Reply Brief — Phillips Manufacturing & Tower Company, et al., Applicants v. Department of Labor, Occupational Safety and Health Administration, et al.
Supreme Court briefJan 3, 2022
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No. 21A245
In the Supreme Court of the United States
____________________________________________________
PHILLIPS MANUFACTURING & TOWER COMPANY, ET AL.,
Applicants
V.
DEPARTMENT OF LABOR, OSHA, ET AL.
___________________________________________________________________________
REPLY IN SUPPORT OF EMERGENCY APPLICATION FOR INJUNCTION
PENDING CERTIORARI REVIEW
___________________________________________________________________________
Patrick Strawbridge
Counsel of Record
CONSOVOY MCCARTHY PLLC
Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
(703) 243-9423
patrick@consovoymccarthy.com
Jeffrey M. Harris
Daniel Shapiro
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
(703) 243-9423
Robert Alt
THE BUCKEYE INSTITUTE
88 East Broad Street, Suite 1300
Columbus, OH 43215
(614) 224-4422
TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................. ii
INTRODUCTION ............................................................................................................. 1
I.
An Injunction or Stay is Urgently Needed. .......................................................... 2
II.
Applicants Have an Indisputably Clear Right to Relief...................................... 8
A.
The Vaccine Mandate Exceeds the Executive’s Authority. ............................ 8
B.
The Grave Danger Provision Does Not Unambiguously Authorize OSHA to
Impose a Vaccine Mandate...................................................................................... 11
C.
OSHA Failed to Establish Necessity. ............................................................. 12
D.
The Mandate Raises Grave Constitutional Concerns................................... 15
CONCLUSION ................................................................................................................ 17
TABLE OF AUTHORITIES
Cases
Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485 (2021) 10, 11
Asbestos Info. Ass’n/N. Am. v. Occupational Safety & Health Admin., 727 F.2d 415
(5th Cir. 1984) .............................................................................................................. 12
Barnes v. E-Sys., Inc. Grp. Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301 (1991) . 3
F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ....................................... 15
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ............................. 10
Fla. Peach Growers Ass’n, Inc. v. U. S. Dep’t of Lab., 489 F.2d 120 (5th Cir. 1974) 12,
14
Hollingsworth v. Perry, 558 U.S. 183 (2010) .................................................................. 3
Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980) .............. 11
La. Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355 (1986) .................................................. 9
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367
(2020) .............................................................................................................................. 9
Music Choice v. Copyright Royalty Bd., 970 F.3d 418 (D.C. Cir. 2020) ..................... 11
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ........................................ 15
Smith v. Ritchey, 89 S. Ct. 54 (1968) ............................................................................... 3
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) .................................................... 5
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ................................................. 7
Toilet Goods Ass’n v. Gardner, 360 F.2d 677 (2d Cir. 1966) ................................. 1, 7, 8
U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590 (2016) ............................. 7
United States Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837 (2020)10
United States v. Lopez, 514 U.S. 549 (1995) ................................................................. 16
Util. Air Reg. Grp. v. EPA, 573 U.S. 302 (2014) ........................................................... 10
Statutes
29 U.S.C. §655 ........................................................................................................... 10, 15
Regulations
29 C.F.R. §1910.1030 ...................................................................................................... 12
ii
INTRODUCTION
Due to the absence of an administrative stay, the January 10 compliance
deadline hangs over Applicants like an axe. Unless this Court immediately enjoins or
stays the Emergency Temporary Standard (ETS), Applicants will have no choice but
to fully comply with this unlawful measure. Indeed, each day that passes imposes
new irreparable harms as Applicants expend significant resources in preparation for
the January 10 compliance deadline. This Court must act immediately lest
Respondents succeed in enacting one of the most expansive federal regulations ever
without the opportunity for pre-enforcement judicial review.
In just days, Applicants will be subject to penalties for noncompliance with the
Mandate.1 At the very least, the Court should implement an administrative stay
immediately. If it waits until oral argument on January 7, it may already be too late.
Toilet Goods Ass’n v. Gardner, 360 F.2d 677, 685-86 (2d Cir. 1966), aff’d sub nom. 387
U.S. 158 (1967), and aff’d, 387 U.S. 167 (1967) (Friendly, J.) (regulations are
“immediately reviewable” when they “operate[] ‘to control the business affairs’ of the
plaintiff and ma[k]e it impossible to ‘cogently plan its present or future operations’ so
long as their validity remained undetermined ... even though review might have been
obtained by provoking an adverse administrative order”).
