards on their own and requesting OSHA inspections of low wage workplaces.   One example is a request for OSHA inspections at McDonald’s franchises.

For example, in 2015 Bloomberg reported the following with regard to McDonald's:

McDonald's fries are cooked throughout the day in a mix of vegetable oils heated to more than 335 degrees F.  The hamburger grill is covered in hot grease. The cookie ovens get pretty hot, too.

No wonder getting burned is the most common injury in fast-food restaurants. Seventy-nine percent of workers were burned in the past year, most more than once, according to a Fast Food Workplace Safety survey released today, March 16 [2015], by Hart Research Associates.  [See Key Findings from a Survey on Fast Food Worker Safety]

Now 28 McDonald's workers who say they were burned on the job have filed complaints with the Occupational Safety and Health Administration. The employees, who work in 19 cities, are supported by the Fight for $15 campaign, which disclosed some of their statements and photos of burns the size of hash browns.

"McDonald's and its franchisees give precedence to other corporate goals over worker safety," said Randy Rabinowitz, an occupational safety and health attorney who is advising the campaign. The complaints, filed over the past few weeks, are being made public today, along with the Hart survey, which was conducted for the National Council for Occupational Safety & Health, advocates for workers' rights. The Fight for $15 activists are planning protests at restaurants around the country tomorrow.

"McDonald’s and its independent franchisees are committed to providing safe working conditions for employees in the 14,000 McDonald’s Brand U.S. restaurants," the company said in a statement. "We will review these allegations. It is important to note that these complaints are part of a larger strategy orchestrated by activists targeting our brand and designed to generate media coverage." …

The burn complaints open a new front in the battle for higher wages, more corporate accountability, and unionization.

The workers allege that McDonald's safety standards aren't always enforced. They say they aren't given proper training or equipment to handle hot oil and grease in particular. Several say there are no grease aprons available, and only latex gloves keep the food safe, without regard to employees' own safety.

Cleaning the fryer seems particularly fraught. More than half the burns workers suffered during the past year happened there, according to the Hart survey. The severity of the burns and the safety records of specific companies aren't indicated in the survey.

The McDonald's employees complain that managers push them to work too quickly. "If you don't work fast enough, they give you less days on the schedule," a worker from New Orleans wrote. Some workers say they have to clean the grill while it's still turned on, since letting it cool takes too long. And when there’s not enough staff, they have to rush around to get everything done and often bump into hot pans, they say.

When they get burned, some say, they don't always get a lot of sympathy—or help. Bernard Giddings, who works at a McDonald's in Philadelphia and filed a complaint, said in an e-mail: "Once I burned my arm so badly that I now have a scar, but when I asked my manager for burn cream, she just said, 'Put mayonnaise on it, you'll be good.' "

The franchisees operating the restaurants in New Orleans and Philadelphia didn't respond to requests for comment.

For worker injuries overall in the fast-food industry, the Bureau of Labor Statistics reports 3.5 injuries per 100 full-time workers for 2013, higher than the national average of 3.3 for all industries. The bureau notes the true numbers may be higher because it relies on reports from employers. 

Whenever OSHA receives a complaint, it conducts an inspection. Agents so far have visited six of the McDonald’s named in the complaints. The agency has up to six months to complete its investigation of the restaurants and decide if a citation and fine are called for. A single violation deemed to be "serious," an official determination, carries a maximum penalty of $7,000.

That doesn't seem like a big hit to the franchisees or the company—the average McDonald’s restaurant had sales of $2.5 million in 2013, according to the trade magazine QSR. The real damage, the activists hope, will be to McDonald’s reputation.

Susan Berfield, McDonald’s Workers Get Burned: Complaints Filed on Hot Grease, Risky Conditions, Bloomberg Business News, March 16, 2015

This corporate-wide strategy mirrored litigation before the National Labor Relations Board at that time.  The joint employer issue has continued to attract tremendous attention – and hostility from employers. The Obama Administration was inclined toward allowing corporate wide enforcement strategies; the Trump Administration reversed this trend; the Biden Administration swung the pendulum back on issues of joint employers and corporate wide enforcement. It is quite likely that the pendulum will continue to swing: What is the current status of NLRB and OSHA approach to these issues? 

Worker advocates have also attempted to act as employee representatives during inspections. Representatives from the Massachusetts Coalition for Occupational Safety and Health (MassCOSH) played a role during an inspection of a fish processing plant in New Bedford, MA. At that time, this was somewhat new territory for OSHA, but the language of the law is clear that employees can designate representatives during the inspections, including during the walkaround and in the closing conferences.  A 2013 interpretive guidance, that became known as the “Sallman memo,” set out the parameters of these rights at that time: 

Thank you for your December 18, 2012, letter to the Occupational Safety and Health Administration (OSHA). ... 

Question # 1 – May one or more workers designate a person who is affiliated with a union without a collective bargaining agreement at their workplace or with a community organization to act as their "personal representative" for OSH Act purposes?

 Yes. The OSH Act, the Secretary's regulations implementing it, and OSHA's Field Operations Manual (FOM) all recognize the role of an "employee representative," who may represent employees' interests in enforcement-related matters. For example, a representative may: (1) file complaints on behalf of an employee (29 U.S.C. § 657(f), 29 C.F.R. § 1903.11(a)); (2) request workplace inspections (29 U.S.C. § 657(f), 29 C.F.R. § 1952.10(a)); and (3) participate in informal conferences to discuss issues raised by citations (29 C.F.R. § 1903.20). An employee representative may also contest the abatement period in OSHA citations and participate in contest proceedings filed by an employer (29 U.S.C. § 659(c)). The Field Operations Manual explains that an employee representative may include any person acting in a bona fide representative capacity, including nonprofit groups or organizations (FOM Chapter 9, I.A)...

Question # 2 — May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?

Yes. The OSH Act authorizes participation in the walkaround portion of an OSHA inspection by "a representative authorized by [the employer's] employees." 29 U.S.C. § 657(e). Therefore, a person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walkaround representative so long as the individual has been authorized by the employees to serve as their representative. This right, however, is qualified by the Secretary's regulations, which allow OSHA compliance officers (CSHOs) to exercise discretion over who participates in workplace inspections. ...

... there are numerous ways that an employee representative who is neither an employee of the employer being inspected nor a collective bargaining agent could make an important contribution to a thorough and effective inspection. This could be because of the representative's experience and skill, for example because of experience evaluating similar working conditions in a different plant. There are also many instances where non-English speaking workers want a representative who is fluent in both their own language and English, something that will facilitate more useful interactions with the CSHO during the inspection. Finally, workers in some situations may feel uncomfortable talking to an OSHA CSHO without the trusted presence of a representative of their choosing. ... 

In 2017, a court decision ruled that the existing regulation, 29 CFR 1903.8(c), only permitted employees to be authorized as representatives. Nat'l Fed'n of Indep. Bus. v. Dougherty, Civil Action No. 3:16-CV-2568-D (D.Ct. Northern District of Texas, 2017)(memorandum opinion). The Sallman memo was then archived from the OSHA website during the Trump administration. The Texas court had, however, acknowledged that the Act does not limit who can serve as an employee representative and that OSHA’s historic practice was a “persuasive and valid construction” of the OSH Act. That is, the ability to designate representatives was limited by the existing regulation, and not by the Act.  

The Biden Administration decided to approach this question through formal rule-making in order to clarify fully the "walkaround" rights of employees, and issued a final rule on April 1, 2024. This rule essentially codifies the Sallman memo: workers may authorize another employer or select a non-employee to act as their representative; for a non-employee representative to accompany the compliance officer in a workplace, they must be reasonably necessary to conduct an effective and thorough inspection. See 29 CFR 1903.8(c) (2024). 

The records access standard provides employees and their designated representatives access to records kept by the employer. It does not impose any requirement that the employer conduct exposure testing or medical monitoring.  Those records that are kept either voluntarily or pursuant to another specific standard are covered. “Employees” includes current and former employees.  Records must be kept for 30 years.  Notably, nothing in the standard precludes “employees and collective bargaining agents from collectively bargaining to obtain access to information in addition to that available under this section.” 29 C.F.R. 1910.1020(e)(vi).  This is significant: see the section below on collective bargaining and access to information.  Designated representatives of employees have right of access to exposure data; to obtain personal medical information, they must obtain written authorization from the individual employee.

There has been relatively little litigation under this Standard.  It is not, in the end, all that controversial to require that employers turn over existing records to employees.  Interesting litigation has occurred as a result of the desire to use this evidence in other proceedings, however, including workers’ compensation cases.  Section 4(b)(4)of the OSHAct, 29 U.S.C. §653, states:

Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

There are interesting intersections between the right to information under the OSHA regulations and the need for information in other proceedings.  For example: Was the obtaining of exposure and medical records by a worker’s attorney for use in a state workers’ compensation proceeding a violation of this section of the OSHAct?  See Secretary of Labor v. General Motors Corp., 1991 WL 41251 (O.S.H.R.C.), 14 O.S.H. Cas. (BNA) 2064, 1991 O.S.H.D. (CCH) P 29,240 (GM contended that the result of enforcing the employees' requests for information under the OSH Act would be to give employees greater rights than GM has to pretrial disclosure of information in their pending state workers’ compensation proceedings; OSHRC found a violation). 

The Hazard Communication Standard was promulgated in 1983.  The purpose of the standard was “to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees.  This transmittal of information is to be accomplished by means of comprehensive hazard communication programs, which are to include container labeling and other forms of warning, material safety data sheets and employee training.” 29 C.F.R. 1910.1200(a)(1).  The standard “requires chemical manufacturers or importers to assess the hazards of chemicals which they produce or import, and all employers to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets [MSDs], and information and training.  In addition, this section requires distributors to transmit the required information to employers.” 29 C.F.R. 1910.1200 (b)(1)  It applies “to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.” 29 C.F.R. 1910.1200 (b)(2).   

Initially, the standard applied only to chemical manufacturers and importers (not to construction or agriculture) and applied only to 600 substances; it excluded hazardous wastes, foods, drugs, and pesticides.  Its coverage was less expansive than some preexisting state ‘right to know’ laws, which were explicitly preempted by the federal standard.  At the starting point, the standard covered an estimated 14 million employees in 300,000 manufacturing establishments. 

In addition, the initial standard also created a broad ‘trade secret’ exception from the labeling and MSDS ingredient disclosure requirements. When a chemical manufacturer or importer claimed that the chemical identity was a trade secret, the manufacturer or importer had to provide an MSDS disclosing the hazardous properties of the chemical and suggesting appropriate precautions.   In the case of a medical emergency, the chemical identity could be disclosed only  to a treating physician or nurse, but required the health professional to sign a confidentiality agreement.  In no case was the manufacturer required to disclose the precise formula, as opposed to the identity of chemicals in the compound.

Almost immediately after OSHA promulgated the standard,  the United Steelworkers of America and several states with their own (more protective) right to know laws challenged some of the limitations in the standard.  United Steelworkers of America v. Auchter, 763 F.2d 728 (3d Cir. 1985).  OSHA defended the fact that the standard applied only to manufacturing, noting that that sector accounted for 50% of the reported cases of illness due to chemical exposure, and therefore the workers in those industries were at greatest risk.  The court noted:

Several petitioners, while conceding that the finding about incidence rate of illnesses in the manufacturing sector is supported by substantial evidence, contend that the Secretary's exclusion of other sectors such as service, construction, and agriculture, is unsupported by reasons that are consistent with the purposes of the statute.   They urge that while the incidence rate for employees in the manufacturing sector is high overall, some employees in specific non-manufacturing categories, such as hospital workers, are exposed to a greater number of toxic substances than are typical workers in the manufacturing sector.   Moreover some workers in specific non-covered industries have higher reported rates of chemical source illness and injury than do workers in many covered industries…The result of the standard is that spray painters in the manufacturing sector, for example, must be provided with MSDS's and with information and training on hazardous chemicals in the products they use, while spray painters in the construction industry using the same products are not so protected. * * *

The court rejected OSHA’s position, and held that the “standard may continue to operate in the manufacturing sector,” but  “ the Secretary will be directed to reconsider the application of the standard to employees in other sectors and to order its application to other sectors unless he can state reasons why such application would not be feasible.”

Several other provisions were challenged, including the trade secret exception.  The court held, on this issue, that the trade secret exception was too broad, and remanded the issue for reconsideration of the definition of trade secrets.  In addition, the court was not persuaded by the restriction limiting access to trade secrets to health professionals:   “There is no record evidence supporting the Secretary's apparent conclusion that employees who are not health professionals will be more likely to breach a confidentiality agreement than would the same number of health professionals.   We conclude that the restriction in the Hazard Communication Standard of access to trade secret information to health professionals is not supported by substantial evidence in the record, and is inconsistent with the mandate of section 6(b)(5) that OSHA promulgate the standard that "most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health…”

After the decision in this case,  OSHA amended the Hazard Communication Standard by adding a new definition of trade secrets and new rules related to disclosure of trade secret information; expanding coverage beyond the manufacturing sector to cover all workers; requiring that, at multi-employer worksites, employers exchange their material safety data sheets (MSDSs), either individually or through a central location; and promulgating exemptions from labelling requirements for consumer products used in the same manner and quantities as intended for consumer use and for drugs regulated by the Food and Drug Administration. The expansion beyond the manufacturing sector was challenged by the grain and construction industries, and upheld by the Third Circuit in Associated Builders & Contractors, Inc. v. Brock, 862 F.2d 63 (3d Cir. 1988).  For the full text of the Standard, see 29 C.F.R. 1910.1200 and its appendices.

The challenges did not end here, however.

Another rule requires employers to provide information to OSHA regarding injuries and illnesses that occur in the workplace. See 29 C.F.R. Part 1904. This rule includes a specific section dealing with employee rights and involvement:

29 C.F.R. § 1904.35 Employee involvement.

(a) Basic requirement. Your employees and their representatives must be involved in the recordkeeping system in several ways.

(1) You must inform each employee of how he or she is to report a work-related injury or illness to you.

(2) You must provide employees with the information described in paragraph (b)(1)(iii) of this section.

(3) You must provide access to your injury and illness records for your employees and their representatives as described in paragraph (b)(2) of this section.

(b) Implementation—

(1) What must I do to make sure that employees report work-related injuries and illnesses to me?

(i) You must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness;

(ii) You must inform each employee of your procedure for reporting work-related injuries and illnesses;

(iii) You must inform each employee that:

(A) Employees have the right to report work-related injuries and illnesses; and

(B) Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses; and

(iv) You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.

(2) Do I have to give my employees and their representatives access to the OSHA injury and illness records? Yes, your employees, former employees, their personal representatives, and their authorized employee representatives have the right to access the OSHA injury and illness records, with some limitations, as discussed below.

(i) Who is an authorized employee representative? An authorized employee representative is an authorized collective bargaining agent of employees.

(ii) Who is a “personal representative” of an employee or former employee? A personal representative is:

(A) Any person that the employee or former employee designates as such, in writing; or

(B) The legal representative of a deceased or legally incapacitated employee or former employee.

(iii) If an employee or representative asks for access to the OSHA 300 Log, when do I have to provide it? When an employee, former employee, personal representative, or authorized employee representative asks for copies of your current or stored OSHA 300 Log(s) for an establishment the employee or former employee has worked in, you must give the requester a copy of the relevant OSHA 300 Log(s) by the end of the next business day.

(iv) May I remove the names of the employees or any other information from the OSHA 300 Log before I give copies to an employee, former employee, or employee representative? No, you must leave the names on the 300 Log. However, to protect the privacy of injured and ill employees, you may not record the employee's name on the OSHA 300 Log for certain “privacy concern cases,” as specified in § 1904.29(b)(6) through (9).

(v) If an employee or representative asks for access to the OSHA 301 Incident Report, when do I have to provide it?

(A) When an employee, former employee, or personal representative asks for a copy of the OSHA 301 Incident Report describing an injury or illness to that employee or former employee, you must give the requester a copy of the OSHA 301 Incident Report containing that information by the end of the next business day.

(B) When an authorized employee representative asks for copies of the OSHA 301 Incident Reports for an establishment where the agent represents employees under a collective bargaining agreement, you must give copies of those forms to the authorized employee representative within 7 calendar days. You are only required to give the authorized employee representative information from the OSHA 301 Incident Report section titled “Tell us about the case.” You must remove all other information from the copy of the OSHA 301 Incident Report or the equivalent substitute form that you give to the authorized employee representative.

(vi) May I charge for the copies? No, you may not charge for these copies the first time they are provided. However, if one of the designated persons asks for additional copies, you may assess a reasonable charge for retrieving and copying the records.

Before Wilkey and Edwards, Circuit Judges, and McGowan, Senior Circuit Judge.

Harry T. Edwards, Circuit Judge:

These consolidated petitions for review and applications for enforcement involve three decisions of the National Labor Relations Board ("NLRB" or "Board") in cases dealing with requests by unions for information concerning the health and safety of employees represented by the bargaining agents.   In each instance, the company was found to have violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act ("NLRA" or "Act") by failing to provide the unions with information, other than data constituting trade secrets or individually identifiable medical records, relevant to the health and safety of the employees.

Two of the employers, Colgate-Palmolive Company ("Colgate") and Borden Chemical ("Borden") have petitioned for review of the decisions adverse to them;  in both of these cases, the NLRB has cross-applied for enforcement.  The third employer, Minnesota Mining and Manufacturing Company ("3M"), did not petition for review, but is resisting the NLRB's application for enforcement. Notwithstanding this minor procedural difference, the challenges presented by the three employers overlap in a number of important respects.   Each company argues that the requested information is not relevant to the unions' bargaining responsibilities and that, in any event, the inclusion of proprietary and trade secret data within the scope of the unions' requests for information legitimated the employers' refusal to comply with those requests. The employers, alone or in combination, also raise a number of other defenses premised, for example, on allegations pertaining to the confidentiality of employees' medical records, the burdensomeness of the unions' requests, and the unions' waivers of their right to receive relevant information.   We find no merit in any of these contentions.

The Board's decisions are attacked, from a different angle, by two locals of the Oil, Chemical & Atomic Workers International Union ("International") and one affiliated with the International Chemical Workers Union ("ICWU").   The unions, while satisfied with most aspects of the NLRB's decisions, argue that the Board ignored its statutory obligation to resolve unfair labor practice charges in failing to decide whether the employers' refusal to supply relevant information containing trade secrets violated the NLRA.   We disagree.   In our view, the Board's decisions, fairly read, reveal clearly its conclusion that the companies had not been shown to have contravened the Act by declining unconditionally to disclose the small part of the requested information constituting proprietary or trade secret material.   As the Board found, however, the employers failed to satisfy their bargaining obligations concerning this information by wholly denying its relevance;  accordingly, we approve the orders requiring them to bargain in good faith with the unions over the conditions under which trade secret information might appropriately be disclosed.

I. BACKGROUND

A. Minnesota Mining and Manufacturing Company: Nos. 82-1418 & 82-1589

At issue in these petitions for review is the bargaining relationship-- successfully maintained for over twenty-five years--between 3M and Local 6-418, the exclusive representative of a unit of employees at 3M's Chemolite plant in Cottage Grove, Minnesota.   The employees represented by Local 6-418, the NLRB properly concluded, are regularly exposed to a wide range of hazardous or potentially hazardous substances and conditions, and employee health and safety have long been acknowledged by 3M to be legitimate and appropriate subjects of collective bargaining.   Thus, the relevant collective bargaining agreement contains an extensive health and safety provision that, in addition to imposing various obligations on 3M, requires Local 6-418 to take an active role in promoting the health and safety of employees at the Chemolite plant.

The events underlying the unfair labor practice charge against 3M commenced in 1977 when the International, increasingly concerned about health and safety problems affecting its members, instituted a nationwide program to aid its locals in investigating potentially hazardous working conditions.   On October 27, 1977, in response to advice from the International, a representative of Local 6-418 requested health and safety information pertaining to employees at 3M's Chemolite plant to enable the union to "carry out its representation responsibilities under the collective bargaining agreement." Among the data requested were morbidity and mortality statistics for past and present employees, generic names of all substances used or produced at the plant, results of clinical and laboratory studies of employees undertaken by 3M, results of studies of toxic agents to which employees may be exposed, health information derived from insurance and workmen's compensation claims, a list of contaminants monitored by 3M, a description of 3M's hearing conservation program, and data on employees' exposure to radiation and heat. Subsequent events and testimony by representatives of the union made clear, and the NLRB properly found, that the request did not seek disclosure of individually identified medical records.   In submitting its request, moreover, Local 6-418 disclaimed any intention to circumscribe "the format under which the company may choose to answer" and emphasized that "any ... written form convenient for the company" would be acceptable to it.

3M never responded to Local 6-418's request in writing, but the vague position communicated to the union shortly after the submission of the request crystallized at a meeting of company and union representatives on March 24, 1978.   After representatives of Local 6-418 had explained the reasoning underlying their request, 3M indicated that it would not supply any of the information specified in the union's letter.   In short, 3M claimed that (1) it kept no morbidity or mortality statistics, (2) the list of generic names would not aid the union and might reveal trade secrets, and (3) medical records could be supplied only to an individual's personal physician pursuant to a request by the employee or the physician. 3M supplemented these specific responses with generalized contentions that its health and safety programs were adequate and that Local 6-418 should rely on the company to safeguard its employees' health and safety.

The NLRB found that 3M's refusal to comply with the union's request violated  sections 8(a)(1) and 8(a)(5) of the NLRA to the extent that the requested material did not include either trade secrets or individually identified medical records.   The Board began its analysis by approving, in large measure, the Administrative Law Judge's ("ALJ") conclusions regarding the threshold question of relevance. Read together, the opinions of the ALJ and the NLRB indicate that the requested information was found relevant to Local 6- 418's representational responsibilities because (1) employees at the Chemolite plant are exposed to many real and potential dangers, (2) the contract between the parties evinces genuine concern for employees' health and safety on both sides and obligates both 3M and Local 6-418 to act to protect health and safety, and (3) the viewpoints of the union and the company concerning the extent to which employees are endangered and the appropriate responses to workplace hazards inevitably will diverge from time to time.   Under the particular facts of this case, the Board found, the union's "need for the information requested is not merely speculative."  Minnesota Mining & Manufacturing Co., 261 N.L.R.B. No. 2, at 10 (Apr. 9, 1982).   On the contrary, "Local 6-418 can hardly be expected to bargain effectively regarding health and safety matters if it, unlike [3M], knows neither those substances to which the unit employees are exposed nor previously identified health problems resulting therefrom."  Id. at 11.

As the NLRB recognized, this conclusion did not end its inquiry;  it remained necessary to balance the union's need for relevant information against any legitimate and substantial confidentiality interests asserted by the employer.   See Detroit Edison Co. v. NLRB, 440 U.S. 301, 99 S.Ct. 1123, 59 L.Ed.2d 333 (1979).   3M alleged two such interests.   The first, resting on the need to protect the confidentiality of individual medical records, was rejected because Local 6-418 had not sought individually identified medical data and the minimal intrusion that would attend the provision of aggregate data and individual records from which identifying data have been excised could not counterbalance the union's need for relevant health information.

3M also asserted a need to protect the confidentiality of its trade secrets.  This interest, the NLRB found, was implicated by the disclosure of only a miniscule fraction of the generic names of raw materials sought by Local 6- 418.   3M's failure unconditionally to disclose those few generic names that did constitute trade secrets, the Board implicitly held, did not amount to an unfair labor practice.   But the Board found that the company had improperly maintained that the requested information was wholly irrelevant, thereby precluding bargaining over the possibility that disclosure might be made in a manner that would accommodate the legitimate interests of both labor and management.   In remedying this violation, the NLRB concluded that it need not "engage in the full balancing of countervailing rights discussed by the Supreme Court in Detroit Edison ... before first affording [the] parties an opportunity to reach an accommodation on their own.   They would be in the best position to develop necessary methods and devices for the information exchange through the traditional collective-bargaining mechanism."  261 N.L.R.B. No. 2, at 19 (footnote omitted).

The Board's order thus required the release of all requested information except individual medical records from which identifying data have not been deleted and the names of substances constituting trade secrets, and it obligated 3M to bargain concerning the trade secret information.

B. Colgate-Palmolive Company: Nos. 82-1420 & 82-1940

These petitions for review interject this court into the longstanding and generally amicable bargaining relationship between Colgate and Local 5-114, the exclusive representative of a unit of production and maintenance employees at the company's plant in Kansas City, Kansas.   [The request for information and the legal issues for the other companies are essentially identical to those raised in the 3M case.  Notably, in this case, the employees “are exposed to a wide range of potentially hazardous substances, and Colgate has acknowledged that employee health and safety are legitimate and appropriate subjects of collective bargaining.   Thus, the collective bargaining agreement between Colgate and Local 5-114--negotiated in 1976 without a request for health and safety information^[1] -- contains a provision that imposes health and safety obligations on both the company and the union.” Colgate Palmolive refused to provide the information because the request was burdensome and a “fishing expedition.” As in the companion case involving 3M, the NLRB found that Colgate's refusal to furnish information violated sections 8(a)(1) and 8(a)(5) of the NLRA to the extent that the requested material did not include either trade secrets or individually identified medical records.]Document2zzFN_F0099

The Board commenced its analysis by approving the ALJ's resolution of the relevance issue.   Read together, the opinions of the ALJ and the NLRB indicate that the requested information was found relevant to Local 5-114's representational responsibilities because (1) employees at the Kansas City plant are exposed to potentially hazardous substances, (2) health and safety are terms and conditions of employment over which these parties have bargained, (3) the contract between the parties obligates both Colgate and Local 5-114 to act to protect employees' health and safety, and (4) the contractual health and safety provisions would be rendered meaningless if Colgate could permissibly refuse the union's request for information.   As the ALJ observed,

occupational illness or disease resulting from extended exposure to chemicals or environmental conditions in the workplace is, by its nature, exceedingly difficult to diagnose, and without proper information such as requested by the Union, and a subsequent thorough analysis of such information undertaken by individuals with expertise in such matters, the contractual provisions purportedly designed to protect employees from unsafe jobs would be rendered, in significant part, illusory.

Colgate-Palmolive Co., Case No. 17-CA-8331, at 10 (Mar. 27, 1979)  (Wacknov, A.L.J.), reprinted in Colgate Joint Appendix 214, 223.

