F. Ray Marshall, Secretary of Labor, United States Department of Labor v. Daniel Construction Company, Inc.

563 F.2d 707

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 30, 1978
• Docket: 76-1465
• Status: Published

Opinions

CHARLES CLARK, Circuit Judge:

Pursuant to 29 U.S.C. § 660(c)(2)¹ of the Occupational Safety and Health Act of 1970, id. §§ 651 et seq., the United States Secretary of Labor (Secretary) filed a complaint in the district court alleging that defendant, Daniel Construction Company (Daniel), had discharged one of its employees, Jimmy D. Simpson, for refusing to perform a task “under conditions which reasonably caused him to conclude that there was a real and immediate danger of death or serious injury to him if he performed his assigned work,”² and that, since Simpson’s refusal to work under these conditions was protected by 29 C.F.R. § 1977.12 (1976),³ Daniel violated 29 U.S.C. § 660(c)(1)⁴ which proscribes an employer’s discharge of any of its employees for exercising any right afforded under OSHA. The district court found that OSHA provided no legal basis for the Secretary’s interpretation of 29 U.S.C. § 660(c)(1) as protecting an employee’s refusal to work in the face of hazardous conditions and dismissed the complaint under Federal Rule Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. The Secretary’s appeal timely followed. We affirm.

Congress adopted the Occupational Safety and Health Act of 1970 (OSHA) “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and preserve our human resources” in any business affecting interstate commerce. 29 U.S.C. § 651(b). To this end, the Secretary is authorized to promulgate permanent and, in limited instances, emergency safety and health standards (standards) applicable to the workplace, id. § 655; see Florida Peach Growers Ass’n v. United States Department of Labor, 489 F.2d 120, 123-24 (5th Cir. 1974), and to enforce those standards in appropriate proceedings. Id. §§ 657-660(a), (b); see Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 995-1000 (5th Cir. 1974), aff’d, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977). Employers and employees are charged with “separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions . . .” 29 U.S.C. § 651(b)(2). For example, employers have affirmative duties to furnish their employees with “employment and a place of employment . . . free from recognized hazards . . . causing or are likely to cause death or serious physical harm” and to comply with standards promulgated under the Act. Id. § 654(a); see Ace Sheeting & Repair Co. v. OSHRC, (5th Cir. 1977) 555 F.2d 439. Employees are responsible for complying with the Secretary’s standards and “all rules, regulations, and orders issued [under OSHA] which are applicable to [their] own actions and conduct.” Id. § 654(b). The Act also affords numerous rights to employees, among which are the rights to request inspections of the workplace and to seek mandamus relief against the Secretary when he arbitrarily fails to request injunctive relief to abate dangerous conditions.⁵ To ensure that employees will not be intimidated or deterred from exercising their express rights, id. § 660(c)(1) provides that employees may file a complaint with the Secretary alleging that their employer has discharged or otherwise discriminated against them for exercising any right afforded under the Act.

The Secretary has interpreted section 660(c)(1) to protect employees in the exercise of rights that exist by necessary implication as well as those rights that are expressly afforded under OSHA. 29 C.F.R. § 1977.12(a) (1976). As a means of implementing this interpretation, the Secretary has determined that OSHA implicitly affords employees the right to refuse to work “under . . . circumstances then confronting the employee [at the workplace which] would [cause him to] 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.” Id. § 1977.12(b)(2) (1976); see note 3 supra. Our task in the instant case is to determine the validity of this regulation.

The district court dismissed the Secretary’s complaint under Federal Rule Civil Procedure 12(b)(6). We review this appeal under the “accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); followed, e. g., Robinson v. Price, 553 F.2d 918, 919 (5th Cir. 1977).