1 Although the Respondents note (at 15) that OSHA has announced that it is
“exercising enforcement discretion” and thus will not “not issue citations for
noncompliance with the standard’s testing requirements before February 9,” this
discretion is restricted only to those employers who satisfy OSHA that they are
“exercising reasonable, good faith efforts to come into compliance with the standard.”
Id. at n.2. And all other aspects of the policy are still scheduled to take effect on
January 10. Id.
1
I.
An Injunction or Stay is Urgently Needed.
Applicants are facing down a compliance deadline of Monday, January 10.
Applicants must take significant steps over the next week to prepare to comply with
the January 10 deadline including collecting employee information, promulgating
written policies, holding employee information sessions, and informing employees
that they should prepare themselves to submit to the Mandate. Unless this freight
train is stopped immediately, these injuries are unavoidable, compounding, and
irreparable. Respondents’ cursory attempt to dismiss the gravity and imminence of
these harms fail.
First, Respondents (at 78) blithely dismiss Applicants’ concerns about labor
shortages as “speculation.” But Applicants have submitted detailed declarations that
demonstrate both the existing labor shortage and the likelihood, based on first-hand
representations, that their employees would quit rather than comply with the
Mandate. The Mandate would substantially exacerbate Applicants’ existing labor
shortage both by causing them to lose current employees and by making it harder to
hire new employees. Moreover, it would undermine the ability of companies like
Phillips, with just over 100 employees, to compete for labor with companies who have
fewer than 100 employees.
If the Occupational Safety and Health Administration (OSHA) had taken the
time to do notice and comment rather than rushing to issue an ETS that it knew
would be tied up in litigation for the equivalent time of a full comment period, it would
have known these particularized consequences of the Mandate. Instead, Respondents
2
(at 78) focus entirely upon generalized “empirical data” to counter the detailed
evidence of harm submitted by Applicants. But in awarding interim injunctive relief,
Applicant need only show that they will suffer irreparable harm, not that the entire
industry will. See Smith v. Ritchey, 89 S. Ct. 54, 54 (1968) (Douglas, J., in chambers)
(“[I]t is a federal policy to grant stays where a substantial question is presented and
denial of the stay will do irreparable harm to the applicant.”); see also, e.g.,
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010); Barnes v. E-Sys., Inc. Grp. Hosp.
Med. & Surgical Ins. Plan, 501 U.S. 1301, 1305 (1991) (Scalia, J. in chambers).
The Applicants have presented evidence of irreparable harm and Respondents
have presented no countervailing evidence rebutting the harm to the applicants. The
“empirical” data referenced time and again by Respondents is conclusively rebutted
by the on-the-ground realities faced by Applicants.
Specifically, at least 47 of Applicant Phillips’s employees are not vaccinated
and 17 have said unequivocally that they will not get the vaccine, even if it meant
losing their job at Phillips. See Doc. 4-2 ¶8, Phillips Manufacturing & Tower Co. v.
OSHA, 21-4028 (6th Cir.) (attached as Appendix A). Phillips already has 7 openings
that it cannot fill and its employees are working overtime to keep pace. Id.¶9. The
Mandate will greatly exacerbate this shortage. And Phillips’s analysis has indicated
that the Mandate will cost the company at least $818,635.30 annually in recuring,
training, additional overtime, and other costs. Id. ¶11. These costs do not even factor
in the harm the resulting labor shortage will do to Phillips’s ability to meet its
3
contractual production targets. Failure to meet such targets carries penalties up to
$25,000 per hour that the purchaser is without the product. Id. ¶13.
Respondents also have failed to address Applicant Sixarp’s irreparable losses.
Sixarp is already suffering a labor shortage, with over 30 positions that it is
attempting to fill. Doc. 4-3 ¶8, Phillips Manufacturing & Tower Co. v. OSHA, 21-4028
(6th Cir.) (attached as Appendix B). The Vaccine Mandate will significantly
exacerbate this labor shortage as many Sixarp employees have indicated they would
quit or be terminated rather than be subjected to the Vaccine Mandate, and many
employees would not work for a company that subjected them to such a Mandate. Id.
¶¶7, 8, 10.