The Board then considered the countervailing interests counseling nondisclosure of the relevant health and safety information … The order entered by the Board against Colgate was identical in all material respects to the one imposed on 3M.

C. Borden Chemical: Nos. 82-1419 & 82-1743

The final petitions for review put in issue the bargaining relationship between Borden and Local 733, the representative of a unit of production and maintenance employees at Borden's plant in Fremont, California.   The record reveals, and the ALJ properly found, that the employees represented by Local 733 are regularly required to work with a wide variety of hazardous or potentially hazardous materials.   Borden's highly commendable efforts to reduce or eliminate the hazards inherent in its business demonstrate clearly that the protection of employees' health and safety at the Fremont plant is a serious concern, and the company and the union understandably have recognized the propriety of bargaining over these efforts.   As a result of negotiations in 1976, Borden is contractually obligated to make "all reasonable provisions for the safety and health of its employees," and the union is required to participate in a joint Labor-Management Health and Safety Committee that considers, among other things, "the natures of substances used in the plant, and the safe limitations on exposure."  Agreement Between Borden Chemical, Fremont, California and Local No. 733, art. XVIII, General Counsel's Exhibit 3, reprinted in Borden Joint Appendix, vol. 3.

In April 1976, in preparation for the negotiations that led to the 1976 agreement, a representative of the ICWU requested that Borden provide certain information--including a list of the generic and trade names of all materials and chemicals handled by union members--in order that the union might "bargain intelligently on wages, hours, and other working conditions." Although it largely complied with the union's request, Borden did not prepare or provide the requested list of materials and chemicals.   The company's position with respect to this list developed in bits and pieces during negotiations in May 1976.   In essence, Borden's representatives contended that (1) the requested list would not help the union resolve specific health and safety problems, (2) the company's commitment to discuss particular health and safety problems on an individual basis obviated the need for a list of substances used in the plant, and (3) the list, if it existed, could not be released because it would reveal proprietary information.   Borden never acceded to the union's request, the matter of the list was pushed aside, and the parties eventually agreed upon a health and safety provision proposed by the company. * * *

In March 1977, the union renewed its request for a list of the raw materials used at the Fremont plant.   This request was repeated and rebuffed, both orally and in writing, on several occasions during April 1977. On November 1, 1977, the Health and Safety Committee noted the pendency of the union's request, and a representative of the ICWU again reiterated the union's need for a list of raw materials.   On November 10, 1977, the request was finally and definitively rejected on the ground that the list in question contained confidential, proprietary, trade secret information.   The parties communicated no further on this subject, and the proceeding that has culminated in these petitions for review commenced on November 22, 1977, when the union filed its unfair labor practice charge. * * *

[The NLRB again concluded that Borden had violated sections 8(a)(1) and 8(a)(5) of the NLRA by refusing to provide the names of raw materials and chemicals--other than those constituting trade secrets--used in the Fremont plant.]  

As it had done in the two companion cases, therefore, the Board ordered Borden to supply Local 733 with the nonproprietary information and to bargain in good faith regarding those few names that might reveal its trade secrets.

II. DISCUSSION

A. General Principles

The disposition of these petitions for review does not require the development of any novel legal principles.   An employer's duty to bargain in good faith with a labor organization representing its employees has long been acknowledged to include a duty to supply a union with "requested information that will enable [the union] to negotiate effectively and to perform properly its other duties as bargaining representative." Local 13, Detroit Newspaper Printing & Graphic Communications Union v. NLRB, 598 F.2d 267, 271 (D.C.Cir.1979)  This fundamental obligation to furnish relevant information is "rooted in recognition that union access to such information can often prevent conflicts which hamper collective bargaining," Florida Steel Corp. v. NLRB, 601 F.2d 125, 129 (4th Cir.1979), and it undoubtedly extends to data requested in order properly to administer and police a collective bargaining agreement as well as to requests advanced to facilitate the negotiation of such contracts. In either instance, the employer's duty is predicated on the need of the union for information that will promote "intelligent representation of the employees." Westinghouse Elec. Corp., 239 N.L.R.B. 106, 107 (1978) (footnote omitted), modified on other grounds sub nom. International Union of Elec., Radio & Mach. Workers v. NLRB, 648 F.2d 18 (D.C.Cir.1980) . . . 

The union's need and the employer's duty depend, in all cases, on the "probability that the desired information [is] relevant, and that it [will] be of use to the union in carrying out its statutory duties and responsibilities."  NLRB v. Acme Industrial Co., 385 U.S. 432, 437, 87 S.Ct. 565, 568, 17 L.Ed.2d 495 (1967).   It is a commonplace that "[e]ach case must turn upon its particular facts," NLRB v. Truitt Manufacturing Co., 351 U.S. 149, 153, 76 S.Ct. 753, 756, 100 L.Ed. 1027 (1956) (footnote omitted), but it is nevertheless also true that a dichotomy has developed between data bearing directly on mandatory bargaining subjects and other kinds of information.   Information in the first category, pertaining to wages, hours or conditions of employment, is presumptively relevant, and must be disclosed unless the employer proves a lack of relevance.   On the other hand, when information not ordinarily pertinent to collective bargaining, such as information concerning nonunit employees, is requested by a union, relevance is not assumed.   Instead the union must affirmatively demonstrate relevance to bargainable issues.   Press Democrat Publishing Co. v. NLRB, 629 F.2d 1320, 1324 (9th Cir.1980) (citations omitted). * * *

The application of this standard is, in the first instance, a matter for the NLRB, and the Board's conclusions are given great weight by the courts. But a finding of relevance does not ensure that the union will receive all of the desired information in the precise form it requested. This court has long recognized that particular circumstances sometimes warrant a refusal to disclose or the imposition of conditions upon the production of requested information.  And the Supreme Court has clearly rejected "the proposition that union interests in arguably relevant information must always predominate over all other interests, however legitimate."  Detroit Edison Co. v. NLRB, 440 U.S. 301, 318, 99 S.Ct. 1123, 1132, 59 L.Ed.2d 333 (1979).

In a decision necessarily resting heavily on the facts of the particular case, the Detroit Edison Court concluded that the NLRB's failure adequately to protect an employer's interest in the confidentiality of its aptitude test battery and answer sheets constituted an abuse of the Board's remedial authority.  Id. at 314-17, 99 S.Ct. at 1130-32.   The Court also held that the employer satisfied its bargaining obligation by offering to disclose employees' test scores only upon receipt of consents from the affected individuals. Id. at 317-20, 99 S.Ct. at 1132-33.  In reaching these conclusions, the Court made clear that it frequently will be necessary to strike an appropriate balance between the legitimate interests of employers and unions.

When applied to the decisions currently under review, we believe, these governing principles justify enforcement in full.

B. Relevance

The right to relevant information, the previous section makes clear, validates requests for data reasonably necessary to enable unions effectively to administer and police collective bargaining agreements or intelligently to seek their modification.   Employee health and safety indisputably are mandatory subjects of collective bargaining,^[2] about which the unions in each of these cases have insisted on negotiating.   The resulting contractual health and safety provisions, of course, are not set in stone and may appropriately be modified in future negotiations.   In the meantime, it is "the duty of union representatives ... to see that ... [the employers meet their] obligations under those clauses."  International Union of Electrical, Radio & Machine   Workers v. NLRB, 648 F.2d 18, 25 (D.C.Cir.1980).

These observations notwithstanding, the employers here argue that the unions' requests could properly be denied because (1) they were overbroad, (2) the information covered by the requests is not presumptively relevant, and (3) the unions failed to document the relevance of the requested information under the facts of these cases.   The first contention is easily countered, for

the mere fact that a Union's request encompasses information which the employer is not legally obligated to provide does not automatically excuse him from complying with the Union's request to the extent that it also encompasses information which he would be required to provide if it were the sole subject of the demand.

Fawcett Printing Corp., 201 N.L.R.B. 964, 975 (1973) (footnote omitted).  The companies' second claim need not be resolved to decide these cases;  the NLRB does not purport to rely on the presumptive relevance theory, and our disposition of the employers' third argument renders unnecessary a full explication of the scope of the presumption.   

That third contention, on which the outcome of this case turns, is actually an agglomeration of several tangentially related arguments.   Thus, the employers claim, alone or in combination, that (1) the unions' requests were not motivated by specific problems in their respective plants, (2) the mere presence of hazardous substances or conditions within the workplace does not demonstrate the relevance of the requested information, (3) the disclosure of a list of hazardous substances or conditions would not aid the unions in performing their bargaining obligations, and (4) the companies' extensive health and safety programs ensure their employees a safe and healthy working environment.   It is clear, however, that a labor organization's right to relevant information is not dependent upon the existence of some particular controversy or the need to dispose of some recognized problem.  J.I. Case Co. v. NLRB, 253 F.2d 149, 155 (7th Cir.1958);  Westinghouse Electric Corp., 239 N.L.R.B. 106, 109 (1978), modified on other grounds sub nom. International Union of Electrical, Radio & Machine Workers v. NLRB, 648 F.2d 18 (D.C.Cir.1980).   And the proposition that a union must rely on an employer's good intentions concerning the vital question of the health and safety of represented employees seems patently fallacious.

In cases like those now before us, where the employees admittedly are exposed to a variety of potential hazards and have expressed growing and legitimate concerns over their health and safety, where the unions explained the rationales underlying their requests in considerable detail, and where the pertinent collective bargaining agreements obligate both management and the unions to take specified actions to safeguard employees' health and safety, the relevance of a wide range of information concerning the various elements of the working environment and employees' health experiences cannot be gainsaid. Under these circumstances, at least, the goals of occupational health and safety are inadequately served if employers do not fully share with unions available information on working conditions and employees' medical histories.   Requiring the release of exposure and medical data in such cases will facilitate the identification of workplace hazards, promote meaningful bargaining calculated to remove or reduce those hazards, and enable unions effectively to police the performance of employers' contractual obligations as well as to carry out their own responsibilities under the respective collective bargaining agreements.   As a result, we hold that the NLRB correctly assessed the relevance of the information requested in each of the cases under review.

C. Trade Secrets

In defense of their refusal to disclose, the employers contend that some of the data encompassed within the unions' requests constitute trade secrets.   As the NLRB found, however, this trade secret defense applies to only a small portion of the requested information and thus could not justify the companies' total noncompliance with the unions' requests. And, while Detroit Edison makes clear that a union's interest in relevant information will not always outweigh an employer's legitimate and substantial interests in maintaining the confidentiality of such information, Detroit Edison Co. v. NLRB, 440 U.S. at 318, 99 S.Ct. at 1132, that case certainly affords no support for the proposition that an employer is absolutely privileged from revealing relevant proprietary or trade secret information. Even a cursory examination of the NLRB's decisions in these cases reveals the Board's faithfulness to the accommodative philosophy espoused by the Detroit Edison Court.

In each of the cases under consideration, the NLRB concluded, explicitly or implicitly, that the General Counsel had not established that the refusal to disclose trade secret information violated the NLRA. The Board held, however, that the employers' blanket denials of relevance, which it rejected, had precluded meaningful bargaining over the conditions under which this proprietary information might be disclosed;  accordingly, the employers were ordered to bargain in good faith on this point.   This position, it seems clear, fully respects the legitimacy of the companies' interests in the confidentiality of their trade secrets, for, as we read the Board's orders, they express no view on whether trade secret information ultimately need be disclosed.   If conditions can be devised to accommodate both the employers' confidentiality interests and the unions' interest in obtaining relevant information, a refusal to disclose under those conditions likely will be found to violate the Act.   But if no such conditions can be created, the Board might be forced to sanction the companies' refusal to disclose trade secret information.

The NLRB's decision to defer, and hopefully to eliminate the need for, an administrative balancing of the parties' competing interests by allowing the parties to attempt an accommodation at the bargaining table is vehemently attacked by the unions.   This decision, the unions argue, amounts to a refusal to determine whether the employers breached their bargaining obligations by withholding trade secret information.   Although such a refusal would violate section 10(c) of the NLRA, our reading of the decisions comports with the one advanced by counsel for the Board. Accordingly, we conclude that the Board did decide that the companies had not been shown, on these records, to have violated the Act by failing unconditionally to disclose their trade secrets.   The employers had, to be sure, failed to satisfy their bargaining obligations concerning such material.   But the NLRB's determination that these violations did not necessitate a full-scale attempt to balance the competing interests on the sparse records before it represents a legitimate and appropriate exercise of the Board's remedial discretion.

Where, as here, requested information is both relevant to a union's representational responsibilities and subject to an employer's legitimate confidentiality interest, the NLRB's reliance, in the first instance, on a longstanding bargaining relationship for the development of an accommodation of these interests does not contravene the Board's statutory obligation to resolve unfair labor practice charges.   The unions acknowledge that the NLRB may properly leave to the parties the determination of conditions governing disclosure of information to which it has found a union entitled. See International Union of Electrical, Radio & Machine Workers v. NLRB, 648 F.2d at 26;  Ingalls Shipbuilding Corp., 143 N.L.R.B. 712, 718 (1963).   But they nevertheless contend that, before ordering parties to bargain over the conditions under which confidential information might appropriately be disclosed, the Board must declare unequivocally that the union is entitled to that information--regardless whether conditions sufficiently protective of the employer's legitimate interests can be devised.   This contention plainly lacks validity in light of the decision in Detroit Edison.   These cases may, of course, ultimately come before the Board again for a balancing of the parties' interests.   But they will do so on records that will allow a more effective balancing than would those now before us;  accordingly, we reject the unions' challenge to the NLRB's orders.

D. Medical Records

3M and Colgate both argue that they legitimately withheld certain of the requested information because it involved disclosure of individually identified medical data that would violate employees' rights to privacy and confidentiality.   The NLRB recognized that employers may have a legitimate and substantial interest in protecting the confidentiality of employees' medical records, but found that neither Local 6-418 nor Local 5-114 had sought access to individually identified medical records. While we have previously suggested, in the context of discrimination complaints, that the mere deletion of names may not sufficiently ensure employees' confidentiality, International Union of Electrical, Radio & Machine Workers v. NLRB, 648 F.2d at 27, the Board's orders in these cases permit the deletion of any information that could reasonably be used to identify specific employees.   We therefore reject the medical confidentiality defenses asserted by the companies. * * *

E. Burdensomeness

The claims of burdensomeness advanced by 3M and Colgate also may be disposed of quickly.   While the excessive breadth of a union's request "may in particular circumstances relieve the employer from the obligation to provide some or all of information to which the Union would be entitled on proper demand," the cost and burden of compliance ordinarily will not justify an initial, categorical refusal to supply relevant data.   See International Union of Electrical, Radio & Machine Workers v. NLRB, 648 F.2d at 26.   Issues focused on these factors typically are considered instead at the compliance stage of a disclosure proceeding, where the parties may bargain over the allocation of the costs of producing the requested information. Safeway Stores, 252 N.L.R.B. 1323, 1324 (1980), enforced, 691 F.2d 953 (10th Cir.1982). The NLRB adhered to these principles in holding that the alleged burdens of compliance did not excuse the companies' refusals to disclose, and we have found no reason to upset its conclusions.

III. CONCLUSION

We have not attempted to discuss every argument advanced by all of the parties to this proceeding, but we have carefully considered and rejected those not specifically addressed herein.   For the reasons set forth above, we enforce in full the Board's orders in each of these cases.

[1] Local 5-114's failure to make such a request during contract negotiations, Colgate argues, constitutes a waiver of any right it might have had to receive the information sought in these proceedings.   But it is well established that the statutory right to receive information may be relinquished only by a "clear and unmistakable" waiver, Procter & Gamble Mfg. Co. v. NLRB, 603 F.2d 1310, 1318 (8th Cir.1979);  J.I. Case Co. v. NLRB, 253 F.2d at 154, and that silence in the bargaining agreement is insufficient to constitute such a waiver, Federal Compress & Warehouse Co. v. NLRB, 398 F.2d 631, 636 (6th Cir.1968);  see George Banta Co., Banta Div. v. NLRB, 686 F.2d 10, 20 (D.C.Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1983).   Accordingly, we hold that Local 5-114 did not waive its right of access to relevant information by remaining silent on this issue during the 1976 negotiations.

[2] United Steelworkers of America v. Marshall, 647 F.2d 1189, 1236 (D.C.Cir.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3148, 69 L.Ed.2d 997 (1981);  NLRB v. Miller Brewing Co., 408 F.2d 12, 14 (9th Cir.1969);  NLRB v. Gulf Power Co., 384 F.2d 822, 824-25 (5th Cir.1967);  Winona Indus., 257 N.L.R.B. 695, 697 n. 9 (1981);  San Isabel Elec. Servs., 225 N.L.R.B. 1073, 1078 n. 6 (1976).

Before Ervin, Chief Judge, Widener, Circuit Judge, and Haden, Chief District Judge for the Southern District of West Virginia, sitting by designation.

Ervin, Chief Judge:

The National Labor Relations Board petitions for enforcement of its order commanding American National Can Company, Foster Forbes Glass Division (the Company) to grant representatives of the Glass, Pottery, Plastics and Allied Workers' Union, AFL-CIO (Local 193 and International, collectively the Unions) access to the Company's Wilson, North Carolina, plant to take heat measurements necessary for processing a heat relief grievance and for monitoring the Company's compliance with the on-job health protection provisions of the parties' collective bargaining agreement.   Reviewing the Board's order under Section 10(e) of the National Labor Relations Act (the Act), as amended, 29 U.S.C. §  160(e), we conclude that there was substantial evidence to support the Board's finding that the Company committed an unfair labor practice.   We also affirm the Board's refusal to defer the issue of union access to obtain heat information for resolution under the arbitration provision of the parties' collective bargaining agreement.   Accordingly, we affirm the Board's findings and enforce the order against the Company.

I

The Company operates eight glass-container manufacturing plants, including a plant in Wilson, North Carolina.   The Unions represent employees from two different bargaining units at the Wilson plant -- a "hot end" unit consisting of employees in the forming department and a "cold end" unit consisting of employees in the production and maintenance departments.   The relief sought by the complaint relates to the Unions' role as collective bargaining agent for cold end employees, who, despite the terminology, are often subjected to extreme heat.   Each of these units is covered by a separate master contract between the International and its various local affiliates and the Company, covering comparable units in each of the other seven plants.  * * *

On May 20, 1987, Local 193's president Sternfeld and other local union officials met with various plant managers to discuss their concern about heat conditions in the cold end and to clarify circumstances in which employees were entitled to heat relief under the contract.   Sternfeld discussed Local 193's interest in taking atmospheric measurements in the plant with a wet bulb globe thermometer or WBGT, a small instrument that measures atmospheric conditions such as ambient temperature, radiant heat, humidity, and wind velocity.   Upon Sternfeld's inquiry, the Company's plant manager, Ghegan, responded that the Company neither took heat measurements at the plant nor kept records of those measurements.   Ghegan stated that there were no established guidelines under the contract and that the Company reserved the responsibility to determine when conditions warranting additional heat relief were present.   Ghegan advised Sternfeld that the Company would not allow Local 193 access to take WBGT readings.

Sternfeld formalized the Unions' request for access in a letter to Ghegan dated May 23, 1987.   The letter expressed Local 193's view that it was entitled to such access under the contract and the Act, and requested that the Company advise Local 193 concerning the methods the Company intended to use to determine when heat relief was warranted.   Ghegan again denied Local 193's request, on the ground that the Unions had given the Company the right to decide when heat relief should be granted under Article 18, Section 1(e).

On July 2, 1987, Sternfeld and a representative of the International, Pitts, met with Ghegan and the Company's director of industrial relations, Clayton; again the Unions requested that they be granted access to take measurements with a WBGT or similar instrument, and again the request was denied.   Pitts proposed that the measurements be taken by an independent safety expert or by the International's safety specialist.   The Company officials refused to consider either of these options, reiterating that the Company would have to make the determination as to what was meant by the contract term "conditions warranted." * * *

The Unions filed an unfair labor practice charge with the Board on November 18, 1987, alleging that the Company had refused to bargain in good faith as required by Sections 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. §  158(a)(1), (a)(5), by refusing to provide relevant requested information pursuant to the collective bargaining procedure.   After the Unions had filed this charge, the Company offered to arbitrate the question of the Unions' right of access to the plant together with its heat-relief grievance.   A hearing was held before an Administrative Law Judge (ALJ) on March 15, 1988.   On May 29, 1988, the ALJ issued a recommended order that the issues raised by the complaint be deferred for resolution under the arbitration provisions of the parties' collective bargaining agreement.

The General Counsel and the Unions filed exceptions to the ALJ's decision.   After briefing, the Board entered a decision and order on April 28, 1989, in which the Board reversed the ALJ's decision to defer the case to arbitration and ruled that the Company had violated Sections 8(a)(1) and 8(a)(5) of the Act.   The Board ordered the Company to grant the Unions access to the Wilson plant "for reasonable periods of time at reasonable times," to take heat measurements necessary for processing Local 193's heat grievance and for monitoring the Company's compliance with the health protection provisions of the parties' collective bargaining agreement.   In March 1990 the Board applied to this Court for enforcement of its order. * * *

The Company contends that the matters of access and heat relief are subjects governed by the collective bargaining agreement, and that by issuing an order on these matters instead of deferring them to arbitration the Board has improperly established a binding construction of a provision in the collective bargaining agreement.   * * *  The Unions' complaint before the ALJ charged the Company with failing to provide the Unions access to the plant to gather information related to health and safety conditions.   … Although the Board's guidelines have been less than clear as to when deferral is or is not appropriate in cases in which no arbitral award has yet issued, the Board has traditionally refused to defer in right-to-information cases.   This policy is based on the recognition that the Union's right to information that is relevant to the Union's performance of its responsibilities is statutory and not contractual, especially when it concerns health and safety conditions.   See General Electric Co. v. NLRB, 414 F.2d 918, 924 (4th Cir.1969), cert. denied, 396 U.S. 1005, 90 S.Ct. 557, 24 L.Ed.2d 496 (1970), quoting Timken Roller Bearing Co. v. NLRB, 325 F.2d 746, 751 (6th Cir.1963), cert. denied, 376 U.S. 971, 84 S.Ct. 1135, 12 L.Ed.2d 85 (1964).

The Board found that the Unions' allegation did not primarily concern the issue of access--the Unions' concern was the obtaining of needed information which the Company had repeatedly refused to supply.   The Unions raised the issue of access only because the Company's refusal to cooperate made access necessary in order to obtain the information.   The Board held that the principles traditionally applied in refusing to defer request-for-information cases are equally applicable to the question whether to defer request-for-access-to-obtain-information cases.   Moreover, the Board expressed concern that deferral in such cases can lead to a two-tiered dispute resolution procedure, whereby the Union would have to file one grievance to obtain the needed information, followed by a second grievance concerning the access provision.  In the Board's view, such a procedure constitutes an "unacceptable impediment to the right of the Respondent's employees to be effectively represented by their collective bargaining representatives."  American National Can Co., 293 N.L.R.B. 110 at 9 (1989).

We agree with the Board's analysis. The Company has a duty to supply information that is relevant and reasonably necessary to the performance of the Unions' responsibilities.  NLRB v. Acme Industrial Co., 385 U.S. 432, 435-46, 87 S.Ct. 565, 567-68, 17 L.Ed.2d 495 (1967).   Yet the Company repeatedly refused to comply in any way with the Unions' request for information --  not only the request for Union access to obtain such information, but also the Unions' requests for the Company to supply information as to what measurements and criteria it was using to deal with the heat relief problem. Until the Unions filed the unfair labor practice charge with the Board, the Company was clearly not willing to negotiate its interpretation of the heat relief provision with the Unions, in spite of the fact that the duty to bargain extends beyond the period of contract negotiations to the arena of labor-management relations during the term of an agreement.^[1] Acme, supra, at 436, 438, 87 S.Ct. at 568, 569, citing NLRB v. C. & C. Plywood Corp., 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967). * * *

We find that substantial evidence supports the Board's finding that the Company committed an unfair labor practice in refusing to allow the Unions access to obtain information relevant to heat relief.

The Unions were not required to present particularized evidence concerning the relevance of the information they wanted.   Information sought by a union concerning health and safety conditions is presumptively relevant because these are mandatory bargaining subjects.   A broad discovery-type standard applies to requests for the production of such information;  it is only necessary that the requested information be of apparent aid in the investigation of an alleged contract violation.  * * *

Having found that the Unions were entitled to obtain the heat-measurement information, the Board further determined . . . that the Unions were entitled to access to the Wilson plant to obtain this information . .  .  The Board found nothing in the record to indicate that the Unions could obtain in-plant heat data without their representatives' actual entry into the plant. In fact, the Board concluded that the Company itself had rendered union access necessary by its refusal to provide the Unions requested heat-related information, to reveal what measures the Company was taking to monitor heat conditions, and to grant the Unions' conciliatory request to permit a third party access to take heat measurements. . . . We find no grounds for disturbing the Board's determination of the Unions' right to access.  * * *

We hold that, on the record as a whole, the findings of the Board are supported by substantial evidence, and that the Board is therefore entitled to enforcement of its order.

[1] The Company's interpretation was that the determination of when conditions warrant additional heat relief is the exclusive prerogative of the Company…

1. Unions thus have considerably more breadth in their ability to obtain information on behalf of employees they represent than individual employees (or the individuals’ legal representatives) may have on their own. And yet remarkably few unions take advantage of this strength to assist their members with regard to either health and safety, workers’ compensation, or personal injury litigation.  Why would this be true? 
2. Note that the right to information under the NLRA derives almost exclusively from the collective bargaining rights of formally constituted unions. This means that this broader right to know may not be useful to the newer forms of worker organization – at least not until they engage in successful organizing that leads to recognition or certification of units for bargaining – or they come up with a new, novel and persuasive legal theory. If you can think of one – let’s discuss it!
3. At this point, according to Bureau of Labor Statistics data, just over 6% of private sector workers were unionized in 2023. (The rate of unionization was much higher in the public sector - 32%). Think about why the rate of unionization is so much higher in the public sector. 
4. Given these data, employee involvement in health and safety becomes even more problematic.  Some states have passed, as part of their workers’ compensation statutes, provisions that either allow for or require the establishment of health and safety committees.  Connecticut is one example:

Establishment of safety and health committees by certain employers

(a) In order to promote health and safety in places of employment in this state, each employer of twenty-five or more employees in this state, including the state and any political subdivision of the state, and each employer whose rate of work related injury and illness exceeds the average incidence rate of all industries in this state, shall administer a safety and health committee in accordance with regulations adopted pursuant to subsection (b) of this section. For purposes of this subsection, "incidence rate" means the number of federal Occupational Safety and Health Administration recordable injuries and illnesses per one hundred full-time employees.