The Secretary issued regulation 1977.12(b) pursuant to his grant of authority to “prescribe such rules and regulations as he may deem necessary to carry out [his] responsibilities under [the Act] . . . .” 29 U.S.C. § 657(g)(2). The validity of the Secretary’s regulations “will be sustained so long as [they are] ‘reasonably related to the purposes of the enabling legislation’. . . ” Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1661, 36 L.Ed.2d 318 (1973), quoting Thorpe v. Housing Authority, 393 U.S. 268, 280-81, 89 5. Ct. 518, 525, 21 L.Ed.2d 474 (1969). Moreover, as the Secretary’s interpretation of OSHA’s requirements is entitled to “great weight,” Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir. 1974), Daniel has the burden of proving that the Secretary’s regulation is inconsistent with his congressional grant of authority. See, e. g., Springdale Convalescent Center v. Mathews, 545 F.2d 943, 951 (5th Cir. 1977). Nonetheless, our examination of the statutory scheme and the legislative history of the Act compels the conclusion that Daniel has satisfied its burden and that the regulation is invalid because it is beyond the Secretary’s grant of authority under the enabling provision.

A. The Statutory Rights of Workers When Confronted With Imminent Dangers

29 U.S.C. § 657(f)(1) entitles workers who believe that an “imminent danger” exists at the workplace to notify the Secretary of the danger.⁶ If the Secretary determines an inspection is unnecessary, he must notify the worker of his decision. If the Secretary is satisfied, however, that the notice provides him with reasonable grounds to believe that an imminent danger exists, an OSHA inspector may enter the workplace to inspect and investigate the premises, “all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials . . and . . . question privately any such employer, owner, operator, agent or operator.” Id. § 657(a). If, upon inspection and investigation, the OSHA inspector believes that the employer has violated the Act, he must issue the employer a citation, notifying him that the unlawful condition or practice must be abated within a prescribed time. The citation must be prominently posted at or near the place of the violation within six months of the alleged violation in order to apprise employees of the offense. Id. § 658.

If the OSHA inspector believes, however, that practices or conditions exist in the workplace which present a danger of death or serious physical harm immediately or before the danger can be eliminated through other enforcement procedures, the OSHA inspector must recommend to the Secretary that immediate injunctive relief against the dangerous practices or conditions be sought. Id. § 662(a), (b), (c).⁷ The inspector must notify employees at the affected workplace that he believes such conditions exist and that he is requesting in-junctive relief. Id. § 662(c). Employees are entitled to petition the federal district court for a writ of mandamus against the Secretary if he arbitrarily or capriciously fails to seek the injunctive relief requested by the OSHA inspector. Id. § 662(d).

Congress’s apparent purpose in granting workers the right to request inspections for imminent dangers is to enable them to be adjuncts to OSHA inspectors who have primary responsibility for conducting OSHA compliance inspections at the employer’s premises. This may also be inferred from the fact that id. § 657(c) provides that an authorized employee representative is entitled to accompany the OSHA inspector when conducting a physical inspection of the worksite and that, in the absence of such a representative, the OSHA inspector must consult employees present about safety and health matters for the purpose of aiding the inspection. A worker’s exercise of these rights facilitates on-site inspections and thus aids the enforcement efforts of OSHA’s inspection forces. It also assures a greater degree of involvement on their part in the investigation process and serves to make them more conscious of safety and health conditions and practices in the workplace.⁸

While Congress envisioned that workers play an integral role in achieving the salutary purpose of assuring safe and healthful working conditions, in relation to preventing imminent dangers, OSHA expressly provides the contours of the part that workers play: (1) They may notify the Secretary of those conditions and practices that they believe present an imminent danger and request an immediate inspection, and (2) they may provide the inspector with information during the investigation. Before an imminent danger is enjoined, however, four independent judgments must be integrated in the decision-making calculus: (1) The Secretary must conclude that the worker’s notice provides reasonable grounds to believe that an imminent danger exists. (2) An OSHA inspector must conclude upon inspecting the workplace that the danger cannot be prevented through normal enforcement procedures but requires immediate injunctive relief and recommend to the Secretary that he seek relief. (3) The Secretary must conclude that the inspector is correct and proceed to federal court. (4) A federal district court must find that an imminent danger exists at the worksite such that requires immediate injunctive relief. At no point does the Act permit workers to make a determination that a dangerous condition exists in fact and that their employment or their employer’s business operations may be halted by their refusal to work. Indeed the Secretary, in promulgating regulation 1977.12(b), has acknowledged this with the following language: “[RJeview 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.” 29 C.F.R. § 1977.12(b)(1) (1976). We now consider the Secretary’s arguments that the existence of this right may be implied from the Act, its legislative history, and analogous case law.

