Make your own free website on Tripod.com
COURT ORDER BANNING SMOKING
SO AS TO ACHIEVE A SAFE JOBSITE
Donna Shimp v N J Bell Tele Co,
145 N J Super 516; 368 A2d 408 (1976).

          Cigarettes contain and emit toxic chemicals. They have an "ultrahazardous" nature and impact, inherently. They have a record of containing a dangerous poisonous additive, coumarin used for rat poison.

Wherefore, by definition, cigarette emissions are illegal everywhere, including on-the-job. The pertinent term is "Toxic Tobacco Smoke," abbreviated "TTS."

And as a further protective law against killing people, in the workplace, the Occupational Safety and Health Act of 1970, 29 USC § 651 - § 678 forbids hazards. This bans negligent hiring, employee conduct and behavior, and substances such as (TTS) re which regular exposure foreseeably leads to "material impairment of [employee] health."

Rules such as 29 CFR § 1910.1000 provide specific examples of hazards such as carbon monoxide (limit of 50 parts per million). An employer has a duty to prevent and suppress hazardous conduct by employees. National Realty and Construction Co, Inc v Occupational Safety and Health Review Commission, 160 US App DC 133, 489 F2d 1257, 1266, n 36 (CA DC, 1973).

Employer compliance is mandatory, not optional. Relative to smoking, the TTS issue, an employer must comply with the "duty to prevent and suppress" that hazard in particular, as unlike perhaps other allged hazards, "the detrimental effects of cigarette smoking on health are beyond controversy." Larus and Brother Co v Federal Communications Commission, 447 F2d 876, 880 (CA 4, 1971).

In fact, the TTS hazard is so obvious that smokers themselves have long sued due to the hazard. People cannot consent to significant self-harm.

And as stated in Shimp v New Jersey Bell Tele Co, 145 N J Super 516, 523; 368 A2d 408, 411 (1976), it is not necessary to fill the air with TTS for the job to be done: "There is "no necessity to fill the air with tobacco smoke in order to carry on defendant's business."

TTS is an "extraordinary hazard," meaning it is "One not commonly associated with a job or undertaking. If hazards are increased by what other employees do, and injured employee has no part in increasing them, they are "extraordinary." Stone v Howe, 92 N.H. 425, 32 A.2d 484, 487."—Black's Law Dictionary, 5th ed (St. Paul: West Publishing Co, 1979), p 527. TTS is also an "extraordinary risk," "one lying outside of the sphere of the normal, arising out of conditions not usual in the business. It is one which is not normally and and necessarily incident to the employment. It is one which may be obviated by the exercise of reasonable care by the employer." Black's Law Dict., supra, p. 527.

It is negligence for the employer to even hire smokers. Tobacco companies have a long record of being involved in litigation over their practices. Wherefore TTS-caused injuries and deaths are common, foreseeable, "natural and probable consequences." TTS exposure causes Increased Risk of Death. This violates the ancient "right to fresh and pure air." There is also a common law duty to not endanger people, and, when one does, to aid the victim.

Court cases such as Todd v Brown & Williamson Tobacco Corp, 924 F Supp 59 (WD La, 9 May 1996), admit that tobacco dangerousness is obvious. Perez v Brown & Williamson Tobacco Corp, 967 F Supp 920 (SD Texas, 4 June 1997), said tobacco is inherently dangerous and so known. The case of Banzhaf v Federal Communications Commission, 132 US App DC 14, 29; 405 F2d 1082, 1097 (1968) cert den 396 US 842 (1969) upheld the concept of cigarettes' deleteriousness:

"The danger cigarettes . . . pose to health is, among others, a danger to life itself . . . a danger inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events. It threatens a substantial body of the population, not merely a peculiarly susceptible fringe group."

The torts of assault and battery, and the crime of assault, can be committed by intentionally causing harmful fluids including gases to strike another with knowledge of the harm to health caused thereby.

a. "All that is necessary is that the actor intend to cause the other, directly or indirectly, to come in contact with a foreign substance . . . ." RE 2d TORTS, Comment to #18 Battery

b. "Bodily harm is any physical impairment of the condition of another's body . . . if the structure or function of any part of the other's body is altered to any extent even though the alteration causes no other harm." RE 2d TORTS, #15 Text and Comment

c. One acts with the requisite intent if "the actor desires to cause the consequences of his act, or . . . believes that the consequences are substantially certain to result from it." RE 2d TORTS, #8A.

d. See, generally, Prosser, Law of Torts, p 66 n 37 (1971) (trespass by invisible gases and microscopic particles)

e. Bishop v. U. S., 349 F2d 220; 121 US App DC 243 (1956) [sulphuric acid]; Tatum v. U.S., 110 F2d 555; 71 App DC 393 (1940) [lye]

A substantial majority of all adults find being near a smoker annoying, and an overwhelming majority—including a majority of smokers—support additional restrictions on smoking in public places.

Indeed, the second hand smoke (involuntary smoking) "ultrahazardous" TTS issue of cigarettes' toxic emissions is so long and well-established, that in the 1880's, New Orleans imposed a ban directed to the issue. This ban became the subject of published litigation, the case of State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (21 April 1890). As per the TTS violations of human rights, the ban was upheld.

TTS is an "extraordinary hazard," see definition: "One not commonly associated with a job or undertaking. If hazards are increased by what other employees do, and injured employee has no part in increasing them, they are "extraordinary." Stone v Howe, 92 N.H. 425, 32 A.2d 484, 487."—Black's Law Dictionary, 5th ed (St. Paul: West Publishing Co, 1979), p 527. TS is also an "extraordinary risk," "one lying outside of the sphere of the normal, arising out of conditions not usual in the business. It is one which is not normally and and necessarily incident to the employment. It is one which may be obviated by the exercise of reasonable care by the employer." Black's Law Dict., supra, p. 527.

The case of Victoria Gallegos v Elite Model Management (NY Jury, 14 May 2003), obtained a jury verdict of $5.27 million re employer retaliation against employee, firing her, in retaliation against her freedom of expression on behalf of the right to pure air. Precedents show the right has been well-established for centuries, so employer had no acceptable excuse.

As the TTS hazard was already obvious for approaching a century, Employee Donna Shimp, Salem, NJ, quite reasonably asked her employer, New Jersey Bell Telephone Company, to provide a safe job site, but the employer refused. So she sued and obtained a court order requiring safety. Though cigarette's TTS hazards have been long known (for example, Iowa and Tennessee banned cigarettes in 1897; and Michigan did so in 1909), Shimp was deemed a pioneer in the modern era, citing a TTS issue known a century before! Below is the text of the injunction she won, below that, her legal brief and hearing transcript, and lastly, an analysis and commentary.


SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION
SALEM COUNTY

Docket No. C-3904-75

Civil Action

DONNA M. SHIMP,
                                                            Plaintiff
vs.

NEW JERSEY BELL TELEPHONE COMPANY,                                                             Defendant.

JUDGEMENT

LAND & FINIFTER
1421 Atlantic Avenue
Atlantic City, N. J. 08401
(609) 345-6151
ATTORNEYS FOR PLAINTIFF

          The matter having been opened to the Court by Stuart B. Finifter, Esquire, of Stuart & Finifter, attorneys for the plaintiff in the presence of Charles Sweeney, Esquire, attorney for the defendant;

          And the Court having read and considered the Verified Complaint, Affidavits, Briefs, and heard oral arguments submitted herein;

          And the parties stipulating that the said pleadings and arguments herein shall be considered in lieu of oral testimony, and the right of cross-examination of the parties and witnesses having been waived by the parties,

          And the Court having rendered a written Opinion herein, which Opinion has been approved for publication in the Official Reports of this State;

           IT IS ON THIS 25th day of March, 1977,

ORDERED AND ADJUDGED:

          1. The defendant New Jersey Bell Telephone Company provide safe working conditions for plaintiff, by restricting the smoking of employees to the non-work area presently used as a lunch room.

           2. That no smoking shall be permitted in the offices or adjacent customer service area of plaintiff's place of employment.

           3. That defendant New Jersey Bell Telephone Company provide access to wash room facilities for the plaintiff through a separate entrance other than through the Manager's office.

           4. That defendant New Jersey Bell Telephone Company inform any managerial employees that he or she is directed and that they must comply with the Orders of this Court.

           5. That the Orders and Judgements rendered in this matter be enforced by the defendant New Jersey Bell Telephone Company without any harassment of the plaintiff of any type or description, including but not limited to work assignments and duties, and conditions of employment.

                                                            /s/ Philip A. Gruccio
                                                            HON. PHILIP A. GRUCCIO, J.S.C.

Reprinted below is the "Brief" that led to the above Order:
SUPERIOR COURT OF NEW JERSEY
Docket No. C-3904-75

DONNA M. SHIMP,
                                                            Plaintiff
vs.

NEW JERSEY BELL TELEPHONE COMPANY,                                                            Defendant.

Civil Action

Chancery Division--Atlantic County

BRIEF IN SUPPORT OF PLAINTIFF'S
APPLICATION FOR AN ORDER TO SHOW
CAUSE WITH TEMPORARY RESTRAINTS

Land & Finifter,
1421 Atlantic Ave.,
Atlantic City, N. J. 08401

TABLE OF CONTENTS
Page
Statement of Facts1
 
Memorandum of Law (Argument)3
 
1., 2. New Jersey Law Creates a Duty on the Part of
Defendant to Provide Plaintiff with a Safe Work Place
3
 
1. Employers in the State of New Jersey are
under a duty, imposed by the Common Law
of New Jersey, to provide a reasonably safe
and healthful place for employees to work,
which includes the provision of adequate
general ventilation.
3
 
2. The duty of the Employer to provide a
reasonably safe place to work is necessarily
subject to adjustment in light of increased
knowledge of dangers and changed
conceptions of social relations.
5
 
3., 4.,5. Injunctive Relief Is Available to Plaintiff to Enforce
Defendant's Duty to Provide a Safe Work Place
8
 
3. The Courts of New Jersey have jurisdiction
to enforce the Common Law and statutory
duty of the employer to provide a reasonably
safe and healthful place for employees to work
by the grant of equitable relief.
8
 
4. Equity Courts have afforded protection
from dangerous and seriously annoying
smoke conditions for more than a century.
11
 
5. The authority of Chancery Courts
in New Jersey to enforce the duty to
provide a reasonably safe and healthful
work place has not been affected [repealed]
by the Workmen's Compensation Act.
11
 
6. Serious Health Hazards to the Plaintiff and a Significant Number
of the [U.S.] Work Force Exist from the Passive [Forced]
Inhalation of "Second-Hand Smoke"
12
 
Conclusion14

STATEMENT OF FACTS

Plaintiff Donna M. Shimp is an employee in good standing of defendant New Jersey Bell Telephone Company (hereinafter "Bell") by whom she has been employed since March 13, 1961. In or about 1970 she became aware of various physical symptoms such as nasal and eye irritation, the latter being diagnosed as corneal abrasion and erosion.