(b) The chairman of the Workers’ Compensation Commission, in consultation with the Labor Commissioner…, shall adopt regulations to carry out the provisions of this section. The regulations shall (1) prescribe the membership of safety and health committees to ensure representation of employees and employers; (2) specify the frequency of committee meetings; (3) require employers to make, file and maintain adequate written records of each committee meeting subject to inspection by the chairman or his authorized designee; (4) require employers to compensate employee representatives at their regular hourly wage while the employee representatives are engaged in safety and health committee training or are attending committee meetings; (5) prescribe the duties and functions of safety and health committees, which shall include (A) establishing procedures for workplace safety inspections by the committee, (B) establishing procedures for investigating all safety incidents, accidents, illnesses and deaths, (C) evaluating accident and illness prevention programs, (D) establishing training programs for the identification and reduction of hazards in the workplace which damage the reproductive systems of employees, and (E) establishing training programs to assist committee members in understanding and identifying the effects of employee substance abuse on workplace accidents and safety; and (6) prescribe guidelines for the training of safety and health committee members.

(c) Notwithstanding the provisions of this section, each employer who, on July 1, 1993, has an existing health and safety program or other program determined by the chairman of the Workers’ Compensation Commission to be effective in the promotion of health and safety in the workplace, shall not be required to comply with this section…

Connecticut General Statutes, Chapter 557 § 31-40v.

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Questions: 

1. Do you think this is an effective mechanism for involving employees?
2. For those of you who are familiar with the NLRA: Co you see any particular problems with statutes like this in terms of violation of Section 8(a)(2) of the NLRA? That is, are these committees in violation of the provision of the NLRA that makes it an unfair labor practice for an employer to “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That … an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay.” See e.g. Vanalco, Inc., Case 36-CA-7612, NLRB General Counsel’s Advice Memorandum 4 (Aug. 21, 1996) (addressing this issue in relation to the 1978 Washington State law that requires employers with 11 or more employees to have a safety and health committee consisting of both employee-selected and employer-selected members, and requires the safety committee to review safety and health inspection reports in order to assist in the correction of identified unsafe conditions; to evaluate accident investigations in order to determine if the causes involved were properly identified and corrected; and to evaluate accident and illness programs and discuss recommendations for improvement.). See also Wilma B. Liebman, Does Federal Labor Law Preemption Doctrine Allow Experiments with Social Dialogue?, available at 

   https://journals.law.harvard.edu/lpr/wp-content/uploads/sites/89/2018/01/Liebman-Dialogue.pdf

   (Liebman has served as a member and as Chair of the National Labor Board).

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Researching employers (a reminder)

Given that the rights to information under OSH Act are limited, and the rights to information under the NLRA are most useful for formal unions, what are the other options for worker advocates? 

The OSHA database is an immediate and valuable tool. Remember that this database is free and public, and it has been significantly expanded in 2024. See 

https://www.osha.gov/data

For information about any employer (establishment), go to the establishment search page: https://www.osha.gov/pls/imis/establishment.html.  This page enables the user to search for OSHA enforcement inspections by the name of the establishment. Information may also be obtained for a specified inspection or inspections within a specified SIC. 

Here’s another website that provides data on companies from both OSHA and the EPA: http://www.goodjobsfirst.org/violation-tracker 

There is also a helpful though somewhat dated blog posting on the PumpHandle blog (a blog specifically focused on health and safety) that tells you some tricks: https://thepumphandle.wordpress.com/2009/07/20/interpreting-oshas-on-line-data/ .

Here’s where to get MSHA data.

Section (a) Right to a Safe Working Place

Every Employee covered by this Agreement is entitled to a safe and healthful place to work, and the parties jointly pledge their individual and joint efforts to attain and maintain this objective. Recognizing that the health and safety of the Employees covered by this Agreement are the highest priorities of the parties, the parties agree to comply fully with all lawful notices and orders issued pursuant to the Federal Mine Safety and Health Act of 1977, as amended, and pursuant to the various state mining laws.

Section (b) Federal Mine Safety and Health Act of 1977, As Amended. The parties to this contract, finding themselves in complete accord with the FINDINGS AND PURPOSE Art. III 38 declared by the United States Congress in section 2 of the Federal Mine Safety and Health Act of 1977 do hereby affirm and subscribe to the principles as set forth in such section 2 of the Act.

(1) In consequence of this affirmation, the parties not only accept their several responsibilities, obligations and duties imposed by the Federal Mine Safety and Health Act, but freely resolve to cooperate among each other and with the responsible officials of federal and state governments in determined efforts to achieve greatly improved performance in coal mine health and safety.

(2) Neither party waives nor repudiates any administrative, procedural, legislative, or judicial rights under or relating to the Federal Mine Safety and Health Act of 1977, as amended. * * * * *

Section (d) Mine Health and Safety Committee

(1) At each mine there shall be a Mine Health and Safety Committee made up of miners employed at the mine who are qualified by mining experience or training and selected by the local union. The local union shall inform the Employer of the names of the Committee members. The Committee at all times shall be deemed to be acting within the scope of their employment in the mine within the meaning of the applicable workers’ compensation law.

(2) The Union and Employer shall jointly establish and fund a course of health and safety training for members of the Mine Health and Safety Committee, which is designed to improve health and safety knowledge and skills. The Mine Health and Safety Committee shall participate in and shall be paid at their regular rates of pay by the Employer for attendance at training sessions. The training program will be established by the Joint Industry Training Committee.

(3) The Mine Health and Safety Committee may inspect any portion of a mine and surface installations, dams or waste impoundments and gob piles connected therewith. If the Committee believes conditions found endanger the lives and bodies of the Employees, it shall report its findings and recommendations to the Employer. In those special instances where the Committee believes that an imminent danger exists and the Committee recommends that the Employer remove all Employees from the involved area, the Employer is required to follow the Committee’s recommendation and remove the Employees from the involved area immediately. The Mine Health and Safety Committee shall, when engaged in its official duties as herein provided, be furnished transportation at the mine.

(4) The Committee shall give sufficient advance notice of an intended inspection to allow a representative of the Employer to accompany the Committee. If the Employer does not choose to participate, the Committee may make its inspection alone.

(5) If the Mine Health and Safety Committee in closing down an area of the mine acts arbitrarily and capriciously, a member or members of such Committee may be removed from the Committee. An Employer seeking to remove a Committee member shall so notify the affected Committeeman and the other members of the Mine Health and Safety Committee. If the Committee objects to such removal, the matter shall be submitted directly to arbitration within 15 days…

(6) Mine management and the Mine Health and Safety Committee shall meet monthly at times arranged by the parties for the purpose of reviewing mine accident prevention efforts, discussing mine accidents and resolving health and safety problems at the mine. Special meetings may be called by either party for the purpose of resolving safety matters.

(7) The Employer shall be responsible for paying Committee members for the performance of the following duties:

(i) Inspecting the entire mine and surface installations connected therewith with management on a regular basis mutually agreed upon by the Employer and the Committee, but in no case any less often than every two months. The Employer shall be responsible for paying each Committeeman one shift at his regular rate of pay once in every two month period for performance of his duties under this paragraph.

(ii) Committee members shall be paid at their regular straight time rate of pay for up to two hours for time spent in joint monthly meetings with the Employer provided for in paragraph (6).

(iii) Investigating explosions and/or disasters including any mine fatality.

Section (e) Access to the Mine

In recognition of the UMWA’s concern with health and safety in the coal mines, Union officials as described below and any authorized representative of the UMWA Department of Occupational Health and Safety, without interfering with the Mine Health and Safety Committee and the Mine Committee in the performance of their duties, shall be granted access to the mines on the following conditions:

(1) Subject to the routine check-in and check-out procedures at the mine, the officers of the International Union, the International District Vice President of the District involved, and authorized representatives of the International Union’s Department of Occupational Health and Safety shall be afforded the opportunity to visit a mine to consult with management or the Mine Health and Safety Committee and to enter the mine at the request of either management or the Mine Health and Safety Committee.

(2) If the Mine Health and Safety Committee calls in such representatives to meet with mine management to discuss health or safety problems, mine management shall have the right to be represented by its own health or safety representative. Where application of a federal or state law or regulation is involved, either management or the authorized Union representative may invite federal or state inspectors to participate.

(3) Representatives authorized by the International Union may accompany state or federal coal mine inspectors investigating any fatal or serious nonfatal accident, ignition, mine fire or mine explosion. …

Section (g) Safety Rules and Regulations

Reasonable rules and regulations of the Employer, not inconsistent with federal and state laws, for the protection of the persons of the Employees and the preservation of property shall be complied with.

After the Effective Date of this Agreement, at least ten (10) days prior to the implementation of any new or revised safety rule or regulation, the Employer shall provide copies of the proposed rule or regulation to the Mine Health and Safety Committee and shall meet and discuss it with Committee members in an attempt to resolve any differences between the parties. If the Committee or any Employee believes that any such new rule or regulation or revision is unreasonable, arbitrary, discriminatory or adversely affects health or safety, they may file and shall process a grievance. …

Section (i) Preservation of Individual Safety Rights

(1) No Employee will be required to work under conditions he has reasonable grounds to believe to be abnormally and immediately dangerous to himself beyond the normal hazards inherent in the operation which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated. When an Employee in good faith believes that he is being required to work under such conditions he shall immediately notify his supervisor of such belief and the specific physical conditions he believes exist. The Employee shall state the factual basis for his belief but shall not be required to cite applicable law or regulation. Unless there is a dispute between the Employee and management as to the existence of such condition, steps shall be taken immediately to correct  or prevent exposure to such condition utilizing all necessary Employees, including the involved  employee.

(2) If the existence of such condition is disputed, the Employee shall have the right to be relieved from duty on the assignment in dispute. Management shall assign such Employee to other available work not involved in the dispute; and the Employee shall accept such assignment at the higher of the rate of the job from which he is relieved and the rate of the job to which he is assigned.  The assignment of such alternative work shall not be used to discriminate against the Employee who expresses such belief. If the existence of such condition is disputed, at least one member of the Mine Health and Safety Committee shall review such condition with mine management within four (4) hours to determine whether it exists and each party shall state the facts upon which it relies as to whether such condition exists or does not exist. If there is agreement between the Mine Health and Safety Committee member or members and mine management that the condition does not exist, the Employee shall return to his regular job immediately.

(3) If the dispute remains unsettled following the investigation by a member of the Mine Health and Safety Committee and involves an issue concerning compliance with federal or state mine safety laws or mandatory health or safety regulations, the appropriate federal or state inspection agency shall be called in immediately and the dispute shall be settled on the basis of the findings of the inspector with both parties reserving all rights of statutory appeal. Should the federal or state inspector find that the condition complained of requires correction before the Employee may return to his job, the Employer shall take the corrective action immediately.  Upon correction, the complaining Employee shall return to his job. If the federal or state inspector does not find a condition requiring correction, the complaining Employee shall return to his job immediately.

(4) For disputes not otherwise settled, a written grievance shall be filed no later than five working days after the findings of the inspector and the dispute shall be referred immediately to step 3 as provided for in Article XXIII, Settlement of Disputes, Section (c)(3). If upon final resolution of the dispute, as provided above, it is determined that an abnormally unsafe or abnormally unhealthy condition within the meaning of this section existed, the Employee shall be paid for all earnings he lost, if any, as a result of his removing himself from his job. In those instances where a determination has been made, as provided above, that an Employee did not act in good faith in exercising his rights under the provisions of this Agreement, he shall be subject to appropriate disciplinary action, subject, however, to his right to file and process a grievance. In no event, however, shall such discipline for failure to act in good faith be imposed prior to the review between at least one member of the Mine Health and Safety Committee and mine management required under paragraph (2) of this Section (i). … 

Section (p) Settlement of Health or Safety Disputes

When a dispute arises at the mine involving health or safety, an immediate, earnest and sincere effort shall be made to resolve the matter through the following steps:

(1) By the aggrieved party and his immediate supervisor. Any grievance which is not filed by the aggrieved party within twenty-four (24) hours following the shift on which the grievant reasonably should have known of such grievance shall be considered invalid and not subject to further consideration under the grievance procedure. If the grievance is not settled at this step, the BCOA-UMWA Standard Health and Safety Grievance Form shall be completed and signed jointly by the parties.

(2) If no agreement is reached at step 1, the grievance shall be taken up by the Mine Health and Safety Committee, the UMWA district health and safety representative and mine management within four days of the conclusion of step 1. If the dispute involves an issue concerning compliance with federal or state mine safety laws or mandatory health or safety regulations, the appropriate federal or state inspection agency shall be called in immediately and the dispute shall be settled on the basis of the inspector’s findings, with both parties reserving all statutory rights of appeal. If the dispute is not settled, a record shall be made of the position of the parties and the evidence at this step.

(3) If no agreement is reached at step 2 within five (5) days, the dispute shall be referred to an arbitrator for settlement in accordance with the procedure under Article XXIII, Section (c)(4). The grievant shall have the right to be present at each step, if he so desires, of the foregoing procedures until such time as all evidence is taken. A decision reached at any stage prior to step 4 of the proceedings above outlined shall be reduced to writing and signed by both parties. The decision shall be binding on both parties and shall not be subject to reopening except by mutual agreement.

1. In 2000, the Bureau of Labor Statistics conducted a survey of union health and safety clauses that provided for joint health and safety committees. George R. Gray, Donald W. Myers, and Phyllis S. Myers, Collective bargaining agreements:safety and health provisions, Monthly Labor Review, May 1998, 13-35. http://www.bls.gov/OPUB/MLR/1998/05/art2full.pdf . Among the findings of their survey: Among the 744 large private sector collective bargaining agreements that were reviewed, 219 (29 percent) established joint union-management health and safety committees.  The governing contractual clauses addressed procedural issues such as compensating committee members, member training, various procedures to be followed by the committees such as the taking of minutes.  They also address mechanisms for reviewing safety hazards. Of the provisions that addressed occupational health (as opposed to safety), the most common responsibility of the committees was to conduct ergonomic studies which appeared in 49 percent of the contracts.  Interestingly, but perhaps not surprisingly, a 1976 study did not show the same attention to ergonomics.

2. The UMWA contract has historically had relatively strong safety provisions among national agreements. This is no surprise, given the level of concern for safety in the underground mining industry.  Other industrial unions – particularly the UAW and the USWA – also have strong provisions. But given the level of risk in some other sectors – including the hospital industry – it is worth thinking about what a hospital union might want to seek in terms of safety language in collective bargaining agreements, were they to prioritize safety as a concern.  The risks in these other industries may not be as immediate or life threatening.  The approach taken in the UMWA contract may not be applicable. If you represented a hospital workers union, what safety language do you think you would want in an agreement?

3. Union contracts are enforced through a private grievance and arbitration process. There are a number of mechanisms used for the selection of arbitrators for these contract disputes, but they always have to be acceptable to both the union and the employer.  Any decision of the arbitrator is final and binding – and the courts are extremely deferential to the arbitrators’ decisions. 

4. The Labor Occupational Health Program at the University of California/ Berkeley has put together a comprehensive guide on bargaining language for unions. The suggestions regarding health and safety can be found here:

Collective Bargaining Language - Health and Safety Rights (berkeley.edu)

 5. In addition, union contracts almost universally have clauses that provide for progressive discipline and for “just cause” requirements if an employee is disciplined or discharged. In the arbitration of disciplinary actions under these contracts, the employer has the burden of proof to show that just cause existed for the action that was taken.  In civil actions based on either common law or statutory claims, the worker has the burden of proof to show the action was taken as a consequence of protected activity or status. Not surprisingly, the allocation of the burden of proof is often outcome determinative.  Moreover, labor arbitration (unlike individual employment or consumer arbitration) has a number of accepted principles that may tilt the outcome toward the worker and union when a worker is discharged, particularly in close cases:

1. 1. Was the employee adequately warned of the consequences of his or her conduct?
   2. Was the employer’s rule or order reasonably related to efficient and safe operations?
   3. Did management investigate before administering the discipline?
   4. Was the investigation fair and objective?
   5. Did the investigation produce substantial evidence or proof of guilt?
   6. Were the rules, orders and penalties applied evenhandedly and without discrimination?
   7. Was the penalty reasonably related to the seriousness of the offense and the past record?

Remember that private sector workers who are not covered by union contracts are almost universally "at will" - and therefore have no protections from discipline or discharge unless they can assert a winning claim under a statutory or common law theory. 

5. Think about the provisions of the UMWA-BCOA agreement as you read through the materials on retaliation that we will be discussing later.

* * * * * * * *

OSHA focused a lot of attention on issues of more vulnerable workers during the Obama Administration. In addition to the Sallman memorandum, now codified in the walkaround regulation, the agency issued several reports and guidances relevant to these concerns that remain on the website as of December 2024.  See, for example, the report, Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job (March 2015), which noted:

Several trends in the labor market today create even greater challenges to worker safety and health. These trends include the increased presence of employees of multiple employers at the same worksite, the pervasive misclassification of wage employees as ndependent contractors and the widespread use of temporary employees provided by labor staffing agencies.

If several firms employ workers at the same site, and employers do not actively collaborate to ensure safe workplaces, all workers at the site may be a higher risk of injury. Although this pattern of employment has been true in the construction industry for many years, it has now become more common in other sectors of the economy. More and more, workers are not actual employees of the employer who owns or controls the workplace where they work. Instead, they may be employed by a contractor or subcontractor, or by a staffing agency. This trend has a significant, negative impact on the safety and health of U.S. workers. To address this, OSHA often cites employers for endangering the employees of other employers working at the same jobsite.

Misclassification of employees as independent contractors also increases the risks for these individuals. In the construction industry, the proportion of the workforce misclassified as independent contractors is substantial … [B]y misclassifying wage employees as independent contractors, employers do not have to worry about the OSHA requirement to provide a safe workplace, since the OSHA law does not cover the self-employed. …

The increased employment of temporary workers also increases the risk of work injuries. Temporary workers, often employed through staffing agencies, are generally at the worksite for shorter time periods. Researchers in the state of Washington found temporary workers in the construction and manufacturing sectors had twice the rate of injuries of workers in standard employment relationships. For each injury, they lost more days from work than the other workers. At the same time, temporary workers received less medical and time loss reimbursement payments for their injuries.

Why are temporary workers likely at greater risk of injury? There are several factors. New workers often lack adequate safety training and are likely to be unfamiliar with the specific hazards at their new workplace. As a result, new workers are several times more likely to be injured in the first months on the job than workers employed for longer periods. Consistent with these findings, OSHA has investigated numerous incidents in recent months in which temporary workers were killed on their first days on a job. Temporary workers are also likely to be newly assigned to unfamiliar workplaces multiple times in any given year and may carry this increased risk as long as they are in the temporary workforce. For employers, there is less financial incentive to invest training resources on temporary employees because shorter tenure will yield a lower return on investment than similar investments for permanent employees. OSHA has encountered many situations, including some in which temporary workers have been killed, in which employers have chosen to not provide required safety training to temporary workers.

And the temporary workers themselves, recognizing the precarious nature of their employment, are less likely to complain to their employers, or to OSHA, about the existence of even serious hazards…. These trends in the labor market also minimize the incentive to provide a safe workplace that exists when an employer who controls the workplace also bears financial responsibility for worker injuries. This is particularly true with temporary workers employed through staffing agencies. Host employers have primary control of the temporary employees’ work environments, but the host employers generally have no financial responsibility when temporary workers are injured, since those workers are covered by staffing agencies’ insurance policy. This shift in risk is likely to reduce investments in safety and health and create more hazardous workplaces, increasing the number of injuries among both temporary workers and any permanent workers whom they work alongside. Given the practice of outsourcing the more hazardous jobs, and the lower wages of temporary workers, lower-wage workers have the most to lose in this new reality.

As noted earlier, temporary workers are less likely to be compensated for their injuries, making matters worse. Temporary workers say they are more hesitant to report their injuries and claim compensation, out of concern their employer (the staffing agency) will not assign them additional work, or out of confusion as to which employer is responsible. The result is that injured temporary workers are less likely to receive workers’ compensation benefits than permanent workers. As a result, neither the temporary staffing agency nor the employer whose work is being performed by temporary workers bears the cost of workplace injuries. Instead, the cost of the injury is shifted completely to the workers, their families and the taxpayers.

OSHA has also tried to address more specifically the problem of staffing agencies and temporary workers.  See generally the materials on temp workers on the OSHA website. OSHA also posted Recommended Practices, which you can find here: https://www.osha.gov/Publications/OSHA3735.pdf

Take a look at these recommendations. Do you think they are adequate to address the problem? In Massachusetts, for example, the seafood processing plants are almost all now staffed through these “temp” agencies. What do you think the impact of this is on the employers’ approach to health and safety?

Franchising is one way that companies have dispersed apparent control and attempted to limit central liability for employment violations. The franchises are sometimes owned by small business people; the number of workers can be quite small.  But the central corporation may control, through the franchise agreements, the way the businesses are managed.  The small franchisee may lack resources.  Thus, worker advocates have been arguing that the central corporation should be viewed as a “joint employer” for purposes of compliance with many of the laws.

Remember that all employees – not only those who are formally organized into unions – are protected by Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, when they engage in “protected concerted activity” for “mutual aid and benefit.”  Thus, unorganized workers who band together to protest working conditions may challenge any retaliatory discipline by filing charges under Section 8(a)(1) and (3) of that Act, 29 U.S.C. §158(a)(1) and (3).    

Again, there is history of political volatility from one federal administration to another. During the Obama Administration, Fast Food Forward, a worker advocacy group, with support from the Service Employees International Union, organized demonstrations at McDonald’s and other fast-food restaurants for several years, including one-day strikes, calling for a $15 hourly minimum wage and the right to form a union without intimidation.  These workers’ groups have called for a change in joint-employer regulation when one company exercises control over wages and working conditions at another but has little responsibility for the workers.  These workers are not unionized (at least not yet).  Between November 2012 and December 2014, 291 charges were filed with various regional offices of the NLRB against McDonald’s and McDonald’s franchisees alleging interference with Section 7 rights under the NLRA. Note that this is part of the overall strategy of the worker advocates, that also has included OSHA complaints regarding hazards.

In July 2014, in a highly publicized move, the then General Counsel of the NLRB announced that formal charges would be filed against McDonald’s USA and the franchisees as joint employers.  In December 2014, he announced that 86 of these complaints were viewed as meritorious and issued formal complaints. Hearings on these cases began on January 11, 2016.  The complaints alleged that McDonald’s USA, LLC and certain franchisees violated the rights of employees working at McDonald’s restaurants at various locations around the country by making statements and taking actions against them for engaging in activities aimed at improving their wages and working conditions, including participating in nationwide fast food worker protests about their terms and conditions of employment.  According to the General Counsel, “Our investigation found that McDonald’s, USA, LLC, through its franchise relationship and its use of tools, resources and technology, engages in sufficient control over its franchisees’ operations, beyond protection of the brand, to make it a putative joint employer with its franchisees, sharing liability for violations of our Act.” 

The NLRB also moved ahead at that time in the area of staffing agencies.  In Browning-Ferris Indus. of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), the Board broadened the definition of joint employers – returning to an earlier accepted definition – and determined that a host/lead employer was a joint employer responsible for collective bargaining with the employees of a staffing agency as long as the host employer was able to exert at least indirect control over wages, hours and other terms of employment.  Litigation ensued, with cases going to the Circuit Court and back to the NLRB. In 2020, during the Trump Administration, the NLRB issued a new rule. And then again – reflecting the extraordinary volatility of this area of law – the Biden Administration moved to broaden the NLRB’s reach on this issue, issuing a new rule in 2023 that would establish that, under the NLRA, two or more entities would be considered joint employers if the entities shared or codetermined one or more of the employees’ essential terms and conditions of employment, directly or indirectly. This 2023 rule (29 C.F.R. § 103.40) rescinded the 2020 rule and, according to the NLRB, reestablished common law agency principles. In a lengthy decision that provided a full history of this issue, Judge Barker held the new rule to be invalid and, further, invalidated the recission of the 2020 (Trump era) rule as arbitrary and capricious. Chamber of Commerce of United States v. National Labor Relations Board, 723 F.Supp.3d 498, 506 (E.D.Tex., 2024). 

What happens next?  Perhaps what is most interesting about this history is its volatility. As the membership of the NLRB changes to reflect new appointees from a new administration, the NLRB has rescinded and reissued rules that are highly variable, creating an unstable legal landscape for employers and workers. 

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Notes:

1. In situations in which workers are negotiating for higher wages through collective bargaining, and in situations in which the franchise or subsidiary fails to pay wages, it is obvious that reaching the lead or host employer can mean the difference between higher or lower wages – or no wages at all. But why is the joint employer issue important to health and safety on the job?
2. OSHA was trying to address the emerging challenges of the changing organization of work. How effective do you think OSHA guidance is? Who will follow it?  Who will not?
3. What, if any, do you think will be the effect of Loper Bright Enterprises v. Raimondo, 603 U.S. 369, on the review of the changing NLRB rules?
4. For a very interesting discussion of trends that are expanding the vulnerability of workers, see David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (2014).

The Occupational Safety and Health (“OSH”) Act, 29 U.S.C. § 660, prohibits an employer from terminating employees for filing complaints or otherwise exercising rights afforded by the Act, including informing the Occupational Safety and Health Administration (“OSHA”) about unsafe conditions. Following a five-day trial, a jury found that Lloyd Industries, Inc. (“Lloyd Industries”) and William Lloyd (collectively, “Defendants”) violated this Act by terminating two employees, Mr. Matthew Spillane and Mr. Santos Sanna, in retaliation for assisting OSHA in identifying safety hazards at Lloyd Industries.

Presently before me is Defendants’ Renewed Motion for Judgment as a Matter of Law or, in the Alternative, a New Trial. Defendants argue the jury instructions were defective because they improperly included the “perception theory” of liability, the “third party theory” of liability, and the “substantial reason” causation standard. Defendants also assert that the verdict was not supported by sufficient evidence.

For the foregoing reasons, I conclude that the jury instructions were proper, and the verdict was sufficiently supported by evidence. Accordingly, Defendants’ Motion will be denied.

