U.S. Supreme Court Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980) Whirlpool Corp. v.
Marshall No. 78-1870 Argued January 9,
1980 Decided February 26,
1980 445 U.S.
1 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH
CIRCUIT Syllabus Section 11(c)(1) of the Occupational Safety and Health Act of
1970 (Act) prohibits an employer from discharging or discriminating
against any employee who exercises "any right afforded by" the Act.
Respondent Secretary of Labor promulgated a regulation providing
that, among other rights protected by the Act, is the right of an
employee to choose not to perform his assigned task because of a
reasonable apprehension of death or serious injury coupled with a
reasonable belief that no less drastic alternative is available.
Claiming that a suspended wire mesh screen in petitioner's
manufacturing plant used to protect employees from objects
occasionally falling from an overhead conveyor was unsafe, two
employees of petitioner refused to comply with their foreman's
order to perform their usual maintenance duties on the screen. They
were then ordered to punch out without working or being paid for
the remainder of their shift, and subsequently received written
reprimands, which were placed in their employment files.
Thereafter, respondent brought suit in Federal District Court,
alleging that petitioner's actions against the two employees
constituted discrimination in violation of § 11(c)(1) of the Act,
and seeking injunctive and other relief. While finding that the
implementing regulation justified the employees' refusals to obey
their foreman's order, the District Court Page 445 U. S. 2 nevertheless denied relief, holding that the regulation was
inconsistent with the Act, and therefore invalid. The Court of
Appeals reversed and remanded, agreeing that the employees' actions
were justified under the regulation but disagreeing with the
conclusion that the regulation was invalid. Held: The regulation in question was promulgated by
respondent in the valid exercise of his authority under the Act,
and constitutes a permissible gloss on the Act, in light of the
Act's language, structure, and legislative history. Pp. 445 U. S.
8 -22.

															(a) The regulation clearly conforms to the Act's fundamental
objective of preventing occupational deaths and serious injuries.
Moreover, the regulation is an appropriate aid to the full
effectuation of the Act's "general duty" clause, which requires an
employer to furnish to each of his employees employment and a place
of employment free from recognized hazards that are causing or
likely to cause death or serious injury to the employees. The
regulation thus, on its face, appears to further the Act's
overriding purpose and rationally complements its remedial scheme.
Pp. 445 U. S.
11 -13.

															(b) The facts that Congress, at the time it was considering
passage of the Act, rejected a so-called "strike with pay"
provision (whereby an obligation would be imposed on employers to
continue to pay employees who absented themselves from work for
reasons of safety), and also rejected a provision that would have
given the Labor Department, in imminent danger situations, the
power temporarily to shut down all or part of an employer's plant,
do not indicate a congressional intent incompatible with an
administrative interpretation of the Act such as is embodied in the
regulation at issue. In contrast to the "strike with pay"
provision, the regulation does not require employers to pay workers
who refuse to perform assigned tasks in face of imminent danger,
but simply provides that, in such case, the employer may not
"discriminate" against the employees involved. And in contrast to
the "shutdown" provision, the regulation accords no authority to
Government officials, but simply permits private employees to avoid
workplace conditions that they believe pose grave dangers to their
own safety, and does not empower such employees to order their
employers to correct the hazardous condition. Pp. 445 U. S.
13 -21.

															593 F.2d 716, affirmed.

															STEWART, J., delivered the opinion for a unanimous Court. Page 445 U. S. 3 MR. JUSTICE STEWART delivered the opinion of the Court.

															The Occupational Safety and Health Act of 1970 (Act) [ Footnote 1 ] prohibits an employer from
discharging or discriminating against any employee who exercises
"any right afforded by" the Act. [ Footnote 2 ] The Secretary of Labor (Secretary) has
promulgated a regulation providing that, among the rights that the
Act so protects, is the right of an employee to choose not to
perform his assigned task because of a reasonable apprehension Page 445 U. S. 4 of death or serious injury coupled with a reasonable belief that
no less drastic alternative is available. [ Footnote 3 ] The question presented in the case before
us is whether this regulation is consistent with the Act. Page 445 U. S. 5 I The petitioner company maintains a manufacturing plant in
Marion, Ohio, for the production of household appliances. Overhead
conveyors transport appliance components throughout the plant. To
protect employees from objects that occasionally fall from these
conveyors, the petitioner has installed a horizontal wire-mesh
guard screen approximately 20 feet above the plant floor. This mesh
screen is welded to angle-iron frames suspended from the building's
structural steel skeleton.

															Maintenance employees of the petitioner spend several hours each
week removing objects from the screen, replacing paper spread on
the screen to catch grease drippings from the material on the
conveyors, and performing occasional maintenance work on the
conveyors themselves. To perform these duties, maintenance
employees usually are able to stand on the iron frames, but
sometimes find it necessary to step onto the steel mesh screen
itself.