Respondents’ silence in the face of Applicant Oberg’s immediate losses is
especially deafening given that its $22 million in lost revenue due to the Mandate
was the centerpiece of Judge Larsen’s discussion of irreparable harm imposed on
business. App. 55-56 (Larsen, J., dissenting) (“The vaccinate-or-test mandate will
exacerbate these shortages, with Oberg estimating that it will lose ‘200 employees—
approximately 30% of its existing workforce.’”). See also In re MCP No. 165, Doc. 3282 ¶13 (attached as Appendix C). Such loses—either from a vaccine mandate, testing
mandate, or both—would be crippling to Oberg and endanger its ability to fulfill
existing orders. Id.
Respondents’ empirical data does nothing to rebut these demonstrated labor
shortage harms to the Applicants. Indeed, Respondents do not even attempt to rebut
4
Respondents’ claims of harm to their business. Accordingly, it is undisputed that these
Applicants will suffer irreparable harm.2
Second, Respondents (at 78) claim that compliance costs are “avoidable
because the Standard permits employers to adopt a mask-and-test policy instead of
requiring vaccination.” But Applicants have submitted detailed data on the costs of
testing requirements. See, e.g., Appendix C ¶13 (“[W]e anticipate that testing our 286
unvaccinated employees could cost more than $32,000 per week, or up to $1.7 million
annually. And this does not account for the lost employee time necessary to
accomplish the testing.”); Appendix A ¶12 (citing to economic analysis performed for
Phillips for conclusion that “annual testing for Phillips will cost an additional $96,200
annually”); Appendix B ¶11 (estimating “more than $44,000 weekly across the
company” for testing costs). These costs are overwhelming—even before the current
test kit supply shortage—and will be borne by the companies because they are not
willing to lose even more of their workforce by passing on testing costs to their
employees. Moreover, a testing-only requirement will still exacerbate labor
shortages. For example, Oberg estimates that it will lose “seven additional employees
in the event [it] mandated only testing.” Appendix C ¶11.
2 Respondents’ contention that these costs will be “offset” in theory is both
irrelevant and directly contradicted by the experience of the Applicants. The
irreparable harm inquiry focuses on actual harms caused by the challenged
measure—not the ability of a party to offset such harms. Cf. Texas v. United States,
809 F.3d 134, 156 (5th Cir. 2015) (holding in the standing context that “[w]eighing []
costs and benefits is precisely the type of ‘accounting exercise,’ in which we cannot
engage. [Plaintiff] has shown injury.”).
5
Third, Respondents (at 79) remarkably claim that Applicants’ costs are
“routine.” But Applicants have shown in detail the disastrous effects of these costs.
See, e.g., id. ¶12 (“Given the difficulty of filling existing openings, the anticipated
losses associated with these Vaccine Mandate would be economically crippling to
Oberg, endangering its ability to fulfill existing orders.”); Appendix A ¶13 (noting the
as a result of the Mandate, “Phillips could be subjected to significant penalties”
caused by labor shortages of up “$25,000 per hour” that Phillips’s customer are
without the product); Appendix B ¶11 (nothing that the ETS “imposes millions of
dollars of potential annual additional costs to Sixarp”). Respondents’ one-size-fits all
data generalizations are no substitute to the actual accountings of Applicants.
Appendix C ¶14 (“These costs are economically unsustainable for Oberg, and would
force us to curtail operations and ultimately eliminate jobs.”); Angela Phillips, I Am
Challenging the Vaccine Mandate to Protect My Workers’ Jobs, Real Clear Policy (Nov.
11, 2021), https://bit.ly/31hYrXS (“Complying with OSHA’s vaccine mandate and
testing requirements risks catastrophic financial consequences. It also means firing
qualified, well-trained, hardworking employees who rely on their jobs at Phillips
Manufacturing & Tower Company to feed their families and pay their mortgages —
for no reason other than to avoid draconian federal fines.”). Applicants know precisely
how much this will cost their businesses—generalized data does nothing to rebut
these showings. Moreover, complying with a regulation later held invalid almost
always produces the irreparable harm of nonrecoverable compliance costs.” Thunder
6
Basin Coal Co. v. Reich, 510 U.S. 200, 220-21 (1994) (Scalia, J., concurring in part
and in the judgment).