BACKGROUND

Plaintiff Thomas Perez, the U.S. Secretary of the Department of Labor (the “Secretary”), brought claims on behalf of two discharged employees against their employer, Defendants Lloyd Industries and Mr. Lloyd, alleging violations of the OSH Act. Prior to trial, I considered several motions in limine and determined that, pursuant to the OSH Act, 29 U.S.C. § 660(c)(2), the trial would be bifurcated into two phases: (a) the liability phase decided by a jury, and (b) the damages phase decided by the court.

The liability phase of the trial began on March 27, 2019 and concluded on April 2, 2019. During the trial, the following timeline was established: Mr. Sanna began working for Defendants on July 28, 2008. Mr. Spillane began working for Defendants on May 7, 2014. Mr. Joshua Elbode, who is not a party to this lawsuit, sustained a serious injury that resulted in amputation of several fingers while working for Defendants in July of 2014. In October of 2014, Mr. Elbode filed a complaint with OSHA. OSHA inspected Defendants’ plant on November 13, 2014. Mr. Spillane was terminated five days later on November 18, 2014. Mr. Sanna provided testimony to OSHA in February of 2015. OSHA issued citations against Defendants in the amount of $822,000 on May 11, 2015. Mr. Sanna was terminated on that same day.

A. Evidence Relating to Mr. Spillane

Mr. Spillane began working for Defendants on May 7, 2014 in the access door department, assembling the access doors of duct systems. Mr. Spillane testified that, in July and August of 2014, he took pictures of the machine that caused Mr. Elbode’s injury. Mr. Rene Santos, another Lloyd Industries’ employee, testified that he told Mr. Lloyd about seeing Mr. Spillane taking pictures of the machine that caused Mr. Elbode’s injury. Mr. Lloyd confirmed that he had been told about Mr. Spillane taking photos of this particular machine. Mr. Spillane testified that Mr. Lloyd “spied” on Mr. Sanna and him, whereby Mr. Lloyd observed them conversing together in the supply closet at some point shortly before the OSHA inspection started. Mr. Lloyd admitted that he told Mr. Richard Smith, who was another Lloyd Industries’ employee, that he believed that there was a “rat” in the plant who was feeding information to OSHA.

Mr. Lloyd also acknowledged that he knew that Mr. Spillane and Mr. Elbode had worked together in the Access Door Department, and that Mr. Elbode had filed the OSHA complaint. Mr. Lloyd acknowledged that he had observed that the OSHA inspectors immediately wanted to inspect the machine that Mr. Spillane had photographed.

Mr. Lloyd also testified that, prior to terminating Mr. Spillane, he had never disciplined Mr. Spillane or warned him about any performance deficiencies. Nevertheless, Mr. Lloyd terminated Mr. Spillane five days after the OSHA inspection began without providing any explanation. Mr. Lloyd did so even though he acknowledged that, in other previous situations, he had discussed any concerns with the other employees prior to terminating them. Mr. Lloyd explained that he terminated Mr. Spillane because he was a bad worker and slept in his car while on the clock, which was “basically the same thing as stealing money.” However, Mr. Lloyd acknowledged that he knew that Mr. Spillane had been sleeping in the car two months before Mr. Spillane’s termination because another employee, Rene Santos, told him about it.) Mr. Russell Murphy, another Lloyd Industries employee, testified that Mr. Lloyd did not know about Mr. Spillane sleeping in the car until after Mr. Spillane was terminated.

B. Evidence Relating to Mr. Sanna

Mr. Sanna began working for Defendants on July 28, 2008 as the plant manager. Mr. Sanna provided testimony to OSHA on February 23, 2015, as part of OSHA’s investigation of Lloyd Industries following the inspection of the plant in November of 2014. Mr. Lloyd acknowledged that, while he knew that Mr. Sanna had provided information to OSHA, he did not know what information was provided. Mr. Lloyd also acknowledged that he fired Mr. Sanna on May 11, 2015, immediately after he received the OSHA citations.

Mr. Lloyd explained that he fired Mr. Sanna without providing him with an explanation because Mr. Sanna was in charge of safety and health at the plant and the OSHA citations led Mr. Lloyd to conclude that Mr. Sanna had failed in those duties.Yet, Mr. Lloyd acknowledged that he did not ask Mr. Sanna about his knowledge and experience regarding plant safety and health when Mr. Sanna was hired. And Mr. Lloyd admitted that Mr. Sanna was never asked to perform safety inspections, provide safety training, or discuss safety responsibilities in the plant. Despite the fact that Mr. Lloyd knew that OSHA was likely going to inspect the plant, he never informed Mr. Sanna of this possibility as he did not want Mr. Sanna to be involved with the OSHA inspection. In fact, Mr. Lloyd testified that, as the owner, he was ultimately responsible for the plant’s safety and health at Lloyd Industries.

C. Defendants’ Motion for Judgment as a Matter of Law

At the close of the Secretary’s case-in-chief, and at the conclusion of the evidence, Defendants moved for judgment as a matter of law on the following bases: (a) the Secretary could not establish liability by arguing that Mr. Spillane was “perceived” to have engaged in a protected activity (i.e., the “perception theory”); (b) the Secretary could not establish liability by arguing that Mr. Spillane and Mr. Sanna engaged in a protected activity by supporting Mr. Elbode’s OSHA complaint; and (c) the Secretary could not establish causation between the protected activity and the terminations.

On April 2, 2019, prior to giving the case to the jury for deliberation, I heard oral argument on this Motion. Defendants objected to the inclusion of the “perception theory” in the jury instructions, arguing that an employee must actually engage in a protected activity under the OSH Act. I overruled Defendants’ objection, concluding that “[t]he whole policy reason for the [OSH Act] is to create an atmosphere where persons feel that they should be able to without retribution interface with OSHA and I think the case law supports the charge.”

Defendants also objected to the inclusion of Mr. Spillane and Mr. Sanna’s close relationship with Mr. Elbode in the jury instructions, arguing that Mr. Elbode did not engage in a protected activity under the OSH Act because he was not an employee at the time that he filed the complaint with OSHA. The Secretary responded that, pursuant to the regulations promulgated under the OSH Act, the proper question was whether Mr. Spillane and/or Mr. Sanna were employees at the time they engaged in a protected activity, and not whether Mr. Elbode was an employee. Based on the Secretary’s response, I overruled Defendants’ objection.

… Finally, Defendants objected to the causation standard used in the jury instructions (which included both the “but for” and “substantial reason” tests), arguing that recent U.S. Supreme Court decisions applying Title VII support the proposition that only the “but for” test is proper. Defendants also argued that the regulations promulgated under the OSH Act should be “ignored” and “stricken.” I overruled this objection, finding that the regulations clearly provide two causation tests, and noted that recent district court decisions have supported a jury charge that included both the “but for” and “substantial reasons” tests.

D. Jury Instructions and Verdict

Because Defendants raise several challenges to the jury instructions, I will summarize the pertinent portions below.

The jury was first briefly instructed on the OSH Act in general and was reminded that “this case is not about whether defendant Lloyd Industries or Mr. Lloyd complied with the safety and health standards under [t]he Act.” The jury was then told that the Secretary had to prove each of the following three elements by a preponderance of the evidence: (a) Mr. Spillane and Mr. Sanna each engaged in a “protected activity,” (b) Mr. Spillane and Mr. Sanna were terminated, and (c) there was a causal connection between the protective activities and the terminations. I then explained each element in greater detail.

As it relates to Mr. Spillane, I instructed that the Secretary first had to establish that Mr. Spillane engaged in a “protected activity” under one of the following theories: A, Mr. Spillane engaged in a protected activity by taking photographs of the plant and providing information to Mr. Elbode which caused OSHA to inspect Lloyd Industries; or B, defendants suspected or perceived that Mr. Spillane had engaged in a protected activity; or C, defendants believed or suspected that Mr. Spillane had a close relationship with Mr. Elbode who engaged in the protected activity, again, i.e. the filing of the complaint with OSHA. Second, I instructed that the Secretary had to prove that “Lloyd Industries subjected Mr. Spillane to a materially adverse action at the time or after the protected conduct took place.” Third, I instructed that the Secretary had to prove “a causal connection between Mr. Spillane’s termination from Lloyd Industries and his engagement with protected activity which I just described to you.”

As it relates to Mr. Sanna, I likewise instructed the jury that the Secretary first had to establish that Mr. Sanna engaged in a “protected activity” under one of the following theories: A, Mr. Sanna engaged in a protected activity by testifying during the OSHA investigation; and/or, the defendants believed or suspected that Mr. Sanna had a close relationship with Mr. Elbode who engaged in a protected activity, again, the filing of the OSHA complaint. Second, I instructed that the Secretary had to prove that “Lloyd Industries subjected Mr. Sanna to a materially adverse action at the time or after the protected conduct took place.” Third, I instructed that the Secretary had to prove “a causal connection between Mr. Sanna’s termination from Lloyd Industries and his engagement in protected activity.” (Id. 45:22–25.)

I further instructed the jury as follows:

In order to engage in a protected activity, the employee does not have to directly institute the proceedings and it is sufficient if he sets into motion the actions of others which result in perceived -- an OSHA [proceeding]. Additionally, termination can be found to be retaliatory where the terminated employee did not himself engage in a protected activity but had a close relationship with the individual who did. Finally, retaliation can be found based upon the mistaken belief or perception that the employee had engaged in a protected activity.

As to the element of causation, I instructed that the Secretary had to establish by preponderance of the evidence “either that A, the protected activity was a substantial reason for the action; or B, the discharge or other adverse action took place because of the engagement in the protected activity.” I elaborated on this instruction as follows:

That is the secretary must show you that A, Mr. Spillane was fired because of his engagement in a protected activity; or B, Mr. Spillane’s engagement in a protected activity was a substantial reason for his termination. Similarly, the secretary must show, must prove that A, Mr. Sanna was fired because of his engagement in a protected activity; or B, Mr. Sanna’s engagement in a protected activity was a substantial reason for his termination.

On April 2, 2019, after concluding the deliberations, the jury answered the interrogatories as follows:

1. Did the Secretary prove by a preponderance of the evidence that Defendants, Lloyd Industries Inc. (“Lloyd Industries”) and Mr. William Lloyd, terminated Mr. Spillane in November 2014 because he engaged in a “protected activity”? Yes X No _____

* * *

3. Did the Secretary prove by a preponderance of the evidence that Defendants, Lloyd Industries Inc. (“Lloyd Industries”) and Mr. William Lloyd, terminated Mr. Sanna in May 2015 because Mr. Sanna engaged in a “protected activity”? Yes _____ No X

4. Did the Secretary prove by a preponderance of the evidence that Mr. Sanna’s engagement in a “protected activity” was a substantial reason for his termination in May 2015? Yes X No _____

E. Defendants’ Renewed Motion for Judgment as a Matter of Law

Presently before me is Defendants’ Renewed Motion for Judgment as a Matter of Law and/or a New Trial. Defendants have again raised issues regarding (a) Mr. Spillane’s failure to engage in a protected activity, (b) the improper use of the “perception theory,” (c) the improper reliance on Mr. Elbode’s complaint to establish a prima facie case of retaliation, and (d) the improper causation standard. Defendants have also raised sufficiency of the evidence arguments, alleging that they have proven legitimate, non-retaliatory reasons for both *Mr. Spillane and Mr. Sanna’s terminations, which were not refuted by any showing of pretext. Defendants have also moved for a new trial pursuant to Federal Rule of Civil Procedure 59(a), arguing that the jury was improperly instructed on (a) the third-party claims, (b) the perception theory of liability, and (c) the “substantial factor” causation standard.

The Secretary responds that the regulations and supporting caselaw clearly provide that a protected activity includes actions that “set into motion activities of others which result in proceedings under or related to the Act.” The Secretary also posits that the regulations provide both the “but for” and “substantial factor” causation standard, and that the “perception theory” and “close relationship theory” are legally viable under established Third Circuit precedent. Finally, the Secretary argues that sufficient evidence exists to support the verdicts as to both Mr. Spillane and Mr. Sanna, emphasizing that the jury heard and rejected the evidence of Defendants’ purported business purpose for the terminations.

For the following reasons, I agree with the Secretary and will deny Defendants’ Motion.

DISCUSSION

Defendants have moved for judgment as a matter of law or, in the alternative, a new trial. Specifically, Defendants argue that such relief is proper because (a) the “perception theory” is not valid under the OSH Act, (b) “third party claims” are invalid under the OSH Act, (c) Mr. Elbode’s complaint to OSHA did not constitute a “protected activity,” and (d) the jury was instructed on an improper causation standard. (Id.) Defendants also argue that there is insufficient evidence to support the verdicts. I will address each argument in turn below.

A. Objections to the Jury Instructions

For purposes of addressing the specific objections [to the jury instructions] raised by Defendants, I will quote the pertinent portions below.

(1) Perception Theory

I instructed the jury that the Secretary first had to establish that Mr. Spillane and Mr. Sanna engaged in a “protected activity” under one of the several possible theories, including that “defendants suspected or perceived” that they engaged in a protected activity. Defendants have moved for a new trial and/or judgment as a matter of law, arguing that the jury instructions improperly allowed for liability under the “perception theory” (i.e., the employee does not engage in a protected activity, but is believed to have engaged in one. The Secretary responds that the “perception theory” is legally viable under established Third Circuit precedent.

The United States Court of Appeals for the Third Circuit has consistently found that the “perception theory” is a valid theory of liability for retaliation. See, e.g., Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 571–72 (3d Cir. 2002) (holding that “perception” theory is valid basis for liability under ADA anti-retaliation provision); Brock v. Richardson, 812 F.2d 121, 124–25 (3d Cir. 1987) (finding that termination based on the employer’s erroneous belief that the employee engaged in a protected activity triggered liability under the FLSA anti-retaliation provision).

Defendants’ citations in opposition are distinguishable. First, Defendants cite Scheidler v. Indiana, et al., 914 F.3d 535 (7th Cir. 2019) in support of their theory that neither Mr. Spillane or Mr. Sanna has standing to sue. However, Scheidler does not support this theory because the Seventh Circuit held that “a person aggrieved by retaliation has standing to sue for it even if that person did not engage in the protected activity but someone else did.” Id. at 543 (citing Thompson v. N. Am. Stainless, 562 U.S. 170, 173–79, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011)).

Defendants reliance on Scheidler is also factually misplaced. In Scheidler, plaintiff argued that she was terminated for engaging in a protected activity by making the comment that “it’s who you know and who you blow.” The Seventh Circuit disagreed, holding that the plaintiff failed to establish retaliation under Title VII because neither party thought that the plaintiff’s comment constituted a discrimination complaint, the plaintiff testified that her comment was not rooted in gender, and there was no evidence that the employer engaged objectively in any discriminatory action. Id. at 543–44. In contrast, the Secretary here introduced evidence of retaliation for the engagement in a protected activity, including that Mr. Spillane took pictures of the machine that caused Mr. Elbode’s injury, Mr. Lloyd knew that Mr. Spillane had taken these pictures, an OSHA investigation ensued, and Mr. Lloyd admitted that he told another Lloyd Industries’ employee that there was a “rat” in the plant feeding information to OSHA. Mr. Lloyd also testified that he knew that Mr. Elbode had filed the OSHA complaint and fired Mr. Spillane within five days of the OSHA inspection.

Defendants also cite Digital Realty Trust, Inc. v. Somers, ––– U.S. ––––, 138 S. Ct. 767, 778, 200 L.Ed.2d 15 (2018) in support of their argument that Mr. Elbode had to be an employee at the time that he filed the complaint with OSHA in order for the perception theory to be viable. However, Digital is distinguishable because the United States Supreme Court interpreted the Dodd-Frank Act, finding that the Act clearly defines whistleblower such that the “anti-retaliation provision covers employees who report fraud not only to the SEC, but also to any other federal agency, Congress, or an internal supervisor.” Digital, 138 S. Ct. at 778 (citing 18 U.S.C. § 1514A(a)(1)). In contrast, the OSH Act does not contain any such specificity, and the OSH Act’s purpose clearly contemplates liability where the employer suspects that the employee engaged in a protected activity. Reich v. Hoy Shoe Co., Inc., 32 F.3d 361, 367–69 (8th Cir. 1994) (“Construing § 11(c), the OSH Act’s anti-retaliation provision, to protect employees from adverse employment actions because they are suspected of having engaged in protected activity is consistent with the general purposes of the Act and the specific purposes of the anti-retaliation provisions.”).

(2) Mr. Spillane’s Protected Activity

As it relates to Mr. Spillane, I instructed the jury that the Secretary first had to establish that Mr. Spillane engaged in a “protected activity” under one of the following theories:

A, Mr. Spillane engaged in a protected activity by taking photographs of the plant and providing information to Mr. Elbode which caused OSHA to inspect Lloyd Industries; or B, defendants suspected or perceived that Mr. Spillane had engaged in a protected activity; or C, defendants believed or suspected that Mr. Spillane had a close relationship with Mr. Elbode who engaged in the protected activity, again, i.e. the filing of the complaint with OSHA.

Defendants have moved for a new trial and/or judgment as a matter of law, arguing that the Secretary failed to establish that Mr. Spillane engaged in a protected activity because he did not personally file a complaint with OSHA until after his termination. The Secretary responds that the OSH Act regulations provide that a protected activity includes actions that “set into motion activities of others which result in proceedings under or related to the Act.”

The relevant regulations defining the scope of § 11(c) clearly reflect that the evidence presented to the jury regarding Mr. Spillane constituted a protected activity. See 29 C.F.R. § 1977.10(b) (“An employee need not himself directly institute the proceedings. It is sufficient if he sets into motion activities of other which result in proceedings under or related to the Act.”); Donovan v. R. D. Andersen Constr. Co., 552 F. Supp. 249 (D. Kan. 1982) (finding that an employee’s communication with the media about workplace conditions sufficiently “set into motion” the activities of others that resulted in OSHA proceedings). Here, Mr. Spillane took pictures of the machine involved in Mr. Elbode’s injury, which led to the OSHA investigation. Rene Santos, who was another Lloyd Industries’ employee, testified that he saw Mr. Spillane taking pictures of this machine and told Mr. Lloyd about it. Mr. Lloyd acknowledged that he knew that Mr. Spillane had taken pictures of this particular machine. Mr. Lloyd also testified that “the first thing [OSHA] wanted to look at was that machine” when they arrived for the inspection in November of 2014. And again, Mr. Spillane was terminated five days after the OSHA inspection.

Accordingly, Defendants’ Motion will be denied on this issue.

(3) The Third-Party Theory

Defendants argue that the jury was improperly instructed on the “third-party claim” theory because Mr. Elbode did not engage in a protected activity while he was an employee as he filed the complaint with OSHA after his termination. The Secretary responds that the OSH Act permits a third-party theory of recovery even where the relationship is with a person who did not engage in a protected activity, but the employer believes that he did. On this issue, the jury was instructed as follows:

I talked about, as it relates to both of those employees, the first element was protected activities. Concerning this first element, the secretary need not prove the merits of the complaint filed with OSHA or the content of the testimony provided during the OSHA investigation, but only that Mr. Spillane and Mr. Sanna each engaged in a protected activity.

In order to engage in a protected activity, the employee does not have to directly institute the proceedings and it is sufficient if he sets into motion the actions of others which result in perceived -- an OSHA [proceeding]. Additionally, termination can be found to be retaliatory where the terminated employee did not himself engage in a protected activity, but had a close relationship with the individual who did. Finally, retaliation can be found based upon the mistaken belief or perception that the employee had engaged in a protected activity.

Defendants focus on Mr. Elbode’s status as an employee is completely misplaced. The proper focus here is on Mr. Spillane and Mr. Sanna. An employer can be liable under the OSH Act where the individual alleges discrimination (i.e., Mr. Spillane and Mr. Sanna) based on a close relationship with another person (i.e., Mr. Elbode) who either (a) engaged in a protected activity or (b) was believed to have engaged in a protected activity. See Reich v. Cambridgeport Air Sys., Inc., 26 F.3d 1187, 1189 (1st Cir. 1994). In Reich, the United States Court of Appeals for the First Circuit found that there “was sufficient evidence to support the court’s finding that [the plaintiff] was terminated because of his connection with [another employee]” where they were “particularly close friends,” management knew they were close friends, a supervisor had warned the plaintiff not to raise safety concerns, and their terminations occurred within one week of each other. Id. Thus, the district court found § 11(c) liability based on the close relationship. Id. Importantly, and as it relates to Defendants’ argument here, the plaintiff’s friend in Reich was fired because he was perceived to have (but had not actually) engaged in a protected activity. Id. Thus, in assessing liability, it was the defendant’s perception that mattered. Accordingly, Defendants’ argument that Mr. Elbode had to actually engage in a protected activity is contrary to the finding in Reich.

In short, it was sufficient that Mr. Lloyd perceived that Mr. Elbode engaged in a protected activity.⁴ Defendants’ citations and reliance on whether Elbode was employed at Lloyd Industries when he filed the OSHA complaint are misleading. As explained above, it was sufficient for Mr. Lloyd to have believed that Mr. Elbode engaged in a protected activity while he was an employee and that Mr. Spillane and Mr. Sanna were terminated as a result of their relationships with Mr. Elbode. Accordingly, Defendants’ Motion will be denied on this point.

(4) Causation Standard

The jury was instructed that the Secretary had to establish “causation” by showing “either that A, the protected activity was a substantial reason for the action; or B, the discharge or other adverse action took place because of the engagement in the protected activity.” Defendants argue that the instruction was improper because it allowed for Mr. Sanna’s engagement in a protected activity to be a “substantial reason” for his termination, rather than only the “but for” reasonThe Secretary responds that the regulations promulgated under the OSH Act permit finding causation using either the “substantial reason” or “but for” test.

The pertinent regulations upon which I relied in crafting the instruction provide:

At the same time, to establish a violation of section 11(c), the employee’s engagement in protected activity need not be the sole consideration behind discharge or other adverse action. If the protected activity was a substantial reason for the action, or if the discharge or other adverse action would not have taken place “but for” engagement in protected activity, section 11(c) has been violated.

29 C.F.R. § 1977.6(b) (emphasis added). While the Third Circuit has not opined on the propriety of giving the “substantial reason” and “but for” instruction, other circuit courts addressing this issue have held that both the “but for” and “substantial factor” tests are viable pursuant to this regulation. See, e.g., Perez v. Ohio Bell Tel. Co., 655 F. App’x 404, 409 (6th Cir. 2016) (“Indeed, the statutory scheme contemplates that employers may, and in some cases should, discipline or discharge an employee for ‘legitimate reasons, or ... non-prohibited considerations.’ But discipline or discharge by an employer must be based on legitimate reasons alone. That is because an ‘employee’s engagement in protected activity need not be the sole consideration behind discharge or other adverse action.’ ” (quoting 29 C.F.R. § 1977.6) (alterations in original)); Gaffney v. Riverboat Servs. of In., Inc., 451 F.3d 424, 453 (7th Cir. 2006) (“Under OSHA, in order for a plaintiff to establish that he was terminated in retaliation for filing a health or safety complaint, he must show that the ‘protected activity was a substantial reason for the action,’ although it ‘need not be the sole consideration behind discharge.’ ” (quoting 29 C.F.R. § 1977.6)). Moreover, the controlling regulations clearly set out that causation may be established under either test. 29 C.F.R. § 1977.6(b). “Regulations promulgated by the Secretary are entitled to be given great weight and are controlling if reasonable.” Donovan v. Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1425 (10th Cir. 1984).

Similarly, district courts in other circuits have found that a plaintiff must show that his protected activity “was a ‘but for’ or ‘substantial reason’ for the adverse employment action.” Perez v. Idaho Falls Sch. Dist., No. 91, No. 4:15-CV-00019-BLW, 2017 WL 743881, at *2 (D. Idaho Feb. 24, 2017); see also Perez v. Clearwater Paper Corp., 184 F. Supp. 3d 831, 842 (D. Idaho 2016) (“Causation is established where the protected activity was a substantial reason for the adverse employment action. Accordingly, ‘the employee’s engagement in protected activity need not be the sole consideration behind discharge or other adverse action.’ ” (quoting 29 C.F.R. § 1977.6(b))); Perez v. Panther City Hauling, Inc., No. 13-CV-0337-MJR-DGW, 2014 WL 2882919, at *9 (S.D. Ill. June 25, 2014) (same); Perez v. Renaissance Arts & Educ., Inc., No. 8:12-CV-514-T-MAP, 2013 WL 5487097, at *2 (M.D. Fla. Sept. 30, 2013) (same).

Ignoring the clear controlling regulatory language set out above, which allows for causation to be established under both the “but for” and “substantial reason” tests, Defendants argue that because the United States Supreme Court has found that retaliation claims under the Age Discrimination in Employment Act (“ADEA”) and Title VII must be established using “but for” causation, the same reasoning must apply to retaliation claims brought under OSHA. This argument is unpersuasive because the circuit and districts courts have continued to hold that causation for OSHA can be established using either the “but for” or “substantial factor” test, even after the United States Supreme Court cases cited by Defendants were decided. See, e.g., Perez v. Idaho Falls Sch. Dist., No. 91, No. 4:15-CV-00019-BLW, 2017 WL 743881 (D. Idaho Feb. 24, 2017); Perez v. Clearwater Paper Corp., 184 F. Supp. 3d 831, 842 (D. Idaho 2016).

Defendants press that OSHA regulations are not entitled to deference pursuant to Chevron U.S.A. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) because that the regulations conflict with the plain language of the statute and were not promulgated under the rule-making authority. I find this argument unpersuasive in light of the breadth of caselaw to the contrary, as discussed above. See also Bianchi Trison Corp. v. Chao, 409 F.3d 196, 204 (3d Cir. 2005) (“We will affirm the Secretary’s interpretation of OSHA standards if it is reasonable. We must uphold the Commission’s factual findings if they are supported by substantial evidence in the record as a whole.... In addition, we must defer to an agency’s reasonable interpretation of an ambiguous administrative statute.” (internal citations omitted)).

Accordingly, I find that the jury was properly instructed on the element of causation.

B. Sufficiency of the Evidence Challenges

(1) Sufficiency of the Evidence to Support Mr. Spillane’s Verdict

Finally, Defendants argue that the Secretary presented insufficient evidence to allow the jury to find that Defendants retaliated against Mr. Spillane. The Secretary responds that there was a significant body of evidence to support the finding that Mr. Lloyd suspected or believed that Mr. Spillane was involved in the OSHA complaint, which resulted in a retaliatory termination.

