SCRANTON – Workers at a meatpacking plant in Northeastern Pennsylvania allege not only a failure by their company to protect its workers from contracting the coronavirus, but a response from federal government agencies denying the issue as “arbitrary and capricious.”
Jane Does I, II and III first filed suit in the U.S. District Court for the Middle District of Pennsylvania on July 22 versus U.S. Secretary of Labor Eugene Scalia, the U.S. Department of Labor and the Occupational Safety and Health Administration, all of Washington, D.C.
The plaintiff workers seek OSHA to take immediate action with respect to their employer, Maid-Rite Specialty Foods, for its alleged failure to institute precautionary measures for the coronavirus, which they say caused 50 percent of the employees to become infected.
The suit stated Maid-Rite manufactures prepackaged frozen meat products for schools, colleges and universities, nursing homes and U.S. military bases, but that an absence of rules in the factory for social distancing, hand-washing and personal protective equipment, have led many workers to contract the coronavirus.
All three employees said they fear company retaliation for reporting the issues contained in the complaint, because they added they have seen such retaliation, including firing, dispensed to other employees who have reported injuries and action against Maid-Rite.
The suit stated Maid-Rite workers have brought “at least” two formal complaints against the company to OSHA, with of them being an “imminent danger” complaint filed in May. However, the workers added OSHA told them that complaints related to the coronavirus are not an “imminent danger”.
The workers seek to compel OSHA to undertake an inspection of the premises and enforce protective protocols against the coronavirus, yet also taking action against Maid-Rite for its alleged failure to protect its employees against the deadly virus.
On July 28, OSHA and the Department of Labor filed a motion to dismiss the case, saying as of an inspection conducted at the beginning of July, there is no danger at the Maid-Rite factory and the plaintiffs are trying to subvert the federal government’s inspection process.
Per federal law, the motion argued, in order for OSHA to be compelled to step in and take action of its own, the Department of Labor Secretary (Scalia) would need to have had a justifiable reason to act from a Compliance Safety and Health Officer, and then failed to do so.
A circumstance the defendants argued was not the case.
“Thus far, after multiple investigations and ongoing inspections, OSHA has determined that no imminent danger exists at the plant. This court should decline plaintiffs’ extraordinary invitation to use judicial intervention to hijack the secretary’s enforcement discretion and priorities and second-guess OSHA’s judgment as it relates to occupational health and safety conditions at the plant,” the dismissal motion read.
Because OSHA concluded there was no imminent danger at the plant and no rejection from Scalia exists, the defendants said, therefore, there is nothing to put forward for judicial review.
UPDATE
However, the plaintiff plant workers remain undeterred and continue to lambast the defendants’ response to their claims.
“Conditions at the Plant have remained largely unchanged since workers filed complaints about Maid-Rite’s practices in April and plaintiffs filed their imminent danger complaint in May. Most importantly, Maid-Rite has made no efforts during the pandemic to reorganize its production lines so workers can properly socially distance during their long and grueling shifts,” a post-hearing brief filed Aug. 14 said.
“Because OSHA ignored relevant evidence and the Agency’s own guidance, and conducted its investigation in a manner that conflicted with the Occupational Safety and Health Act, OSHA’s determination that there is no imminent danger is arbitrary and capricious.”
Continuing, the plaintiffs say they “request an order from this Court requiring OSHA either to seek an imminent danger injunction under 29 U.S.C. Section 662(a) or to conduct a prompt onsite inspection – this time without providing advance notice to Maid-Rite – to determine whether an imminent danger exists at the plant.”
The plaintiffs argue if OSHA continues to determine that no such imminent danger exists at the facility, they request that the agency provide a report for the Court justifying that determination based on “the evidence, the OSH Act and relevant regulations and guidance.”
The plaintiffs argue they are forced to work elbow-to-elbow, among several other flagrant breaches of OSHA’s Meatpacking Guidance, including:
• The failure to place any form of barricade between workers;
• The failure to provide workers with masks that Maid-Rite can ensure comply with OSHA’s Guidance;
• The failure to provide workers with additional breaks to wash or sanitize their hands, meaning that workers at Maid-Rite may have to wait hours after coughing or sneezing to cleanse themselves; and
• Maid-Rite’s continued payment of weekend bonuses to workers who do not miss a day of work during the week, incentivizing workers to attend work even when they are sick.
The plaintiffs also took to task the advance notice the plant was given ahead of the inspection in July.
“The advance notice mattered. Workers report that in anticipation of the inspection, Maid-Rite made changes to hide the extent of its unsafe working conditions, spacing workers further along production lines. After the inspection, workers were once again forced to work immediately next to each other, sometimes touching,” the brief says.
The plaintiffs are represented by Lerae Kroon, Nina Menniti and Samuel Datlof of Friends of Farmworkers Inc. in Pittsburgh and Philadelphia, Adrienne Spiegel; David Samuel Muraskin and Karla Gilbride of Public Justice in Oakland, Calif. and Washington, D.C,; Brianne Michelle Power, Juno E. Turner and David H. Seligman of Towards Justice in Denver; and Anna P. Prakash and Matthew Morgan of Nichols Kaster, in Minneapolis.
The defendants are represented by Joseph J. Terz and G. Michael Thiel of the U.S. Attorney’s Office for the Middle District of Pennsylvania in Harrisburg and Scranton, plus Michael P. Doyle, Richard T. Buchanan and Oscar Hampton III of the U.S. Department of Labor in Washington, D.C.
U.S. District Court for the Middle District of Pennsylvania case 3:20-cv-01260
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com