															In 1973, the company began to install heavier wire in the screen
because its safety had been drawn into question. Several employees
had fallen partly through the old screen, and on one occasion an
employee had fallen completely through to the plant floor below,
but had survived. A number of maintenance employees had reacted to
these incidents by bringing the unsafe screen conditions to the
attention of their foremen. The petitioner company's
contemporaneous safety instructions admonished employees to step
only on the angle-iron frames.

															On June 28, 1974, a maintenance employee fell to his death
through the guard screen in an area where the newer, stronger Page 445 U. S. 6 mesh had not yet been installed. [ Footnote 4 ] Following this incident, the petitioner
effectuated some repairs and issued an order strictly forbidding
maintenance employees from stepping on either the screens or the
angle-iron supporting structure. An alternative, but somewhat more
cumbersome and less satisfactory, method was developed for removing
objects from the screen. This procedure required employees to stand
on power-raised mobile platforms and use hooks to recover the
material.

															On July 7, 1974, two of the petitioner's maintenance employees,
Virgil Deemer and Thomas Cornwell, met with the plant maintenance
superintendent to voice their concern about the safety of the
screen. The superintendent disagreed with their view, but permitted
the two men to inspect the screen with their foreman and to point
out dangerous areas needing repair. Unsatisfied with the
petitioner's response to the results of this inspection, Deemer and
Cornwell met on July 9 with the plant safety director. At that
meeting, they requested the name, address, and telephone number of
a representative of the local office of the Occupational Safety and
Health Administration (OSHA). Although the safety director told the
men that they "had better stop and think about what [they] were
doing," he furnished the men with the information they requested.
Later that same day, Deemer contacted an official of the regional
OSHA office and discussed the guard screen. [ Footnote 5 ] Page 445 U. S. 7 The next day, Deemer and Cornwell reported for the night shift
at 10:45 p.m. Their foreman, after himself walking on some of the
angle-iron frames, directed the two.men to perform their usual
maintenance duties on a section of the old screen. [ Footnote 6 ] Claiming that the screen was
unsafe, they refused to carry out this directive. The foreman then
sent them to the personnel office, where they were ordered to punch
out without working or being paid for the remaining six hours of
the shift. [ Footnote 7 ] The two
men subsequently received written reprimands, which were placed in
their employment files.

															A little over a month later, the Secretary filed suit in the
United States District Court for the Northern District of Ohio,
alleging that the petitioner's actions against Deemer and Cornwell
constituted discrimination in violation of § 11(c)(1) of the Act.
[ Footnote 8 ] As relief, the
complaint prayed, inter alia, that the petitioner be
ordered to expunge from its personnel files all references to the
reprimands issued to the two employees, and for a permanent
injunction requiring the petitioner to compensate the two employees
for the six hours of pay they had lost by reason of their
disciplinary suspensions.

															Following a bench trial, the District Court found that the
regulation in question [ Footnote
9 ] justified Deemer's and Cornwell's refusals to obey their
foreman's order on July 10, 1974. The court found that the two
employees had "refused to perform the cleaning operation because of
a genuine fear of death or serious bodily harm," that the danger
presented had been "real, and not something which [had] existed
only in the minds of the employees," that the employees had acted
in good faith, Page 445 U. S. 8 and that no reasonable alternative had realistically been open
to them other than to refuse to work. The District Court
nevertheless denied relief, holding that the Secretary's regulation
was inconsistent with the Act, and therefore invalid. Usery v.
Whirlpool Corp., 416 F. Supp.
30 , 32-34.

															The Court of Appeals for the Sixth Circuit reversed the District
Court's judgment. 593 F.2d 715. Finding ample support in the record
for the District Court's factual determination that the actions of
Deemer and Cornwell had been justified under the Secretary's
regulation, id. at 719, n. 5, [ Footnote 10 ] the appellate court disagreed with the
District Court's conclusion that the regulation is invalid. Id. at 721-736. It accordingly remanded the case to the
District Court for further proceedings. Id. at 73. We
granted certiorari, 444 U.S. 823, because the decision of the Court
of Appeals in this case conflicts with those of two other Courts of
Appeals on the important question in issue. See Marshall v.
Daniel Construction Co., 563 F.2d 707 (CA5 1977); Marshall
v. Certified Welding Corp., No. 77-2048 (CA10 Dec. 28, 1978).
That question, as stated at the outset of this opinion, is whether
the Secretary's regulation authorizing employee "self-help" in some
circumstances, 29 CFR § 1977.12(b)(2) (1979), is permissible under
the Act. II The Act itself creates an express mechanism for protecting
workers from employment conditions believed to pose an emergent
threat of death or serious injury. Upon receipt of an employee
inspection request stating reasonable grounds to believe that an
imminent danger is present in a workplace, Page 445 U. S. 9 OSHA must conduct an inspection. 29 U.S.C. § 657(f)(1). In the
event this inspection reveals workplace conditions or practices
that