Mr. Spillane testified that, in July and August of 2014, he had taken pictures of the machine involved in Mr. Elbode’s injury. Rene Santos, another Lloyd Industries’ employee, testified that he saw Mr. Spillane taking pictures of this machine. Mr. Santos also testified that he told Mr. Lloyd about seeing Mr. Spillane taking the pictures one day later. Mr. Lloyd acknowledged that he knew that Mr. Spillane was taking pictures of this particular machine. He also testified that “the first thing [OSHA] wanted to look at was that machine” when they arrived for the inspection in November of 2014.

Mr. Lloyd also testified that he told another Lloyd Industries’ employee, Mr. Richard Smith, that he believed that “there was a rat in the plant and [he] was going to find out who it was[.]” Mr. Lloyd made this comment referring to the fact that “somebody was telling information to OSHA about my company.”  Mr. Lloyd testified that he knew that Mr. Elbode and Mr. Spillane worked together in the Access Door Department and that Mr. Elbode filed the OSHA complaint that resulted in the November 2015 inspection. (Am. Trial Tr., 90:15–24, 112:4–12, Mar. 29, 2019, ECF No. 97No. 97.)

Prior to terminating Mr. Spillane, Mr. Lloyd testified that he had never disciplined Mr. Spillane or warned him about any performance concerns in any way. The jury also heard Mr. Lloyd testify that he never provides explanations for terminations, but he later acknowledged on cross-examination that he did in fact discuss concerns with employees before firing them. The jury also heard testimony that Mr. Lloyd fired Mr. Spillane on November 18, 2014, five days after the OSHA inspection.

Based on the foregoing, I find that more than sufficient evidence was presented such that the jury could have found that Defendants retaliated against Mr. Spillane.

(2) Defendants’ “Legitimate Nondiscriminatory Reason” for Terminating Mr. Spillane

Defendants further argue that they are entitled to judgment as a matter of law because they proffered a legitimate nondiscriminatory reason for Mr. Spillane’s termination (i.e., he was sleeping on the job). The Secretary responds that sufficient evidence existed for the jury to find that the proffered reason for Mr. Spillane’s termination was pretextual.

Defendants are correct that the jury heard testimony that Mr. Lloyd fired Mr. Spillane because he was a bad worker and was sleeping in his car while on the clock. But the jury apparently rejected Defendants’ theory because evidence was also presented that Mr. Lloyd never disciplined Mr. Spillane or warned him about performance concerns at any point prior to his termination. The jury also heard Mr. Lloyd testify that he did not provide Mr. Spillane with any explanation for the termination, but yet he also acknowledged on cross-examination that he had previously discussed explanations for terminations with prior employees that were terminated for non-OSHA reasons. Tellingly, Mr. Lloyd fired Mr. Spillane five days after the OSHA inspection.

Based on this evidence, I find that there was more than sufficient evidence for the jury to find that Mr. Lloyd’s proffered reasons for terminating Mr. Spillane were pretext. I decline to disturb the jury’s findings of fact and credibility determinations in light of the substantial evidence presented by the Secretary.

(3) Sufficiency of the Evidence to Support Mr. Sanna’s Verdict

Defendants also argue that they are entitled to judgment as a matter of law because they proffered a legitimate nondiscriminatory reason for Mr. Sanna’s termination (i.e., Mr. Sanna failed to satisfy his managerial responsibilities). The Secretary responds that sufficient evidence existed for the jury to find that the proffered reason for Mr. Sanna’s termination was pretextual.

The jury heard testimony that Mr. Lloyd thought that Mr. Sanna would oversee OSHA compliance at the plant. However, the jury also received testimony that Mr. Lloyd never asked Mr. Sanna about his knowledge and experience with health and safety when Mr. Sanna was hired. And Mr. Sanna testified that Mr. Lloyd never asked him to perform safety and health inspections of the plant or ensure that employees were trained on safety and health. In fact, Mr. Lloyd did not tell Mr. Sanna that OSHA was coming to inspect the plant in November 2014 and did not want Mr. Sanna to be involved with the OSHA inspection. Mr. Sanna testified that this was different than the previous interactions with OSHA representations where Mr. Lloyd had designated him as the point person to communicate with OSHA. Additionally, Mr. Lloyd’s job description for the plant manager position that was posted in December 2014 did not include any duties related to safety.

The jury also heard uncontradicted testimony that Mr. Lloyd was ultimately responsible for safety and health in the plant per the settlement agreements that he signed with OSHA. Mr. Lloyd testified that he was ultimately responsible for ensuring that audiometric testing was being conducted at the plant.

The jury also heard somewhat contradictory testimony by Mr. Lloyd that he fired Mr. Sanna because he was angry about the OSHA violations, but that he also believed that the violations were unsubstantiated. Additionally, Mr. Sanna and Mr. Lloyd consistently testified that Mr. Lloyd did not provide Mr. Sanna with any explanation for his termination. Mr. Lloyd testified that he had previously discussed explanations for terminations with prior employees that were terminated for non-OSHA reasons. And Mr. Sanna was terminated on that same day that OSHA issued $822,000 in citations against Defendants.

Based on this evidence, I find that there was more than sufficient evidence for the jury to find that Mr. Lloyd’s proffered reasons for terminating Mr. Spillane were pretext. I decline to disturb the jury’s findings of fact and credibility in light of the substantial evidence presented by the Secretary.

This action, brought by the Secretary of Labor under section 11(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et. seq., was heard on a bench trial before this Court. The parties subsequently filed proposed findings of fact and conclusions of law. Having reviewed those proposals and the evidence at trial, I find and decide as follows.

I. Findings of Fact

I make the following findings of fact:

Defendant Dr. N. Terry Fayad, D.M.D., P.C. operated a dental practice in Beverly, Massachusetts. Defendant Dr. N. Terry Fayad, D.M.D, as an individual, owns, operates, and leads the practice. Fayad's wife, Laura Mancini, was the office manager for the practice. Mancini had the authority to discipline, hire, and fire employees.

In 2010, the defendants also employed two hygienists, Robyn Demand and Michele Philips, and one dental assistant, complainant Rhonda Healey. Demand left her employment with the defendants in 2011. Philips remained employed by the defendants at the time of trial.

As a dental assistant, Healey's duties included preparing operatories, breaking down and handling used instruments, sterilizing instruments, and cleaning up certain items, including sharps such as needles, after completion of dental treatments. At the office she had primary responsibility for disposing of used, contaminated needles. Fayad supervised the clinical-related work; Mancini supervised the administrative part of Healey's work. Fayad and Mancini felt Healey was good at her job. They had an excellent relationship with Healey and testified that they all were like family. When Healey began working for the practice in 2002, she was paid $20 an hour. By November 2010, she was being paid $27 an hour. Healey participated in a profit sharing plan while she was employed by the defendants.

During her employment, Healey often assisted Fayad one-on-one with his various dental procedures. These procedures often required the use of anesthetic needles, for which precautions were implemented to avoid risk of exposure after contamination. One end of the needle was inserted into a carpule, a small glass cylinder containing anesthetic solution for patient procedures; the other end of the needle was placed into a patient's gum tissue during the procedure. After the needle was used, a plastic cap would be placed on the patient end of the needle. The contaminated needle would then be removed from the carpule and discarded in a dedicated sharps disposal container. Needle removal requires turning, pulling, and other manipulation of a contaminated needle. Fayad acknowledged that it was standard protocol in the dental industry to discard the contaminated needle in the sharps container with the cap still on.

Until October 2010, the practice had a policy of disposing of the contaminated needle without the carpule but with the cap still attached. This disposal method created more waste in the sharps container than it would if needles were discarded without the caps. In October 2010, Fayad decided to change the policy in order to decrease the rate at which the sharps containers were filled and therefore needed to be emptied. This was a purely practical decision; it had no medical purpose. Fayad developed one or more methods of removing the cap from the contaminated needle using hemostats (tong-or forceps-like instruments) so that only the needle was discarded in the sharps container. He demonstrated the method(s) to his staff.

Healey returned to work from a brief maternity leave on November 15, 2010. Fayad and Mancini were pleased to have her back. That day, Fayad demonstrated to Healey the new needle disposal method he had developed. Healey understood that she was supposed to use her hands to manipulate the needle, without a hemostat, although Fayad denies that he taught her this way. In the past, Fayad and Healey had used their hands when doing the standard protocol for needle disposal (disposing with a cap). Healey did not communicate to Fayad any discomfort or objection to the new method at that time or during the two following days, November 16 and 17. However, she expressed concern to Demand about its safety. She also did not follow the new procedure but continued discarding needles with caps as she had previously done. On the evening of November 17, Fayad and Mancini discovered that someone had been discarding needles with caps and suspected it was Healey.

On the morning of Thursday, November 18, Fayad asked Healey whether she had been following the new method. She told him that she had not because she felt uncomfortable about it. Fayad said that the needles in the sharps containers had to be uncapped. Healey interpreted this to mean that not only must she uncap contaminated needles moving forward, but she must also reach into the sharps containers and uncap those that were already discarded. Fayad did not understand this was her interpretation and has been adamant that he would never ask her to reach into a sharps container.

Fayad suggested that they should speak with Mancini about her concerns. When Healey told Mancini that she was uncomfortable handling the needles, Mancini responded that it was part of Healey's job.

The evidence is conflicting about the details of the conversation between Healey and Mancini, but I find that Healey left the office after the conversation that morning without notice to either Fayad or Mancini. Fayad and Mancini discovered she had left some time afterward and treated her departure as an unacceptable abandonment of her work.

I do not find that Healey abandoned her employment when she left the office in the sense that it was effectively a resignation. I find that she left in a state of upset, with some concern or uncertainty about how her supervisors looked upon her, but without the understanding either that she was quitting or had been terminated. I find simply that there was no clear termination of her employment on November 18 — or 19, 20, or 21 — and that Healey's status with respect to her employment was in flux.

Sometime after leaving the office on November 18, Healey spoke with an OSHA industrial hygienist, Angela Sciandra, who is responsible for investigating health and safety issues. Healey also spoke with whistleblower investigator Anthony Maida. Healey filed both a Safety and Health and a Section 11(c) Whistleblower complaint on November 18.

On the morning of Friday, November 19, Mancini contacted the Everest Institute, which runs a dental externship program, to see whether an extern would be available to assist the practice.

Healey called the dental office on Friday afternoon, November 19. Although the office was closed that day, she believed a voice message would still reach Fayad and/or Mancini. She left a voice message which contained at least the following: "Hi, Dr. Fayad. This is Rhonda. I just wanted to find out my status — if I still have a job or not. And I'm willing to come back if you change your policy on the capping the needles, or uncapping the needles. Just give me a call . . . to let me know where I stand; if I still have a job or not. Thank you." Fayad and Mancini listened to the message that day. They decided to call Healey back on Monday.

Over the weekend of November 20 and 21, Fayad and Mancini sought advice from Mancini's sister, Dana Capodilupo, who had experience in human resources. Capodilupo recommended Mancini go over the timeline of events with Healey with respect to the new method, and she prepared a short script for Mancini to use.

Also over the weekend, Fayad developed a new method of performing needle uncapping, called the notch method, whereby the notch of the sharps container was used to manipulate one end of the needle and remove the cap. The Secretary maintains this was developed as an accommodation to Healey; the defendants maintain it was simply a new method the staff would be able to use moving forward, should they choose.

On Monday, November 22, Mancini and Healey spoke by phone. There is considerable dispute concerning the substance of this call. The Secretary asserts that Mancini attempted to accommodate Healey and told her there was another method of uncapping available. The defendants maintain that Mancini confirmed that Healey was not welcome back at the office and no longer had a job there. The facts are inconclusive as to the substance of the call. I find that there was no unambiguous termination of the employment relationship and that Healey expected she would hear further from Fayad and/or Mancini either as to her employment status generally or, more specifically, as to when she should come back to the office to learn the new method. That evening, Healey told Demand that Mancini wanted her to come into the office so Fayad could show her a new method, suggesting Healey believed her employment was still active.

On Tuesday, November 23 at approximately 10:30 a.m., OSHA Compliance Officer John Nesbitt arrived at the dental office to conduct a safety and health inspection. Nesbitt was assigned the case a few days prior and had spoken with Sciandra, who relayed some information from her call with Healey. There is a dispute about what Nesbitt was told by Fayad and Mancini during his visit. Nesbitt's own contemporaneous notes indicate that he spoke with Mancini and Fayad for background information concerning the office and its employees and that Healey was described by them as an "employee" on three occasions (as an assistant, as the practice's OSHA compliance employee, and as an employee who had attended an OSHA training). On a fourth occasion — after he had shown them the anonymous complaint and they had identified Healey as the complainant and proceeded to explain the dispute over the needles — Nesbitt's notes indicate that Fayad and Mancini described Healey's employment status as "not resolved." Nesbitt left the office around 2:15 p.m.

At 2:44 p.m. on November 23, Healey left a message at the office asking Mancini to call her back. At 3:11 p.m., Mancini returned Healey's call. Again, there is a dispute about the substance of this call. Both parties, however, agree that the call was short and that at the end it was clear that Healey was no longer employed by the practice. Because I find that Healey's employment status was in flux until then, I find this call was the occasion of her termination. Specifically, I find that Mancini flatly told Healey she was no longer employed. Mancini's call terminating Healey's employment came within an hour of the OSHA investigator's completion of his surprise visit to the office.

Healey called Maida, the OSHA whistleblower investigator, after the November 23 call in which Mancini terminated her employment. On December 2, Maida informed the defendants that Healey had filed a retaliation claim. The defendants began processing Healey's COBRA and pension paperwork that day but never issued her a termination letter.

Healey's emotional state unraveled after her termination. On December 9, the defendants began surveillance of Healey through a private investigator, which continued for over one and a half years.

Healey filed for unemployment benefits on November 26, 2010. The defendants contested Healey's benefits claim. Healey filed for food stamps sometime after her employment with the defendants terminated and began looking for work. Healey performed work for Dano Dental Arts for some period beginning in March 2011. She performed part-time work at Red Rock Dental for some period beginning in June 2011.

On April 25, 2011, OSHA issued Fayad, P.C. a number of citations for violations of OSHA safety and health regulations, including citations for the notch method and for failing to adequately train employees on OSHA's Blood Borne Pathogens Standard. Fayad, P.C. settled the violations, paid a penalty, and abated the notch procedure and training violations.

II. Conclusions of Law

Based on these factual findings, I make the following conclusions of law:

A. Retaliatory Discharge under Section 11(c)

Section 11(c)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (the "Act"), provides:

No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this [Act] or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.29 U.S.C. § 660(c)(1) ; 29 C.F.R. 1977.3 . The Secretary has established a prima facie case under section 11(c) . Healey engaged in a protected activity under the Act when she filed a safety and health complaint on November 18, 2010. See 29 C.F.R. § 1977.9 ("Discharge of, or discrimination against, an employee because the employee has filed any complaint under or related to this Act is prohibited by section 11(c) "). The defendants only discovered that Healey had filed a complaint when Nesbitt conducted the OSHA inspection on November 23, 2010. They fired her within an hour of his leaving. Given the timing, I find that Healey's discharge shortly after her employer's discovery of the complaint was a retaliatory discharge in violation of section 11(c) of the Act.

The defendants purport to present a legitimate, non-discriminatory reason for Healey's termination, claiming that she was fired for leaving the office during a full patient schedule and thus breaching their trust. This reason is not believable in light of all the evidence presented at trial. The evidence showed that Healey worked for the defendants for almost a decade, that Fayad and Mancini treated her like family, and that Fayad was "ecstatic" when she returned from maternity leave. That this relationship would be broken beyond repair by Healey's departure on November 18 is not credible. Instead, it is credible that such a relationship would have been broken when Healey took her complaint to OSHA. The evidence is convincing that this action was regarded by Fayad as a breach of trust that caused the termination of her employment, precisely the protected activity that makes this a retaliatory discharge. I am persuaded that the defendants' stated reason is merely pretextual. Accordingly, I conclude that Healey was discharged in retaliation for filing a complaint with OSHA, which is a clear violation of section 11(c) of the Act.

I do not reach the question of whether Healey's actions on November 18, 2010 constituted a justified work refusal and do not find that the defendants committed an act of discrimination in violation of section 11(c) . Neither do I conclude that Healey was constructively discharged in violation of section 11(c) that day. Because I do not find that Healey was discharged until November 23, 2010, I likewise do not conclude that the defendants' actions on November 22 and 23, 2010 constituted a retaliatory refusal to rehire in violation of that section.

B. Damages

The Secretary is entitled to damages, to be awarded to Healey, in the form of back wages for the period of November 23, 2010 through December 31, 2011, which I previously determined to be the furthest date the back wages claim would likely reach (see Final Pretrial Conf. Tr. 10 (dkt. no. 158)), totaling $51,644.80, which I calculate by subtracting wages for November 18 and 22, 2010 from the Secretary's proposal, consistent with my finding that Healey was not terminated until November 23. I award compensatory damages with respect to the profit sharing plan losses through 2011 in the amount of $13,450.26, as testified to at trial by the Secretary's witness Michael Mabee, as well as for emotional damages in the amount of $20,000, for a total of $33,450.26. I do not award punitive damages because I do not find the conduct at issue to be unusually reprehensible, beyond what any retaliatory discharge must be. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 , 419 ,123 S. Ct. 1513 , 155 L. Ed. 2d 585 (2003). Finally, I do not find Fayad individually liable for back wages. The parties do not dispute that he can be held liable for compensatory damages.

C. Other Relief

I enjoin the defendants, including Fayad in his personal capacity, and their agents, servants, and employees from violating the provisions of section 11(c) of the Act. I direct the defendants to post a notice to their employees stating that the defendants will not in any way discriminate against employees for activities protected by the Act.

1. What most surprised you about these cases? Why do you think the defendants fought so hard against these charges?
2. Why were these cases brought in the name of the Secretary of Labor, rather than in the names of the individuals who were adversely affected?
3. What is the burden of proof for showing the retaliation under this statute? If you have previously taken employment discrimination or job security: how does this burden compare with the anti-discrimination statutes?
4. Do these cases help you to think about how these cases can be proved? What do you think are the biggest roadblocks to bringing and proving these cases?

1. The article you read at the beginning of this chapter [Emily A. Spieler, Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act, 32 ABA J. Lab. & Emp. L. 1 (2016)] was based on testimony given at a 2014 Senate Committee hearing. At the hearing, then Assistant Secretary of Labor, David Michaels, raised these same concerns. The full hearing can be accessed at http://www.help.senate.gov/hearings/hearing/?id=61064fd1-5056-a032-5243-dd5b5f24b92a.   
2. As noted in the article, the 11(c) statutory language requires that a complaint be brought to OSHA within 30 days of the retaliation. An investigator will review the charge and interview witnesses and will then make a recommendation to the Office of the Solicitor as to whether the case should proceed.  If there is not a positive recommendation on the case, it may be reviewed informally by the Whistleblower Directorate in Washington D.C.  If it is referred to the Solicitor, that office then make a non-reviewable decision as to whether to continue.  See Wood v. Dept. of Labor, 275 F.3d 107 (D.C. Cir. 2001).  If s/he chooses to continue, the case must be filed in federal district court.  There is no formal administrative process within the agency to review the claim (this is similar to the lack of formal review when the NLRB fails to issue a complaint).  Once filed in district court, the Secretary has the burden to prove that the employee was the subject of retaliation for exercising rights under the OSHAct. 
3. Other federal laws, including those that address issues of safety retaliation, are all stronger that Section 11(c) in important ways. In the safety arena, this is particularly true under the Surface Transportation Assistance Act (primarily trucking), which explicitly extends its coverage to independent contractors, as well as under the Federal Railroad Safety Act (railroad safety) and the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) (aviation safety). Under the Surface Transportation Assistance Act, an individual who files a complaint need only prove that the protected activity was “a contributing factor” to the disciplinary action. If this burden is met, the employer must prove by clear and convincing evidence that it would have taken the same action anyway. Complaints must initially be filed with OSHA, but then the complainant has a choice between taking the case forward to a de novo administrative hearing or through the “kick out” provision to court. There is some bipartisan support for amending Section 11(c) because of the general enthusiasm for these statutes, but it is definitely not likely to happen any time soon. 
4. The Mine Safety and Health Act also has some interesting anti-retaliation provisions. For example, it is the only statute that provides for immediate provisional reinstatement following a discharge if the agency determines that the worker's claim was "not frivolously brought." 30 USCA § 815 (c).

4. Despite the weakness of the retaliation provisions of the OSH Act, OSHA has (at times) tried to be attentive to the wide range of types of retaliation that too frequently follow when workers raise concerns about safety or report their injuries. During the Obama Administration, the agency was also very concerned about various kinds of employer policies and practices that have the effect of discourage reporting. In March 2012, the agency issued an internal Memorandum (referred to as the Fairfax Memo):

Section 11(c) of the OSH Act prohibits an employer from discriminating against an employee because the employee reports an injury or illness. 29 CFR 1904.36. This memorandum is intended to provide guidance to both field compliance officers and whistleblower investigative staff on several employer practices that can discourage employee reports of injuries and violate section 11(c), or other whistleblower statutes.

Reporting a work-related injury or illness is a core employee right, and retaliating against a worker for reporting an injury or illness is illegal discrimination under section 11(c). Other whistleblower statutes enforced by OSHA also may protect employees who report workplace injuries. In particular, the Federal Railroad Safety Act (FRSA) prohibits railroad carriers, their contractors and subcontractors from discriminating against employees for reporting injuries. 49 U.S.C. 20109(a)(4).

If employees do not feel free to report injuries or illnesses, the employer's entire workforce is put at risk. Employers do not learn of and correct dangerous conditions that have resulted in injuries, and injured employees may not receive the proper medical attention, or the workers' compensation benefits to which they are entitled. Ensuring that employees can report injuries or illnesses without fear of retaliation is therefore crucial to protecting worker safety and health.

There are several types of workplace policies and practices that could discourage reporting and could constitute unlawful discrimination and a violation of section 11(c) and other whistleblower protection statutes. Some of these policies and practices may also violate OSHA's recordkeeping regulations, particularly the requirement to ensure that employees have a way to report work-related injuries and illnesses. 29 C.F.R. 1904.35(b)(1). I list the most common potentially discriminatory policies below. OSHA has also observed that the potential for unlawful discrimination under all of these policies may increase when management or supervisory bonuses are linked to lower reported injury rates. While OSHA appreciates employers using safety as a key management metric, we cannot condone a program that encourages discrimination against workers who report injuries.

1. OSHA has received reports of employers who have a policy of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury. Reporting an injury is always a protected activity. OSHA views discipline imposed under such a policy against an employee who reports an injury as a direct violation of section 11(c) or FRSA. In other words, an employer's policy to discipline all employees who are injured, regardless of fault, is not a legitimate nondiscriminatory reason that an employer may advance to justify adverse action against an employee who reports an injury. In addition, such a policy is inconsistent with the employer's obligation to establish a way for employees to report injuries under 29 CFR 1904.35(b), and where it is encountered, a referral for a recordkeeping investigation should be made. Where OSHA encounters such conduct by a railroad carrier, or a contractor or subcontractor of a railroad carrier, a referral to the Federal Railroad Administration (FRA), which may conduct a recordkeeping investigation, may also be appropriate.
2. In another situation, an employee who reports an injury or illness is disciplined, and the stated reason is that the employee has violated an employer rule about the time or manner for reporting injuries and illnesses. Such cases deserve careful scrutiny. Because the act of reporting the injury directly results in discipline, there is a clear potential for violating section 11(c) or FRSA. OSHA recognizes that employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries. To be consistent with the statute, however, such procedures must be reasonable and may not unduly burden the employee's right and ability to report. For example, the rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all. Nor may enforcement of such rules be used as a pretext for discrimination. In investigating such cases, factors such as the following may be considered: whether the employee's deviation from the procedure was minor or extensive, inadvertent or deliberate, whether the employee had a reasonable basis for acting as he or she did, whether the employer can show a substantial interest in the rule and its enforcement, and whether the discipline imposed appears disproportionate to the asserted interest. Again, where the employer's reporting requirements are unreasonable, unduly burdensome, or enforced with unjustifiably harsh sanctions, they may result in inaccurate injury records, and a referral for a recordkeeping investigation should be made.
3. In a third situation, an employee reports an injury, and the employer imposes discipline on the ground that the injury resulted from the violation of a safety rule by the employee. OSHA encourages employers to maintain and enforce legitimate workplace safety rules in order to eliminate or reduce workplace hazards and prevent injuries from occurring in the first place. In some cases, however, an employer may attempt to use a work rule as a pretext for discrimination against a worker who reports an injury. A careful investigation is needed. Several circumstances are relevant. Does the employer monitor for compliance with the work rule in the absence of an injury? Does the employer consistently impose equivalent discipline against employees who violate the work rule in the absence of an injury? The nature of the rule cited by the employer should also be considered. Vague rules, such as a requirement that employees "maintain situational awareness" or "work carefully" may be manipulated and used as a pretext for unlawful discrimination. Therefore, where such general rules are involved, the investigation must include an especially careful examination of whether and how the employer applies the rule in situations that do not involve an employee injury. Enforcing a rule more stringently against injured employees than noninjured employees may suggest that the rule is a pretext for discrimination against an injured employee in violation of section 11(c) or FRSA.
4. Finally, some employers establish programs that unintentionally or intentionally provide employees an incentive to not report injuries. For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or "near misses". OSHA's VPP Guidance materials refer to a number of positive incentives, including providing tee shirts to workers serving on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health; or throwing a recognition party at the successful completion of company-wide safety and health training. See Revised Policy Memo #5 - Further Improvements to VPP(June 29, 2011).
   
   Incentive programs that discourage employees from reporting their injuries are problematic because, under section 11(c), an employer may not "in any manner discriminate" against an employee because the employee exercises a protected right, such as the right to report an injury. FRSA similarly prohibits a railroad carrier, contractor or subcontractor from discriminating against an employee who notifies, or attempts to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury. If an employee of a firm with a safety incentive program reports an injury, the employee, or the employee's entire work group, will be disqualified from receiving the incentive, which could be considered unlawful discrimination. One important factor to consider is whether the incentive involved is of sufficient magnitude that failure to receive it "might have dissuaded reasonable workers from" reporting injuries. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006).
   