-1-
She subsequently began to experience skin eruptions, vomiting and headaches, all of which were exacerbated in smoke-filled surroundings and abated upon leaving an environment [coworker behavior/misconduct situation] containing [spewing] "second-hand smoke."

Plaintiff was transferred to the Bridgeton office of defendant in February 1975. Seven of the thirteen employees there smoked heavily in the work area, and there was no adequate ventilation to remove the smoke from plaintiff's surroundings where she was required by the nature of her job to be located.

As a result of the environmental [smoker misconduct/behavior] conditions in her work place, plaintiff was forced to go on disability [sick leave] for three months. During that time she was examined by several physicians, including allergists, who diagnosed her condition as an allergic reaction precipitated by exposure to tobacco smoke. A physician in the employ of defendant Bell recommended that plaintiff return to work only in a smoke-free environment, while an [anti-rule of law] executive of defendant Bell advised her there was no smoke-free environment within the Commercial Department wherein she was employed.

Since neither company nor union would consider a change in the [unlawful employer] policy of [unlawfully] allowing [negligently hired] employees to smoke [spew toxic chemicals] in the work area, plaintiff's only alternatives were to accept a demotion and decrease in salary which would relocate her in a nonsmoking area designed to protect electronic equipment, to be fired to protect her health, or to continue working in an environment [coworker behavior/misconduct situation] that was causing marked damage to her health and to that of her fellow employees.

Plaintiff pursued her administrative remedies by filing a grievance with the union local, even though both Bell and the union had removed any restriction on smoking as a remedy within the grievance procedure. Thereafter, she was transferred to the Millville office of defendant where there was then only one [negligently hired] smoking employee and some year-round ventilation. However, the trip to Millville required an additional 40 minutes per day in travel time and she was given no assurance that there would be no more than one [negligently hired] smoking employee stationed there in the future.

The International Union President refused to present the issue of nonsmoking employees' health protection in the workplace to the Executive Committee or to the union membership for a vote because limitation or banning of smoking was inherent therein. He took the [irrational] position that [negligently hired] employees have a right to smoke [spew toxic chemicals] wherever they wish and that the union would not represent plaintiff in a presentation of her original grievance to defendant.

Plaintiff appealed the union's inaction to the National Labor Relations Board and additionally filed charges against both union and company for failing to bargain to improve an unhealthy working condition [employee misconduct/behavior]. The regional office dismissed

-2-

the complaint, holding that there was no violation of the National Labor Relations Act; this dismissal was upheld on appeal to their General Counsel.

[Ed. Note: Unions had notoriously taken the anti-safety position on tobacco issues! with then already many years' record of opposing employers who had taken anti-tobacco action.

In addition to the union's lack of support for her position, plaintiff has made unsuccessful attempts to obtain assistance from the State Department of Health, the State Department of Labor & Industry, the Office of the Public Advocate, the local Boards of Health of Salem and Cumberland Counties, the Environmental Protection Agency, the U. S. Public Health Service and the Occupational Safety and Health Administration of the U. S. Department of Labor. All these efforts were to no avail.

Since plaintiff's assignment to the Millville office in July, she has continued to experience the above described symptoms associated with her exposure to "second-hand smoke." The circulator (when running) does not remove the smoke from the room; the use of the exhaust fan is inadequate, i.e. ten minutes out of an hour; and smoking [mentally ill, negligently hired] employees are not required to stay away from plaintiff while they are smoking [i.e., displaying symptoms of the mental disorder], nor is management proscribed from assigning her near the smoking employee. In addition, she is subject to temporary assignments in other offices where she is endangered by even higher concentrations of tobacco smoke.

Plaintiff is not seeking monetary damages for the harm that the exposure to such conditions has done to her health. That action would be appropriately heard in the Division of Workmen's Compensation. [No, this is attempted murder.] Nor does she wish to be forced to seek other employment or to accept a demotion.

Plaintiff is seeking equitable [law enforcement] relief from this court to enable her to continue her present employment in safe surroundings by enjoying defendant from exposing her to the well-documented hazardous environmental [behavioral] conditions caused by the passive [forced] inhalation of the smoke of other employees.

It is her position that there is a basis in the [already extant] law as it now exists in New Jersey [not to mention federal] for the granting of such an [allegedly] extraordinary remedy [to order the law enforced pursuant to 4000 years of precedents as per the constant and consistent record of the 4000 year rule of law].

ARGUMENT
1. Employers in the State of New Jersey are under a duty, imposed by the Common Law of New Jersey, to provide a reasonably safe and healthful place for employees to work, which includes the provision of adequate general ventilation.

The duty of the employer to provide a reasonably safe place to work has been constantly and consistently restated by the courts and the legislature of this State. Beginning in this century the rule was stated in

-3-
the case of MacDonald v. Standard Oil Company, 69 N.J.L. 445 (E. & A., 1903) as follows at 447-8:
Under the contract of employment it becomes the master's duty to use reasonable care to provide a proper and safe place in which the servant may work, to furnish suitable tools and implements with which he may work, to inspect and repair the apparatus at reasonable intervals and with ordinary prudence, and to select and employ competent [e.g., sane, non-dangerous] workmen.

In Burns v. Del. & Atl. Telegraph and Telephone Co., (E. & A.), 70 N.J.L. 745 (1904) workers stringing telephone lines were injured when one of the lines sagged and touched a "live" trolley wire. The plaintiffs recovered and defendant appealed. The defendant asserted that it was an error for the trial courts to refuse to charge that, "it was no portion of any duty of defendant to supply gloves and boards or a platform under the circumstances of this case" (70 N.J.L. at 749). The court held:
It is one of the duties of an employer to exercise reasonable care that the place in which he sets his servant [employees] to work, and the system or method adopted by the employer for the doing of the work, shall be reasonably safe for the servant and free from latent dangers known to the master or discernible by an ordinarily prudent master [employer] in the circumstances. Western Union Telegraph Co. v. McMullen, 29 Vroom 155.

That the duty of the master [employer] to exercise care with respect to the place of working extends to the system or method of arranging the work is established in this state. Belleville Stone Co. v. Mooney, 31 Vroom 323; 32 Id. 253.

Dealing with another aspect of the duty to provide safe working conditions, the court stated:
It is suggested that the duty of a master [an employer] with respect to care as to thetools and appliances furnished for his servant's [employee's] work is limited to such as are in fact supplied by the master. But this has no appliancy [application] to the failure of the present defendant to supply gloves, boards or a platform. These articles, if furnished, would have been not tools and appliances for the work that the plaintiffs were doing but rather safeguards against the dangers that arose out of the work. In the absence of such dangers the plaintiffs could perform the work at which they were set just as well without gloves, boards, or platform as with them. See Belleville Stone Co. v. Mooney, 32 Vroom 254. It was not the exigencies of the work but the latent danger that inhered in the work and of which the jury have found
-4-
the plaintiffs were ignorant, that necessitated the use of gloves, boards or a platform.
2. The duty of the Employer to provide a reasonably safe place to work is necessarily subject to adjustment in light of increased knowledge of dangers and changed conceptions of social relations.

The duty of the employer is not limited to traditional or customary employer action. As Justice Proctor said in Wallenhelder v. Rader, 49 N.J. 1, 7 [1967]:
. . . Proof of an industry custom is not dispositive on the question of duty. The standard of conduct is reasonable care, that care which a prudent man would take in the circumstances. The customs of an industry are not conclusive on the issue of the proper extent of care; they are at most evidential of the standard. (Citations omitted.)

Dean Prosser puts the principle as follows:
Even an entire industry by adopting such careless methods to save time, effort or money, cannot be permitted to set its own uncontrolled standards . . . and if the only test is to be what has been done before, no industry or group will ever have any great incentive to make progress in the direction of safety. . . . The much better view therefore is that of the great majority of the cases, that every custom is not conclusive merely because it is a custom, and that it must meet the challenge of 'learned reason,' and be given only the evidentiary weight which the situation deserves. It follows that where common knowledge and ordinary judgment will recognize unreasonable danger, what everyone does may be found to be negligent; and that there will be extreme cases where it is so clearly negligent in itself that it may even be excluded from evidence. Prosser, Torts Sec. 33, 170 (3d Ed. '64 ).

[Ed. Note: “what ought to be done is fixed by a standard . . . whether it usually is complied with or not.”—Texas & Pac Ry v Behymer, 189 US 468, 470; 23 S Ct 622, 623; 47 L Ed 903 (1903).
“Right is still right, even if nobody is doing it. And wrong is still wrong, even if everybody is doing it.”—Texas Ranger saying.

In Wytupeck v. Camden, 25 N.J. 450 (1957), the New Jersey Supreme Court articulated again the basic principles under which a duty is established by law. These are:
(3-5) "Duty is not an absolute conception; and the standard of conduct is not an absolute. Duty arises out of a relation between the particular parties that in right reason and essential justice enjoins the protection of the one by the other against what the law by common consent deems an unreasonable risk of harm, such as is reasonably forseeable, Lokar v. Church of the Sacred Heart, 24 N.J. 549, 133 A.2d 12 (1957). In the field of negligence, duty signifies conformance "to the legal standard of reasonable conduct in
-5-
the light of the apparent risk"; the essential question is whether "the plaintiff's [employee] interests [e.g., safety] are entitled to legal protection against the defendant's [employer's] conduct." Prosser on Torts (2d Ed.), section 36. Duty is largely grounded in the natural responsibilities of social living and human relations, such as have the recognition of reasonable men; and fulfillment is had by a correlative standard of conduct. (6) "Duty" is not a rigid formalism according to the standards of a simpler society, immune to the equally compelling needs of the present order; duty must of necessity adjust to the changing social relations and exigencies and man's relation to his fellows; and accordingly the standard of conduct is care commensurate with the reasonably forseeable danger, such as would be reasonable in the light of the recognizable risk, for negligence is essentially "a matter of risk * * * that is to say of recognizable danger of injury." Prosser, Ibid, section 30.