															"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, [ Footnote 11 ] 29
U.S.C. § 662(a), the OSHA inspector must inform the affected
employees and the employer of the danger and notify them that he is
recommending to the Secretary that injunctive relief be sought. §
662(c). At this juncture, the Secretary can petition a federal
court to restrain the conditions or practices giving rise to the
imminent danger. By means of a temporary restraining order or
preliminary injunction, the court may then require the employer to
avoid, correct, or remove the danger or to prohibit employees from
working in the area. § 662(a). [ Footnote 12 ]

															To ensure that this process functions effectively, the Act
expressly accords to every employee several rights, the exercise of
which may not subject him to discharge or discrimination. An
employee is given the right to inform OSHA of an imminently
dangerous workplace condition or practice and request that OSHA
inspect that condition or practice. 29 U.S.C. Page 445 U. S. 10 § 657(f)(1). [ Footnote
13 ] He is given a limited right to assist the OSHA inspector in
inspecting the workplace, §§ 657(a)(2), (e), and (f)(2), and the
right to aid a court in determining whether or not a risk of
imminent danger in fact exists. See § 660(c)(1). Finally,
an affected employee is given the right to bring an action to
compel the Secretary to seek injunctive relief if he believes the
Secretary has wrongfully declined to do so. § 662(d).

															In the light of this detailed statutory scheme, the Secretary is
obviously correct when he acknowledges in his regulation 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. [ Footnote 14 ]"

															By providing for prompt notice to the employer of an inspector's
intention to seek an injunction against an imminently dangerous
condition, the legislation obviously contemplates that the employer
will normally respond by voluntarily and speedily eliminating the
danger. And in the few instances where this does not occur, the
legislative provisions authorizing prompt judicial action are
designed to give employees full protection in most situations from
the risk of injury or death resulting from an imminently dangerous
condition at the worksite.

															As this case illustrates, however, circumstances may sometimes
exist in which the employee justifiably believes that the express
statutory arrangement does not sufficiently protect him from death
or serious injury. Such circumstances will probably not often
occur, but such a situation may arise when (1) the employee is
ordered by his employer to work under conditions that the employee
reasonably believes pose an imminent risk of death or serious
bodily injury, and (2) the employee has reason to believe that
there is not sufficient time Page 445 U. S. 11 or opportunity either to seek effective redress from his
employer or to apprise OSHA of the danger.

															Nothing in the Act suggests that those few employees who have to
face this dilemma must rely exclusively on the remedies expressly
set forth in the Act at the risk of their own safety. But nothing
in the Act explicitly provides otherwise. Against this background
of legislative silence, the Secretary has exercised his rulemaking
power under 29 U.S.C. § 657(g)(2), and has determined that, when an
employee, in good faith, finds himself in such a predicament, he
may refuse to expose himself to the dangerous condition without
being subjected to "subsequent discrimination" by the employer.

															The question before us is whether this interpretative regulation
[ Footnote 15 ] constitutes a
permissible gloss on the Act by the Secretary in light of the Act's
language, structure, and legislative history. Our inquiry is
informed by an awareness that the regulation is entitled to
deference unless it can be said not to be a reasoned and
supportable interpretation of the Act. Skidmore v. Swift &
Co., 323 U. S. 134 , 323 U. S.
139 -140. See Ford Motor Credit Co. v.
Milhollin, 444 U. S. 555 ; Mourning v. Family Publications Service, Inc., 411 U. S. 356 . A The regulation clearly conforms to the fundamental objective of
the Act -- to prevent occupational deaths and serious injuries.
[ Footnote 16 ] The Act, in
its preamble, declares that its purpose Page 445 U. S. 12 and policy is

															"to assure so far as possible every working man and woman in the
Nation safe and healthful working conditions and to preserve our human resources; . . ."

															29 U.S.C. § 651(b). (Emphasis added.)

															To accomplish this basic purpose, the legislation's remedial
orientation is prophylactic in nature. See Atlas Roofing Co. v.
Occupational Safety and Health Review Comm'n, 430 U.
S. 442 , 430 U. S.
444 -445. The Act does not wait for an employee to die or
become injured. It authorizes the promulgation of health and safety
standards and the issuance of citations in the hope that these will
act to prevent deaths or injuries from ever occurring. It would
seem anomalous to construe an Act so directed and constructed as
prohibiting an employee, with no other reasonable alternative, the
freedom to withdraw from a workplace environment that he reasonably
believes is highly dangerous.

															Moreover, the Secretary's regulation can be viewed as an
appropriate aid to the full effectuation of the Act's "general
duty" clause. That clause provides that

															"[e]ach employer . . . Page 445 U. S. 13 shall furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing
or are likely to cause death or serious physical harm to his
employees."

															29 U.S.C. § 654(a)(1). As the legislative history of this
provision reflects, [ Footnote
17 ] it was intended itself to deter the occurrence of
occupational deaths and serious injuries by placing on employers a
mandatory obligation independent of the specific health and safety
standards to be promulgated by the Secretary. Since OSHA inspectors
cannot be present around the clock in every workplace, the
Secretary's regulation ensures that employees will, in all
circumstances, enjoy the rights afforded them by the "general duty"
clause.