B. An Implied Right of Workers to Refuse to Work When Confronted With Dangerous Conditions

Pointing to the Act’s legislative history, the Secretary asserts that it reflects that (1) Congress desired to enlist employees as private compliance officers as a means of policing the millions of worksites covered by the Act; (2) informal employer-employee communications provide the most efficacious means of abating unsafe conditions; (3) since workers are often in the best position to discover and identify hazardous practices and conditions, open communications between employees, their employers, and the Secretary are crucial to implementing the enforcement goals of the Act. We agree with the Secretary that in adopting OSHA, Congress granted employees a new set of important rights and sought that they play a vital role in achieving safe and healthful conditions at the workplace.

Two principal series of events which occurred during Congress’s consideration of the Act cause us to conclude that Congress did not intend that OSHA grant workers a right to walk off the job when faced with what they believe to be a dangerous work condition.

Representative Daniels of New Jersey sponsored one of several bills dealing with safe and healthful working conditions that the House of Representatives considered during 1969 and 1970.⁹ The Daniels Bill, which was reported to the house by the Committee on Education and Labor, contained a subsection which entitled employees to absent themselves from the job with pay when exposed to substances which had a potentially toxic or harmful effect when found or used at certain levels in the workplace, unless their employer provided appropriate warning labels and protective equipment which allowed them to carry out their work without being harmed.¹⁰ Opponents to the Daniels Bill quickly labeled this subsection as guaranteeing workers the right to “strike with pay,” a label which proved to be its epitaph. Two months after the Daniels Bill was reported out of committee, Representative Steiger of Wisconsin, an Education and Labor Committee member who had opposed the Daniels Bill, introduced a substitute bill on the floor of the House which did not contain a “strike with pay” provision. In an effort to make his bill more attractive to House members, Representative Daniels ultimately offered a set of floor amendments to his own committee-approved bill which, among other things, deleted its “strike with pay” provisions and gave employees the right to request that the Secretary immediately inspect the premises. His explanation to the House for the amendment with its proposed substitutions is revealing:

The provisions on employees not losing pay was so generally misunderstood that we have decided to drop it. We have no provision for payment of employees who want to absent themselves from risk of harm; instead, we have this amendment which enables employees subject to a risk of harm to get the Secretary into the situation quickly. Instead of making provisions for employees when their employer is not providing a safe workplace, we have strengthened the enforcement by this amendment provision to try and minimize the amount that employees will be subject to the risk of harm.

116 Cong.Rec. 38377-78 (1970), reprinted in Legislative History 1009. The Steiger Bill did not give employees the right to request an immediate inspection of the workplace. In choosing between the two bills, the House ultimately adopted the Steiger Bill.¹¹ The occupational safety and health bill ultimately adopted by the Senate permitted workers to request that the Secretary inspect the employer’s premises when they believed that a condition or practice was present which created an imminent danger.¹² The extent of notoriety which the “strike with pay” provision gained is evidenced by the statement of Senator Williams of New Jersey when introducing to the Senate his occupational safety and health bill¹³ after it had been reported out of committee. In apprising his fellow so-lons that his bill did not contain a “strike with pay” provision, Senator Williams remarked:

I should also add, despite some widespread contentions to the contrary, that the committee bill does not contain a so-called strike-with-pay provision. Rather than raising a possibility for endless disputes over whether employees were entitled to walk off the job with full pay, it was decided in committee to enhance the prospects of compliance by the employer through such means as giving the employees the right to request a special Labor Department investigation or inspection.

