1. Was the supervisor’s order to perform maintenance duties on the old section of the screen contrary to the company’s directive not to step on the screen or the angle iron supporting the structure?
2. Summarize the protection afforded employees by the Secretary’s regulation.
3. Does the Secretary of Labor’s regulation aid in giving full effect to the OSHA’s general duty clause?
4. Does the Secretary’s regulation require the employer to pay employees who refuse to perform work in the face of imminent danger?

[Virgil Deemer and Thomas Cornwell, employees at the Whirlpool Corporation's plant in Marion, Ohio, refused to comply with a supervisor's order that they perform maintenance work on certain mesh screens located some 20 feet above the plant floor. Twelve days before this incident a fellow employee had fallen to his death from the screens. After the refusal, the men were ordered to punch out and leave the plant. They were not paid for the remaining six hours of their shift, and written reprimands for insubordination were placed in their employment files. Section 11(c)(1) of the Occupational Safety and Health Act provides that no employer shall discharge or in any manner discriminate against an employee because the employee filed a complaint with OSHA or testified in any OSHA proceeding or exercised any right afforded by the Act. A regulation issued by the Secretary of Labor under the Act provides that an employee with no reasonable alternative who refuses in good faith to be exposed to a dangerous condition will be protected against subsequent discrimination.
The Secretary of Labor filed suit in U.S. district court against Whirlpool, contending that Whirlpool's actions against Deemer and Cornwell constituted "discrimination" under the Secretary's regulation and Section 11(c)(1) of the Act.
Whirlpool contended that the regulation encouraged workers to engage in "self-help" and unlawfully permitted a "strike with pay." The court held that the Secretary's regulation was inconsistent with the Act and denied relief. The U.S. court of appeals reversed this decision, and Whirlpool appealed.]
STEWART, J.…
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 foreman.
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 mesh had not yet been installed. 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 at 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.
The next day, Deemer and Cornwell reported for the night shift at 10:45 PM. 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. 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. The two men subsequently received written reprimands, which were placed in their employment files.…
… [C]ircumstances 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 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 rule making 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 regulation clearly conforms to the fundamental objective of the Act-to prevent occupational deaths and serious injuries. The Act, in its preamble, declares that its purpose 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 Comm'n, 430 U.S. 422. 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.