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Marshall v. Daniel Construction Co., 563 F.2d 707 (5th Cir. 1977), cert. denied, 99 S. Ct. 216 (1978).

On December 29, 1970, President Nixon signed the Occupational Safety and Health Act (OSHA) of 1970 into law. Although there was extensive congressional debate, accord was reached on the necessity for legislation in the wake of the death and disability toll on the nation's work force resulting from the introduction of increasingly sophisticated technology and chemicals into the workplace. Congress declared the policy of OSHA in section l(b): “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. …” Pursuant to authority granted in section 7(g) of OSHA, the Secretary of Labor promulgated 29 C.F.R. section 1977.12(b)(2). This regulation permits an employee the right to refuse to work “under … circumstances then confronting the employee at the workplace which would cause him to conclude that there is a real danger of death or serious injury and there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels.”

At least six district courts and one circuit court have reviewed this regulation and with one exception all have found the regulation to exceed the Secretary's grant of authority under the Act. The Fifth Circuit, in Marshall v. Daniel Construction Co., held that it conflicts with the intent of Congress as reflected in OSHA's legislative history. This note analyzes that case and considers the statute, the regulation, case law and the legislative history of OSHA to determine whether the regulations expands OSHA's jurisdiction in an area where Congress intended to contract it.

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