															The regulation thus, on its face, appears to further the
overriding purpose of the Act, and rationally to complement its
remedial scheme. [ Footnote
18 ] In the absence of some contrary indication in the
legislative history, the Secretary's regulation must, therefore, be
upheld, particularly when it is remembered that safety legislation
is to be liberally construed to effectuate the congressional
purpose. United States v. Bacto-Unidisk, 394 U.
S. 784 , 394 U. S. 798 ; Lilly v. Grand Trunk R. Co., 317 U.
S. 481 , 317 U. S.
486 . B In urging reversal of the judgment before us, the petitioner
relies primarily on two aspects of the Act's legislative
history. Page 445 U. S. 14 1 Representative Daniels of New Jersey sponsored one of several
House bills that led ultimately to the passage of the Act.
[ Footnote 19 ] As reported to
the House by the Committee on Education and Labor, the Daniels bill
contained a section that was soon dubbed the "strike with pay"
provision. [ Footnote 20 ]
This section provided that employees could request an examination
by Page 445 U. S. 15 the Department of Health, Education, and Welfare (HEW) of the
toxicity of any materials in their workplace. If that examination
revealed a workplace substance that had "potentially toxic or
harmful effects in such concentration as used or found," the
employer was given 60 days to correct the potentially dangerous
condition. Following the expiration of that period, the employer
could not require that an employee be exposed to toxic
concentrations of the substance unless the employee was informed of
the hazards and symptoms associated with the substance, the
employee was instructed in the proper precautions for dealing with
the substance, and the employee was furnished with personal
protective equipment. If these conditions were not met, an employee
could

															"absent himself from such risk of harm for the period necessary
to avoid such danger without loss of regular compensation for such
period."

															This provision encountered stiff opposition in the House.
Representative Steiger of Wisconsin introduced a substitute bill
containing no "strike with pay" provision. [ Footnote 21 ] In response, Representative Daniels
offered a floor amendment that, among other things, deleted his
bill's "strike with pay" provision. [ Footnote 22 ] Page 445 U. S. 16 He suggested that employees instead be afforded the right to
request an immediate OSHA inspection of the premises, a right which
the Steiger bill did not provide. The House ultimately adopted the
Steiger bill. [ Footnote
23 ]

															The bill that was reported to, and, with a few amendments,
passed by, the Senate never contained a "strike with pay"
provision. [ Footnote 24 ] It
did, however, give employees the means by which they could request
immediate Labor Department inspections. [ Footnote 25 ] These two characteristics of the bill
were underscored on the floor of the Senate by Senator Williams,
the bill's sponsor. [ Footnote
26 ]

															After passage of the Williams bill by the Senate, it and the
Steiger bill were submitted to a Conference Committee. There, the
House acceded to the Senate bill's inspection request provisions.
[ Footnote 27 ]

															The petitioner reads into this legislative history a
congressional intent incompatible with an administrative
interpretation of the Act such as is embodied in the regulation at
issue in this case. The petitioner argues that Congress'
overriding Page 445 U. S. 17 concern in rejecting the "strike with pay" provision was to
avoid giving employees a unilateral authority to walk off the job
which they might abuse in order to intimidate or harass their
employer. Congress deliberately chose instead, the petitioner
maintains, to grant employees the power to request immediate
administrative inspections of the workplace which could, in
appropriate cases, lead to coercive judicial remedies. As the
petitioner views the regulation, therefore, it gives to workers
precisely what Congress determined to withhold from them

															We read the legislative history differently. Congress rejected a
provision that did not concern itself at all with conditions posing
real and immediate threats of death or severe injury. The remedy
which the rejected provision furnished employees could have been
invoked only after 60 days had passed following HEW's inspection
and notification that improperly high levels of toxic substances
were present in the workplace. Had that inspection revealed
employment conditions posing a threat of imminent and grave harm,
the Secretary of Labor would presumably have requested, long before
expiration of the 60-day period, a court injunction pursuant to
other provisions of the Daniels bill. [ Footnote 28 ] Consequently, in rejecting the Daniels
bill's "strike with pay" provision, Congress was not rejecting a
legislative provision dealing with the highly perilous and
fast-moving situations covered by the regulation now before us.