Pursuant to the approach outlined by the court in Wytupeck v. Camden, the courts interpreting the "reasonable man" standard have required that persons be treated as having kept abreast of contemporary scientific knowledge which is common in the community. Restatement. Torts, 2d.
290. What Actor [Person] is Required to Know.

For the purpose of determining whether the actor [individual involved] should recognize that his conduct involves a risk, he is required to know:

(a) the qualities and habits of human beings and animals and the qualities, characteristics, and capacities of things and forces in so far as they are matters of common knowledge at the time and in the community; and

(b) the common law, legislative enactments, and general customs in so far as they are likely to affect the conduct of the other or third persons.

This section is explained in comment e. as follows:

(e) It is stated in 283 that unless the actor is a child, the standard to which he must conform to avoid being negligent is that of a reasonable man under the circumstances. In determining whether the actor's conduct is negligent, his personal inability to conform to the standard is immaterial.

[Ed. Note: Smokers may indeed have a "personal inability to conform to the standard," i.e., to the rules or laws. A smoker may indeed not be "a person of normal sensibilities," Aldridge v Saxey, 242 Oregon 238; 409 P2d 184 (1965). This is their loss, Barylski v Paul, 38 Mich App 614; 196 NW2d 868 (1972), not their nonsmoker victim's.
A smoker may indeed be unable “to appreciate the wrongfulness of his conduct,” and “to conform hisconduct to the requirements of the law.”—People v Matulonis, 115 Mich App 263; 320 NW2d 238 (1982). This is a case involving physical deterioration of the brain due to typical smoker aspects, alcoholism and drug abuse), in the context of determining whether the person is insane within the meaning of the law for criminal responsibility purposes.

He [the individual doing the wrongful act(s)] is treated as though he were a reasonable man and, therefore, he is treated as though he knew those things which the reasonable man at that time and place would know even though the actor is himself excusably ignorant of them. As a reportable man, the actor is required to possess such scientific knowledge as is common among laymen at the time and in the community. Thus, he is required to know the ordinary operation of well-known natural laws. He is required, among other

-6-
things, to know the poisonous qualities of many drugs, chemicals, and gases and the explosive or inflammable qualities of many chemical compounds and the intoxicating quality of certain liquids. So too, the actor as a reasonable man is required to know the ordinary operation of natural forces in the locality in which he lives which are likely to be affected by his conduct. (Emphasis added.)
This obligation is specifically applicable to the relationship of employer and employee. In Restatement of Agency, Second, Sec. 495 said as follows:
495. Knowledge Which Master [Employer] is Required to Have

A master [employer] is subject to a duty to his servants [employees] to conduct his business in the light of knowledge which he has, and of such knowledge as to the conditions likely to harm his servants [employees] as persons experienced in the business and having special acquaintance with the subject matter have.

This is explained in Comment c, with respect to conditions that affect safety:
c. Scientific knowledge. The knowledge which is required of an employer includes a knowledge of generally known scientific discoveries and inventions applicable to conditions of safety in his business. He is required to inform himself of current advances and of the progress in industries of the same nature as his own. He is required not only to know of the operation of natural forces, but of the tendencies which are shown by men under conditions similar to those which exist in his employment. Thus, he must not only know something concerning the breaking strength of materials which he uses, but he must also realize the effect of the work which he requires upon the human instrumentalities who perform it. He is also under a duty to realize the limits of knowledge of those whom he employs, so that he can guard them against dangers which he is required to know, but of which he should know they may be unaware.

[Ed. Note: See, e.g., McAfee v Travis Gas Corp, 137 Tex 314; 153 SW2d 442 (4 June 1941), wherein an employee smoked around gas pipe, which was leaking, resultant explosion caused injury to another person. The employer was held liable for knowing the smoker's addictive propensity of which the victim, a nonsmoker coworker, was unaware.

What constitutes a reasonably safe and healthful place to work will, of course, be subject to change in basic attitudes and the results of scientific inquiry into the various kinds of matters to which workers are exposed, which in turn may change from decade to decade, or generation to generation. Part 6 of this memorandum will summarize the present evidence of dangers to employees and others from passive inhalation of tobacco smoke.

-7-
3. The Courts of New Jersey have jurisdiction to enforce the Common Law and statutory duty of the employer to provide a reasonably safe and healthful place for employees to work by the grant of equitable relief.

While no case raising this point has been decided to our knowledge in the State of New Jersey, it is clear that the courts of New Jerse are open to protect basic employee rights by injunction.

The cases which clearly establish this proposition are:

Independent Dairy Workers v. Milk Drivers Local No. 680, 23 N.J. 85, 30 N.J. 173 (1959);

Cooper v. Nutley Son Printing Company, Inc., 36 NJ. 189 (1961); and

Johnson v. Christ Hospital, 84 N.J. Super. 541 (Ch. Div. 1964), affirmed per Currium 45 N.J. 108 (1965).

While these cases all dealt with the rights of workers under Article 1, paragraph 19 of the Constitution 1947 which guarantees certain rights in connection with collective bargaining activities, the underlining principle established in these cases is that the court of equity is available to deal with labor relations matters unless those matters have been specifically withdrawn from the courts by legislation. (See Milkdrivers, pages 181-183, Christ Hospital pages 544-545, and most particularly Cooper, pages 198-200, discussing the power of the Superior Court to order reinstatement of employees wrongfully discharged because of union activities.
(7) . . . If the trial court finds the individual plaintiffs' constitutional rights have been infringed upon, it can exercise its vast equitable powers and grant the relief which the circumstances dictate. As was stated in Westinghouse Electric Corp. v. United Electrical, Radio and Machine Workers of America, Local No. 410, 139 NJ. Eq. 97, 108 (E. & A. 1946):

"A wrong suffered without a remedy is a blot upon the sound administration of justice. In the dissenting words of Cardozo, C.J., in Graf et al v. Hope Building Corp., 254 N.Y. 1; 171 N.E. SS4, SSS, 70 A.L.R. 984, * * * Let the hardship be strong enough and equity will find a way, though many a formula of inaction may seem to her the path. Griswold v. Hazard, 141 U.S. 250, 254, 11 S. Ct. 972, 999; 35 L. Ed. 678. Cf. Fifth Avenue Bank (of New York) v. Compson, 113 N.J. Eq. 152, 153; 166 A. S6. This is justice in action. This is giving meaning to the proper exercise of the jurisdiction of the Court of Chancery."

-8-
The broad extent of equity's power to remedy a wrong was aptly described by Justice Heher in Sears, Roebuck & Co. v. Camp, 124 N.J. Eq. 403, 411-412 (E. & A. 1938):

"Equitable remedies are distinguished for their flexibility, their unlimited variety, their adaptability to circumstances, and the natural rules which govern their use. There is in fact no limit to their variety and application; the court of equity has the power of devising its remedy and shaping it so as to fit the changing circumstances of every case and the complex relations of all the parties." Pomeroy's Equity Jurisprudence, sec. 109

A lack of precedent, or mere novelty in incident, is no obstacle to the award of equitable relief, if the case presented is referable to an established head [body, number] of equity jurisprudence [precedents]--either of primary right or of remedy merely.

The plaintiffs seek the specific relief of reinstatement with back pay for the discharged employees and reinstatement for the striking employees. They would have this court issue a mandate requiring the trial court to so order if it finds the facts to be as alleged by the plaintiffs. However, before this court or any court possessing equitable powers ordains a particular type of relief, it should have the full facts before it. This case has reached us with the barest of records. No evidence of any kind was introduced in the trial court. As we noted above, the court has the broadest equitable power to grant the appropriate relief. The court can and should mold the relief to fit the circumstances, but it can hardly do so without knowing just what the circumstances are. 'Generalizations are treacherous in the application of large constitutional concepts.' Hughes v. Superior Court of State of California, supra, 339 U.S., at p. 469, 70 S. Ct, at p. 723, 94 L. Ed., at p. 994.

When all of the facts are developed and equitable principles and defenses are considered, it may well be that the relief sought by the plaintiffs will be appropriate under the circumstances. When the United States Supreme Court was concemed with a violation of employees' rights to organize and bargain collectively as granted by the Railway Labor Act of 1926, it said that reinstatement with back pay could be a proper remedy for unlawful discharges in contravention of those rights. Texas and New Orleans Railroad Co. v. Brotherhood of Railway & Steamship Clerks, 281 U.S. 548, 50 S. Ct. 427, 74 L. Ed. 1034 (1930). Reinstatement is the conventional correction for discriminatory discharges. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 187, 61 S. Ct. S45, 85 L. Ed. 1271, 1279 (1941). In answering a contention that only a statute and an administrative agency can properly deal with labor-management relations, Chief Justice Weintraub, speaking for this court, in Independent Dairy Workers Union of Hightstown v.

-9-
Milk Drivers and Dairy Employees Local No. 680, 30 N.J. 173 (1959) said, at p. 182:

"It should not be assumed that it is beyond the capacity of the judiciary to remedy the wrongs which appellants claimed. For the discharge of employees in violation of their right under Article 1, paragraph 19 of the Constitution, an action for damages may well lie, and as well a suit to reinstate with back pay and to forbid discharge because of union activity. * * * (Citing cases.) Such enforcement of the constitutional guaranty would give to employees the assurance they need to permit them to pursue their own self-interest. * * *"

The above principles apply to the present case. Reinstatement with back pay may well lie. Of course, this also means that reinstatement with partial back pay or reinstatement without back pay or no reinstatement at all may be the proper result in this case. After the facts have been fully developed, equity has the power to tailor the remedy to insure a just result. See Crane v. Bielski, 15 N.J. 342, 346 (1954).

While the principle of the right to organize and engage in certain union activities is embedded in our Constitution, certainly the common law principle that the employee is entitled to a reasonably safe place to work, is entitled to the same judicial protection as the right to organize and bargain. The fact that it is of more ancient lineage should not deprive it of the protection of the court system in modem times.

Another case which reflects the willingness of the New Jersey courts to recognize newly emerging and newly recognized legal interests and to protect those interests by injunctions is Gray v. Serruto Builders Inc., 110 N.J. Super. 297 (Chancery 1970). In that case Judge Herbert issued an injunction and awarded damages for mental suffering to a black person who was deprived of an opportunity to rent an apartment because of his race. The court reviewed precedents from other jurisdictions and concluded that it could issue an injunction under the New Jersey statutes and constitutional provisions dealing with civil rights.

