Thousands of workers die or are injured because of thousands of on the job accidents each year. Many more are exposed to unhealthy conditions that cause serious illnesses years later. When does a worker have the right to refuse dangerous work?
Feb. 26, 1980 the US Supreme Court issued a landmark ruling which more clearly defined a worker's right to refuse work where an employee has reasonable apprehension that death or serious injury or illness might occur as a result of performing the work. The unanimous decision came in a 1974 case against Whirlpool corp. in which two workers refused to crawl out on a screen from which a coworker had fallen to his death nine days earlier
Workers in the "Whirlpool" case were told to go out on a screen 20 feet above the floor to retrieve small appliance parts which had fallen from a conveyor belt system above. The screen was in place to protect workers in the plant from falling parts. The retrieval assignment had resulted in other workers falling partially or completely through the screen. Claiming that the screen was unsafe, two employees refused to carry out the assignment. Whirlpool supervisors sent the workers home for the day and withheld about six hours pay.
The Court in its decision, emphasized that the OSHA Act provides the worker with the right to choose not to perform an assigned task due to reasonable apprehension of death or serious injury. Further, the Court held that a worker who utilizes this OSHA protection may not be discriminated against for such action. However; the Court also indicated that an employee who refused work based on the regulation runs the risk of discharge or reprimand in the event a court subsequently finds that he/she acted unreasonably or in bad faith. The Act simply provides that in such cases the employer may not discriminate against the involved worker(s). The issue is to be decided by labor and management through collective bargaining. Members of unions that do not negotiate the necessary protective language in their contracts should not expect to be paid for the refusal to work period. This will be true even where an employer is found guilty of violating the OSHA Act.
What should CWA members who are faced with an imminent danger situation do? Explain the hazard to the supervisor and your steward; Offer to do other, safe work until the hazard is corrected; Give management a chance to respond before doing anything else. If the condition isn't corrected call and request an "imminent danger" inspection; do not walk off the job. If management won't fix the hazard, force them to take the next step. Make sure you have expressed your reasons for refusing the job and your willingness to do other work, clearly and in the presence of your steward or other workers. If you're fired or disciplined; file a grievance immediately; file an unfair labor practice charge with the NLRB immediately but within 180 days; file a section 11(c) discrimination complaint with OSHA/WISHA immediately but within 30 days.
The bottom line is to stay cool. Don't let management provoke you into the rash actions which could hurt your case later. Proving that your job was "abnormally and objectively dangerous" is a matter of documentation: Was the job one you'd never done before? Or; had the conditions of the job changed recently? Did you protest the job before; Did other workers protest the job before? Did others refuse to do the job? Was the company in violation of OSHA, state or local health and safety regulations? Many chemicals and conditions are clearly dangerous but aren't covered by any standards. Have workers been injured or made sick doing your job? Just what chemicals were you working with?
If any CWA member refuses unsafe work, he should notify the Local Union President or Safety Officer. In turn this information should be made available to the CWA Representative, and the CWA Occupational Safety and Health Department. The key to making the workplace safe for all CWA members is a strong, active local Safety and Health Committee. If the company refuses to cooperate the committee can request a WISHA inspection. The committee should always coordinate its activities through the Local officers, and negotiated Safety and Health Committees.
Dennis Garrett
Local 7804 Vice President and Safety Officer
Regional MOSHC Representative.
253-640-1253
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