															It is also important to emphasize that what primarily troubled
Congress about the Daniels bill's "strike with pay" provision was
its requirement that employees be paid their regular salary after
having properly invoked their right to refuse to work under the
section. [ Footnote 29 ] It is
instructive that virtually Page 445 U. S. 18 every time the issue of an employee's right to absent himself
from hazardous work was discussed in the legislative debates, it
was in the context of the employee's right to continue to receive
his usual compensation. [ Footnote 30 ]

															When it rejected the "strike with pay" concept, therefore,
Congress very clearly meant to reject a law unconditionally
imposing upon employers an obligation to continue to pay Page 445 U. S. 19 their employees their regular paychecks when they absented
themselves from work for reasons of safety. But the regulation at
issue here does not require employers to pay workers who refuse to
perform their assigned tasks in the face of imminent danger. It
simply provides that, in such cases, the employer may not
"discriminate" against the employees involved. An employer
"discriminates" against an employee only when he treats that
employee less favorably than he treats others similarly situated.
[ Footnote 31 ] 2 The second aspect of the Act's legislative history upon which
the petitioner relies is the rejection by Congress of provisions
contained in both the Daniels and the Williams bills that would
have given Labor Department officials, in imminent danger
situations, the power temporarily to shut down all or part of an
employer's plant. [ Footnote
32 ] These provisions aroused considerable Page 445 U. S. 20 opposition in both Houses of Congress. The hostility engendered
in the House of Representatives led Representative Daniels to
delete his version of the provision in proposing amendments to his
original bill. [ Footnote 33 ]
The Steiger bill that ultimately passed the House gave the Labor
Department no such authority. [ Footnote 34 ] The Williams bill, as approved by the
Senate, did contain an administrative shutdown provision, but the
Conference Committee rejected this aspect of the Senate bill.
[ Footnote 35 ] The petitioner
infers from these events a congressional will hostile to the
regulation in question here. The regulation, the petitioner argues,
provides employees with the very authority to shut down an
employer's plant that was expressly denied a more expert and
objective United States Department of Labor. As we read the
pertinent legislative history, however, the petitioner misconceives
the thrust of Congress' concern. Those in Congress who prevented
passage of the administrative Page 445 U. S. 21 shutdown provisions in the Daniels and Williams bills were
opposed to the unilateral authority those provisions gave to
federal officials, without any judicial safeguards, drastically to
impair the operation of an employer's business. [ Footnote 36 ] Congressional opponents also
feared that the provisions might jeopardize the Government's
otherwise neutral role in labor-management relations. [ Footnote 37 ]

															Neither of these congressional concerns is implicated by the
regulation before us. The regulation accords no authority to
Government officials. It simply permits private employees of a
private employer to avoid workplace conditions that they believe
pose grave dangers to their own safety. The employees have no power
under the regulation to order their employer to correct the
hazardous condition or to clear the dangerous workplace of others.
Moreover, any employee who acts in reliance on the regulation runs
the risk of discharge or reprimand in the event a court
subsequently finds that he acted unreasonably or in bad faith. The
regulation, therefore, does not remotely resemble the legislation
that Congress rejected. Page 445 U. S. 22 C For these reasons we conclude that 29 CFR § 197712(b)(2) (1979)
was promulgated by the Secretary in the valid exercise of his
authority under the Act. Accordingly, the judgment of the Court of
Appeals is affirmed. It is so ordered. [ Footnote 1 ]

															84 Stat. 1590, as amended, 92 Stat. 183, 29 U.S.C. § 651 et
seq. (1976 ed. and Supp. II).

															[ Footnote 2 ]

															Section 11(c)(1) of the Act, 84 Stat. 1603, 29 U.S.C. §
660(c)(1), provides in full:

															"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 this Act 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 this Act."

															[ Footnote 3 ]

															The regulation, 29 CFR § 1977.12 (1979), provides in full:

															"(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
t.he 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 t.he 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."

															[ Footnote 4 ]

															As a result of this fatality, the Secretary conducted an
investigation that led to the issuance of a citation charging the
company with maintaining an unsafe walking and working surface in
violation of 29 U.S.C. § 654(a)(1). The citation required immediate
abatement of the hazard and proposed a $600 penalty. Nearly five
years following the accident, the Occupational Safety and Health
Review Commission affirmed the citation, but decided to permit the
petitioner six months in which to correct the unsafe condition. Whirlpool Corp., 1979 CCH OSHD 23,552. A petition to
review that decision is pending in the United States Court of
Appeals for the District of Columbia Circuit.

															[ Footnote 5 ]

															The record does not disclose the substance of this conversation
beyond the fact that it concerned the safety of the guard
screen.

															[ Footnote 6 ]

															This order appears to have been in direct violation of the
outstanding company directive that maintenance work was to be
accomplished without stepping on the screen apparatus.

															[ Footnote 7 ]

															Both employees apparently returned to work the following day
without further incident.

															[ Footnote 8 ] See n 2, supra. [ Footnote 9 ] See n 3, supra. [ Footnote 10 ]

															In its petition for certiorari, the petitioner did not cite this
aspect of the Court of Appeals' decision as raising a question for
review. Accordingly, the issue of whether the regulation covers the
particular circumstances of this case is not before the Court. This
Court's Rule 23(1)(c); General Pictures Co. v. Electric
Co., 304 U. S. 175 , 304 U. S.
177 -179.