Of particular interest in that case is the fact that the legislature, according to the court, had not intended to make the administrative remedies exclusive. The court reviewed the language and interpretation of N.J.S.A. 10:527 which provicicd that the administrative procedure created by the civil rights law "shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned." The court concluded, following Jackson v. Concord Company, 54 N.J. 113 [253 A2d 793] (1969) that provision was no bar to a direct action by an aggrieved

-10-

person for injunctive relief where the aggrieved person did not seek in any way to use the administrative procedure establishcd under the New Jersey law.

4. Equity Courts have afforded protection from dangerous and seriously annoying smoke conditions for more than a century.
The willingness of the Court of Equity of New Jersey to protect health, safety and comfort of persons who are rightfully entitled to be in a place which is being exposed or which may be exposed to smoke which is uncomfortable to them, was established in the early case of Ross v. Butler, 19 N.J. Eq. 294 [97 Am Dec 654] (1868) containing a discussion of the principles under which the Court of Equity would enjoin a nuisance on adjoining land. See Annotation: Nuisance Resulting from smoke alone as subject for injunctive relief, 6 ALR 1574. In that case, the threatened nuisance consisted of the burning of pine wood which would create clouds of smoke. A hundred years ago, the dangers and inconveniences from such smoke were apparent to the chancellor [judge]. He held that the adjoining land owner had the right to be free of such dangers and inconveniences. Today, as Part 6 of our memorandum will indicate, the dangers of second hand and "side stream smoke" are as clear as the dense clouds of pine smoke a century ago, and the need for equitable relief is as great.
5. The authority of Chancery Courts in New Jersey to enforce the duty to provide a reasonably safe and healthful work place has not been affected by the Workmen's Compensation Act.
Under NJSA 34:15-7 and NJSA 34:15-8, the workmen's compensation system when agreed to by the parties as provided in the statute
"shall be a surrender by the parties thereto of their rights to any other method, form, or amount of compensation or determination thereof than is provided in this article and in acceptance of all the provisions of this article, and shall bind the employee himself, and for compensation for his death shall bind his personal representatives, his widow and next of kin, as well as the employer, and those conducting his business during bankruptcy or insolvency." (emphasis added)
Of course, NJSA 34:15-9 contains the presumption of acceptance of the foregoing provision in contracts of employment made after 1911.

Thus it is clear that the New Jersey legislature has made the workmen's compensation system the exclusive method of securing money recoveries for work-connected injuries [as distinct from personal violence by coworkers aided and abetted by management]. The statutes are silent with respect to the question of injunctive relief against occupational hazards [or, more appropriately, against personal violence by coworkers aided and abetted by management].

-11-

There is no provision in the Workmen's Compensation Act making that act the exclusive method of protecting the worker against the occupational hazard. It only makes the Act exclusive where the worker seeks damages for an occupational hazard which has ripened into injury to him.
6. Serious health hazards, both to the plaintiff, and to all persons with [being caused to develop] respiratory or cardiac conditions, exist from the inhalation of "side stream" or "second-hand" tobacco smoke.
A. Hazards to the Plaintiff

Plaintiff's affidavit and the affidavit of Richard F. Brams, M. D. make it abundantly clear that she [Donna Shimp] suffers severe eye and nasal irritation which both interferes with her ability to work and to carry on the normal pursuits of life when exposed to "second-hand smoke." The medical advice given by Dr. Brams is that, to protect her health, she must live and function in a relatively "smoke free" atmosphere [behavior/conduct setting]. There is no question but that the passive [forced] inhalation of tobacco smoke is the actual cause of these irritating conditions. The doctor's affidavit establishes this fact, and the objective circumstances that these irritating conditions cease when she is not exposed to "second-hand smoke" make it evident that this smoke is the cause of her injury (plaintiff's affidavit, paragraphs 19 and 22).

B. Hazard to Other Employees

Recent [as well as centuries of] scientific data establish that passive [forced] inhalation of tobacco smoke is in fact dangerous to three classes of people:

(a) people who have "allergic reactions" to the smoke such as the plaintiff,

(b) people who have annoying and irritating reactions, and

(c) all other persons in the population who have [been caused to develop] heart and/or lung diseases.

In 1972, when the Surgeon General issued his report on "The Health Consequences of Smoking," the subject of the passive [forced] smoker was treated at the end of the report as follows in Chapter 8. The conclusion of the Surgeon General was as follows:

SUMMARY
1. An atmosphere contaminated with tobacco smoke can contribute to the discomfort of many individuals.

2. The level of carbon monoxide attained in experiments using rooms filled with tobacco smoke has been shown to equal, and at times to exceed, the [then too permissive] legal limits for maximum air pollution permitted for ambient air quality in several localities and can also ex-

-12-
ceed the occupational Threshold Limit Value [legal limit] for a normal work period presently in effect for the United States as a whole. The presence of such levels indicates that the effect of exposure to carbon monoxide may on occasion, depending upon the length of exposure, be sufficient to be harmful to the health of an exposed person. This would be particularly significant for people who are already suffering from chronic bronchopulmonary disease and coronary heart disease.

3. Other components of tobacco smoke, such as particulate matter and the oxides of nitrogen, have been shown in various concentrations to adversely affect animal pulmonary and cardiac structure and function. The extent of the contributions of these substances to illness in humans exposed to the concentrations present in an atmosphere contaminated with tobacco smoke is [allegedly] not presently [1972] known.

By 1975 our knowledge of the effects of passive [forced] smoking had expanded considerably. The 1975 report on The Health Consequences of Smoking from the Department of Health, Education and Welfare, Public Health Service, contains a review of the research conducted in the preceding period, in Chapter 4, entitled Involuntary Smoking (pp 92-93; 107-108).

The studies of the "Pathologic Effects of Exposure to Cigarette Smoke" occupy pp. 102-109 of the report. Page 107 of the report indicates the proportion [percentage] of the population as to whom the public health services had indicated the inhalation of "second-hand smoke" is dangerous. The study points out that "a substantial proportion [percentage] of the U.S. population suffers from chronic cardiovascular and pulmonary diseases, however, and they represent the segment of the population most seriously jeopardized by the conditions found in involuntary [forced] smoking situations." In addition, the report points out that "Persons with chronic bronchitis and emphysema have considerable excess mortality under conditions of severe air pollution."

Statistics from other government publications enable us to form a clear idea of the proportion [percentage] of the working population involved.

5,649,000 persons between 17 and 65 suffer from chronic cardiovascular and pulmonary diseases, U.S. Dept. of Health, Education and Welfare, Public Health Service, Prevalence of Chronic Circulatory Conditions, United States, 1972, p. 20 (1974)

3,152,000 persons between 17 and 65 suffer from chronic bronchitis, U.S. Department of Health, Education and Welfare, Public Health Service, Prevalence of Selected Chronic Respiratory Conditions, United States, 1970, p 15.

-13-
389,000 persons between 17 and 65 suffer from emphysema, id., at p. 16.

9,190,000 persons are in the category which the Public Health Service has indicated are "seriously jeopardized" by inhalation of second-hand smoke. The total labor force from 17-65 amounts to 89.3 million (statistical abstract of the United States, 1975, p. 344). Thus more than 10% of the working age population is "seriously jeopardized" by the type of smoking conditions [misbehavior/conduct] permitted by the defendant. This smoke is produced by less than 40% of the white collar labor force. The statistical abstract of the United States, 1975, p. 90 reveals that 45,771,000 men and women between 17-65 are smokers [toxic emissions spewers]. But only 37% of white collar workers smoke. U.S. Dept. of Health, Education and Welfare, Public Health Service, Adult Use of Tobacco, 1970 p. 9, (1973). In plaintiff's affidavit (paragraph 101), she states that only 31% of the Commercial Department employees within the Vineland District smoke.

The impact of allergic diseases on the nation's health has been recognized by the U.S. Department of Health, Education and Welfare, Public Health Service, National Institutes of Health, who in DHEW Publication No. (NIH)72-281 state the findings of the National Institute of Allergy and Infectious Disease that 15 out of every 100 Americans suffer from one or more significant allergies (figures based on a 1967 Health Interview Survey and stated to be conservative estimates). Hay fever, asthma, and other respiratory allergies comprise approximately 70% of these allergic conditions and, as stated by the affiant allergists, these conditions are usually exacerbated by tobacco smoke.

These statistics clearly indicate that the enjoyment of [mental disorder by] some [negligently hired] employees in smoking [spewing toxic substances], which is dangerous to their health, is carried out at the expense of serious injury to the health of a substantial proportion [percentage] of employees. These factors are properly taken into account by the court in determining the balance of conveniences and the social utility of the "hands off rule" of the defendant. We believe these figures should lead the court to conclude that it is improper for the defendant employer to permit some of his [negligently hired] employees to inflict such harm [violence by poisons] on others.

CONCLUSION

On the basis of the foregoing facts and argument, the plaintiff respectfully requests that this court enter an order to show cause with temporary restraints enjoining defendant from exposing plaintiff to an atmosphere in which the passive [forced] inhalation of the smoke of other [negligently hired] employees in the work place creates a hazard to her [everyone's] health.

/s/ Stuart B. Finifter
Stuart B. Finifter
Attorney for Plaintiff

-14-

Reprinted below is the "Hearing Transcript," 2 April 1976, before the above final Order:
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION


DONNA M. SHIMP,
                                                            Plaintiff
vs.

NEW JERSEY BELL TELEPHONE COMPANY,                                                            Defendant.

TRANSCRIPT OF MOTION PROCEEDINGS

April 2, 1976
Atlantic County Civil Courts
Building
1201 Bacharach Boulevard
Atlantic City, New Jersey

BEFORE:

HONORABLE PHILIP A. GRUCCIO, J.S.C.

APPEARANCES:

LAND & FINIFTER, ESQUIRES,
By: Stuart B. Finifter, Esquire,
For the Plaintiff.

CHARLES A. SWEENEY, ESQUIRE,

For New Jersey Bell Telephone Company


(2) MR. FINIFTER: This is a return of an Order to Show Cause which you entered two weeks ago [18 March 1976] to compel the New Jersey Bell Telephone Company to do certain things [control smoking] and to prohibit them from doing certain other things [retaliation] with respect to the right of the plaintiff to a safe working environment.