119 Cong.Rec. 37326 (1970), reprinted in Legislative History 416. Clearly, the Senate committee intended that workers be given the right to request inspections of the employer’s premises in lieu of a provision entitling them to leave the premises with pay. When the Steiger Bill and the Williams Bill were submitted to the conference committee, the House acceded to this provision in the Williams Bill.¹⁴

The second principal series of events involves the legislative evolution of the Act’s “imminent danger” section, 29 U.S.C. § 662, the provisions of which were discussed above. As originally reported out of committee, the Daniels Bill permitted OSHA inspectors to issue administrative orders which “prohibit[ed] the employment or presence of any individuals on locations or under conditions where ... an imminent danger exists, except to correct or remove it” but which could not remain in effect for more than five days. A United States district court in an action by the Secretary was given the authority to enjoin business operations for greater lengths of time.¹⁵ The Steiger Bill vested authority only in the courts, upon petition of the Secretary, to enjoin imminent dangers at the workplace.¹⁶ As a response to the Steiger Bill, Representative Daniels amended the imminent danger section of his bill so that only the courts had the authority to enjoin an employer’s business operations.¹⁷

The Williams Bill contained an imminent danger provision, however, which authorized an OSHA inspector, upon receiving the concurrence of an appropriate regional Labor Department official, to issue an administrative order restraining an employer’s business operations for a period up to 72 hours. This authority was to be exercised only when the Secretary had insufficient time to seek and obtain a court-ordered injunction, and the Secretary was required to provide appropriate review procedures to permit employers to obtain immediate reconsideration of an inspector’s administrative order.¹⁸ When the Williams Bill and the Steiger Bill were submitted to conference committee, the Senate receded from its provision permitting OSHA inspectors to issue 72-hour administrative orders.¹⁹

“Instead of balancing the various generalized axioms of experience in construing legislation, regard for the specific history of the legislative process that culminated in the Act now before us affords more solid ground for giving it appropriate meaning.” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 222, 73 S.Ct. 227, 230, 97 L.Ed. 260 (1952); see Southern Pacific Transportation Co. v. Usery, 539 F.2d 386, 391 (5th Cir. 1976).

Both chambers of Congress considered specific provisions designed to afford workers certain rights or no rights whatsoever when confronted with conditions or practices presenting an imminent danger of death or physical injury to workers. While the so-called “strike with pay” provision of the Daniels Bill literally applied to conditions dangerous to health rather than conditions dangerous to safety, the wholesale rejection of the provision demonstrates that an overriding concern of Congress was its fear that workers might abuse the rights granted and disrupt or terminate their employer’s business operations as a form of intimidation or harassment. Apparently believing that workers might also attempt unduly to influence OSHA inspectors if these officials were given the authority to issue administrative orders restraining an employer’s business operations, Congress gave the federal courts the sole authority to enjoin, upon the Secretary’s petition, an employer’s business and then only to the extent necessary to eradicate the imminent danger.

In lieu of providing workers with the right to “strike with pay,” the Senate committee approved legislation providing employees with the right to request that the Secretary immediately inspect the employer’s premises when they believed that an imminent danger exists at the workplace. In ultimately granting workers this right to request inspections, Congress adopted a procedure that permitted workers to participate in the enforcement efforts under the Act. Yet at the same time in providing a statutory scheme requiring four independent evaluations of the existence vel non of the allegedly dangerous condition prior to permitting a court to enjoin an employer’s business operations, it created a procedure that would prevent the potential for abuse from the worker’s indiscriminate exercise of his right and avoid unnecessary confrontations between employer and employees which might cause a disruption of the employer’s business operations.