Fourth, Respondents (at 79) claim that Applicants must risk enforcement
actions to obtain judicial review. But this is simply not the law. This Court has long
been clear that regulated parties need not risk enforcement actions in order to
challenge a measure. U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590, 600
(2016). Applicants need not wait for OSHA to “‘drop the hammer’ in order to have
their day in court.” Id.; see also Toilet Goods Ass’n, 360 F.2d at 685 (rule reviewable
when its “very promulgation demands conformity and poses, for the plaintiff or others
with whom he must deal, the alternatives of compliance or severe penalties of
forfeiture of disruption of business operations”).
Fifth, Respondents (at 83-84) suggest the Court enjoin “only the portion of the
ETS concerning a vaccination requirement.” But the testing requirement itself
imposes massive costs. See, e.g., Appendix A ¶12 (citing to economic analysis
performed for Phillips for conclusion that “annual testing for Phillips will cost an
additional $96,200 annually”); Appendix B ¶11 (“We have been advised that imposing
weekly testing for COVID-19 could cost $27,600 weekly for the primary Grand Rapids
facility alone, and more than $44,000 weekly across the company.”). Applicants must
begin planning for the testing requirement now including by promulgating written
policies, locating test-kit suppliers, and preparing their workforce. Id. ¶12
(“Preparing to impose the Vaccine Mandate, including the alternative testing
protocols, will require us to devote time and substantial costs immediately, as that
7
ramp-up will take place in the coming weeks and over the Holidays.”). Applicants are
entitled to immediate judicial review on this ground alone. Toilet Goods Ass’n, 360
F.2d at 685-86. Allowing the testing requirement to go into effect would irreparably
harm Applicants.
Sixth, Respondents (at 84) are correct that the purpose of “interim equitable
relief is not to conclusively determine the rights of the parties” and “‘mold [any] decree
to meet the exigencies of the particular case.’” But that is precisely what they are
asking the Court to do. Because the baseline is no Mandate, the ETS irrevocably
alters the status quo. Non-intervention would conclusively determine the rights of
parties because the requirements (except testing) go into force on January 10.
Applicants seek only the normal process—an opportunity to have their day in court
to challenge an administrative measure before it is actually enforced against them.
Absent a stay, they will have to risk enormous enforcement penalties or comply with
the Mandate. This Court should grant a stay to allow full judicial review. See id. at
687 (“The sooner the industry’s claims as to the coverage of the Act in these respects
are determined, the better for everybody.”).
II.
Applicants Have an Indisputably Clear Right to Relief.
A.
The Vaccine Mandate Exceeds the Executive’s Authority.
Respondents’ statutory arguments all rest on the fundamentally flawed
assumption that the major questions doctrine does not apply to the Vaccine Mandate.
That assumption is absurd. The Mandate is one of the most far-reaching, invasive,
and controversial regulatory actions in American history and it is beyond doubt that
the Mandate triggers the major question doctrine’s clear statement rules: “The
8
Mandate derives its authority from an old statute employed in a novel manner,
imposes nearly $3 billion in compliance costs, involves broad medical considerations
that lie outside of OSHA’s core competencies, and purports to definitively resolve one
of today’s most hotly debated political issues.” App. 116-17; see also App. 52 (Larsen,
J., dissenting) (“Now the Secretary claims authority to impose a vaccinate-or-test
mandate across ‘all industries’ on 84 million Americans (26 million unvaccinated) in
response to a global pandemic that has been raging for nearly two years.”); App. 69
(Sutton, C.J., dissenting) (“The Secretary claims authority to require 80 million
Americans—in virtually every type of American business there is—to obtain a
COVID-19 vaccine or, in the alternative, to undertake a weekly COVID-19 test and
wear a mask throughout each workday.”).