As Your Honor is aware, we have submitted affidavits in some volume from members of the medical profession with respect to the effect of secondary tobacco smoke upon a work environment and other affidavits with respect to the effect that the secondary or passive [forced] inhalation of smoke [caused by smoker misconduct / behavior] has had upon Mrs. Shimp in her work environment at the Bell Telephone Company.

-1-

I feel the case at this point divides itself really into two parts, both of which relate to the relief which you granted on a temporary basis in the restraining order.

The first is the right of Mrs. Shimp to have a safe place in which to work; and the second is the right of Mrs. Shimp in having that safe place to work to be free from harassment and interference by the telephone company.

If I may I would like to start with the second premise first. Mrs. Shimp's affidavits during the course of the time she has been employed by the telephone company indicate that for some 15 years she was a good and satisfactory worker for the telephone company. She performed her job, she got the usual merit raises and promotions, and so forth, and in time established quite an enviable work record. That all began to change when the allergy [reaction to being poisoned] condition to the passive [forced] cigarette smoke developed.

Your Honor, we have received no responsive papers [reply] from the telephone company, and I do not know what their position is with respect to our factual basis; that is, that she is in fact allergic to [poisoned by] the cigarette smoke [as is typical for tens of millions]. I would assume there is no dispute with respect to that.

THE COURT: Before we go into any assumptions, and since I read your affidavits and I heard nothing from your brother at the bar, let me hear from him and find out just what their position might be.

(6) MR. SWEENEY: With respect to the temporary restraining order, Your Honor, I have several problems.

Number one, I am not sure what I should advise the company it should do to comply with the terms as set forth.

The order seems to be based and it seems as though it would have to be based on a previous finding that the company is not now providing a safe place to work and I do not know how to deal with that.

Secondly, as I say, I am at a loss to know what to do to provide a safe place to work.

[Ed. Note: Knowing how to provide a safe job site is mandatory! Ignorance is negligence.
  • Ignorantia eorum quææ quis scire tenetur non excusat; ignorance of those things which one is bound to know excuses not.
  • Ignorantia juris quod quisque tenetur scire, neminem excusat; ignorance of the [or a] law, which every one is bound to know, excuses no man.
  • Ignorantia legis neminem excusat; ignorance of law excuses no one.
  • Ignorantia juris non excusat; ignorance of the law excuses not.

    Reason: Ignorare legis est lata culpa; to be ignorant of the law is gross neglect----five Latin sayings to the same effect, it is such a well established concept.

    In law, "one who presumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Glanzer v Shepard, 233 NY 236, 239; 135 NE 275, 276 (1922).


    Here the employer is gratuitously
  • (1) negligently hiring the mentally ill (smokers) and
  • (2) permitting them to engage in the typical symptoms of smoker mental disorder, the repetitive spewing of toxic chemicals into the air that others must breathe, and now claims ignorance of the "duty of acting carefully"!!]
  • I think at this point I would like to know just what he is looking for.

    [Ed. Note: Obey the rules!!]

    MR. FINIFTER: I was about to reach that issue.

    In drafting the Order to Show Cause I think as attorneys we recognize the difficulty in putting into precise language without having the facts of how that language is going to work. (7) We can try

    -2-

    to mold it to fit the situation. But until we have had experience we do not know whether it will fill the bill.

    We have submitted an affidavit by Mrs. Shimp with respect to what the telephone company has done in the intervening period of time between your entering the first restraining order and I think Wednesday of this week or possibly Tuesday of this week which was the last day included in the order.

    Basically what we [the employer] have [ has] done is to increase the ventilating system which exists in the office, from approximately 10 minutes an hour which it was running before our request, first to 30 minutes an hour and then to 55 minutes out of the hour, with some explanation it would not run the full time because of the mechanical situation that is involved. That also has proven to be unsatisfactory as the affidavits show.

    What we simply request at this time is that the Court enter an order prohibiting smoking in that office.

    There is only one employee who smokes there, and if I may I would like to respond to (8) the anticipated [irrational] argument with respect to the [falsely alleged] rights of the [mentally ill, negligently hired] employee to smoke.

    It goes back to the original papers. We have demonstrated at least for the purpose of these hearings that passive [forced] inhalation of smoke by my client causes a severe medical problem.

    Once you establish the premise that medically there is a reaction from the cigarette smoke to my client, the so-called rights of the smoker really become non-existent hecause there is no actual right to inflict a medical harm upon another person.

    [Ed. Note:The law disallows "consent" to such injury.]

    I think that is basically what the issue is all about.

    We would ask that there be an order entered prohibiting smoking in the office until the further order of the Court, and also prohibiting anything [adverse] from occurring as far as her conditions of employment might be concerned.

    I would like to speak as to that. I said before that Mrs. Shimp had an exemplary work record for the past 15 ycars. In her latest report from application that she put in for a transfer to another office closer to home (9) from Millville, and that related to Bridgeton which is closer to Salem where she lives, they did an evaluation of her on that occasion. What they said was that her work was fine, everything was fine; but [said in retaliation] that her attendance record [that management had unlawfully caused] was unsatisfactory.

    Your Honor, that record is unsatisfactory because of the medical conditions caused by the [mentally ill, negligently hired smokers'] smoking which they [unlawfully] permitted, and be-

    -3-

    cause of that it is almost certain that the transfer will not be approved, in effect again affecting her conditions of employment in taking her out of the normal transfer process because of seniority.

    That is the kind of thing that has been going on the past couple years and the kind of thing we want to prevent. We ask that an order be entered prohibiting smoking and that there be no [adverse] affect upon her conditions of employment as a result of any medical problems caused by the smoking, either in the past or as it does exist now, or as a result of the litigation.

    MR. SWEENEY: I will deal with that last point first myself, Your Honor. Again (10) going to the method of drafting of an order restricting any change in the working conditions of Mrs. Shimp, it poses a problem to me for the simple reason that if we can limit it to those which relate to her health and directly to the pendency of the action I have no problem; but I think it is only appropriate that I advise the Court that I was told the day before yesterday that Mrs. Shimp during her lunch hour earlier this week, and I do not know whether it was Monday or Tuesday, went into the company files and--

    MR. FINIFTER: I object.

    MR. SWEENEY: (Continuing)--and made photocopies of items there where she had no permission to be.

    I asked our people to speak with her and I inquired as to what records she was copying. They have done so. No further action has been taken at this point.

    But I have to point out to the Court that this is the kind of conduct that would normally be subject to disciplinary procedures. We are holding everything up while this order is in existence.

    (11) I do not know what procedures are being considered, if any. However, I have to say to the Court I have great difficulty in living with any order which prohibits the company from dealing with any aberration from normal employee activity on the part of Mrs. Shimp.

    THE COURT: Other than that arising out of the matter before the Court.

    MR. SWEENEY: Yes.

    MR. FINIFTER: And I have problems because then you get into other matters here--well, first let me tell you what happened.

    My client was called in and she was given a 15-year bracelet for service to the company. She was told that she did a great job for those 15 years. However, she was told that she had an unsatisfactory attendance record and if she did not shape up, and it is in the affidavit,

    -4-

    because of this and this and this [smoke-caused absences], why, this is what we will do to you.

    The disciplinary warning which she got was the first indication of any possible suspension or anything else in that regard.

    In the company they have what they call work ratings and they bring out these (12) sheets. They have complete records. It is just like what you file as far as your bench time report is concerned every week.

    THE COURT: Yes, I know about that.

    MR. FINIFTER: She files one every day. They want to know how many customers she serviced on a particular day and just what she did while she was working, and so forth.

    THE COURT: It seems to me to be rather clear cut, gentlemen, that the company does not lose its right by reason of the order which I now have in effect if she was to absent herself, and forget this woman who is now before me, but if an employee, another one, was to obtain a similar order from the Court, and she stole $5,000.00 from the Bell Telephone cash drawer--I do not know that they keep cash around like that--but that is not within the purview of the order.

    MR. FINIFTER: Yes.

    THE COURT: I think that is the sort of thing you are concerned with.

    MR. SWEENEY: Exactly.

    THE COURT: I will take care of that; I feel I can take care of that.

    (13) MR. FINIFTER: I would ask you to take care of it specifically because I am afraid of the interpretation that the New Jersey Bell Telephone Company might give it.

    THE COURT: Well, I am sure you remember what Justice Haneman said when he was here. He indicated that the sword of Haneman hangs heavy over their head. That sword is now wielded by Gruccio. Let it hang heavy over their head.

    MR. FINIFTER: Thank you.

    MR. SWEENEY: Getting back to the mainstream here, I have several points that I would like to make.

    Number one, I recognize the existing law that says the employer has an obligation to provide a reasonably safe place for the employees to work, and I have no quarrel with that. I think what we are talking about in this courtroom here today is the definition of what is reasonably safe.

    [Ed. Note: This is a diversion effort to limit the issue and to distract off the notorious quantities of toxic chemicals in tobacco smoke in excess of legal limits, to distract off the already existing safety and criminal laws by the Legislature and Congress that ban these hazardous chemicals and that ban poisoning people, and to distract off the 4000 years of law and precedents precluding not only hazards but also nuisances causing discomfort. Note how the diversion tactic proceeds, misrepresenting the existing laws so as to allow poisoning and discomfort! And pretending that the standards set by OSHA are the maximum standards as distinct from mere minimums.

    I think when you get to that, that the State Legislature and the Congress have both enacted legislation and have set up organizations [such as OSHA] to [set minimum] standards of working conditions.

    -5-

    In respect to New Jersey law the (14) Commissioner of Labor decided to abdicate responsibility by and through the [federal] OSHA regulations and that is what we are left with.

    [Ed. Note: Note the many OSHA regulations violated by tobacco smoke, but which he will pretend are not being violated!
    This commonly done diversion scam is perpetrated by employers by means of not citing the ingredients, their quantities, nor the numerics applying to each! It is a distracting diversionary scam, and a fatal one for millions of Americans. Let's see if Ms. Shimp fares better! Let's see if the judge is taken in and fooled the scam:

    I [said the employer lawyer] have to [pretend to] conclude that Mrs. Shimp's position here is that she is unhappy with the regulations that OSHA has set forth, or the fact that they have not as yet dealt with the topic of tobacco smoke in and of itself.

    They [OSHA] certainly have dealt with many of the components of tobacco smoke, primarily the one of carbon monoxide being the most important. It seems to me that the nature of this proceeding has got to be one which looks into the sufficiency of purity of the air which is the thrust of the whole Complaint.