   In addition, if the incentive is great enough that its loss dissuades reasonable workers from reporting injuries, the program would result in the employer's failure to record injuries that it is required to record under Part 1904. In this case, the employer is violating that rule, and a referral for a recordkeeping investigation should be made. If the employer is a railroad carrier, contractor or subcontractor, a violation of FRA injury-reporting regulations may have occurred and a referral to the FRA may be appropriate. This may be more likely in cases where an entire workgroup is disqualified because of a reported injury to one member, because the injured worker in such a case may feel reluctant to disadvantage the other workgroup members.

Please contact the Office of Whistleblower Protection Programs at (202) 693-2199 if you have further questions.

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5. Some of the principles in the Fairfax memo were incorporated into the OSHA Recordkeeping Rule, quoted above. How do you think it fits together with Section 11(c)? See 29 C.F.R. 1904.36 Prohibition against discrimination:

In addition to § 1904.35, section 11(c) of the OSH Act also prohibits an employer from discriminating against an employee for reporting a work-related fatality, injury, or illness. That provision of the Act also protects the employee who files a safety and health complaint, asks for access to the part 1904 records, or otherwise exercises any rights afforded by the OSH Act.

To what extent do these provisions expand anti-retaliation rights of workers under the OSH Act?

6. Because of the (obvious) shortcomings of Section 11(c), the effect of the Fairfax memorandum has been limited. OSHA’s 2016 interpretation of the revised Recordkeeping Rule (set out earlier in these materials), indicated that the Rule would be interpreted to  prohibit safety incentive programs and post-reporting drug testing, making it a violation of the recordkeeping standard for an employer to maintain any of the types of programs described in the Fairfax memorandum. In 2018, OSHA rescinded this interpretation of the Rule in a memorandum:

The purpose of this memorandum is to clarify the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing. The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.

Do you think that safety incentive programs and post-incident drug-testing discourage workers from reporting hazards or injuries?

8. At the urging of the Worker Protection Advisory Committee, OSHA also posted guidelines for employers to guide managerial policies regarding retaliation in situations involving safety.
9. Remember that employees, even those without unions, also have protection under the National Labor Relations Act when they engage in “concerted activity” within the meaning of Section 7 of the NLRA, 29 U.S.C. § 157. In a memorandum, the NLRB announced that it had entered into a program with OSHA:

During the OSHA intake process, complainants seeking to assert an OSHA whistleblower claim often learn that their charge would be untimely under Section 11(c) of OSHA, which establishes a 30-day statute of limitations. In these situations, the complainants either decline to file charges or their charges are dismissed because they were filed outside of the 30-day period. OSHA estimates that this happens in 300 to 600 cases each year. It is likely that some of these cases may also raise claims arising under the National Labor Relations Act; for example, instances of employer retaliation for group complaints concerning unsafe working conditions. These complaints may still be timely under our six-month statute of limitations. To address these situations, on March 6, 2014, OSHA Assistant Secretary David Michaels signed a memorandum,agreeing to notify all complainants who file an untimely whistleblower charge of their right to file a charge with the NLRB. OSHA agents will be provided talking points briefly describing the NLRB and providing our contact information for use in telephone or in-person conversations with complainants with untimely whistleblower claims. Similar information will be included in OSHA’s letters administratively closing untimely whistleblower charges.

Mr. Justice STEWART delivered the opinion of the Court.

 The Occupational Safety and Health Act of 1970 (Act) prohibits an employer from discharging or discriminating against any employee who exercises "any right afforded by" the Act.^[1]  The Secretary of Labor (Secretary) has promulgated a regulation providing that, among the rights that the Act so protects, is the right of an employee to choose not to perform his assigned task because of a reasonable apprehension of death or serious injury coupled with a reasonable belief that no less drastic alternative is available. ^[2]The question presented in the case before us is whether this regulation is consistent with the Act.

I

The petitioner company maintains a manufacturing plant in Marion, Ohio, for the production of household appliances.   Overhead conveyors transport appliance components throughout the plant.   To protect employees from objects that occasionally fall from these conveyors, the petitioner has installed a horizontal wire-mesh guard screen approximately 20 feet above the plant floor. This mesh screen is welded to angle-iron frames suspended from the building's structural steel skeleton.

Maintenance employees of the petitioner spend several hours each week removing objects from the screen, replacing paper spread on the screen to catch grease drippings from the material on the conveyors, and performing occasional maintenance work on the conveyors themselves.   To perform these duties, maintenance employees usually are able to stand on the iron frames, but sometimes find it necessary to step onto the steel mesh screen itself.

In 1973, the company began to install heavier wire in the screen because its safety had been drawn into question.   Several employees had fallen partly through the old screen, and on one occasion an employee had fallen completely through to the plant floor below but had survived.   A number of maintenance employees had reacted to these incidents by bringing the unsafe screen conditions to the attention of their foremen.   The petitioner company's contemporaneous safety instructions admonished employees to step only on the angle-iron frames.

On June 28, 1974, a maintenance employee fell to his death through the guard screen in an area where the newer, stronger mesh had not yet been installed. Following this incident, the petitioner effectuated some repairs and issued an order strictly forbidding maintenance employees from stepping on either the screens or the angle-iron supporting structure.   An alternative but somewhat more cumbersome and less satisfactory method was developed for removing objects from the screen.   This procedure required employees to stand on power-raised mobile platforms and use hooks to recover the material.

On July 7, 1974, two of the petitioner's maintenance employees, Virgil Deemer and Thomas Cornwell, met with the plant maintenance superintendent to voice their concern about the safety of the screen.   The superintendent disagreed with their view, but permitted the two men to inspect the screen with their foreman and to point out dangerous areas needing repair.   Unsatisfied with the petitioner's response to the results of this inspection, Deemer and Cornwell met on July 9 with the plant safety director.   At that meeting, they requested the name, address, and telephone number of a representative of the local office of the Occupational Safety and Health Administration (OSHA).   Although the safety director told the men that they "had better stop and think about what [they] were doing," he furnished the men with the information they requested. Later that same day, Deemer contacted an official of the regional OSHA office and discussed the guard screen.

The next day, Deemer and Cornwell reported for the night shift at 10:45 p. m.  Their foreman, after himself walking on some of the angle-iron frames, directed the two men to perform their usual maintenance duties on a section of the old screen.^[3]  Claiming that the screen was unsafe, they refused to carry out this directive.   The foreman then sent them to the personnel office, where they were ordered to punch out without working or being paid for the remaining six hours of the shift. The two men subsequently received written reprimands, which were placed in their employment files.

A little over a month later, the Secretary filed suit in the United States District Court for the Northern District of Ohio, alleging that the petitioner's actions against Deemer and Cornwell constituted discrimination in violation of §  11(c)(1) of the Act. As relief, the complaint prayed, inter alia, that the petitioner be ordered to expunge from its personnel files all references to the reprimands issued to the two employees, and for a permanent injunction requiring the petitioner to compensate the two employees for the six hours of pay they had lost by reason of their disciplinary suspensions.

Following a bench trial, the District Court found that the regulation in question justified Deemer's and Cornwell's refusals to obey their foreman's order on July 10, 1974.   The court found that the two employees had "refused to perform the cleaning operation because of a genuine fear of death or serious bodily harm," that the danger presented had been "real and not something which [had] existed only in the minds of the employees," that the employees had acted in good faith, and that no reasonable alternative had realistically been open to them other than to refuse to work.   The District Court nevertheless 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 for the District Court's factual determination that the actions of Deemer and Cornwell had been justified under the Secretary's regulation, the appellate court disagreed with the District Court's conclusion that the regulation is invalid.  It accordingly remanded the case to the District Court for further proceedings.

II

The Act itself creates an express mechanism for protecting workers from employment conditions believed to pose an emergent threat of death or serious injury.   Upon receipt of an employee inspection request stating reasonable grounds to believe that an imminent danger is present in a workplace, OSHA must conduct an inspection.  29 U.S.C. §  657(f)(1). In the event this inspection reveals workplace conditions or practices that "could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by" the Act, 29 U.S.C. §  662(a), the OSHA inspector must inform the affected employees and the employer of the danger and notify them that he is recommending to the Secretary that injunctive relief be sought.  §  662(c).   At this juncture, the Secretary can petition a federal court to restrain the conditions or practices giving rise to the imminent danger.   By means of a temporary restraining order or preliminary injunction, the court may then require the employer to avoid, correct, or remove the danger or to prohibit employees from working in the area.  §  662(a).

To ensure that this process functions effectively, the Act expressly accords to every employee several rights, the exercise of which may not subject him to discharge or discrimination.   An employee is given the right to inform OSHA of an imminently dangerous workplace condition or practice and request that OSHA inspect that condition or practice.  29 U.S.C.  §  657(f)(1).  He is given a limited right to assist the OSHA inspector in inspecting the workplace, § §  657(a)(2), (e), and (f)(2), and the right to aid a court in determining whether or not a risk of imminent danger in fact exists.   See §660(c)(1).   Finally, an affected employee is given the right to bring an action to compel the Secretary to seek injunctive relief if he believes the Secretary has wrongfully declined to do so.  §  662(d).

In the light of this detailed statutory scheme, the Secretary is obviously correct when he acknowledges in his regulation 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." By providing for prompt notice to the employer of an inspector's intention to seek an injunction against an imminently dangerous condition, the legislation obviously contemplates that the employer will normally respond by voluntarily and speedily eliminating the danger.   And in the few instances where this does not occur, the legislative provisions authorizing prompt judicial action are designed to give employees full protection in most situations from the risk of injury or death resulting from an imminently dangerous condition at the worksite.

As this case illustrates, however, circumstances may sometimes exist in which the employee justifiably believes that the express statutory arrangement does not sufficiently protect him from death or serious injury.   Such circumstances will probably not often occur, but such a situation may arise when (1) the employee is ordered by his employer to work under conditions that the employee reasonably believes pose an imminent risk of death or serious bodily injury, and (2) the employee has reason to believe that there is not sufficient time or opportunity either to seek effective redress from his employer or to apprise OSHA of the danger.

Nothing in the Act suggests that those few employees who have to face this dilemma must rely exclusively on the remedies expressly set forth in the Act at the risk of their own safety.   But nothing in the Act explicitly provides otherwise.   Against this background of legislative silence, the Secretary has exercised his rulemaking power under 29 U.S.C. §  657(g)(2) and has determined that, when an employee in good faith finds himself in such a predicament, he may refuse to expose himself to the dangerous condition, without being subjected to "subsequent discrimination" by the employer.

The question before us is whether this interpretative regulation  constitutes a permissible gloss on the Act by the Secretary, in light of the Act's language, structure, and legislative history.   Our inquiry is informed by an awareness that the regulation is entitled to deference unless it can be said not to be a reasoned and supportable interpretation of the Act.

A

The regulation clearly conforms to the fundamental objective of the Act--to prevent occupational deaths and serious injuries. The Act, in its preamble, declares that its purpose and policy is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources  . . . ."  29 U.S.C. §  651(b). 

To accomplish this basic purpose, the legislation's remedial orientation is prophylactic in nature.   See Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 422, 444-445, 97 S.Ct. 1261, 1263-1264, 51 L.Ed.2d 464.   The Act does not wait for an employee to die or become injured. It authorizes the promulgation of health and safety standards and the issuance of citations in the hope that these will act to prevent deaths or injuries from ever occurring.   It would seem anomalous to construe an Act so directed and constructed as prohibiting an employee, with no other reasonable alternative, the freedom to withdraw from a workplace environment that he reasonably believes is highly dangerous.

Moreover, the Secretary's regulation can be viewed as an appropriate aid to the full effectuation of the Act's "general duty" clause.   That clause provides that "[e]ach employer  . . .  shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."   29 U.S.C. §  654(a)(1).   As the legislative history of this provision reflects, it was intended itself to deter the occurrence of occupational deaths and serious injuries by placing on employers a mandatory obligation independent of the specific health and safety standards to be promulgated by the Secretary.   Since OSHA inspectors cannot be present around the clock in every workplace, the Secretary's regulation ensures that employees will in all circumstances enjoy the rights afforded them by the "general duty" clause.

The regulation thus on its face appears to further the overriding purpose of the Act, and rationally to complement its remedial scheme. In the absence of some contrary indication in the legislative history, the Secretary's regulation must, therefore, be upheld, particularly when it is remembered that safety legislation is to be liberally construed to effectuate the congressional purpose. 

B

In urging reversal of the judgment before us, the petitioner relies primarily on two aspects of the Act's legislative history.

Representative Daniels of New Jersey sponsored one of several House bills that led ultimately to the passage of the Act. As reported to the House by the Committee on Education and Labor, the Daniels bill contained a section that was soon dubbed the "strike with pay" provision. This section provided that employees could request an examination by the Department of Health, Education, and Welfare (HEW) of the toxicity of any materials in their workplace.   If that examination revealed a workplace substance that had "potentially toxic or harmful effects in such concentration as used or found," the employer was given 60 days to correct the potentially dangerous condition.   Following the expiration of that period, the employer could not require that an employee be exposed to toxic concentrations of the substance unless the employee was informed of the hazards and symptoms associated with the substance, the employee was instructed in the proper precautions for dealing with the substance, and the employee was furnished with personal protective equipment.   If these conditions were not met, an employee could "absent himself from such risk of harm for the period necessary to avoid such danger without loss of regular compensation for such period."

This provision encountered stiff opposition in the House.   Representative Steiger of Wisconsin introduced a substitute bill containing no "strike with pay" provision. In response, Representative Daniels offered a floor amendment that, among other things, deleted his bill's "strike with pay" provision. He suggested that employees instead be afforded the right to request an immediate OSHA inspection of the premises, a right which the Steiger bill did not provide.   The House ultimately adopted the Steiger bill.

The bill that was reported to and, with a few amendments, passed by the Senate never contained a "strike with pay" provision. It did, however, give employees the means by which they could request immediate Labor Department inspections. These two characteristics of the bill were underscored on the floor of the Senate by Senator Williams, the bill's sponsor.

After passage of the Williams bill by the Senate, it and the Steiger bill were submitted to a Conference Committee.   There, the House acceded to the Senate bill's inspection request provisions.

The petitioner reads into this legislative history a congressional intent incompatible with an administrative interpretation of the Act such as is embodied in the regulation at issue in this case.   The petitioner argues that Congress' overriding concern in rejecting the "strike with pay" provision was to avoid giving employees a unilateral authority to walk off the job which they might abuse in order to intimidate or harass their employer. Congress deliberately chose instead, the petitioner maintains, to grant employees the power to request immediate administrative inspections of the workplace which could in appropriate cases lead to coercive judicial remedies. As the petitioner views the regulation, therefore, it gives to workers precisely what Congress determined to withhold from them.

We read the legislative history differently.   Congress rejected a provision that did not concern itself at all with conditions posing real and immediate threats of death or severe injury.   The remedy which the rejected provision furnished employees could have been invoked only after 60 days had passed following HEW's inspection and notification that improperly high levels of toxic substances were present in the workplace.   Had that inspection revealed employment conditions posing a threat of imminent and grave harm, the Secretary of Labor would presumably have requested, long before expiration of the 60-day period, a court injunction pursuant to other provisions of the Daniels bill. Consequently, in rejecting the Daniels bill's "strike with pay" provision, Congress was not rejecting a legislative provision dealing with the highly perilous and fast-moving situations covered by the regulation now before us.

It is also important to emphasize that what primarily troubled Congress about the Daniels bill's "strike with pay" provision was its requirement that employees be paid their regular salary after having properly invoked their right to refuse to work under the section.^[4] It is instructive that virtually every time the issue of an employee's right to absent himself from hazardous work was discussed in the legislative debates, it was in the context of the employee's right to continue to receive his usual compensation.

When it rejected the "strike with pay" concept, therefore, Congress very clearly meant to reject a law unconditionally imposing upon employers an obligation to continue to pay their employees their regular paychecks when they absented themselves from work for reasons of safety.   But the regulation at issue here 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.   An employer "discriminates" against an employee only when he treats that employee less favorably than he treats others similarly situated.

2

The second aspect of the Act's legislative history upon which the petitioner relies is the rejection by Congress of provisions contained in both the Daniels and the Williams bills that would have given Labor Department officials, in imminent-danger situations, the power temporarily to shut down all or part of an employer's plant. These provisions aroused considerable opposition in both Houses of Congress.   The hostility engendered in the House of Representatives led Representative Daniels to delete his version of the provision in proposing amendments to his original bill. The Steiger bill that ultimately passed the House gave the Labor Department no such authority.  The Williams bill, as approved by the Senate, did contain an administrative shutdown provision, but the Conference Committee rejected this aspect of the Senate bill.

The petitioner infers from these events a congressional will hostile to the regulation in question here.   The regulation, the petitioner argues, provides employees with the very authority to shut down an employer's plant that was expressly denied a more expert and objective United States Department of Labor.

As we read the pertinent legislative history, however, the petitioner misconceives the thrust of Congress' concern.   Those in Congress who prevented passage of the administrative shutdown provisions in the Daniels and Williams bills were opposed to the unilateral authority those provisions gave to federal officials, without any judicial safeguards, drastically to impair the operation of an employer's business. Congressional opponents also feared that the provisions might jeopardize the Government's otherwise neutral role in labor-management relations.

Neither of these congressional concerns is implicated by the regulation before us.   The regulation accords no authority to Government officials.   It 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. Moreover, any employee who acts in reliance on the regulation runs the risk of discharge or reprimand in the event a court subsequently finds that he acted unreasonably or in bad faith.   The regulation, therefore, does not remotely resemble the legislation that Congress rejected.

For these reasons we conclude that 29 CFR §  1977.12(b)(2) (1979) was promulgated by the Secretary in the valid exercise of his authority under the Act.   Accordingly, the judgment of the Court of Appeals is affirmed.

* * * * * *

FOOTNOTES

[1] Section 11(c)(1) of the Act, 84 Stat. 1603, 29 U.S.C. §  660(c)(1), provides in full:

"No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act."

[2] The regulation, 29 CFR §  1977.12 (1979), provides in full:

"(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."

[3] This order appears to have been in direct violation of the outstanding company directive that maintenance work was to be accomplished without stepping on the screen apparatus

[4] Congress' concern necessarily was with the provision's compensation requirement.   The law then, as it does today, already afforded workers a right, under certain circumstances, to walk off their jobs when faced with hazardous conditions.   See 116 Cong.Rec. 42208 (1970), Leg.Hist. 1223-1224 (Rep. Scherle) (reference to Taft-Hartley Act).   Under Section 7 of the National Labor Relations Act, 29 U.S.C. §  157, employees have a protected right to strike over safety issues.   See NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298.   Similarly, 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."   The effect of this section is to create an exception to a no-strike obligation in a collective-bargaining agreement.  Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 385, 94 S.Ct. 629, 640, 38 L.Ed.2d 583.

The existence of these statutory rights also make clear that the Secretary's regulation does not conflict with the general pattern of federal labor legislation in the area of occupational safety and health. See also 29 CFR §  1977.18 (1979).

-------------------------------

QUESTIONS

1. Do you think workers who refuse to work (and face retaliation) because of potential Covid-19 exposure could bring successful Section 11(c) charges?
2. Do you think the Supreme Court would reach the same result today?

Arbitrator: Anita Christine Knowlton

Appearances: For the employer -- David A. Wimmer (O'Melveny & Myers), attorney.  For the union -- Neil Herring.

Issues:  The parties agreed that the arbitrator would decide the following issues:  Did the Company have just cause to terminate the grievant?   If not, what is the appropriate remedy?

Factual Summary

The Company operates a mining and milling facility in Boron, California. Its production and maintenance employees are represented by the Union for collective bargaining purposes. The Grievant was a millwright in the Refinery Maintenance Department from 1969 until his termination on February 27, 1996. The grievant served as a Union steward for approximately eight to ten years. The grievant was previously disciplined on one occasion, when he received a corrective notice for a lost time accident. The Company discharged the grievant pursuant to Work Rule 11 which recognizes "refusal to perform work as instructed" as gross insubordination and grounds for immediate discharge.

The events leading to the grievant's dismissal began on February 26, 1996, when the grievant and the coworker were assigned to change a valve at the Dissolving Plant. The work was located in the mud bird plant, where liquor is removed from mud and returned to thickeners as part of the process of dissolving ore into a liquid slurry. The task assigned to the grievant and the coworker involved replacing a broken Clarkson 10-inch knife-gate valve used to block the flow of the slurry. The valve weighs 300 pounds and is located a few inches off the ground in a small space between two dithionite tanks.

Before the job commenced, the Dissolving Plant maintenance planner performed the lockout procedure, closing off 22 locks to secure any laundered line, pump, or electrical device going to or coming from the valve. The maintenance planner then placed the key he had used to close off the system in the lock box and the millwrights locked the lock box with their own key.

The millwrights began by removing the valve with the assistance of a cherry picker, operated by a heavy equipment operator. Before bringing the replacement valve to the work site, however, the cherry picker was called to another job… When the millwrights learned of the change, they expressed reservations about the safety of using the National Series 900 truck crane known as the "boom truck" because it would be operated by a millwright instead of a heavy equipment operator. …

Once the grievant and his coworker raised their safety objection, the maintenance planner brought the situation to the attention of the refinery services superintendent. The superintendent spoke directly to the millwrights and contacted the Safety Department. The Company then conducted a safety inspection of the valve replacement job. The grievant, the coworker, and the millwright assigned to operate the boom truck were present throughout the inspection. Managers from the Dissolving Plant, the Main Shop and the Safety Department were in attendance, along with the refinery superintendent. No one from the Union was present for the safety inspection. …

During the inspection of the grievant's job, the assembled management team examined the area of the valve replacement and talked to the three millwrights. The safety manager asked the grievant and the coworker what they felt was unsafe about the job. The manager said they told him the boom truck operator did not have enough experience to do the job, but that any heavy equipment operator was qualified for the work. He recalled them also mentioning that the millwright operating the boom truck did not have the same level of training as a heavy equipment operator on a cherry picker. They also told that since the operator was a millwright, he tended to anticipate moves.

The grievant and his coworker were concerned about the difficult location of the job and testified that they mentioned this to the safety manager. The grievant weighs 350 pounds and was afraid of being pinched or pinned if he had to work in close quarters while the valve was moved in a blind lift. He testified he told the safety manager one reason for feeling unsafe was that the boom truck was less stable than a cherry picker; it swayed and jerked when it had some extension on the boom. The coworker said that he talked about the cramped conditions and uneven footing in his conversation with the safety manager.

The superintendent testified that the grievant and the coworker were less articulate about their objections to the job when he spoke to them during the inspection than when they testified at the hearing. He only recalled them saying they believed the boom truck was not safe for the job…

The steward explained: “The problem is with anticipating a move is that the standard practice and safety practice of the cherry picker or the boom truck operator is that you're just an extension of the man on the ground. And he's the one setting the rigging, deciding how he wants to move the load, where he wants to set it. And you're just there to do what signals are given you. Because if you move it without someone giving you a specific hand signal, or you make the wrong move with the hand signal, then you can possibly put someone in danger, like pinching their fingers, killing them.”

Photographs of the work area were presented showing the blind spot where the boom truck was set up, the small work space, the other pipes and valves obstructing the area, the sloping concrete drainage ditch with a plastic pipe and borax cluttering the footing, and the overhead pipe rack where the chokers from the boom were suspended to move and mount the valve…

At the hearing, the safety manager discounted the grievant's fear of getting his hand pinched during the installation by pointing out that a bar is inserted between the valve and the line to keep the valve separated and aligned while the initial bolts are inserted. … According to management, the millwright assigned to operate the boom truck expressed confidence in his ability to the job, stating he had performed more critical lifts than the lifts involved in this valve replacement. He was experienced, with several hundred hours of training and practice in the boom truck. This information was communicated to the grievant and the coworker during the inspection….The safety manager and the superintendent recalled the inspection ending when everyone "got in a big group together" and the safety and emergency response supervisor announced, "There's no problem with the safety. Let's go back to work." The grievant and the coworker testified that they were standing by themselves during most of the inspection and did not participate in any group discussion. They maintained that no one told them that a decision had been made about the safety of the job.

Two lifts were then performed using the boom truck. Before returning to work, the coworker asked the Main Shop maintenance planner if he was taking responsibility for the job and asked him to sign a statement to that effect. Once the statement was prepared, the coworker proceeded to help with the two lifts to position the value in preparation for mounting it.

Initially, the grievant stood to the side with the managers who stayed to watch the lifts. In a conversation with the Dissolving Plant maintenance supervisor, the grievant stated that he was not refusing to do the job, that he would perform the work with a cherry picker, and that the millwright was not qualified to operate the boom truck on this valve installation. When questioned further, the grievant stated that he thought no millwright was qualified to do the work with the boom truck. … There were no problems with either lift. Several managers testified that they believed the safety complaint had been resolved because both the grievant and the coworker participated and the work had gone smoothly with a millwright operating the boom truck. …  Another blind lift was required to complete the job. …  The maintenance planner specifically requested the grievant and the coworker to be assigned to complete the job the next day. The coworker took some vacation time and did not return to the job. Another millwright was assigned to work with the grievant in his stead.

At the beginning of the day, the grievant asked the maintenance planner to show him the locks because one of the managers present at the previous day's inspection had asked him whether he had concerns about the safety of this operation. The maintenance planner escorted him to the top of the tank and began showing him the locks on the lines. The grievant asked if the maintenance planner has any objection to his tape recording the conversation and showed him a small tape recorder in his breast pocket. They returned downstairs, where the maintenance planner consulted other managers about the grievant's unusual request. He subsequently told the grievant to keep the recorder off and the grievant complied. …When the grievant reminded the maintenance planner of his concern that the boom truck was unsafe, the maintenance planner replied that management had determined the job to be safe the previous day and asked if he was refusing to do the job. The grievant said, "yes" and requested another job assignment.

The maintenance planner warned the grievant that if he continued to refuse to do the job he would be sent home. No specific disciplinary action was mentioned. The maintenance planner confirmed that the grievant was unwilling to do the job with the boom truck operated by a millwright and drove him to the Main Shop to put away his tools while he reported the situation to the Personnel Department. The grievant contacted the Union's vice-president for assistance and he arrived at the Main Shop before the maintenance planner returned. The grievant was escorted to the gate, told he was suspended, and stripped of his badge.

