On the Right To Refuse Unsafe Work

Organized workers have the right to refuse unsafe work under the National Labor Relations Act (NLRA), and all workers have that right under OSHA. But in both cases the right is a conditional one. Before refusing to do a job, a worker must be sure that the required conditions listed below are satisfied:

  • Under OSHA, the worker must have a reasonable belief, based on what he or she knew at the time of refusing, that there was a real danger of serious physical injury, even if it is later found that there was no immediate danger.

  • The danger was so great that the worker could not wait for an OSHA inspector before refusing to do the job.

    It helps the case if the employee has volunteered to do another "safe" job in the interim. The worker should stay near the job site unless ordered to leave by the employer. Also, an OSHA inspection should be immediately requested at the time the job is refused.

    What if you get fired?

    If the employer fires the worker or initiates disciplinary action because of the refusal, employees must file an II(c) discrimination complaint with OSHA within 30 days.

    In theory, the II(c) clause protects workers against retaliation for exercising their safety and health rights. In practice, though, it simply doesn't work. Workers who file an II(c) complaint must depend upon the federal government to investigate and prosecute their case in federal district court. The process can take months to years, and according to a 1989 study by the GAG, less than 20 percent of these cases are resolved or prosecuted. An analysis of II(c) complaints in New York City revealed that not one case out of 51 filed by workers in 1991 was settled in favor of the worker.

    What about "Concerted Action"?

    The rules of the National Labor Relations Board (NLRB) protect the right to take "concerted action" such as refusing to work to protest unsafe conditions.

    "Concerted action" means that two or more workers or an individual act in order to protect other workers, even though the others may disagree with the action.

    Under Section 502 of the NLRA, workers can only refuse to work if the conditions are "abnormally dangerous." As with OSHA, this does not mean that the worker has to be correct about the degree of danger. But at the time of refusal, there must have been evidence which would have made other "reasonable" people believe there was a danger.

    But the Board has rarely upheld this right. In fact, in the 40-plus years since the passage of Section 502, the Board has found "abnormally dangerous" working conditions in only six contested cases.

    In each of these cases the workers had to objectively prove that "tangible and immediate physical dangers" existed at the worksite. Also, the dangers had to be "substantially greater than those presented by normally existing conditions" to justify stopping work - a heavy burden indeed.

    Caution.

    Caution is the watchword for refusing unsafe work. It could take a long time for you to win your rights. Success is not guaranteed. OCAW recommends that employees punished or fined for refusing an unsafe job file a grievance, as well as complaints, with both OSHA and the NLRB.

    Source: OCAW Reporter, July-August, 1987; and TNS, Inc. and OCAW, 309 NLRB.

    Hazardous Materials Workbook, OCAW/ Labor Institute
    New York, Apex Press, 1996, pp.379-80.