    [Ed. Note: Again, the employer lawyer seeks to divert attention off the full range of legal duties, onto one narrow one.
  • The National Realty and Construction Co, Inc v Occupational Safety and Health Review Commission, 160 US App DC 133; 489 F2d 1257 (1973), says the safety duty adjective "free" (meaning "free" of banned hazards) is "unqualified and absolute." Obeying the "absolute" duty is reasonable.
  • Employers must obey both the general words and the specific numerics. An employer who said, 'we'll obey the number, not the general rule' was found guilty of noncompliance under both federal and state law when a Detroit-area worker was killed on the job as a result. The case citations are International Union, UAW v General Dynamics Land Systems Division, 259 US App DC 369; 815 F2d 1570 (1987) cert den 484 US 976; 108 S Ct 485; 98 L Ed 2d 484 (1987); and People v General Dynamics Land Systems Div, 175 Mich App 701; 438 NW2d 359 (1989) lv app den 435 Mich 860 (1990).
    Here, the employer is pretending to be obeying the numerics, which have been falsified so as to pretend tobacco smoke is under the legal limits, all the while ignoring the general duty. In addition, the rules against nuisances as verified for 4000 years must also be obeyed! Repeat, OSHA sets minimums, not maximums.]
  • Once we start that we are right back in the OSHA ball park. That is where this case should be tried.

    [Ed. Note: Not so].

    If Mrs. Shimp feels she has been to OSHA and is unsatisfied with the results, the statute spells out the course of appeal, and it belongs in the Federal District Court, not here.

    I feel it would be improper for this Court to make the telephone company the agency which should look into and establish the (15) standards for air as a result of air purity or impurity, as a result of the [unlawful] cigarette smoking, and have it become the standard for the entire country. There is an express governmental organization designed to do that

    [Ed. Note: Again, not so.]

    and the telephone company is not designed to do that

    [Ed Note: Not so, compliance is easy:
  • Stop the negligent hiring of the mentally ill.
  • Stop letting them display their symptoms of mental disorder].
  • Basically I think that is our position in this matter.

    I recognize and, therefore, I have not come back with a motion for summary judgment, that there is an issue of a question of a safe place to work. But I do not believe it should be tried and those standards set in this forum.

    Once the standards are set, then the forum can deal with it.

    [Ed. Note: The standards had already been set for
    4000 years, but the employer was defying them].

    But that should be done in another location.

    MR. FINIFTER: Let me respond for one moment and say that the telephone company has nothing to do with setting the standards; it is an OSHA matter and they are just told what to do.

    Let me refer to the Outlook publication of the New Jersey Bell dated February 27, 1976, and I am led to believe this is a New Jersey Telephone Company newspaper they (16) send out.

    I refer to Page 4, and there I find a little article on a New Jersey Bell laboratory study and I quote as follows:

    "A recent Bell Labs study of atmospheric data collected in Northern New Jersey, Eastern New York, Connecticut and Massachusetts showed that pollutants from metropolitan areas can affect air quality in down-wind locations as far as 200 miles away. * * *

    -6-

    "The findings have been reported to the United States Environmental Protection Agency. They will help the Bell System to assess potential impairment of telecommunications equipment by air pollutants, and to find ways to protect that equipment."

    If their own paper contains an article where they say the United States Government is going to help them, the telephone company, to find a way to protect this equipment so that it does not get polluted by smoke, then I think that is significant.

    Your Honor, what we are saying is the telephone company in part should use the same methods to protect their own employees. They (17) have that capability, they have the equipment, and if there is a question about whether it affects anybody in particular our affidavits conclusively show it affects Mrs. Shimp. She should be protected by the equitable powers of the Court until they get around to doing something else about it.

    MR. SWEENEY: I simply want to say that the regulations as set forth by OSHA define the levels of various toxic material [for OSHA purposes only, not for all purposes!!]. We have had a study made in the office of Mrs. Shimp, and by that I mean where she worked previously and where OSHA appeared, and air samples were taken. The levels of all the various items which they concerned themselves with, they were considered, and primarily I mean carbon monoxide but there are also others, and they were all found [by falsification] to be well below the standards that have been set by the government [i.e., by inventing numerics well below what the Surgeon General cites!].

    [Ed. Note: Employers must obey both the general words and the specific numerics. The Surgeon General has already specified the numerics. So-called "air samples" purporting different lower numbers are falsified, fraudulent, and/or deceptive, intended to deceive. Example of falsification: Reporting a low number 4.2 for carbon monoxide instead of the true number 42,000.]

    That office contained many more smokers than we have in the present one because in the present one we have only one [mentally ill, negligently hired smoker].

    Your Honor, I have no evidence to offer you now but the present working conditions are far better than they were in the last office and (18) there is no question about that.

    THE COURT: Does Bell allow smoking all over?

    MR. SWEENEY: In the business office. There are places where because of the nature of the equipment in the central office we cannot permit it because it does affect the equipment itself.

    THE COURT: All right.

    MR. FINIFTER: With respect to the last point, Your Honor, I would like to call Dr. Daum's affidavit to your attention. That was submitted with respect to the availability of OSHA as a remedy and also the [purported] study that Mr. Sweeney relies upon. We have ourselves submitted that to the Court.

    -7-

    (19) COURT'S FINDING

    THE COURT: The Court has before it an application for a continuation of a temporary restraining order which I heretofore issued upon affidavit being submitted to me and appropriate briefs in chambers, and upon notice to the defendant, New Jersey Bell Telephone Company, giving them the right to appear prior to the issuance of the order and be heard. They did not consent but did not elect to appear at the time and I issued a temporary restraining order.

    I read carefully the affidavits and the accompanying material. I shall make reference to some of them. I have before me an affidavit of Dr. Luther L. Terry, a medical doctor. who served as Surgeon General of the United States for a period of 1961 through 1965.

    In that affidavit he indicates, inter alia, "Nicotine in the environment is of concern because nicotine absorbed hy cigarette smokers may be one factor contributing to the development of atherosclerotic cardiovascular disease."

    He also refers in the affidavit here as (20) to the "* * * scientific evidence supporting the concept that passive [forced] inhalation of tobacco smoke can be injurious to health."

    He then goes on to indicate how smoking significantly affects non-smokers and particularly that group of non-smokers who suffer in the areas indicated

    [Ed. Note: victims taken as they come or have been made to become],

    particularly those who are allergic, those who may have heart disease or have other diseases which the passive inhalation of smoke makes injurious to their health.

    This is a distinguished physician and his statements are in a large measure corroborated by Dr. Richard Brams, M. D., who deals with the specific issues of the treatment of allergies and the effect of smoking upon persons who have allergies or whose allergies are activated by the passive [forced] inhalation of smoke.

    There is also before me an affidavit of Dr. Jesse L. Steinfeld, a medical doctor, who deals with, in general, the inhalation of smoke and the passive [forced] inhalation of smoke as it relates to the oncological problem, particularly as it relates to cancer and to carcinogenic hydrocarbons in the tars, nicotine, and (21) carbon monoxide.

    I also have an affidavit from Dr. Donald C. Bews, M. D., a doctor of medicine licensed to practice in the Province of Quebec, and who for 28 years has practiced in the field of industrial medicine and has been associated with the Medical Department of Bell of Canada; and who upon affidavit indicates that based upon his experience of 28 years, and having observed the deleterious effects of smoking on the health of the passive [forced] and active smoker, that it is his professional judg-

    -8-

    ment that the work environment should be free of tobacco smoke, and so forth.

    I have the affidavit of Dr. Frank L. Rosen, Medical Doctor, who says in his affidavit, particularly in Paragraph 4, that in his scientific opinion smoking should be banned in offices and in areas where Bell Telephone has sensitive equipment.

    Also, I have the affidavit of Dr. Wilbert S. Aronow, who covers the area which I heretofore covered.

    The matter is before the Court on the (22) application for a continuation of the restraint.

    Our equity jurisprudence gives this Court the vast equitable power to determine whether or not there is a wrong in a status quo which should be maintained.

    One of the very bases for the separation of the Chancery Division from the Law Division in this State was to vest in those persons who have been given the responsibility of sitting in general equity situations the ability to deal with extraordinary problems on an emergent basis or problems which are not fixed in the law in which the status quo needs to be maintained.

    [Ed. Note: Actually, 4000 years of pertinent law and precedents already existed!

    It was this thought that led the framers of the new [New Jersey] Constitution to continue the separation of the Court of Chancery from the Law Division, giving to that Court the flexibility and ability to with almost limitless variety to adapt its orders to emergent circumstances and to grant temporary relief subject to the final determination of the Court.

    Basically what do we have here? We have a situation in which an employee undoubtedly is [in emergent circumstances], based upon the undisputed evidence (23) before me. We realize this is only a [March 1976] temporary order that has been issued and the continuation of a temporary order, and also that no final determination is made [until December 1976]. Solely upon the evidence that has been presented by the distinguished physicians and professors who have filed affidavits in this matter, it is indicated that there is a substance which has variously been described in the affidavits and literature submitted in support of the plaintiff's position as a deleterious substance and which, according to the Surgeon General of the United States, has a harmful affect to the point where he has pursuant to his authority ordered [by law 15 USC § 1333] stamped on all cigarettes that he has determined that it is dangerous to the health of any person to smoke those cigarettes.

    Now, the affidavits before me show that the passive [forced] inhalation of the smoke (at least upon the affidavits now submitted and without

    -9-

    making any final determination whatsoever), is deleteriously affecting the health of this person.

    (24) So the Court now comes to the matter of balancing equities. What right does the person [smoker] have to smoke, temporarily pending the litigation of the determination of whether in fact these distinguished physicians and professors are correct? What right does that person [smoker] have to continue inhaling [spewing] on the premises of Bell Telephone at this particular office a substance, nicotine, tars, which have been determined by the Surgeon General to be deleterious, vis-a-vis, a person having a right to breathe clean air; or to put it another way, does this person [nonsmoker], this employee, have a similar right to the sophisticated machinery which Bell has protected from the smoke environment by its admission? It is on the record today.

    Balancing these rights which the individual parties have; that is, the [alleged] right to smoke, vis-a-vis, the right of those persons who have listened to the advice of the Surgeon General of the United States who determined that cigarette smoking is injurious to a person's health, and do not want to inhale items which may be carcinogenic in nature, this Court feels that this person [here, Donna Shimp] is (25) presently suffering a wrong which needs temporary relief subject to the ultimate determination.