After the grievant was suspended, two additional millwrights were assigned to complete the job along with the millwright who had been assigned that morning. The millwright who had been assigned that morning testified he had reservations about the job that were similar to the grievant's, but decided not to risk being put off work after seeing the grievant escorted to the gate for refusing to proceed with the boom truck. The value was installed without further controversy.

At the subsequent suspension meeting, the grievant was given an opportunity to explain his actions. Management then reviewed the case privately and decided to terminate the grievant.

The Union's vice-president and president testified that, in the past, when an employee raised safety concerns that were unsatisfied, the Company replaced that individual with someone else who felt more comfortable doing the job. They could not recall any instance of an employee being fired when the Company disagreed with a safety objection and decided to proceed with the work. Both witnesses provided specific examples of jobs they declined to perform for safety reasons in which they were replaced, and not disciplined, after refusing to work. The coworker said that he had similar experiences with raising safety problems, and that when a complaint could not be resolved with his foreman, he was not forced to go forward with the work. …  The Union president testified that, since the grievant's termination, approximately 30 to 40 bargaining unit members have told him they are afraid of losing their jobs if they raise a safety issue.

Analysis

The Company did not have just cause to terminate the grievant for insubordination. Its order that the grievant continue to work on the valve replacement, despite his continuing safety concerns, was based on a safety determination made in violation of the contract. Because the Company conducted the safety investigation into the grievant's complaint in the absence of the Union, its ultimate decision that the job was safe is flawed and not binding. ..

The Safety Article of the contract outlines the procedure to be followed when an employee believes his work is unsafe. Article XV(e) states:

In the event an employee believes that conditions found in his work area are dangerous to his health or safety, he shall report his findings to his immediate supervisor and he shall not be required to work in such area pending an inspection and determination by the immediate supervisor and an appropriate management representative in the presence of a Union Safety committeeman on duty that the area is safe, it being understood and agreed that management's determination as to the safety of the area shall be binding. This decision is subject to the grievance and arbitration procedure.

The Company's view that the contract merely obliges it to honor an employee's request for a Union official to be present during a safety inspection is refuted by the clear language of this subsection. It authorizes the Company to make a binding determination regarding the safety of the work after conducting an inspection "in the presence of a Union Safety committeeman." While the contractual safety procedure is one of mutual obligation and responsibility, the Union's involvement is expressed as a mandatory condition for the ultimate determination to be binding.

This interpretation is supported by a bulletin published by the Company on October 12, 1990, Procedure for Handling Refusal to Work on Grounds of Safety and Health Hazards. It states:

Worker has reason to believe work likely to endanger himself or another person.

1. Worker: Promptly reports circumstances to supervisor, remains in safe place.
2. Management: Investigates immediately in presence of an appropriate management representative and Union Safety committeeman. Agreement: Return to work.
3. Disagreement: Worker continues not to work. (Worker has reasonable grounds to believe work still likely to endanger himself or another worked).
4. Worker: Remains in safe place unless assigned to reasonable work or given other directions pending investigation and decision.
5. Management: Notifies Plant Safety Supervisor.
6. Safety Supervisor and Union Rep: Investigate in presence of worker and supervisor.
7. Gives Decision: Worker and appropriate management representative notified as soon as possible. Return to work.
8. Condition Corrected: Management determines area or job to be safe. Return to work

According to the bulletin, the Worker's only responsibility is to report the unsafe condition and remain in a safe place in the absence of another assignment. The bulletin does not suggest that the Union's right to participate in the inspection is compromised if the employee fails to take the initiative to contact the Union.

The parties adopted a safety procedure that ensures the Union is included. The positive role the Union can play in a safety inspection, particularly in making sure the Company understands the problem from the employee's perspective or considers alternative ways to accomplish the work, was obvious at the hearing on this matter. Managers who questioned the grievant and the coworker at the job site believed that their complaint was merely a reiteration of the grievance protesting the assignment of boom truck duties to millwrights. At the hearing, however, the Union elicited the millwrights' concerns in sufficient detail to show that they were not merely objecting to the assignment of boom truck duties to a millwright.

Evidence was developed by the Union about the specific circumstances of the job that led the millwrights to question its safety and made it distinguishable from jobs in open areas where they had willingly worked with the millwright on the boom truck. …The Company's suggestion that the grievant did not have a legitimate safety complaint on the second day because he acted provocatively in bringing a tape recorder to work is not supported by the facts. The record contains no evidence that the grievant was ever convinced that the job was safe or that his objections were addressed or resolved by the Company. In participating on the first day's last lift, the grievant worked in an open area, outside of the cramped space where the valve was to be mounted. When the maintenance planner asked him to turn the tape recorder off during the lockout procedure on the second day, he obeyed immediately. The grievant remained calm for the duration of the incident and never raised his objections in a confrontational manner.

The make whole remedy of reinstatement and the restoration of lost seniority, benefits, and wages is the appropriate remedy for the Company's discharge of the grievant without just cause. The Union has also requested the arbitrator to order the Company to post a notice to reassure employees that they will not suffer improper retaliation for raising a safety complaint. This unusual remedy is not appropriate here. The parties have given the arbitrator jurisdiction to decide the propriety of the grievant's termination, not whether the National Labor Relations Act has been violated. Moreover, while it may be true that some employees may feel inhibited about raising a safety complaint because of the actions taken against the grievant, there is no indication that dissemination of information about this award through normal Union channels would fail to alleviate any apprehension created by this isolated incident.

AWARD:  The Company did not have just cause to terminate the grievant. As a remedy, the Company is ordered to reinstate the grievant and to make him whole for lost wages, less interim earnings, and benefits and seniority.

Justice BRENNAN delivered the opinion of the Court.

James Brown, a truck driver employed by respondent, was discharged when he refused to drive a truck that he honestly and reasonably believed to be unsafe because of faulty brakes.  Article XXI of the collective-bargaining agreement between respondent and Local 247 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which covered Brown, provides: "[t]he Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with safety appliances prescribed by law.  It shall not be a violation of the Agreement where employees refuse to operate such equipment unless such refusal is unjustified."  ²

The question to be decided is whether Brown's honest and reasonable assertion of his right to be free of the obligation to drive unsafe trucks constituted "concerted activit[y]" within the meaning of § 7 of the National Labor Relations Act (NLRA or Act), 29 U.S.C. § 157.  The National Labor Relations Board (NLRB or Board) held that Brown's refusal was concerted activity within § 7, and that his discharge was, therefore, an unfair labor practice under § 8(a)(1) of the Act, 29 U.S.C. § 158(a).  256 N.L.R.B. 451 (1981).  The Court of Appeals disagreed and declined enforcement.  683 F.2d 1005 (CA6 1982).  At least three other Courts of Appeals, however, have accepted the Board's interpretation of "concerted activities" as including the assertion by an individual employee of a right grounded in a collective-bargaining agreement.  We granted certiorari to resolve the conflict and now reverse.

* * *  In this case, the Board found that James Brown's refusal to drive truck No. 244 was based on an honest and reasonable belief that the brakes on the truck were faulty.  Brown explained to each of his supervisors his reason for refusing to drive the truck.  Although he did not refer to his collective-bargaining agreement in either of these confrontations, the agreement provided not only that "[t]he Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition," but also that "[i]t shall not be a violation of the Agreement where employees refuse to operate such equipment, unless such refusal is unjustified." * * *  There is no doubt, therefore, nor could there have been any doubt during Brown's confrontations with his supervisors, that by refusing to drive truck No. 244, Brown was invoking the right granted him in his collective-bargaining agreement to be free of the obligation to drive unsafe trucks.  Moreover, there can be no question but that Brown's refusal to drive the truck was reasonably well directed toward the enforcement of that right.

Indeed, it would appear that there were no other means available by which Brown could have enforced the right.  If he had gone ahead and driven truck No. 244, the issue may have been moot.  * * *

The NLRB's Interboro doctrine recognizes as concerted activity an individual employee's reasonable and honest invocation of a right provided for in his collective-bargaining agreement.  We conclude that the doctrine constitutes a reasonable interpretation of the Act.  Accordingly, we accept the Board's conclusion that James Brown was engaged in concerted activity when he refused to drive truck No. 244.  We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion, including an inquiry into whether respondent may continue to defend this action on the theory that Brown's refusal to drive truck No. 244 was unprotected, even if concerted. It is so ordered.

FOOTNOTE

     ²  App. 64. Article XXI also provides that "[t]he Employer shall not ask or require any employee to take out equipment that has been reported by any other employee as being in an unsafe operating condition until same has been approved as being safe by the mechanical department."

Before ROBINSON, GINSBURG and SILBERMAN, Circuit Judges.

SILBERMAN, Circuit Judge:

Petitioner Kenneth Prill seeks review of a supplemental decision by the National Labor Relations Board ("NLRB" or "Board") finding that Prill's employer, Meyers Industries, Inc. ("Meyers"), did not commit an unfair labor practice when it fired Prill from his job as a truck driver.  Meyers Indus., Inc., 281 N.L.R.B. No. 118 (Sept. 30, 1986) ("Meyers II").  Prill comes to this court for the second time, having previously petitioned for review after the Board dismissed his identical complaint three years ago in Meyers Industries, Inc., 268 N.L.R.B. 493 (1984) ("Meyers I "). ***

The facts of this case are not in controversy * * * Briefly, they are as follows:  Kenneth Prill was, beginning in April 1979, a truck driver for Meyers, a Michigan-based aluminum boat manufacturer.  Having had difficulties with the brakes on his company- issued truck, Prill made several complaints to Meyers personnel--to his supervisor, David Faling, to the mechanic and to the company president, Alan Beatty. In June 1979, another truck driver, Ben Gove, drove Prill's truck on a long trip.  After his return, Gove reported having had brake and steering problems with Prill's truck.  While Prill was present in the office, Gove told Faling that he would not drive the truck until the brakes were repaired, and Faling promised to do so.

Later, in early July 1979, Prill was driving his truck through Tennessee and had an accident due in part to the faulty brakes.  After unsuccessfully trying to have the state public service commission inspect the damaged tractor and trailer, Prill contacted Beatty, who asked that Prill have the truck towed home to Michigan despite Prill's protestation that it was not safe to move.  Beatty requested that Prill chain the tractor and trailer together for moving;  Prill refused, asserting that cracks in the areas where the truck and trailer were hitched together would make such an operation unsafe.  Instead, Prill had the Tennessee Public Service Commission arrange for an official inspection, which led to a report finding the brakes unsafe and the hitch area damaged.  The Tennessee authorities then issued a citation prohibiting the moving of the truck.  Two days later, Prill was fired because, in the words of a Meyers officer, "we can't have you calling the cops like this all the time."  Prill I, 755 F.2d at 945 (footnote omitted).

* * * [T]he NLRB adheres to its legal position in Meyers I, in which it held that an employee's action may be concerted for the purposes of the NLRA only if the action is "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." Meyers I, 268 N.L.R.B. at 497 (footnote omitted).  Section 7 of the NLRA provides that "[e]mployees shall have the right to self-organization ... to bargain collectively ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."  29 U.S.C. § 157 (1982) (emphasis added).  At the heart of this dispute is whether the safety complaints of a single employee acting on his own can constitute concerted activity protected under the Act. 

Previously, under Alleluia Cushion Co., 221 N.L.R.B. 999 (1975), and its progeny, the efforts of a single worker to invoke state and federal laws regulating occupational safety were held protected activity under section 7.  See Prill I, 755 F.2d at 945.  The Board had determined that such complaints were "concerted" on the theory that the action of one individual bringing statutory safety concerns to light is presumed to assert the rights of all employees interested in safety.  Alleluia, 221 N.L.R.B. at 1000.

Put simply, the Board now rejects the theory animating Alleluia and its progeny.  A worker no longer takes "concerted" action by himself unless he acts on the authority of his fellow workers.  Unlike the Board's reasoning in Alleluia, the Board's new position is that the "concerted activity" prong and the "mutual benefit or protection" prong of section 7 are two distinct factual inquiries that are to be analyzed separately.  Concerted action cannot be imputed from the object of the action.  In other words, if a worker takes action by himself without contacting his fellow employees, even though he has a desire to help all workers, not just himself, he will not have satisfied the concerted action requirement.  As under the old standard, however, a worker is still deemed to have taken concerted action when he acts with the actual participation or on the authority of his co-workers.  Meyers II, 281 N.L.R.B. No. 118 at 12-16.

* * * In NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984), the Supreme Court reasoned that there could be a violation of section 8(a)(1) of the NLRA, which protects an employee from interference with his rights under section 7, where a company fired an employee whose actions were so related to other employees' concerted activities that the firing would interfere with or restrain those other concerted activities.  City Disposal, 465 U.S. at 833 n. 10.  The Board found no such relationship between Prill's discharge and his fellow employees' concerted activities, and the record does not indicate otherwise.

* * * The Supreme Court has determined that nothing in the legislative history of section 7 "specifically expresses the understanding of Congress in enacting the 'concerted activities' language."  City Disposal, 465 U.S. at 834.  It is clear that "Congress sought generally to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment."  Id. at 835.  By requiring that workers actually band together, the NLRB has adopted a reasonable--but by no means the only reasonable--interpretation of section 7.  The Board reads the words "concerted activity" to "encompass[ ] [only] those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management."  Meyers II, at 15.  We believe this position is consistent with the history of the Act.

Petitioner argues that, in light of City Disposal, Meyers II is unreasonable in requiring a direct link between the actions of an individual employee and the actions or approval of his co-workers before the individual's actions will be considered "concerted."  In City Disposal,* * * the * * * Supreme Court simply recognized that a worker's actions are concerted when tied to the actions of his fellow employees, and in City Disposal, the collective bargaining agreement itself provided the bond between one worker and another. Id. at 830-37, 104 S.Ct. at 1510-14.  City Disposal neither required nor precluded treating workplace-related statutory rights as establishing, without more, the necessary bond among workers. 

* * *  We agree with the Board that Prill's actions were not in concert with Gove or others:  "Prill merely overheard Gove's complaint while in the office on another matter, and there is no evidence that anything else occurred."  Meyers I, at 498.  Despite the fact that there might be a benefit to Prill's fellow employees from his actions, Prill acted alone when he complained to his employer and the Tennessee state officials, and when he refused to tow the unsafe truck.  Had Prill simply gotten together with his co-workers to complain about the violation of statutory safety provisions, he would have been protected from dismissal under the Board's current reading of section 7, which requires that both the "mutual aid or protection" and the "concerted activity" prongs be satisfied. * * *

1. In a similar case in the Second Circuit, Ewing v. NLRB, 861 F.2d 353 (2d Cir. 1988), the court held, “We now reluctantly conclude that the Board has offered a reasonable interpretation of the Act….By its own admission, the Board advocates an interpretation that condones ‘outrageous’ employer conduct. The vast majority of American employees are not unionized.  They do not work under the protections a collective bargaining agreement affords.  Statutory employment rights provide the only protection thye have against the arbitrary power of their employer.  As it stands, the NLRB’s interpretation of Section 7 would allow management to discharge or discipine an individual worker for exercising statutory employment rights.”
2. Note that this is yet another example of the potential volatility of labor law. 
3. Why do you think that Prill filed his claim under Section 7 of the NLRA instead of pursuing a retaliatory discharge claim under state law? Would Prill have any alternative route to redress today?
4. Section 502 of the Labor Management Relations Act provides a limited protection to strikes during the contract term because of health and safety conditions. The section reads: "Nor shall 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 be deemed a strike under this Act."  For employees covered by collective bargaining agreements with express or implied no-strike clauses, this would appear to provide an exception to the no-strike rule that allows for discharge for participation in strikes during the contract term.  Despite the terms of Section 502, the Supreme Court held that to justify a strike during the contract term, it was not enough that the refusal to work be based on a good faith believe of danger, but there must be “ascertainable objective evidence… that an abnormally dangerous condition for work exists.”  Gateway Coal Co. v. U.M.W.A., 414 U.S. 368, 386-87 (1974).
5. If the workers in Washington Aluminum had been covered by a collective bargaining agreement, would they have been able to challenge their discharges successfully under Sections 7 and 8(a)(1)? Under Section 502?  Under their collective bargaining agreement?
6. Some collective bargaining agreements address the issues of imminent danger directly. From the Monthly Review survey from 2000:

Refusal to work in unsafe or unhealthy conditions. Few issues in the workplace are more contentious than disagreements between managers and employees over their perceptions of unsafe or unhealthy working conditions and the requirement that employees continue working despite such conditions.

Twenty-two percent of the agreements [in the survey] have provisions addressing this issue. Some agreements simply mandate that the employer make the workplace safe. Other agreements make the employee responsible for informing the employer about unsafe or unhealthy conditions that are serious enough for the employee to request that the work be stopped. A concomitant issue is the work status of the employee who is alleging that working conditions are unsafe or unhealthy. Some agreements state, in no uncertain terms, that employees shall not be required to work in unsafe or unhealthy conditions. Some contracts stipulate that no employee shall be discharged or disciplined for refusing to work when the job conditions create a real, immediate, and obvious hazard to the worker or to fellow workers in the area. A few contracts even have clauses specifying that, in the event that the employer violates a “dangerous work” provision, the union has the right to withdraw the employee from the work, and such action shall not be a violation of the contract. Some contracts also require the employer to pay the employee for any time lost if, upon review through either the grievance or some other procedure, it is concluded that the employee was correct in his or her assessment that the work was unsafe or unhealthy. Conversely, some agreements authorize disciplinary action against an employee who did not act in good faith in refusing to work in an area that the employee alleged was unsafe. Still other agreements authorize employers to reassign employees to different work once the employees have cited a specific condition that is dangerous. In the event of a reassignment, some agreements require the employer to pay the employee his or her regular rate of pay, unless the assignment is to a job with a higher rate, in which case that rate shall be paid.

A number of agreements provide for a procedure whereby an employee can appeal the matter if the initial charge of an unsafe condition is not sustained. In these types of situations, employees are required to continue working while appealing the condition. The appeal procedure may involve either the regular grievance procedure or a separate procedure dedicated to safety and health issues. Some agreements require that the alleged unsafe condition be inspected, reviewed, and/or corrected within a specific period, such as 4 hours, after it is reported by the employee. Some clauses also include referring unsafe or unhealthy conditions to a special panel, committee, or governmental agency to investigate. Four percent of the agreements have provisions authorizing union officials to stop employees from working when the officials conclude that the working conditions are so unsafe or unhealthy that they warrant such action.

Some contracts have provisions prohibiting reprisals against employees who report unsafe conditions. A number of clauses also require the employer to acknowledge the use of his or her best efforts in attempting to correct any unsafe or unhealthy condition.

Safety and health need-reporting procedure. Thirty-one percent of the agreements with safety and health provisions have procedures for employees to report conditions that they feel need correction. Typically, these conditions are not serious enough to warrant the employee’s refusal to work, but they still need to be corrected. Some provisions dealing with this topic make the employer responsible for giving prompt, fair consideration to employee ideas and suggestions for maintaining proper safety and health working conditions.

Bowman, Circuit Judge.

Ann Schweiss appeals from the order of the District Court dismissing her wrongful discharge suit against Chrysler Motors Corporation.   We reverse and remand.

I.

Schweiss was employed by Chrysler Motors Corporation ("Chrysler") from January 1984 to February 1989.   Shortly before her discharge, Schweiss contacted the Occupational Safety and Health Administration about alleged violations of law occurring at the assembly plant where she worked.   On February 8, 1989, Chrysler fired Schweiss, allegedly for excessive absenteeism.   On April 13, 1989, Schweiss filed suit in Missouri state court against Chrysler and her immediate supervisor Perry Sigwerth, alleging that she had been wrongfully discharged for being a "whistle blower," a discharge that under Missouri law is an actionable tort.   Chrysler and Sigwerth removed the suit to federal court on the grounds that the claim presented a question of federal law, and that Sigwerth fraudulently had been joined to defeat diversity jurisdiction.

Schweiss moved to remand the case to state court, while Sigwerth filed a motion to dismiss and Chrysler filed a motion for summary judgment, claiming that Schweiss's state law wrongful discharge action is pre-empted under both section 11(c) of the Occupational Safety and Health Act of 1970 ("OSHA"), 29 U.S.C. §  660(c)  (1988), and section 301 of the Labor-Management Relations Act of 1947 ("LMRA"), 29 U.S.C. §  185 (1988).   The District Court denied Schweiss's motion, granted Sigwerth's motion, and denied Chrysler's motion as moot.   The District Court held that Schweiss's state law wrongful discharge claim is pre-empted by section 11(c) of OSHA, and dismissed the case with prejudice.   The court did not decide the section 301 pre-emption issue.

On appeal, Schweiss claims the District Court erred in ruling that her wrongful discharge claim against Chrysler is pre-empted by section 11(c) of OSHA. She concedes that on remand it would be necessary for the District Court to address the question of pre-emption under section 301.

II.

Although Missouri is an at-will employment state, it does recognize a public policy exception to this rule.  "[W]here an employer has discharged an at-will employee because that employee refused to violate the law or ... because the employee reported ... to public authorities serious misconduct that constitutes violations of the law ... the employee has a cause of action in tort for damages for wrongful discharge."  Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 878 (Mo.Ct.App.1985).

In her complaint, Schweiss alleges that she was discharged by Chrysler for reporting violations of federal law occurring at her place of employment to the Occupational Safety Health Administration. She thus has alleged a cognizable claim based on Missouri law.   The issue before us is whether this state law claim is pre-empted by federal law.

Pre-emption can occur in one of three ways:  (1) federal law can expressly pre-empt state law;  (2) federal law can occupy a field of law so completely that pre-emption may be inferred;  or (3) federal law can conflict with state law, thereby pre-empting it.  English v. General Elec. Co., 496 U.S. 72, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990).   The District Court did not hold that the OSHA legislation expressly pre-empts state law.   Similarly, there is no claim that Congress intended to occupy this field of law in such a manner that pre-emption can be inferred.   To the contrary, 29 U.S.C. §  667(a) expressly allows for state regulation in the occupational safety field of law.   The District Court did hold, however, that "the ability of plaintiffs to pursue retaliatory discharge claims where available under state law [would] frustrate[ ] the remedial scheme provided for in [29 U.S.C.] §  660," Schweiss v. Chrysler, No. 89-943C(1), slip op. at 5 (E.D.Mo. Sept. 11, 1989), and thus such state law claims are pre-empted.

The decision of the District Court was issued on September 11, 1989.   On June 4, 1990, the Supreme Court issued its ruling in English v. General Electric.   That opinion dealt with the question of whether a state law tort claim is pre-empted by §  210 of the Energy Reorganization Act of 1974, 42 U.S.C. §  5851(a) (1988).   That section states, in relevant part:

(a) No employer ... may discharge any employee ... because the employee ... (1) commenced ... a proceeding for the administration or enforcement of any requirement imposed under this chapter ...;  (2) testified ... in any such proceeding;  or (3) assisted ... in any manner in such a proceeding....(b)(1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such violation occurs, file ... a complaint with the Secretary of Labor ... alleging such discharge or discrimination....  (2)(A) Upon receipt of a complaint under paragraph (1), the Secretary shall conduct an investigation....  Within thirty days of the receipt of such complaint the Secretary shall complete such investigation *475 and shall notify ... [the parties] of the results of the investigation....

 42 U.S.C. §  5851.   The section authorizes the Secretary to order the employer to "abate the violation" and to rehire the employee and pay him or her back pay.  42 U.S.C. §  5851(b)(2)(B).   A party may appeal an order of the Secretary in the circuit court of appeals.  42 U.S.C. §  5851(c).

The Court observed that "[o]n its face, th[is] section does no more than grant a federal administrative remedy to employees in one industry against one type of employer discrimination--retaliation for whistle-blowing."  English, 110 S.Ct. at 2279.   The Court noted that "[o]rdinarily, the mere existence of a federal regulatory or enforcement scheme, even one as detailed as [42 U.S.C. §  5851], does not by itself imply pre-emption of state remedies."  English, 110 S.Ct. at 2279.   The Court held that the fact that the federal statute did not allow exemplary damages, while the state action did, was not sufficient to find pre-emption.  "Absent some specific suggestion in the text or legislative history of [42 U.S.C. §  5851] ... we cannot conclude that Congress intended to pre-empt all state actions that permit the recovery of exemplary damages." English, 110 S.Ct. at 2280.

Nor did the Court find convincing the argument that the "expeditious time frames provided by Congress for the processing of ... claims" showed a conflict between the statute and the state action.  English, 110 S.Ct. at 2280.   The claim was made in English that "if a state-law remedy is available after the time for filing a claim has run," there will be less incentive to utilize the federal scheme.  English, 110 S.Ct. at 2281.   The Court rejected this argument, saying that they "do not believe that the problem is as great as respondent suggests."  Id.  "[W]e are not so sure as respondent seems to be that employees will forgo their options and rely solely on state remedies for retaliation. Such a prospect is simply too speculative a basis on which to rest a finding of pre-emption."  English, 110 S.Ct. at 2281.   The Court reiterated its rule that "pre-emption is ordinarily not to be implied absent an 'actual conflict.' "  Id. (citation omitted).

The statute at issue in the case at hand is similar in its relevant parts to the statute dealt with in English.  29 U.S.C. §  660(c) states that:

(1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or ... because of the exercise by such employee ... of any right afforded by this chapter.

(2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination.   Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate.   If ... the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate ... district court against such person.

The statute authorizes the district court to restrain violations of the statute and to order reinstatement and back pay.  29 U.S.C. §  660(c)(2). The Secretary of Labor has ninety days from the date of the complaint to notify the complainant of the results of his investigation.  29 U.S.C. §  660(c)(3).

Applying the principles of English to this statute, we hold that its remedial scheme does not pre-empt Schweiss's state law wrongful discharge action.   . . .

Chrysler contends that the remedies provided by Congress conflict with the remedies allowed by the state law action, and thus the state law action should be pre-empted.   This argument, as noted earlier, was expressly rejected by the Court in English.  "We cannot conclude that Congress intended to pre-empt all state actions that permit the recovery of exemplary damages." English, 110 S.Ct. at 2280.

As this case is indistinguishable from English in any material way, the decision of the District Court that Schweiss's claim is pre-empted by OSHA must be reversed.

We reverse the order of the District Court dismissing Schweiss's claim and remand the case to the District Court for further proceedings consistent with this opinion.