															[ Footnote 11 ]

															These usual enforcement procedures involve the issuance of
citations and imposition of penalties. When an OSHA inspection
reveals a violation of 29 U.S.C. § 654 or of any standard
promulgated under the Act, the Secretary may issue a citation for
the alleged violation, fix a reasonable time for the dangerous
condition's abatement, and propose a penalty. §§ 658(a), 659(a),
666. The employer may contest the citation and proposed penalty. §§
659(a), (c). Should he do so, the effective date of the abatement
order is postponed until the completion of all administrative
proceedings initiated in good faith. §§ 659(b), 666(d). Such
proceedings may include a hearing before an administrative law
judge and review by the Occupational Safety and Health Review
Commission. §§ 659(c), 661(i) .

															[ Footnote 12 ]

															Such an order may continue pending the consummation of the Act's
normal enforcement proceedings. § 662(b).

															[ Footnote 13 ]

															Should the Secretary determine that "there are no reasonable
grounds to believe that a violation or danger exists he shall
notify the employe[e] . . . of such determination." §
657(f)(1).

															[ Footnote 14 ] See n 3, supra. [ Footnote 15 ]

															The petitioner has raised no issue concerning whether or not
this regulation was promulgated in accordance with the procedural
requirements of the Administrative Procedure Act (APA), 5 U.S.C. §
553. Thus, we accept the Secretary's designation of the regulation
as "interpretative," and do not consider whether it qualifies as an
"interpretative rule" within the meaning of the APA, 5 U.S.C. §
553(b)(A).

															[ Footnote 16 ]

															The Act's legislative history contains numerous references to
the Act's preventive purpose and to the tragedy of each individual
death or accident. See, e.g., S.Rep. No. 91-1282, p. 2
(1970) (hereinafter S.Rep.), Leg.Hist. 142; 116 Cong.Rec. 37628
(1970), Leg.Hist. 516-517 (Sen. Nelson); 116 Cong.Rec. 37628, 37630
(1970), Leg.Hist. 518, 522 (Sen. Cranston); 116 Cong.Rec. 37630
(1970), Leg.Hist. 522-523 (Sen. Randolph); H.R.Rep. No. 91-1291,
pp. 14, 23 (1970) (hereinafter H.R.Rep.), Leg.Hist. 844, 853; 116
Cong.Rec. 38366 (1970), Leg.Hist. 978 (Rep. Young); 116 Cong.Rec.
38367-38368 (1970), Leg.Hist. 981 (Rep. Anderson); 116 Cong.Rec.
38386 (1970), Leg.Hist. 1031, 1032 (Rep. Dent); 116 Cong.Rec. 42203
(1970), Leg.Hist. 1210 (Rep. Daniels). As stated by Senator
Yarborough, a sponsor of the Senate bill:

															"We are talking about people's lives, not the indifference of
some cost accountants. We are talking about assuring the men and
women who work in our plants and factories that they will go home
after a day's work with their bodies intact."

															116 Cong.Rec. 37625 (1970), Leg.Hist. 510.

															House and Senate debates are reprinted, along with the House,
Senate, and Conference Report.s, in a one-volume Committee Print
entitled Legislative History of the Occupational Safety and Health
Act of 1970, Subcommittee on Labor of the Senate Committee on Labor
and Public Welfare, 92d Cong., 1st Sess. (June 1971) (cited supra, and hereafter as Leg.Hist.) .

															[ Footnote 17 ] See S.Rep. 9-10, Leg.Hist. 149-150; H.R.Rep. 21-22,
Leg.Hist. 851-852.

															[ Footnote 18 ]

															It is also worth noting that the Secretary's interpretation of
29 U.S.C. § 660(c)(1) conforms to the interpretation that Congress
clearly wished the courts to give to the parallel
antidiscrimination provision of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1976 ed. and Supp.
II). The legislative history of that provision, 30 U.S.C. §
815(c)(1) (1976 ed., Supp. II), establishes that Congress intended
it to protect "the refusal to work in conditions which are believed
to be unsafe or unhealthful." S.Rep. No. 95-181, p 35 (1977). See id. at 36; 123 Cong.Rec. 20043-20044 (1977) (remarks
of Sen. Church, Sen. Williams, Sen. Javits).

															[ Footnote 19 ]

															H.R. 16785, 91st Cong., 2d Sess. (1970), Leg.Hist. 893-976 (bill
as reported to the House). See H.R.Rep. Leg.Hist. 831.

															[ Footnote 20 ]

															Section 19(a)(5) of H.R. 16785, supra, Leg.Hist.
969-970 (as reported to the House floor) provided in relevant
part:

															"The Secretary of Health, Education, and Welfare shall publish .
. . a list of all known or potentially toxic substances and the
concentrations at which such toxicity is known to occur; and shall
determine following a request by any employer or authorized
representative of any group of employees whether any substance
normally found in the working place has potentially toxic or
harmful effects in such concentration as used or found; and shall
submit such determination both to employers and affected employees
as soon as possible. Within sixty days of such determination by the
Secretary of Health, Education, and Welfare of potential toxicity
of any substance, an employer shall not require any employee to be
exposed to such substance designated above in toxic or greater
concentrations unless it is accompanied by information, made
available to employees, by label or other appropriate means, of the
known hazards or toxic or long-term ill effects, the nature of the
substance, and the signs, symptoms, emergency treatment and proper
conditions and precautions of safe use, and personal protective
equipment is supplied which allows established work procedures to
be performed with such equipment, or unless such exposed employee
may absent himself from such risk of harm for the period necessary
to avoid such danger without loss of regular compensation for such
period."