The Secretary’s regulation before the court today is designed to achieve an end consistent with the purposes of the Act. Yet it expressly confers upon employees a right that Congress deliberately chose not to grant to OSHA inspectors: the right to determine in fact that an employment practice or condition presents “a real danger of death or physical injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory procedures.” 29 C.F.R. § 1977.12(b)(2) (1976). Moreover, by permitting employees to refuse work upon making such a determination, the regulation provides them authority equivalent to that of an OSHA inspector when issuing an administrative stop work order — a right which Congress also deliberately withheld from OSHA inspectors.²⁰ A worker’s abuse of the authority afforded under the regulation could disrupt or cripple an employer’s business. The legislative history is manifest that Congress feared such a result. We hold that the regulation exceeds the Secretary’s scope of authority to promulgate regulations as granted under the Act.

Citing similar anti-employee discrimination provisions in other remedial labor legislation and decisions construing those provisions as protecting a broad penumbra of protected employee activities, the Secretary argues that 29 U.S.C. § 660(c)(1), which protects employees in their exercise of any right afforded by the Act, necessarily encompasses the right of employees to refuse to work in the face of hazardous conditions.

The Secretary’s use of these decisions as support for its position here is misplaced. For example, the Secretary relies upon Phillips v. Interior Board of Mine Operations Appeals, 163 U.S.App.D.C. 104, 500 F.2d 772 (1974), cert. denied, 420 U.S. 938, 95 S.Ct. 1149, 43 L.Ed.2d 415 (1975), a case arising under the Coal Mine Safety and Health Act, 30 U.S.C. §§ 801 et seq. Section 820(b)(1) of this Act provides in part: “No person shall discharge or in any . . way discriminate against any miner [for having] . . . notified the [agency] . of any alleged violation or danger . filed, instituted, or . testified ... in any proceeding . ..” In Phillips the United States Court of Appeals for the District of Columbia held that this provision prohibits an employer from discharging an employee who had notified his foreman or authorized safety committee man of possible safety violations in the employer’s mine. The court found that the employee’s activity was protected because it constituted the initial step in an internal review procedure agreed upon by the employer and the employee’s representative for processing employee safety complaints under the Coal Mine and Safety Act. 163 U.S.App.D.C. at 111-113, 500 F.2d at 779-81. See also Munsey v. Morton, 165 U.S.App.D.C. 379, 507 F.2d 1202, 1209 (1974) (vacating and remanding decision of the Interior Board of Mine Operations Appeals order to determine whether Phillips applied).

The complaint in the instant case, however, contains no allegations that Daniel and its employees have established an internal procedure for the processing and review of employees’ safety complaints or that Simpson attempted to make or made a complaint under an established review procedure and was discharged for doing so. The complaint alleges solely that Simpson was discharged for refusing to work in the face of hazardous conditions. This is not an employee activity protected under OSHA.

The Secretary also relies upon NLRB v. Scrivener, 405 U.S. 117, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972). In Scrivener an employer had discharged several of its employees for giving written sworn statement to a NLRB field examiner who was investigating an unfair labor practice charge filed against the employer. 29 U.S.C. § 157(a)(4) of the National Labor Relations Act (NLRA) provides that an employer commits an unfair labor practice when he discharges or otherwise discriminates against an employee for filing charges or giving testimony under the NLRA. The United States Supreme Court interpreted this section as prohibiting the employer’s discharge of his employees for their activity because such a construction comported with the sections’ objective of providing the Board with sources of employee information essential to enforcing the NLRA. Id. at 122, 92 S.Ct. 801.

OSHA expressly permits employees to request that the Secretary make inspections when an imminent danger arises and to provide the OSHA inspector with information about the danger when the workplace is being investigated. The complaint contains no allegations that can be construed as encompassing this protected activity. For example, the complaint does not allege that Simpson was fired for temporarily absenting himself from his job so that he might request an OSHA inspection and give notice of the dangerous condition. Nor does it allege that Simpson was fired for attempting to make such a request.

