On Nov. 21, 1974, winds up to 23 miles an hour began to blow on iron workers who were connecting structural steel on a power plant skeleton in Carrolton, Ga.
"Let's go to the ground," Jimmy Simpson told the four men in his crew. "It's too windy." They came down from a height of about 50 feet, finding that another crew had preceded them.
A foreman told Simpson to go back up or loose his job. "You go back up or you get your money," Simpson recalls being told. He says he alone was given such an ultimatum.
He was 22, married, a father. He had given up trying to make a living as a farmer in Owensboro, Ky. He was being paid $7.25 an hour.
Even without strong winds, or occasional orders to work on wet or icy steel, the work was dangerous. One Saturday morning, a friend had been killed while working on the skeleton with him.
Simpson turned in his badge and hardhat, collected his money from the Daniel Consturction Co., which is based in Jacksonville, Fla., and, three years after he'd left he returned to grow tobacco, corn, beans and hogs.
He was surprised to learn, in a telephone interview with a reporter, that his firing has brought to the Supreme Court for the first time this question:
Does the Occupational Safety and Health Act of 1970 empower the Labor Department to prohibit retaliation against workers for refusing "to perform particular tasks believed to present an immediate danger to life or limb?"
The department knows of relatively few cases like Simpsons. In fiscal year 1977, after investigation showed a large number of complaints to be unsubstantiated, it knew of about 70 workers who were "justified" in complaining that they had been fired or otherwise penalized for refusing to do tasks that would put them in "imminient peril."
But department sources suspect that the 70 cases - some of which have reached the lower courts - were just the tip of the iceberg.
The problem in the construction industry may be particularly acute. That's because pressures to meet deadlines or incur financial penalties must sometimes "tempt" contractors to disregard unsafe conditions, Solicitor General Wade H. McCee Jr. says in a petition filed in the court.
The issue rises from a department regulation intended to implement a section of the law saying, "No person shall discharge or in any manner discriminate against any employe" who exercises "any right afforded by this act."
The regulation says that, "as a general matter," nothing in the legislative history shows a congressional intent to give employes a right "to walk off the job because of potential unsafe conditions at the workplace."
This generalization is qualified, however, for the employe who is confronted with what McCree calls "the cruel choice" between his safety and his job. If he "refuses in good faith to expose himself to the dangerous condition," the regulation says, "he would be protected against subsequent discrimination." The rule adds:
"The conditions . . . must be of such a nature that a reasonable person . . . would conclude that there is a real danger . . . 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 the case of Jimmy Simpson, U.S. District Court Judge Arthur J. Monderson Jr. dismissed the complaint brought by the secretary of labor.
The law did not authorize the regulation, Henderson said. Specifically he ruled, Congress provided an "exclusive method" for a worker who claims an imminent danger exists: he can request the department to make an immediate inspection.
Rejecting arguments that such a remedy may be inadequate. Henderson said that a court can't expand or rewrite legislation passed by Congress."
Last November, a divided 5th U.S. Circuit Court of Appeals affirmed. For the 2-to-1 majority, Judge Charles Clark wrote that "the regulation is invalid because it is beyond the secretary's grant of authority." Moreover, he said, its effect would be to give employes a power to stop a business from operating - a power that Congress entrusted solely to the courts.
By contrast, the dissenter, Judge John Minor Wisdom, saw the regulation "as an essential part of the employe enforcement envisioned by Congress."
The effect of the ruling "is to force an antisocial dilemma on workers who face an imminent danger . . . and have no immediate relief available but to continue working in an unsafe place." Wisdom wrote. The regulation is "one of the 'other rights' . . . to safe conditions implicit in the entire law," he said.
In the government petition for review of the appellate decision, Solicitor General McCree termed it "self-evident that conceding to workers a right to refuse work in perilous conditions . . . would create an additional incentive to correct safety hazards."
He declared it "most important" that workers have "a limited right to self-help . . . to deal with extreme situations for which the administrative and judicial processes are too slow . . ."
The appeals court not only defeated the goal of safe employment in such cases, but also erred by finding in the evidence conclusive reason to run counter to the law's "central purpose" of assuring safe working conditions, McCree contended.Neither the text nor the legislative history of the law denies to the secretary "the very limited right" recognized by the regulation, he said.