    [Ed. Note: Others "have listened to the advice of the Surgeon General" colleagues who cite smoking in mental disorder terms. This refers to the impact of the public knowing smoking's severe mental effects: Smoking is not a mere habit but something much worse (a mental disorder). That awareness, that listening, makes for a major impact on the "listener's" perception of smokers ("a profound effect upon the reputation of this behavior")! See the U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book, Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p 5 (December 1977), quoting Murray E. Jarvik, M.D., Ph.D.
    Others "have listened to the advice of the" medical profession, on smoking and smokers in addiction terms, in brain damage terms, and in mental disorder terms.]

    As to the issues of OSHA, there is no question that the State of New Jersey at this point has not elected to set standards; nor does my reading of the affidavits that are presently before me indicate that the Federal Government has elected to set [additional] standards sufficient for the guidance of parties.

    [Ed. Note: It is not, under the U.S. Constitution, the function of the Federal Government to control the mentally ill and their aberrant behavior in all its manfiold forms. Establishing such control is primarily if not exclusively a state and local function!]

    Does that mean that this individual is without a remedy? I do not think that she was without remedy in that she must go into the Federal Court because the Court there is being faced with the same situation that the Court here is faced with, and does not have the broad equitable powers to determine under the laws of the State of New Jersey what a safe working condition is, but would have to look to our law and our determination, and if there is no law anticipate what we in the courts of New Jersey would decide.

    If there is no [OSHA TLV] standard set forth [but there are many], that does not mean the person is without a remedy; that does not mean that where (26) legislatures have failed to act or failed to assume their responsibility or administrative agencies have failed to assume their responsibilities, that the Court will not act; and in the interim on a permanent basis establish that which will protect the public and what is before the Court from injurious action by other persons.

    [Ed. Note: Due to the massive disregard of the rule of law and due to the rampant falsification of TLV's (e.g., reporting 4.2 vs 42,000 for carbon monoxide), the assumption is being made that there are no laws or TLVs already on the subject.
    Actually, there are, for example,
  • the principles against murder, and
  • the 4000 years of precedents against nuisances.
  • And note the General Dynamics case showing that the general safety duty here being enforced albeit in ignorance, must be obeyed.]
  • -10-

    The majesty of the law is in the fact that the law is a constantly changing thing, it adapts itself to [applies] new scientific findings; that it is a viable and elastic law; and as the Court of Equity [pursuant to the Constitution] always has a formula which it may enact to assist in the determination of the rights of individuals and particularly with regard to their constitutional rights [as here].

    Considering the facts as I now have them [in the evidence], considering the affidavits that are before me, and acting only on a temporary basis [permanent later, December 1976], I believe that this Court has the right, duty, and obligation to act and I do act.

    I order and direct that insofar as this litigant before the Court in that office in which she is now employed, that there shall not be the use of any type of cigarette or other tobacco which has been determined to be (27) by the Surgeon General deleterious to a person's health.

    The Court just makes that determination based upon the affidavits before me on the temporary relief sought by the litigant before the Court; that the Court's action today prohibits the Bell Telephone [Company] from taking any [adverse] action with regard to this employee insofar as it relates to any conduct which directly or indirectly results from those actions which have heretofore concerned themselves with cigarette smoking, and thus led to the sickness or absence of this litigant; that nothing in today's Court order shall be deemed to in any way abrogate other rights of the employer or the employee in any manner or description whether arising out of the contractual negotiations with the Union or arising out of the normal employer-employee relationship; but relating to any matter directly or indirectly concerning itself with cigarette smoking which prima facie I have found from the evidence which now is uncontradicted because there has been no opposing affidavits, and subject, of course, to the final determinations of the (28) Court as to whether in fact what the plaintiff said is true on final hearing.

    Now, subject to those conditions which I have set forth, an appropriate order will be prepared setting forth the injunctive relief sought by the plaintiff as to cigarette smoking in her office.

    This is temporary in nature and subject to the final determination upon plenary hearing [see December 1976 final order].

    MR. FINIFTER: Thank you, I will prepare the order.

    -11-

    I, JOHN F. SCARBOROUGH, a Notary Public and Certified Shorthand Reporter of the State of New Jersey, certify the foregoing to be a true and correct transcript of my stenographic notes.

    Dated: April 8, 1976

    /s/ John F. Scarborough
    JOHN F. SCARBOROUGH

    -12-

               The full text of Judge' Gruccio's written TTS-ban Opinion above referenced is both online and in paper text at any good law library. The citation is Shimp v New Jersey Bell Telephone Co, 145 N J Super 516, 531; 368 A2d 408, 416 (1976). Key words include:

    "Cigarettes may not be smoked around the telephone equipment . . . extremely sensitive and can be damaged by the smoke. Human beings are also very sensitive and can be damaged by cigarette smoke. . . . A company which has demonstrated such concern for its mechanical components should have at least as much concern for its human beings. Plaintiff asks nothing more than to breathe the air in its clear and natural state."

    Examples of Precedents / Analyses Shimp Cited

    Ross v Butler, 19 NJ Eq 294; 97 Am Dec 654 (1868) (banning nuisance from burning pine wood affecting adjoining land owner by smoky cinders and odors as not even a short nuisance is allowed when foreseeably recurring, i.e., applying the concept of banning "ultrahazardous activity" spreading beyond the perpetrator's person or property)

    MacDonald v Standard Oil Co, 69 NJL 445 (1903) (employer's "duty to use reasonable care to provide a proper and safe place to work . . . select and employ competent workmen")

    Burns v Del & Atl Telegraph & Telephone Co, 70 NJL 745 (1904) (workplaces "shall be reasonably safe for the [employees] and free from latent dangers known to the [employer] or discernible by an ordinarily prudent [employer] in the circumstances)

    Wallenhelder v Rader, 49 NJ 1, 7 ("Proof of an industry standard is not dispositive on the question of duty. The standard of conduct is reasonable care. . . . The customs of an industry are not conclusive on the issue of the proper standard of care.")

    Dean Prosser, Torts § 33, 170 (3rd ed, 1964) ("if the only test is to be what has been done, no industry or group will ever have any great incentive to make progress in the direction of safety. . . it must meet the challenge of 'learned reason'")

    Protecting Employee Rights by Injunction: Independent Dairy Workers v Milk Drivers Local No. 680, 23 NJ 85; 30 NJ 173 (1959); Cooper v Nutley Son Printing Co, 36 NJ 189 (1961); and Johnson v Christ Hospital, 84 NJ Super 541 (1964) aff'd 45 NJ 108 (1965)

    The Precedents On Which Those Precedents Relied
    Shimp's 1976 brief cited precedents only back to about 1868, when New Jersey began having pure rights cases. Those 19th century cases cited even older precedents and principles going back millenia. These precedents show the ancient common law right to "fresh and pure air" and/or banning "ultrahazardous activity."

    Note also the case list and analysis in the Annotation: Nuisance Resulting from Smoke Alone as Subject for Injunctive Relief, 6 ALR 1574 (1920), summary in the definitions section, and also even older cases.
    In opposing employees seeking enforcement of pure air rights, what employers in essence do is pretend that the nonsmoking employee assumes the risk posed by smokers' deviant behavior of spewing toxic chemicals. But in law, the claim of "assumed the risk" is invalid. Here is why:

    “To hold that he [the nonsmoker] did assume the risk would be equivalent to a repeal of the [safety] statute [and anti-nuisance principles], since it would be a continuing invitation to the company to forbear compliance with its provisions. The [safety] statute was passed under the police power of the state [federal government] for the purpose of protecting those who are unable to protect themselves, occupying as they necessarily do a position much inferior in financial security to that of their employers; the physical necessity of themselves and their families making it essential that they should have work in order to secure the means of sustenance. It would defeat this beneficent purpose if it should be admitted as a sound principle that a failure of the employer to obey the statute could be [legally] condoned by the employe[e]. Such a conclusion would place the employer in the position of power which only the Legislature [Congress] should occupy, since it would enable him [the employer] to either destroy or maintain the policies of the state [federal government] according to his own will and purpose.”—American Zinc Co v Graham, 132 Tenn 586, 589; 179 SW 138, 139-140 (1915), in turn cited by Prof. Alfred Blumrosen, et al, “Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions,” 64 California Law Rev (#3) 702 at 712 n 48 (May 1976).


    And see Koenig v Patrick Constr Corp, 298 NY 313, 318-319; 63 NE2d 133, 135 (1948): “Workmen . . . are scarcely in a position to protect themselves from accident [e.g., injury caused by smokers]. They usually have no choice but to work with the equipment at hand [coworkers whether negligently hired or otherwise] though danger looms large [extraordinary].   The legislature [Congress] recognized this and to guard against the known hazards of the occupation [non-processing] required the employer to safeguard the workers from injury [wrote the entire safety law] . . . If the employer could avoid this duty by pointing to the concurrent negligence of the injured worker in using the equipment [be hurt by negligently hired coworkers], the beneficial purpose of the [safety] statute might well be frustrated and nullified.”—Cited by Blumrosen, “Injunctions,” 64 Calif Law Rev 702, supra, at 711-712 n 47 (May 1976)

    Soon another TTS pure air rights case followed Shimp's, also requesting a court order directing compliance with the safety laws. That case was in Missouri, by Paul Smith v Western Electric Co, 643 SW2d 10; 37 ALR 4th 473 (Mo App, 1982) (in "the [employer] computer room (where smoking is prohibited)," there was protection for computers, but a refusal to provide same for workers. Then more TTS cases followed, e.g., in Michigan (1986), there were the cases of
    • Lauren Hall v Veterans Administration, EEOC Case No. 054-086-X0097 (Detroit, 5 Sep 1986) and,

    • shortly thereafter, Perkins v Ford Motor Co, Case No. 86-633018-CZ (Wayne County Circuit Court, Michigan, 25 Nov 1986); and, later,

    • Phillip Keller v City of Grand Rapids (WD Mich, Thursday, 1 July 1999) (jury verdict $420,878, re discipline and harassment in reprisal against his whistleblowing about not enforcing Michigan's Clean Air Act prohibiting smoking in public buildings).

    Michigan law MCL § 750.27, MSA § 28.216, bans cigarettes, and these Michigan worker safety cases came about due to the rampant corruption and racism causing that law to be NEVER ENORCED.