When adopting OSHA, Congress deliberately sought to achieve job safety while maintaining proper employer-employee relations. Recognition of an employee’s right to refuse to work in the face of hazardous conditions does not necessarily further the same informational purposes that the right to request inspections promotes. As we have already noted, the abuse of this right could disrupt or permanently damage an employer’s business operation — a hazard that Congress refused to place within the ambit of the Act.²¹ Here we are provided with “substantial countervailing considerations” which militate against the recognition of the right at issue, a factor the Supreme Court found wanting in Scrivener. Id. at 125, 92 S.Ct. 803. The decision of the district court is

AFFIRMED.

1 . 29 U.S.C. § 660(c)(2) provides:

Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of [29 U.S.C. § 660(c)(1)] 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 upon such investigation, the Secretary determines that the provisions of [29 U.S.C. § 660(c)(1)] have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of [29 U.S.C. § 660(c)(1)] and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.

2 . The precise facts of the occurrence were not before the district court, and we decline to consider them for the first time here.

3 . 29 C.F.R. § 1977.12 (1976) provides:

(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.

4 . 29 U.S.C. § 660(c)(1) 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 [OSHA] 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 [OSHA],

5 . Id. §§ 657(f)(1), 662(d).

6 . 29 U.S.C. § 652, which sets forth Congress’s definitions of principal words and phrases in the Act, does not provide a definition of “imminent danger.” Under 29 U.S.C. § 662(a), the Secretary has the authority to enjoin “any conditions or practices in any place of employment which are such that a danger exists which 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].” The legislative history supports the conclusion that this is to serve as Congress’s definition of the phrase “imminent danger.” E. g., S.Rep.No. 1282, 91st Cong., 2d Sess. 12, 35 [hereinafter cited as S.Rep.], reprinted in Subcommittee on Labor of Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 152, 175 (Comm. Print 1971) [hereinafter cited as Legislative History], and reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 5177, 5189, 5212 [hereinafter cited as 1970 U.S.Admin.News],

7 . District courts are authorized to enter injunc-tive orders that require any necessary relief to

avoid, correct, or remove such imminent danger and prohibit the employment or presence of any individual in locations or under conditions where such imminent danger exists, except individuals whose presence is necessary to avoid, correct, or remove such imminent danger or to maintain the capacity of a continuous process operation to resume normal operations without a complete cessation of operations, or where a cessation of operations is necessary, to permit such to be accomplished in a safe and orderly manner.

29 U.S.C. § 662(a).

8 . S.Rep. 11 reprinted in Legislative History 151 and reprinted in 1970 U.S.Admin.News, pp. 5187-88.

9 . During these 2 years, a total of six occupational safety and health bills were introduced in the House. H.Rs. 843, 3809, 4294, 13373, 91st Cong., 1st Sess. (1969); H.Rs. 16785, 19200, 91st Cong., 2d Sess. (1970), reprinted in Legislative History 599, 629, 659, 679, 721, 763. Of these, two received the principal attention of Congress: H.R. 16785 (Daniels Bill), which was supported by organized labor, and H.R. 19200 (Steiger Bill), which was supported mainly by Republicans. See generally Gross, The Occupational Safety & Health Act: Much Ado About Something, 3 Loy.Chi.L.J. 247, 249-51 (1972).

10 . H.R. 16785, 91st Cong., 2d Sess., § 19(a)(5) (1970), reprinted in Legislative History 755-56. The committee’s accompanying report provides an explanation for the provisions. H.R.No. 1291, 91st Cong., 2d Sess. 29-30 (1970), reprinted in Legislative History 859-60.

11 . 116 Cong.Rec. 38715, (teller vote), 38723-24 (roll call votes), (1970), reprinted in Legislative History 1091, 112-15. When the House adopted the Steiger Bill, the “strike with pay” provision had been deleted from the Daniels Bill. 116 Cong.Rec. 38715 (1970), reprinted in Legislative History 1091-92.

