Dangerous Work

What is your best response when given a direct order by the fat cats?

In general your best response when given a direct order is simple: Obey now, grieve later.

But there are exceptions and we will discuss them in this post.

Two factors should be understood by working folks up front; 1) the concept of Imminent Danger, and 2) What constitutes an order. Let's define each.

1. Imminent Danger: Imminent danger is a workplace hazard that puts us at immediate serious risk of death or serious physical harm. It may be a safety hazard such as an unstable trench or exposed electrical wiring that could cause a serious of fatal accident. It could also mean exposure to toxic substances, dangerous fumes, dust or gases that may cause death or irreversible physical harm, shorten life or reduce physical or mental performance. 

In teaching classes as an International Represent-ative when discussing worker's rights I always included a couple of imminent danger scenarios in my simple hillbilly fashion. For example I would tell classes that if you were ordered to jump from the roof of a first-floor, partially in ground building, and it is a relatively short fall to the ground, you'll likely want to consider using the "obey now, grieve later" approach. On the other hand, if it is a 10-story building, all above ground and the imminent danger is obvious, your response to the order should be, "Oh, HELL NO. I'm not jumping."

2. What constitutes an order? This is important. If your boss starts an "order" with words such as "will you," "can you," "you should," "please," "maybe," etc. it is not likely to meet the test of a direct order. Remember, my last post discussed the Daugherty Seven test. One of the questions the company must answer is did the company give the employee forewarning or foreknowledge of the possibility or probability of disciplinary consequences of the employee's conduct. An order mean that the DEMAND be clear and precise. You must know what your fate becomes for failure to comply.

So what are our rights to refuse dangerous work? How should we use those rights to refuse imminently dangerous assignments?

1. If possible or practicable raise the issue with the supervisor. Inform him/her that you believe carrying our the order places you in imminent danger.
2. Although you have rights to file a complaint with OSHA concerning a hazardous working condition at any time, this option is useless in cases of imminent danger, so . . . 
3) You should not leave the worksite merely because you have filed or will file a complaint. When the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, you have brought the condition to the attention of your employer, you may have a legal right to refuse to work in a situation in which you would be exposed to the hazard.
4) Remember that OSHA cannot/willnot enforce union contracts that give employees the right to refuse to work.

So, what triggers our rights to refuse unsafe work assignments? Your rights in refusing to perform a task are protected if all of the following conditions are met:
1) Where possible you have asked the employer to eliminate the danger and the employer failed to do so; and
2) You refused to work in good faith. This means that you must genuinely believe that an imminent danger exists; and,
3) A reasonable person would agree that there is a real danger of death or serious injury; and,
4) There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels such as requesting an OSHA inspection.

Given the above these are the steps you must take:
1) Ask your employer to correct the hazard or to assign you other work;
2) Tell your employer that you won't perform the work unless and until the hazard is corrected; and,
3) Remain at the worksite until ordered to leave by your employer.

If you stay within the guidelines and your fat cat attempts retaliation; contact OSHA by calling 1-800-321-6742 and ask to be connected to the closest area office. No form is required to file a discrimination complaint, but you must call OSHA.

If you are challenging orders to work with an unsafe substance, request a list of workers made sick by the substance, the material safety data sheet (MSDS) supplied by the manufacturer, copies of OSHA citations, and any studies by the employer concerning the substance. When necessary, the union may arrange for an outside specialist, such as an industrial hygienist, to conduct an inspection of the workplace. You are entitled to such information through the following decisions: 158. Hercules, Inc. 281 NLRB 961, 124 LRRM 1213 (1986), enforced 833F. 2d426,126 LRRM 3187 (2nd Cir. 1987) 

Under federal law you are entitled to a safe workplace. Your employer must provide a workplace free of known health and safety hazards. If you have concerns, you have the right to speak up about them without fear of retaliation. You also have the right to:
1) Be trained in a language you understand
2) Work on machines that are safe
3) Be provided required safety gear, such as gloves or a harness and lifeline for falls
4) Be protected from toxic chemicals
5) Request and OSHA inspection and speak to the inspector.
6) Report any injury of illness, and get copies for your medical records
7) See copies of the workplace injury and illness log
8) Review records of work-related injuries and illnesses. Get copies of test results done to find hazards in the workplace

The following comes from my University of Massachusetts class notes and is intended to explain what triggers worker rights to refuse unsafe work.

An OSHA regulation allows an employee to refuse unsafe work if the following conditions exist:
1) The employee has a reasonable belief, based on what he or she knows at the time, that there is a real danger of death or serious physical injury.
2) The employee asks the employer to eliminate the danger, but the employer fails to do so.
3) The danger is so urgent that the employee cannot risk waiting until OSHA can conduct an inspection.
4) The employee has no reasonable alternative. The U.S. Department of Transportation has a similar rule for employees in the trucking industry. 

(The NLRA also has a provision allowing employees, in certain situations, to refuse unsafe work. The work must be "abnormally dangerous.")

Keep in mind that OSHA has jurisdiction over private-sector employers regardless of size, except for industries that are regulated by other federal agencies such as mining, railroads, nuclear power and trucking. If you work in one of the listed industries your rights and protections are other than OSHA.

At the risk of being repetitive let's take another walk through the "Obey now, grieve later" response to orders from your fat cat boss. Why so much emphasis on this issue? Because insubordination charges can very quickly lead to DISCHARGE!!!

To have a reasonable shot at avoiding discipline from the precedent of "Obey now, grieve later", one should follow the guidelines below.

1) An employee who disagrees with a work order of work rule normally must obey the order and challenge its legitimacy through the grievance and arbitration procedure or other channels. Failure to do so may constitute insubordination.
2) Employees need NOT immediately obey an order if they;
     a) reasonably believe it to be illegal, unethical or immoral;
     b) reasonably believe that obedience would place the employee or others in imminent danger of harm, or,
     c) would suffer immediate and substantial harm, and would lack any satisfactory remedy after the fact.

Even in these cases, however, disobedience will be excused only if the employee has no other feasible way to resolve the dispute.

Readers interested in researching relevant cases may contact me via the blog and I will be happy to provide examples. Giving them all here would make this post too long, so in closing, please remember the following:

Before the fat cats can sustain a discharge for insubordination, arbitrators generall require that two tests be me: 1) very clear instructions were given by the supervisor to the employee and 2) an even more explicit warning was given of the consequences to the employee if he failed to comply.

There are no methods to discuss refusals to do a job without also looking at such principles as obeying now, grieve later, the principles of insubordination, the Daugherty 7 test of just cause, OSHA and the past precedent set surrounding these issues.

Even with all the past decisions concerning rights to refuse an unsafe work assignment, NO clear-cut lines exist on all examples/incidents that occur. That is why, if you refuse an assignment with a good faith belief that the assignment carries imminent danger, and you try other efforts to correct the situation, and you have made a bad decision because of the lack of facts, precedent says you should not be subject to discipline.

Hope you enjoy the read, and if the job you are about to refuse is at your top shelf employer, or your number one place of employment, be cautious. Refusing work orders in the U.S. workplace without knowledge of your rights carries many dangers.

Solidarity Forever is not just a song lyric--It is the Union way of life.