    Enforcement of the employer duty to provide a safe workplace is a function of the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA), pursuant to federal law, 29 USC § 651 - § 678, which forbids hazards, and rules such as 29 CFR § 1910.1000 which limit toxic chemicals. (And there are equivalent state laws, rules, and agencies.) However, no safety agency enforces safety law with respect to this workplace safety issue, the No. 1 hazard. (Reasons for the non-enforcement include political corruption and racism.)

    Employees are often in reality being REFUSED the protection that the law on paper mandates. So to help employees secure the enforcment of the safety law and rules on their own, with respect to TTS (and any safety issue), Donna Shimp and attorneys wrote a book explaining how to do it. The bibliographic citation is: Donna M. Shimp, Alfred W. Blumrosen, and Stuart B. Finifter, How to Protect Your Health at Work: Sue Against Smoke, Other Occupational Hazards (Salem NJ: Environmental Improvement Associates, 1976). U.S. distribution was by the National Interagency Council on Smoking and Health, 419 Park Avenue South, New York, NY 10016.

    Blumrosen (B.A., 1950; J.D., 1953, Univ of Michigan) was a Professor of Law at Rutgers University and the State University of New Jersey. He and colleagues wrote a law review article explaining the legal principles involved in pro-job-safety litigation. The bibliographic citation is: Alfred W. Blumrosen, Donald M. Ackerman, Julie Klingerman, Peter VanSchaick, and Kevin D. Sheehy, "Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions," 64 California Law Review (#3) 702-731 (May 1976).

    Shimp had been maliciously threatened with being "fired to protect her health" from the TTS.

    That threat was a knowingly wrongful act. The employer could not have made that threat, had OSHA and state labor safety officials been doing their job. Example: falsifying 42,000 ppm of carbon monoxide from cigarettes, as 4 ppm. Such officials falsify, for corruption and racism reasons.

               A book on which Donna Shimp had relied, inspiring her to seek enforcement of the safety law and rules despite OSHA refusal of enforcement, is: Susan M. Daum, M.D., and Jeanne M. Stillman, Ph.D., Work is Dangerous to Your Health: A Handbook of Health Hazards in The Workplace and What You Can Do About Them (New York, Vintage Books, 1973).

               The Shimp case against TTS was widely publicized, including in favorable and unfavorable articles (some editors misrepresented her asking for a safe job site protecting all workers on this subject, as per the law, as being "anti-smoker" instead of "pro-safety for all"):

  • "Court Backs Nonsmoker On a Smoke-Free Office," The New York Times (April 2 item, after the court hearing)

  • Golden, Jeff, "N. J. Court Rescues Woman From Cigaret Smoke," The Evening Bulletin (Saturday 20 March 1976)

  • Johnson, Rudy, "The Right to a Tobacco-Free Job," The New York Times (Tuesday, 30 March 1976)

  • "Labor Letter, A Special News Report on People And Their Jobs in Offices, Fields and Factories," The Wall Street Journal

  • Moore, Mona, "Phone Co. Angered, Anti-Smoker Rings No Bell," The Press, Atlantic City, NJ, 20 August 1975

  • Rubenstein, Anne, "Ex-smoker wants NLRB to clear air for her," South Jersey Courier-Post, Friday, 7 November 1975, p 17.
  • As Donna Shimp knew that TTS is harmful to everyone ("ultrahazardous"), she sued (as in essence a "private attorney general") for enforcement of the safety laws, not for partial action (which is unconstitutional), and not for "accomodation" despite her allergy to smoke. The safety law duty applies to hazards to all, and is "unqualified and absolute," whereas the handicapper accommodation law has a much lesser duty, merely "reasonable action." You want the maximum duty in your favor, NOT the lowest!

    "Accommodation" is obviously inappropriate on its face, for application to a common, widespread, rampant, safety hazard situation such as this. Nonsmokers are not abnormal, even if like Shimp, they have a sensitivity or so-called allergy to poison. Poison being spewed on the job is illegal, whether or not such effect ensues. (Shooting bullets on the job, a killer of fewer people, is illegal, whether or not someone is "allergic to bullets"!!)

    Smokers are the mentally abnormal ones, addicts, brain-damaged, being unlawfully "accommodated," i.e., being given an unlawful exemption from enforcement of the safety law and hiring rules.

    A mid-1999 case, Aviation West Corporation v Washington State Dep't of Labor and Industries, 138 Wash 2d 413; 980 P2d 701 (8 July 1999), involved the state government adopting a non-smoking rule akin to the ancient pure air precedents on the job, over intense tobacco lobby objection, and even one judge.

    WARNING TO NONSMOKERS: DO NOT LET YOUR TTS CASE BE TURNED INTO AN ACCOMMODATIONG CASE. You do not need accommodation, you want smokers' unlawful accommodation ceased and desisted. Dropping your high anti-nuisance and high safety duty legal rights to the low level of mere "reasonable accommodation," when "reasonable" is a low-rights term, is an invitation to the other side to deceive, beguile, or corrupt the judge pursuant to the pattern of widespread bribery already extant. The judge will be tempted to ignore your "unqualified and absolute" safety right! and focus on the low one, the merely "reasonable" accommodation duty, with "reasonable" meaning whatever low level he/she wishes to claim it is! and ignoring the "business necessity" requirement the employer must show!

    The judge can easily ignore, disregard, flout, the basic fact known to all personnel and human resources staff, cited at Shimp v New Jersey Bell Tele Co, 145 N J Super 516, 523; 368 A2d 408, 411 (1976) that it is not necessary to fill the air with TTS for the job to be done ("There is "no necessity to fill the air with tobacco smoke in order to carry on defendant's business"). Unethical judges can easily ignore this fact, pretend the opposite, as outlandish and contrary to fact as decisions that the earth is flat!

    I personally would stick to the HIGH rights position, with the "low" merely "reasonable" one a far distant hanger-on.

    Do NOT count on assistance from state or federal safety officials and prosecutors. Though it is their duty to enforce the law, it is their rampant, widespread, continuing, ongoing, routine REFUSAL TO DO SO, that is leading you to seek action on your own. They are like judges in this respect, subject to the widespread prevalence of corruption and racism. Even federal officials such as Lauren Hall, supra, could not get other federal officials to obey, much less, enforce the laws!!

                  When a citizen is attempting to enforce the laws, as herein by Shimp and others, such private citizen is doing so "not for himself alone but also [for others] as a 'private attorney general' vindicating a policy that Congress considered of the highest priority." Newman v Piggie Park Enterprises, 390 US 400; 88 S Ct 964, 966; 19 L Ed 2d 1263, 1265 (1969); Oatis v Crown Zellerbach Corp, 398 F2d 496, 499 (CA 5, 1968); and Jenkins v United Gas Corp, 400 F2d 28, 33 n 10 (CA 5, 1968).

    For example, see Sera Kirk, Airspace Action on Smoking and Health, and Physicians for Smoke-Free Canada v Premier of British Columbia, et al, Case # 16958 (BC Human Rights Commission, 15 Oct 2001), an ongoing injunction case for smoke-free air on behalf of a number of people.

    Examples of Other Cases Citing the Shimp Precedent

  • Followed: Nelson v U. S. Postal Service, 189 F Supp 2d 450, 460 (D WD Va, 2002)

  • Distinguished: Wilhelm v CSX Transp, Inc, 159 F Supp 2d 755, 759 (D ND Ohio, 2001)

  • In dissent: Burnham v Karl and Gelb, PC, 50 Conn App 385, 403; 717 A2d 811; 14 IER Cas (BNA) 684; 1998 OSH Dec (CCH) P31,665 (1998)

  • Distinguished: Gordon v Raven Systems & Research, Inc, 462 A2d 10 (DC App, 5 May 1983)

  • In dissent: Quinn, Gent, Buseck & Leemhuis, Inc v Unemployment Comp Bd of Review, 147 Pa Cmnwlth 141; 606 A2d 1300; 7.3 TPLR 2.89; 431 CD 1990 (8 April 1992) (in dissent)
  • Example of Anti-Nonsmoker Hostility by Chrysler
    Despite Knowing the Law and Precedents
    The Rossie Judd v Chrysler Situation (July 2003)

    Chrysler Retaliation (August 2003)

    Chrysler Defying Own Policy: "The preference of nonsmokers will prevail when differences regarding smoking area designation arise."

    Ford's Better ExampleNovember 2003

    RELATED SITES
    Cigarette Effects Report, 1889
    Cigarette Analysis - 1914
    Cigarettes Cause Cancer,
    Data From 1925
    Cigarettes Kill Nonsmokers
    Legal Term Definitions
    Michigan Law
    Common Law
    Avoiding Hiring Smokers
    Condominium & Apartment Cases
    Public Transportation/Travel Cases
    International Law


    "Are You Missing $omething?,"
    26 Smoke Signals 4 (Oct 1980)

    Discusses cigarette costs to society, following my practice of
    consolidating in one narrative, data from a multiplicity of sources,
    refuting the then notion that cigarettes are a cost plus to society

    "Smoking as hazardous conduct,"
    86 N Y St J Med 493 (September 1986)

    Discusses workplace smoking as already illegal pursuant to OSHA's 29 CFR § 1910.1000 emissions limits, which cigarettes regularly exceed

    "[Indoor Air Quality] IAQ Already Regulated,"
    3 Indoor Air Rev 3 (April 1993)

    Discusses workplace smoking as already illegal pursuant to OSHA's 29 CFR § 1910.1000 emissions limits, which cigarettes regularly exceed

    "Alternative Models for Controlling Smoking Among Adolescents,"
    87 Am J Pub Health 869-870 (May 1997)

    Discusses preventing smoking among children
    by doing for them as for all other people:
    a law providing that only safe products
    be manufactured, given away, and sold

    Text of A Letter By This Author to The Secretary of Labor Asking Her To Have The Federal Job Safety Agency (OSHA) Enforce 29 CFR § 1910.1000 As Part of the "War on Drugs" Inasmuch As It Does No Enforcement Of The Rule In Its Own Right

    Lawsuit To Institutionalize Smoke-Free Job-Sites
    Action on Smoking and Health (ASH) v Secretary of the Department of Labor (CADC, 7 May 2001) (Initial Decision 9 July 2001)

    This site is sponsored as a public service by
    The Crime Prevention Group

    E-mail@TCPG

    Copyright © 1999 Leroy J. Pletten