Whistleblower protection in the Whirlpool safety case

Whirlpool

Objective Standard

The objective facts are as follows: in 1973, several plant workers fell partway through the screen. One worker fell through to the floor of the plant below but survived. Afterward, Whirlpool began replacing the screen with heavier wire mesh, but a maintenance employee fell to his death in 1974 through a portion of the screen that had not been replaced. The company responded by making additional repairs and forbidding employees to stand on the angle-iron frame or step onto the screen. An alternative method for retrieving dropped objects was devised using hooks. Workers then were forbidden from walking on the wire mesh.

However, Virgil Deemer and Thomas Cornwell, two maintenance workers felt things were not safe. On July 7, 1974, they met with the plant maintenance supervisor to express their concern about the safety of the screen. At a meeting with the plant safety director two days later, they requested the name, address, and telephone number of a representative in the local office of the Occupational Safety and Health Administration. The safety director warned the men that they "had better stop and think about what they were doing," but he gave them the requested information. Deemer called the OSHA representative later that day to discuss the problem. They refused to do routine maintenance work over an old section of the screen, claiming that the work was unsafe. The foreman ordered the two employees to punch out. They lost wages for the six hours that they did not work that night and received written reprimands that were placed in their personnel files.

Reasonable Person Standard

The reasonable person (historically reasonable man) is a legal fiction of that represents an objective standard against which any individual's understanding or conduct can be measured. It is used to determine intent, or if a breach of the standard of care has occurred, provided a duty of care can be proven. The reasonable person is also a standard that holds: each person owes a duty to behave as a reasonable person would under the same or similar circumstances. In this case, the plant responded reasonably to the workers' injuries and deaths, but the maintenance workers responded less than reasonably when they refused outright to do routine maintenance work. The plant did not neglect reasonable care.

In the case of the plant, they have done what can be reasonably expected of them to make the plant safe. They have installed heavier mesh screening, have forbidden the maintenance workers from stepping onto the screen and have devised a system of hooks to retrieve objects. Therefore, since precautions have been taken, a reasonable person (their supervisor) could be expected to order them to do maintenance. While the workers have a right to ask for an OSHA inspection, they do not have a right to refuse to do work pending what the inspectors findings are. It is understandable that the workers are concerned. After all, there had been a death in 1974. However, all reasonable measures had been taken to make sure that this did not happen again.