1. The success of the plaintiff in Schweiss has not been universally duplicated in other similar cases. For cases which have followed the reasoning in Schweiss, and allowed state public policy to rest on federal substantive rights, see g.Flenker v. Willamette Industries, Inc., 967 P.2d 295 (Kan. 1998) (“The remedy provided by the Occupational Safety and Health Administration § 11(c) for employees who allege that they have been discharged in retaliation for filing complaints under that statute does not preclude the filing of a Kansas common-law wrongful discharge claim under Kansas's public policy exception to at-will employment.”); Fragassi v. Neiburger, 646 N.E.2d 315 (Ill. Ap.Ct. 1995) (OSHA did not preempt cause of action for retaliatory discharge). Other courts have rejected the notion that a state retaliatory discharge tort can be based on federal OSHA.  See Burnham v. Karl and Gelb, P.C., 745 A.2d 178 (Conn., 2000) ("[t]he existence of this statutory remedy [for retaliatory discharge] precludes the plaintiff from bringing a common-law wrongful discharge action based on an alleged violation of [the OSHA whistle blower statute." Id., at 162); McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283 (Pa. 2000); Grant v. Butler, 590 So.2 254 (Ala. 1991)(adequate remedy under OSHA anti-retaliation provision and thus, not necessary to create state tort remedy);  Washington v. Union Carbide Corp., 870 F.2d 957 (4th Cir. 1989).   Additional cases are included in the excerpt from the Restatement, next in these materials..

2. In Massachusetts, one Superior Court case has recognized a cause of action for retaliation involving safety complaints. See Antlitz v. CMJ Mgmt. Co., CIV. A. 96-2618C, 1997 WL 42396 (Mass. Super. Jan. 30, 1997) (cause of action allowed where plaintiff alleged retaliation for notifying OSHA of safety concerns).  In the opinion in this case, the trial judge rejected an argument of OSHA preemption: “Massachusetts decisions have barred common law public policy claims only in wrongful discharge cases where a state statutory remedy for the alleged public policy violation was available and provided a private cause of action. … Given that the OSHA statute does not provide for a private right of action, the plaintiff is not afforded a comprehensive remedy under OSHA, and his common law wrongful termination claim is not preempted.”   The opinion continues:

Massachusetts common law and statutes indicate that the plaintiff's claim is supported by an important public policy of the Commonwealth. Massachusetts common law provides redress based on public policy for at-will employees who are discharged for either refusing to commit an unlawful act or for fulfilling their duty to insure the employer's compliance with the law of the Commonwealth involving public safety.  Smith-Pfeffer v. Supt. of the Walter Fernald State School, 404 Mass. 145, 150 (1989), citing Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988). “The categories of cases set forth in Smith-Pfeffer also justify legal redress in certain circumstances for employees terminated for performing important public deeds, even though the law does not absolutely require the performance of such a deed. Flesner, 410 Mass. at 810-811. “Whistleblowing, for example may fall into this category.” Id. at 811 n. 3. See also Mello v. Stop & Shop Cos., 402 Mass. 555, 560 n. 6 (1988). A Massachusetts public policy basis for the plaintiff's wrongful discharge claim is also found in Massachusetts legislation which encourages workplace safety and the investigation of complaints. See G.L. c. 149 Sections 3, 5, 6. Given that the public policy of the Commonwealth provides a public policy basis for the plaintiff's claim, dismissal is not warranted.”  At *2.

3. Note the complexity of the litigation in Schweiss. There are intersections of state and federal law; questions regarding federal court jurisdiction; and intersections between common law, statutory and claims based in collective bargaining agreements.  Schweiss is not atypical:  When workers attempt to challenge discharges outside specific statutory remedies, these kinds of complexities often arise.

Employer Discipline in Violation of Public Policy

(a) An employer that discharges or takes other material adverse action against an employee because the employee has or will engage in protected activity under § 4.02 is subject to liability in tort for wrongful discipline in violation of public policy, unless the statute or other law that forms the basis of the applicable public policy precludes tort liability or otherwise makes inappropriate judicial recognition of a tort claim.

(b) “Other material adverse action” in this Section means an action short of discharge that is reasonably likely to deter a similarly situated employee from engaging in protected activity, including an action that significantly affects employee compensation or working conditions.

Comment:

 a. A consensus has emerged in recent decades that recognizes a cause of action in tort for wrongful discharge in violation of public policy. The primary justification for this tort is that, regardless of the terms of the employment, certain discharges harm not only the specific employee but also third parties and society as a whole in ways contrary to established norms of public policy. The requirements of public policy are nonwaivable and cannot be modified by contract. Recognition of the wrongful-discharge tort forces employers to internalize the costs of the harm they cause, and thereby encourages behavior consistent with those norms. As with most torts, a successful plaintiff may recover full compensatory damages and, in appropriate circumstances, punitive damages….

b. Constructive discharge and other employer discipline. Most tort claims of employer discipline in violation of public policy involve actual discharge. However, 4.01 also covers claims for constructive discharge. An employer constructively discharges an employee if the employer creates working conditions so intolerable that a reasonable employee in the circumstances would quit, and the employee in fact quits.

Additionally, § 4.01 includes appropriate claims for other forms of wrongful employer conduct violative of public policy, including discipline short of discharge or constructive discharge, or other substantial adverse action not generally regarded as “discipline.” In part because employees are reluctant to sue their current employer, few reported cases involve employees who have not been discharged, or quit and alleged constructive discharge. The benefit of recognizing a broader cause of action is that it protects employees engaged in protected activity from a broader range of retaliatory conduct by employers. The countervailing concern is that courts will be asked to scrutinize routine employer decisions on pay, promotions, and the like. This Restatement recognizes that the better approach is to permit appropriate tort claims of wrongful discipline short of constructive discharge to go forward, where such discipline is likely to deter that or another employee from engaging in certain activities, protected under § 4.02, that benefit third parties and society as a whole. This approach is consistent with protections against retaliation under federal and state antidiscrimination laws, as well as many other statutory employment rights, which generally protect employees against employer discipline in addition to discharge. The standard for such claims is whether the retaliatory action affects the employee’s compensation or working conditions in ways that are reasonably likely to deter a similarly situated employee from engaging in protected activity.

Illustrations:

1. After employee E experiences a work-related injury, a supervisor of X urges E not to pursue a workers’ compensation claim. When E nevertheless does so, the supervisor demotes E for filing the claim; the demotion involves a loss of significant duties. Because E continues to work for X, E cannot allege constructive discharge. Nevertheless, because the demotion is reasonably likely to deter a similarly situated employee from pursuing workers’ compensation claims, E has a claim of employer discipline in violation of public policy.
2. Same facts as Illustration 1, except that instead of demoting E, the supervisor no longer invites E for drinks after work as had been the supervisor’s regular practice. Because E’s exclusion from drinks after work is not reasonably likely to deter another employee from pursuing a workers’ compensation claim, E has no tort claim of employer discipline in violation of public policy.

c. Express statutory preclusion of a common-law public-policy tort. When enacting a statute protecting employees from wrongful discipline, a legislature will sometimes expressly provide that the statutory remedy is exclusive. Such a provision precludes a common-law tort claim premised on the public policy embodied in that statute. Examples of an exclusive statutory remedy are those provided in Montana’s Wrongful Discharge from Employment Act and the federal Employee Retirement Income Security Act (ERISA). In situations covered by those statutes, the employee has no common-law claim for wrongful discipline in violation of public policy.

d. Implied statutory preclusion or otherwise inappropriate judicial recognition of a tort action. Where a statute does not expressly preclude common-law actions, the court undertakes a second inquiry. Some courts declare that this second inquiry examines the implied intent of the legislature. Often, it is more realistic to acknowledge that the inquiry does not turn so much on an elusive search for implied legislative intent, but on the aptness of an incremental development of the common law given the presence of relevant statutes.

However this second inquiry is framed, it turns on whether it is appropriate, in the context of the particular statute embodying the public policy in question, to recognize a parallel tort action. Judicial reluctance to recognize a claim stems from two principal concerns. One is that the legislature, in addition to identifying the public policy at issue in the statutory enactment, may have also chosen the appropriate remedy to protect that public policy. The statutory remedy may reflect compromises between competing interests that are better handled in a legislative, as opposed to a judicial, forum. A second consideration is that a public-policy tort is not needed, and therefore not worth the costs, when the statutory remedy adequately addresses the interests of the injured employee and thereby the relevant public policy. Accordingly, if a statute provides an adequate alternative remedy, courts often decline to recognize a common-law tort claim premised on violations of that statute.

In assessing whether the statute impliedly precludes a statutory remedy, or whether it is otherwise appropriate to recognize a tort action, courts look at a variety of factors. These include, but are not limited to, whether the employee has a private cause of action under the statute, and if not whether the employee can appeal the decision of an administrative body to court, whether the statute establishes a comprehensive regulatory scheme, the importance of the relevant public policy and whether it is expressed in other sources than the statute providing a remedy, as well as the procedural restrictions placed on pursuing the statutory claim.

Comprehensive antidiscrimination statutes present a clear example of the reluctance of courts to recognize a supplementary tort for wrongful discipline in violation of public policy even where the statute does not expressly preclude judicial recognition of additional remedies. …

In contrast, courts are more willing to recognize supplementary tort remedies in the case of statutes, such as the federal Occupational Safety and Health Act of 1970 (OSHA), that do not themselves provide for a private cause of action or otherwise give individual relief.

Illustrations: …

4. Employer X discharges employee E for filing a complaint under the Occupational Safety and Health Act (OSHA) about unsafe working conditions at X. Under OSHA, E has no private right of action, the Secretary of Labor has sole discretion whether to bring suit to redress an OSHA violation, and E cannot appeal the Secretary’s decision not to bring suit. E may pursue a common-law tort claim of employer discipline in violation of public policy that is based on OSHA, because Congress did not provide for an exclusive federal remedy, did not establish a comprehensive regulation of all workplace safety laws, and did not provide a private civil remedy for individuals in E’s position. [Illustration 4 is based on Flenker v. Willamette Indus., Inc., 967 P.2d 295 (Kan. 1998).]

… 

Reporters’ Notes

Often, though, courts are reluctant to hold that a federal statute protecting workers impliedly preempts state common-law actions. See Parten v. Consol. Freightways Corp., 923 F.2d 580 (8th Cir. 1991) (applying Minnesota law) (rejecting argument that federal Surface Transportation Assistance Act of 1983, which includes antiretaliation provisions, preempts wrongful-discipline action of employee who refused to violate state and federal statutes regulating truck safety); Schweiss v. Chrysler Motors Corp., 922 F.2d 473 (8th Cir. 1990) (applying Missouri law) (rejecting argument that OSHA’s remedial scheme preempted state-law wrongful-discipline claim of employee dismissed for complaining about unsafe working conditions). See generally English v. General Elec. Co., 496 U.S. 72, 80 (1990). In English, holding that the anti-retaliation provisions of the Energy Reorganization Act of 1974 did not preempt a state-law intentional-infliction-of-emotional-distress claim by an employee discharged for reporting violations of nuclear-safety standards, the Court declared that “[o]rdinarily, the mere existence of a federal regulatory or enforcement scheme, even one as detailed as § 210, does not by itself imply pre-emption of state remedies.” Id. at 87. See also Tate v. Browning-Ferris, Inc., 833 P.2d 1218 (Okla. 1992) (holding that the Oklahoma antidiscrimination statute is not exclusive, reasoning that “[w]here the common law gives a remedy, and another is provided by statute, the latter is merely cumulative, unless the statute declares it to be exclusive.”); cf. Abraham v. County of Hennepin, 639 N.W.2d 342 (Minn. 2002) (finding no legislative intent to exclude common-law remedies where the legislature removed language in the statute expressly providing for other remedies but did not include an exclusivity provision).

Rather than phrase the inquiry as whether the legislature impliedly intended to preclude common-law claims, some courts take the sometimes more straightforward route of asking whether the common law should recognize a tort claim given the statutory remedies and scheme. The clear trend among courts is to declare that an employee has no common-law wrongful-discipline claim if the employee has adequate statutory remedies. See McHugh v. Bd. of Educ., 100 F. Supp. 2d 231 (D. Del. 2000) (applying Delaware law) (refusing to recognize a common-law wrongful-discharge action because remedy existed under state whistleblower law); Ellison v. Nw. Airlines, Inc., 938 F. Supp. 1503 (D. Haw. 1996) (applying Hawaii law) (holding that employee could not assert a claim of employer discipline in violation of public policy for exercising his right to medical leave for an occupational injury because state statute provided sufficient remedy for violation of policy) …

Courts look at a variety of factors in determining whether a statutory remedy is adequate:

We are influenced by differences in process, differences in claimant control, and differences in damages available. It may be that additional factors will also be influential in a future case. Here, all of these differences are enough to dictate that [for the Railway Labor Act, the adequate statutory remedy] question be answered: “No.” 

Hysten v. Burlington N. Santa Fe Ry. Co., 108 P.3d 437, 445 (Kan. 2004). Perhaps the most important factor is whether the statutory remedy provides the injured employee a private cause of action. See Flenker v. Willamette Indus., Inc., 967 P.2d 295 (Kan. 1998) (holding that OSHA, which does not include a private right of action, does not preclude judicial recognition of a state claim of employer discipline in violation of public policy)…

A number of state courts have addressed the question of whether a worker complaining about inadequate workplace safety can bring a common-law wrongful-discipline claim or is relegated to the processes of OSHA. Usually, workers may bring a common-law claim. See, e.g., Flenker v. Willamette Indus., Inc., 967 P.2d 295 (Kan. 1998) (holding that OSHA’s remedies, which do not include a private right of action, do not preclude a state claim of wrongful discharge in violation of public policy); Kulch v. Structural Fibers, Inc., 677 N.E.2d 308 (Ohio 1997) (declaring that employee fired for filing OSHA complaint can maintain common-law tort action for wrongful discipline in violation of public policy), Sorge v. Wright’s Knitwear Corp., 832 F. Supp. 118 (E.D. Pa. 1993) (applying Pennsylvania law) (same). But see Burnham v. Karl & Gelb, P.C., 745 A.2d 178 (Conn. 2000) (holding that OSHA’s remedial scheme obviates need for wrongful-discipline action for employee complaining of safety violations); Walsh v. Consol. Freightways, Inc., 563 P.2d 1205 (Or. 1977) (holding that employee has no tort action for wrongful discharge when fired for reporting safety violations when he knew he could file a complaint with the Department of Labor).

We accepted a question of law certified by the United States District Court for the Middle District of Tennessee to determine whether a job applicant has a cause of action under the Tennessee Workers’ Compensation Act against a prospective employer for failure to hire…

Beginning in 1998, Kighwaunda M. Yardley worked as a housekeeping aide at the University Medical Center (“the Hospital”) in Lebanon. In 2010, Ms. Yardley was hurt on the job and began receiving workers’ compensation benefits. Between June 2010 and September 2012, she received medical treatment for her injury. As of July 1, 2012, she was performing light duty work for the Hospital’s materials management group with the expectation that when released to full duty, she would return to her job as a housekeeping aide.

On January 1, 2012, the Hospital entered into a contract with Hospital Housekeeping Systems (“the Company”), whereby the Company agreed to provide housekeeping services for the Hospital beginning July 1, 2012. As part of its contract, the Company agreed to interview the Hospital’s current housekeeping employees and, at the Company’s discretion, hire the employees to continue in their positions. The Company hired most of the Hospital’s housekeeping staff. As of July 1, 2012, Ms. Yardley had neither been interviewed nor hired because she was still on light duty. When Ms. Yardley was released to full duty, she sought to return to work in the housekeeping department. The Hospital referred her to the Company for employment. In August 2012, she spoke with the Company’s Division Vice President, Michael Cox, who, according to Ms. Yardley, told her that the Company would not hire anyone receiving workers’ compensation benefits. In an email to the Company, Mr. Cox said that Ms. Yardley had “been out on Workers[’] Comp with the hospital long before [the Company’s] arrival,” that her shoulder was hurting her again, and that “[b]ringing her on board with [the Company] would seem to be a Workers[’] Comp claim waiting to happen.” Mr. Cox said he “would advise against [hiring Ms. Yardley] IF we have that option.” After she was not hired, Ms. Yardley sued the Company in the United States District Court for the Middle District of Tennessee. …

We accepted the following certified question of law from the federal district court: If a prospective employer refuses to hire a job applicant because that applicant had filed, or is likely to file, a workers’ compensation claim incurred while working for a previous employer, can that applicant maintain a cause of action under the Workers’ Compensation Act (“the Act”) against the prospective employer for failure to hire, and if such a claim exists, should courts apply the motivating factor standard of causation, as they do with retaliatory discharge claims?

 … This is a case of first impression. In Tennessee, there is no statutory or common law cause of action for retaliatory failure to hire. Ms. Yardley asks this Court to create this cause of action. Relying on public policy grounds and retaliatory discharge cases from this and other jurisdictions, Ms. Yardley argues that if employers can lawfully refuse to hire job applicants because applicants have filed, or are likely to file, workers’ compensation claims, this action by employers will have a chilling effect on workers’ decisions to file claims and obtain their rightful remedies under the Act. She also asserts that if employers are allowed to refuse to hire applicants on such a basis, it would frustrate the purpose of the Second Injury Fund, see Tenn. Code Ann. § 50–6–208 (2014), which the Legislature established to encourage the hiring of workers who have suffered previous injuries. Amicus curiae Tennessee Employment Lawyers Association argues that an employer’s failure to hire a job applicant because the applicant asserted a claim for compensation against a previous employer constitutes a device that would relieve an employer of an obligation under the Act; such devices are prohibited by Tennessee Code Annotated section 50–6–114 (2014).

The Company and amicus curiae Tennessee Defense Lawyers Association oppose the creation of a cause of action for retaliatory failure to hire. They argue that there was no employer-employee relationship between Ms. Yardley and the Company and, therefore, the retaliatory discharge cases cited by Ms. Yardley are distinguishable. They contend that Tennessee’s employment-at-will doctrine should be protected, that employers should be free to hire and fire as they choose, and that an exception to the employment-at-will doctrine should not be made in this case.

Workers’ compensation laws have been in effect in the United States for more than a century. See, e.g., N.Y. Cent. R.R. Co. v. White, 243 U.S. 188, 197, 37 S.Ct. 247, 61 L.Ed. 667 (1917). These laws “were conceived as a means of providing prompt, dignified, and certain financial relief for workers who suffered employment-related injuries or diseases[,]” Joseph H. King, Jr., The Exclusiveness of an Employee’s Workers’ Compensation Remedy Against His Employer, 55 Tenn. L.Rev. 405, 406 (1988) (footnote omitted), and were necessary because of the “difficulty of proving fault in the industrial setting and the availability of the [defenses of contributory negligence, assumption of the risk, and the fellow servant rule, which] more often than not defeated the worker’s hope for recovery,” Clanton v. Cain–Sloan Co., 677 S.W.2d 441, 442 (Tenn. 1984). Since the Act was passed in 1919, it has provided compensation for injured employees, eliminated employers’ potential defenses, set attorney’s fees, provided for a system of adjudication, abrogated the right of employees to pursue common law negligence actions, and capped employees’ potential recovery. See Act of Feb. 5, 1919, ch. 123 § 2, 1919 Tenn. Pub. Acts 369; see also Tenn. Code Ann. §§ 50–6–101 to –921. Thus, the Act is a “comprehensive [legal] system that reflects a compromise between the interests of employers and employees.” Clanton, 677 S.W.2d at 443.

Workers’ compensation laws necessarily interact with the State’s employment laws. Tennessee recognizes the employment-at-will doctrine as “the fundamental principle controlling the relationship between employers and employees.” Mason v. Seaton, 942 S.W.2d 470, 474 (Tenn. 1997). Under this doctrine, either the employer or the employee may terminate the employment relationship with or without cause. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 899 (Tenn. 1992) (citing Payne v. W. & Atl. R.R. Co., 81 Tenn. 507, 509 (1884)). “[A]n employer’s ability to make and act upon independent assessments of an employee’s abilities and job performance as well as business needs is essential to the free-enterprise system.” Mason, 942 S.W.2d at 474 (quoting Clifford v. Cactus Drilling Corp., 419 Mich. 356, 353 N.W.2d 469, 474 (Mich. 1984)). Thus, the doctrine “recognizes that employers need the freedom to make their own business judgments without interference from the courts.” Williams v. City of Burns, 465 S.W.3d 96, 108 (Tenn.2015) (quoting Mason, 942 S.W.2d at 474). Both job applicants and prospective employers may freely choose whether to enter into the employer-employee relationship. See id.

One exception to the employment-at-will doctrine is that an at-will employee may not be fired for taking an action encouraged by public policy. Id. (citing Chism v. Mid–South Milling Co., 762 S.W.2d 552, 556 (Tenn. 1988), superseded by statute, Tenn. Code Ann. § 50–1–304(g) (2014), as recognized in Williams, 465 S.W.3d at 109–10). Filing a workers’ compensation claim is an action encouraged by public policy. See Clanton, 677 S.W.2d at 444–45 (citing Frampton v. Cent. Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425, 427 (1973)). Therefore, an employer may not lawfully discharge an employee for filing a workers’ compensation claim. Id. at 445. An employee who believes that she has been fired for filing a workers’ compensation claim may bring a claim for retaliatory discharge. Id. This cause of action was recognized “to enforce the duty of the employer, to secure the rights of the employee[,] and to carry out the intention of the [L]egislature.” Id.

To decide whether a job applicant may bring a retaliatory failure to hire action against a prospective employer, we start by examining Tennessee Code Annotated section 50–6–114(a). When interpreting statutes, our primary function is to carry out the Legislature’s intent without broadening the statute beyond its intended scope. ….

Tennessee Code Annotated section 50–6–114 provides, in part, “No contract or agreement, written or implied, or rule, regulation or other device, shall in any manner operate to relieve any employer ... of any obligation created by this chapter....” Tenn. Code Ann. § 50–6–114(a). Although an employer’s decision to fire an employee for filing a worker’s compensation claim has been held to be an unlawful device, Clanton, 677 S.W.2d at 445, this holding does not apply to Ms. Yardley because she was not an employee of the Company. The Act applies to employers and employees. An employer is defined as “any individual, firm, association or corporation ... using the services of not less than five (5) persons for pay.” Tenn. Code Ann. § 50–6–102(12) (2014). An employee is defined as a “person ... in the service of an employer ... under any contract of hire or apprenticeship, written or implied.” Tenn. Code Ann. § 50–6–102(11)(A). Under this definition, Ms. Yardley was not an employee, but merely a job applicant. As such, the Company had no obligation to her under the Act. See Stratton v. United Inter–Mountain Tel. Co., 695 S.W.2d 947, 950 (Tenn. 1985) (“The basis of liability under the Worker[s’] Compensation Act is the employer-employee relationship.”).

Ms. Yardley argues that retaliatory discharge cases are analogous. The elements of a common law prima facie case for a workers’ compensation retaliatory discharge claim are: (1) the plaintiff was an employee of the defendant at the time of the injury; (2) the plaintiff made a claim against the defendant for workers’ compensation benefits; (3) the defendant terminated the plaintiff’s employment; and (4) the claim for workers’ compensation benefits was a substantial factor in the employer’s motivation to terminate the employee’s employment. Anderson v. Standard Register Co., 857 S.W.2d 555, 558 (Tenn. 1993), overruled on other grounds by Perkins v. Metro. Gov’t of Nashville, 380 S.W.3d 73 (Tenn. 2012).

Ms. Yardley cites a number of retaliatory discharge cases to support her position and argues that the Tennessee and out-of-state cases cited form the basis for a retaliatory failure-to-hire cause of action. But these cases are distinguishable, as they all involve parties who had been in an employer-employee relationship with each other at the time the tort allegedly occurred. Ms. Yardley was not an employee of the Company, and thus, there was never a relationship. This is an important distinction. The employer-employee relationship involves mutual acquiescence, and certain levels of trust and dependence are created upon its formation. See Mason, 942 S.W.2d at 474. Both parties have rights and responsibilities that naturally flow from that relationship and which are not present before the relationship is formed. See Stratton, 695 S.W.2d at 950. For this reason, failure to hire cannot be equated with termination of employment, as employees and job applicants are on different footing.

A few states have statutory provisions expressly allowing claims for retaliatory failure to hire. See, e.g., Fla. Stat. § 440.105(2)(a) 2 (2015); 775 Ill. Comp. Stat. Ann. 5/6–101 (2015); La.Rev.Stat. Ann. 23:1361 (2014); Me.Rev.Stat. tit. 5, § 4572 (2014); Mass. Gen. Laws Ann. ch. 152, § 75B (2015). Tennessee does not. We have found no judicial decision recognizing a claim for retaliatory failure to hire under state common law or public policy, and a number of courts have expressly refused to recognize such claims. See, e.g., Baker v. Campbell Cnty. Bd. of Educ., 180 S.W.3d 479, 484 (Ky. Ct. App. 2005) (holding that no cause of action exists under Kentucky public policy for retaliatory failure to hire); see also Peck v. Elyria Foundry Co., 347 Fed.Appx. 139, 148 (6th Cir. 2009) (declining to recognize failure-to-hire claims as a public policy exception to the employment-at-will doctrine under Ohio law); Sanchez v. Philip Morris, Inc., 992 F.2d 244, 249 (10th Cir. 1993) (declining to recognize common law failure-to-hire claims under Oklahoma law); Wordekemper v. W. Iowa Homes & Equip., Inc., 262 F.Supp.2d 973, 988 (N.D. Iowa 2003) (noting that “Iowa has never recognized a cause of action for retaliatory failure to hire or rehire a prospective employee based on that employee’s past workers’ compensation claims”); cf. Warnek v. ABB Combustion Eng’g Servs., Inc., 137 Wash.2d 450, 972 P.2d 453, 455–57 (1999) (declining to recognize a common law claim for failure to rehire an employee on the basis of filing a workers’ compensation claim, as “[t]here is a distinction between discharge ... during the course of employment and not being rehired for new employment”).

Ms. Yardley argues that if employers may legally refuse to hire job applicants because they have current or prospective workers’ compensation claims, then employees will be discouraged from filing such claims. We find the alleged harm to be too speculative to justify an exception to the employment-at-will doctrine. This State has an interest in ensuring that its citizens have access to employment and the ability to earn a livelihood, but at the same time, employers should have freedom to choose their employees. …