12 . S. 291, 91st Cong., 2d Sess., § 8(f)(1) (1970), reprinted in Legislative History 529, 550.

13 . S. 2193, 91st Cong., 1st Sess. (1960), reprinted in Legislative History 1. An amended version of the Williams Bill was reported out of the Senate Committee on Labor and Public Welfare, S. 2193, 91st Cong., 2d Sess. (1970), reprinted in Legislative History 204, with an accompanying committee report. S.Rep.No. 1282, reprinted in Legislative History 141 and reprinted in 1970 U.S.Admin.News, p. 5177.

14 . H.R.No. 1765, 91st Cong., 2d Sess. 37 (1970), reprinted in Legislative History 1190, and reprinted in 1970 U.S.Admin.News, p. 5234.

15 . H.R. 16785, 91st Cong., 2d Sess., § 12(a) (1970), reprinted in Legislative History 893, 955-56. The committee’s accompanying report provides an explanation for this provision. H.R.No. 1291, 91st Cong., 2d Sess., 25 (1970), reprinted in Legislative History 855. Several minority members, however, expressed their dissatisfaction with this provision.

16 . H.R. 19200, 91st Cong., 2d Sess., § 12 (1970), reprinted in Legislative History 796-98.

17 . When proposing his amendments to the House, Representative Daniels offered the following explanation for permitting only the United States district courts to enjoin an employer’s business:

While administrative shutdown provisions are contained in the laws of 36 States and the District of Columbia, business groups have expressed great fears about the potential for abuse. They believe that the power to shut down a plant should not be vested in an inspector.

While there is no documentation for this fear, we recognize that it is very prevalent. The Courts have shown their capacity to respond quickly in emergency situations, and we believe that the availability of temporary restraining orders will be sufficient to deal with emergency situations. Under the Federal rules of civil procedure, these orders can be used ex parte. If the Secretary uses the authority that he is given efficiently and expeditiously, he should be able to get a court order within a matter of minutes rather than hours.

Id. 38378, reprinted in Legislative History 1009-10.

18 . S. 2193, 91st Cong., 2d Sess., § 12 (1970), reprinted in Legislative History 561-64. The Senate committee’s accompanying report provides an explanation of this procedure. S.Rep. 12-13, reprinted in Legislative History 152-53, and reprinted in 1970 U.S.Admin.News, pp. 5189-90. In expressing his views on the Williams Bill, Senator Javits of New York was careful to note the distinction between the imminent danger provision of the Williams Bill and the one contained in the Daniels Bill. Id. 56-57, reprinted in Legislative History 195-96, and reprinted in 1970 U.S.Admin.News, p. 5221.

19 . H.R.No. 1765, 91st Cong., 2d Sess. 40 (1970), reprinted in Legislative History 1193, and reprinted in 1970 U.S.Admin.News, p. 5236.

20 . Judge Wisdom’s dissent would permit the regulation on the theory that Congress meant to allow workers rather than federal employees the right to make safety determinations. He reasons that by impliedly shifting the power to close down a job to an employee rather than “a lone government inspector,” due process problems with the latter solution would disappear. While it is conceded the actor would become a private person, the protection Congress afforded to the employer arguably would diminish rather than increase. We respond by reiterating that if Congress was expressly unwilling for an OSHA inspector to decide job safety, then clearly they did not impliedly intend to entrust the shutdown power to a single employee.

21 . The dissent dramatically refuses to attribute to Congress an intent to place workers in the dilemma of losing job or life. We do not find that Congress ever perceived it faced making such a choice. They did answer the question of whether the employer or a government official would decide the work place was free of imminent danger by choosing to leave this judgment with the employer. The beneficent intent of the regulation is conceded. Its lack of foundation in the legislation it must implement is its undoing.