Chapter 11 OCCUPATIONAL SAFETY
AND HEALTH LAW
Labor & Employment Law 86
Case Questions
11.1 American Textile Manufacturers Institute v. Donovan, p. 367
1. (Q.) What is byssinosis?
(A.) Byssinosis is a serious and potentially disabling respiratory disease known in its more
2. (Q.) Did OSHA demonstrate that the Cotton Dust Standard was reasonably necessary or
appropriate to protect employees against a significant risk of health impairment as
required by the Industrial Union Department v. American Petroleum Institute decision?
(A.) Yes. The Court noted in a footnote that OSHA expressly found that exposure to cotton
3. (Q.) Does the Occupational Safety and Health Act require the Secretary of Labor, in
promulgating a standard pursuant to Section 6(b)(5), to determine that the costs of the
standard bear a reasonable relationship to its benefits?
(A.) No. The Court stated that Congress itself in Section 6(b)(5) defined the basic
4. (Q.)
substantial evidence?
(A.)
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5. (Q.) Did the Secretary (OSHA) make the necessary determinations that the wage guarantee
requirement was related to the achievement of a safe and healthful work environment?
(A.)
:
As of this writing, OSHA is following a four-step process in setting new health
standards: (a) demonstration of significant risk; (b) demonstration that the standard
would reduce that risk to some degree; (c) economic feasibility analysis in conjunction
with analysis of medical and scientific data to set the level of exposure; and (d) an
analysis of cost effectiveness, looking at all the available options, as to the best method
of control.
11.2, UAW v. General Dynamics Land Systems Division, p. 374
1. (Q.) Summarize the facts of the case.
(A.) OSHA citations were issued against General Dynamics Land Systems Division in
November 1983 following several incidents in which employees at the Detroit Arsenal
2. (Q.) Can a standard issued by the Secretary of Labor displace the statutory general duty
standard?
3. (Q.) If an employer knows that a specific standard will not protect its workers against a
particular hazard but can prove that it is in full compliance with the specific standard,
can the employer be held to be in violation of the general duty clause?
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Section 5(a)(1) will not be discharged no matter how faithfully he observes that
sta
11.3, Whirlpool Corporation v. Marshall, p. 377
1. (Q.)
supporting the structure?
(A.) After the June 18, 1974, incident where an employee fell to his death through the guard
2. (Q.)
(A.) The regulation of the Secretary of Labor protects employees from employer
3. (Q.)
duty clause?
(A.) uty clause requires an employer to furnish a workplace free
4. (Q.)
perform work in the face of imminent danger?
(A.) The Court points out that the regulation does not require the employer to pay
11.4, Ma
1. (Q.) What exception from the search warrant requirement does the Secretary of Labor urge
upon the Court as j
(A.) The exception from the search warrant requirement that the Secretary of Labor urges
Chapter 11 Occupational Safety and Health Law
2. (Q.) How does the Secretary of Labor respond to the argument that warrants are essential to
(A.) The Secretary of Labor responds to the argument that warrants are essential to protect
3. (Q.) In order to secure a warrant after this decision, must the Secretary demonstrate
probable cause to believe the conditions in violation of OSHA exist on the premises?
11.5, John Carlo, Inc. v. Secretary of Labor, p. 386
1. (Q.) Having bid the job based on six foot wide trenches and then discovering the gas line
obstruction which prevented the use of the top trench box, was it a reasonable risk for
the employer to utilize the 2 employees in the trench for just 15 minutes to lay one joint
of pipe?
Please review footnote 1 of this chapter. Construction accounted for 1226 fatal work
injuries in 2006, the most of any industry sector. Great strides have been made to
protect workers through industry standards developed by OSHA in this highly
dangerous sector. Taking chances or shortcuts in violation of OSHA standards, which
standards very often are devised after the occurrence of previous fatalities caused by
similar hazards on other worksites, is simply untenable.
2.
that the decision was in accordance with the law?
Chapter Questions and Problems, p. 390
1. (Q.) What is the stated purpose of the Occupational Safety and Health Act of 1970?
(A.) T
2. (Q.) Under what circumstances may the Secretary of Labor bypass the formalities of the
OSHA and create temporary emergency standards?
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(A.) The Secretary may bypass the formalities of the Act and create temporary emergency
3. (Q.) Distinguish between an occupational injury and an occupational illness under the OSH
Act.
(A.) Under the Act an occupational injury is any injury that results from a work-related
4. (Q.) What activities can a compliance officer undertake on an inspection tour?
(A.) On an inspection tour a compliance officer can observe conditions; take photos; make
5. [Protection from retaliation, Section 11.5.] The court found that Firestone had discriminated
against Frost since he reasonably and in good faith believed that going back to install a
permanent chute would expose him to a real danger of death or serious injury. The court
6. [Employer impeding the inspection process, Section 11.6.] The court found Metal Banks in
contempt. Through the Occupational Safety and Health Act OSHA is empowered by
Congress to conduct private employee interviews to obtain information from employees
7. [Violations at multiemployer job sites, Section 11.4.] The Court upheld the OSHRC finding,
ruling that De Trae may be found guilty of these violations even though the hazards were
created by another party. De Trae committed the violations by permitting its employees to
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8. [Warrantless search without employer consent, Section 11.6.] The administrative law judge ruled
that OSHA had conducted an unlawful warrantless search. Although includes an
9. [Impossibility defense, Section 11.7.] To establish the impossibility defense, an employer must
prove (a) that compliance with the OSHA standard would either be functionally impossible
or would preclude performance of required work and (b) that alternative means of
10. [Employer duties under the Act, Section 11.4.] The Court of Appeals found the general duty
clause of Section 5(a)(1) of the Act is violated when it is proven that the employer had, or
should have had, knowledge of a recognized hazard likely to cause injury or death. The
11. [Court review of OSHRC decisions, Section 11.7.] The factors that a court considers on review
re supported by substantial evidence and
whether the inference drawn from the evidence by the Commission is arbitrary or
capricious.
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12. [Plain view exception to warrant requirements, Section 11.6.] The evidence was not obtained
the warrant requirements. The secretary, an agent of Ackermann, had agreed to
13. [Overlapping jurisdiction, Section 11.8.] The Act specifically provides that OSHA is to have no
jurisdiction when another federal agency has prescribed safety and health rules affecting
working conditions [Section 11.8
preexisting Coast Guard (a fede -keeping
14. [Inspections: warrant requirements, Section 11.6; Citations and Penalties, Section 11.7.] The
earch was a violation of the
Fourth Amendment. Moreover, the Company contended that any violation was clearly not
willful.
A student discussion could focus on the exceptions to the rule