															The Committee Report explained the provision as follows:

															"There is still a real danger that an employee may be
economically coerced into self-exposure in order to earn his
livelihood, so the bill allows an employee to absent himself from
that specific danger for the period of its duration without loss of
pay. . . . Nothing herein restricts t.he right of the employer,
except as he is obligated under other agreements, to assign a
worker to other nonprohibited work during this time. This should
eliminate possible abuse by allowing the employer to avoid payment
for work not performed."

															H.R.Rep. 30, Leg.Hist. 860.

															[ Footnote 21 ]

															H.R.19200, 91st Cong., 2d Sess. (1970), Leg.Hist. 763-830 (bill
as originally introduced). See H.Res. 1218, 91st Cong., 2d
Sess. (1970), Leg.Hist. 977.

															[ Footnote 22 ]

															116 Cong.Rec. 38376, 38377-38378, 38707 (1970), Leg.Hist. 1004,
1005, 1008-1009, 1071 (Rep. Daniels). See 116 Cong.Rec.
38369 (1970), Leg.Hist. 986 (Rep. Perkins). Representative Daniels
explained to the House why he was proposing his amendment:

															"The provision 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. 38377-38378 (1970), Leg.Hist. 1009.

															[ Footnote 23 ]

															116 Cong.Rec. 38715 (teller vote), 38723-38724 (roll-call vote)
(1970), Leg.Hist. 1091, 1112-1115.

															Representative Daniels' proposed amendments were never acted
upon. His original bill was voted down in favor of the Steiger
bill. See 116 Cong.Rec. 38704-38705 (1970), Leg.Hist. 1064
(the Chairman and Rep. Perkins); 116 Cong.Rec. 38707 (1970),
Leg.Hist 1072 (Rep. O'Hara).

															[ Footnote 24 ]

															S. 2193, 91st Cong., 2d Sess. (1970), Leg.Hist. 204-295 (bill as
reported to Senate by Senate Committee on Labor and Public
Welfare). See S.Rep.Leg.Hist. 141.

															[ Footnote 25 ] See S. 2193, supra, § 8(f)(1), Leg.Hist.
252-253.

															[ Footnote 26 ]

															"[D]espite some wide-spread contentions to the contrary, . . .
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."

															116 Cong.Rec. 37326 (1970), Leg.Hist. 416.

															[ Footnote 27 ]

															H.R.Conf.Rep. No. 91-1765, pp. 37-38 (1970), Leg.Hist. 1190
1191. See 29 U.S.C. § 657(f).

															[ Footnote 28 ] See H.R. 16785, supra, n 19, § 12(b), Leg.Hist. 956 (bill as reported to
House).

															[ Footnote 29 ]

															Congress' concern necessarily was with the provision's
compensation requirement. The law then, as it does today, already
afforded workers a right, under certain circumstances, to walk off
their jobs when faced with hazardous conditions. See 116
Cong.Rec. 42208 (1970), Leg.Hist. 12231224 (Rep. Scherle)
(reference to Taft-Hartley Act). Under Section 7 of the National
Labor Relations Act, 29 U.S.C. § 157, employees have a protected
right to strike over safety issues. See NLRB v. Washington
Aluminum Co., 370 U. S. 9 .
Similarly, Section 502 of the Labor Management Relations Act, 29
U.S.C. § 143, provides that

															"the quitting of labor by an employee or employees in good faith
because of abnormally dangerous conditions for work at the place of
employment of such employee or employees [shall not] be deemed a
strike."

															The effect of this section is to create an exception to a
no-strike obligation in a collective bargaining agreement. Gateway Coal Co. v. Mine Workers, 414 U.
S. 368 , 414 U. S.
385 .

															The existence of these statutory rights also makes clear that
the Secretary's regulation does not conflict with the general
pattern of federal labor legislation in the area of occupational
safety and health. See also 29 CFR § 1977.18 (1979).

															[ Footnote 30 ] See 116 Cong.Rec. 37326 (1970), Leg.Hist. 416 (Sen.
Williams); 116 Cong.Rec. 38369 (1970), Leg.Hist. 986 (Rep.
Perkins); 116 Cong.Rec. 38376, 38377-38378, 38707 (1970), Leg.Hist.
1005, 1009, 1071 (Rep. Daniels); 116 Cong.Rec. 38379 (1970),
Leg.Hist. 1011 (Rep. Randall); 116 Cong.Rec. 38391 (1970),
Leg.Hist. 1046 (Rep. Feighan); 116 Cong.Rec. 38714 (1970),
Leg.Hist. 1089 (Rep. Horton).

