From Docks to Doctor Offices After 9/11: Refusing to Work Under "Abnormally Dangerous Conditions"
Michael H. LeRoy
University of Illinois College of Law
Administrative Law Review, Vol. 56, No. 3, 2004
Section 502 of the Labor-Management Relations Act (LMRA) allows employees to stop working if they face "abnormally dangerous conditions," and a rule under the Occupational Safety and Health (OSH) Act creates an employee right to refuse work because of "apprehension of death or injury." Using a hypothetical scenario, I show that neither law would assist emergency workers who lack protective gear while responding to a terror attack.
I propose an NLRB rule to strengthen Section 502, a 1947 law that is dormant but appropriate for these abnormal workplace dangers. Although part of my proposal draws on the experiences of 9/11, it is mainly founded on fundamental changes in job duties and government employment regulations that recognize a permanent threat to domestic security. The growing list of affected occupations includes dockworkers and doctors, subway and airport workers, power plant and postal employees, and more. However, my proposal excludes police, firefighters, and most paramedics. They perform immediate lifesaving services, and in any event, are excluded from the NLRB's jurisdiction because they are public employees.
My proposal draws from the fruitless experience of appellate court decisions on Section 502. This caselaw is conflicted because courts disagree as to whether an employee must present proof in fact of an extreme risk, or be motivated by good faith belief. My proposal is also based on the intent of the drafters of Section 502. The two sponsors of this law were Republican senators who strongly opposed union interests. However, when proposing this law in the midst of enacting strike controls, they said "it would be very unfair and very unjust to employees in any industry to penalize them, if, because of abnormal or unusually dangerous conditions, they should refrain from working."
Using evidence from recent GAO reports and other studies, I show that new types of emergency workers are poorly trained and equipped. For the few who train for a cataclysmic attack, their simulations are unrealistic. These employees who, in their routine jobs do little or no life-threatening work are not trained for their own fear and panic. Thus, there is too little attention to the possibility that these essential workers will refuse orders when their lives are endangered.
By breathing life into Section 502, the NLRB would join the large circle of federal and state agencies that are currently immersed in this emergency planning. The purpose of my Article is not to spare a few careers that might otherwise be lost in a poor response to an attack. If these newly designated or de facto emergency workers are not extended a work refusal right, their employers will continue to be lax in improving protective equipment, communication systems, bio-terror inoculations, and work procedures. In the final analysis, proper training and protection of these new emergency workers is essential to deter, prevent, respond to, and mitigate an attack.
Number of Pages in PDF File: 89
Keywords: Terrorism, Disaster Planning, Public Health, Work Conditions, Strikes, Work Refusal
JEL Classification: H56, I18, I00, I18, I19, K31, K32, L52
Date posted: June 22, 2007