															The petitioner cites two passages in the legislative debates
that, at first blush, appear to suggest that Congress was also
concerned with employee walkouts not accompanied by pay. One is a
statement by Representative Cohelan, a supporter of the Daniels
bill, that

															"a comprehensive occupational safety and health program . . .
must permit the worker to leave his post whenever and wherever
conditions exist that endanger his health or safety."

															116 Cong.Rec. 38375 (1970), Leg.Hist. 1001. The other is a
statement by another Member that the Daniels bill did not authorize
"strikes without pay." 116 Cong.Rec. 38708 (1970), Leg.Hist. 1075.
Read in context, however, it is clear that both statements were
referring to the "strike with pay" provision contained in the
Daniels bill.

															[ Footnote 31 ]

															Deemer and Cornwell were clearly subjected to "discrimination"
when the petitioner placed reprimands in their respective
employment files. Whether the two employees were also discriminated
against when they were denied pay for the approximately six hours
they did not work on July 10, 1974, is a question not now before
us. The District Court dismissed the complaint without indicating
what relief it thought would have been appropriate had it upheld
the Secretary's regulation. The Court of Appeals expressed no view
concerning the limits of the relief to which the Secretary might
ultimately be entitled. On remand, the District Court will reach
this issue.

															[ Footnote 32 ]

															The version contained in the Daniels bill would have authorized
the Secretary to issue a shutdown order of no more than five days'
duration. See H.R. 16785, supra, n 19, § 12(a), Leg.Hist. 955-956 (bill as
reported to the House); H.R.Rep. 25, Leg.Hist. 855.

															As reported to the Senate, the version contained in the Williams
bill limited the permissible duration of the administrative order
to 72 hours, and required that a Regional Director of the Labor
Department concur in the order. S. 2193, supra, n 24, § 11(b), Leg.Hist. 263-264. See S.Rep. 12-13, Leg.Hist. 152-153; S.Rep. 56-57,
Leg.Hist.195-196 (individual views of Sen. Javits). On the floor of
the Senate, amendments were adopted that would have required the
Labor Department official authorizing the inspector's actions to be
an official appointed with the advice and consent of the Senate and
that would have mandated that the employer be given prior notice of
the reasons for the shutdown. 116 Cong.Rec. 37621-37622 (1970),
Leg.Hist. 499-500; 116 Cong.Rec. 37624-37625 (1970), Leg.Hist.
508-509. See S. 2193, supra, n 24, § 12(b), Leg.Hist. 562-563 (bill as passed
by Senate).

															[ Footnote 33 ]

															116 Cong.Rec. 38372, 38376, 38378, 38707 (1970), Leg.Hist. 913,
1005, 1009-1010, 1011, 1071 (Rep. Daniels). As Representative
Daniels explained:

															"[B]usiness 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."

															116 Cong.Rec. 38378 (1970), Leg.Hist. 1009-1010.

															[ Footnote 34 ]

															H.R.19200, supra, n 21, § 12, Leg.Hist. 796-798.

															[ Footnote 35 ]

															H.R.Conf.Rep. No. 91-1765, supra, n 27, at 40, Leg.Hist. 1193.

															[ Footnote 36 ] See 116 Cong.Rec. 35607, 37602 (1970), Leg.Hist. 299,
452-453 (Sen. Saxbe); 116 Cong.Rec. 37338 (1970), Leg.Hist. 425
(Sen. Dominick); 116 Cong.Rec. 37602 (1970), Leg.Hist. 453-454
(Sen. Schweiker); 116 Cong.Rec. 41763 (1970), Leg.Hist. 1149 (Sen.
Prouty); H.R.Rep. 55-57, Leg.Hist. 885-887 (minority report); 116
Cong.Rec. 38368 (1970), Leg.Hist. 983 (Rep. Anderson); 116
Cong.Rec. 38372, 38702 (1970), Leg.Hist. 992, 1058 (Rep. Steiger) ;
116 Cong.Rec. 38378-38379 (1970), Leg.Hist. 1011-1012 (Rep.
Randall); 116 Cong.Rec. 38393 (1970), Leg.Hist. 1050 (Rep. Michel);
116 Cong.Rec. 38394 (1970), Leg.Hist. 1052 (Rep. Broomfield); 116
Cong.Rec. 38704 (1970), Leg.Hist. 1062 (Rep. Sikes); 116 Cong.Rec.
38713 (1970), Leg.Hist. 1087 (Rep. Robison); 116 Cong.Rec. 42203
(1970), Leg.Hist. 1210 (Rep. Daniels).

															[ Footnote 37 ] See 116 Cong.Rec. 37346 (1970), Leg.Hist. 448 (Sen.
Tower); H.R.Rep. 55-57, Leg.Hist. 885-887 (minority report); 116
Cong.Rec. 38393 (1970), Leg.Hist. 1050 (Rep. Michel). Some of these
Members of Congress expressed particular fears over the possible
pressures which might be brought to bear on an inspector during a
strike.