Respondents’ discussion (at 55-56) of Little Sisters of the Poor v. Pennsylvania
demonstrates their fundamental misunderstanding of government power under the
Constitution. That case involved the government’s discretion to a grant religious
exemption from a federal mandate. Little Sisters of the Poor Saints Peter & Paul Home
v. Pennsylvania, 140 S. Ct. 2367, 2379 (2020). This case involves the governments’
attempt to impose a new mandate on private parties. This distinction matters
because “an agency literally has no power to act, let alone pre-empt the validly
enacted legislation of a sovereign State, unless and until Congress confers power upon
it.” La. Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 374 (1986). And the major
questions doctrine applies when an “agency suddenly discovers ‘in a long-extant
statute an unheralded power to regulate a significant portion of the American
9
economy.’” App. 52 (Larsen, J., dissenting) (quoting FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 160 (2000)); see also App. 70 (Sutton, C.J., dissenting)
(“[T]he federal courts ‘expect Congress to speak clearly when authorizing an agency
to exercise powers’ over large numbers of Americans with respect to contested public
policy choices of vast significance.”) (quoting Ala. Ass’n of Realtors v. Dep’t of Health
& Hum. Servs., 141 S. Ct. 2485, 2490 (2021)). Because the federal government is one
of limited and specifically enumerated powers and does not possess a general police
power, the major questions doctrine ensures that agencies do not impose new
obligations of “vast ‘economic and political significance’” upon private parties unless
Congress “speaks clearly.” Util. Air Reg. Grp. v. EPA, 573 U.S. 302, 324 (2014). To be
sure, Little Sisters involved a highly controversial issue—but unlike the ETS, it did
not involve an expansion of federal power—the heart of the major questions doctrine.
United States Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837, 1849-50
(2020) (“Our precedents require Congress to enact exceedingly clear language if it
wishes to significantly alter the balance between federal and state power and the
power of the Government over private property.”).3
Respondents still can point to no unambiguous grant of authority to issue the
Mandate. The OSH Act’s emergency temporary standard provisions simply cannot
bear the weight of one of the most significant expansions of federal power in American
history. Accordingly, its imposition on Applicants is exceeds the authority granted to
3 The American Rescue Plan Act of 2021, relied upon by Respondents (at 56),
demonstrates that Congress is aware of COVID-19, has legislated about it, but was
unable to garner enough votes to mandate vaccination.
10
OSHA by Congress and Applicants have a clear right to relief. See Ala. Ass’n of
Realtors, 141 S. Ct. at 2490 (“[O]ur system does not permit agencies to act unlawfully
even in pursuit of desirable ends.”).
B.
The Grave Danger Provision Does Not Unambiguously
Authorize OSHA to Impose a Vaccine Mandate.
Section 655(c)(1)’s grave danger requirement is not the clear statement of
authority OSHA requires to issue the Mandate. And OSHA’s finding that COVID-19
poses grave danger for purposes of the OSH Act is arbitrary and unsupported by the
record. Because the OSH Act is not an “open-ended grant” of authority to OSHA to
regulate all dangers in society, to qualify as a grave danger, the exposure risk must
be unique to the workplace, rather than a risk inherent in everyday life. Indus. Union
Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 642-43 (1980) (“There are many
activities that we engage in every day—such as driving a car or even breathing city
air—that entail some risk of accident or material health impairment.”). OSHA cannot
meet this fundamental standard to invoke its OSH Act authority.
Respondents attempt (at 24-25) to establish grave danger by pointing to broad
data concerning the dangers of COVID-19 in general. But OSHA’s reasoning
regarding the Mandate ultimately boils down to saying that there is a lack of evidence
that workers, particularly those with natural immunity, are not in grave danger. This
is not the affirmative finding of grave danger required by the OSH Act’s exacting
standards. See id. at 653; cf. Music Choice v. Copyright Royalty Bd., 970 F.3d 418,
429 (D.C. Cir. 2020) (“[R]ational decisionmaking ... requires more than an absence of
contrary evidence; it requires substantial evidence to support a decision.”). Moreover,
11
Respondents continue to ignore that a majority of the workforce is vaccinated and
thus not at grave risk of complications from COVID-19 infection. See App. 110 (“And
of course, this all assumes that COVID-19 poses any significant danger to workers to
begin with; for the more than seventy-eight percent of Americans aged 12 and older
either fully or partially inoculated against it, the virus poses—the Administration
assures us—little risk at all.”). And they also ignore the variability in the danger
posed by COVID-19 to different age groups. See App. 49 (Larsen, J., dissenting) (“So
an unvaccinated 18-year-old bears the same risk as a vaccinated 50-year-old. And yet,
the 18-year-old is in grave danger, while the 50-year-old is not. One of these
conclusions must be wrong; either way is a problem for OSHA’s rule.”).
C.
OSHA Failed to Establish Necessity.
Respondents’ discussion (at 30-44) fails to provide a basis for OSHA’s flawed
conclusion that the Mandate is necessary.
First, Respondents’ discussion is grounded in the central fallacy that the
necessity standard is akin to a reasonableness standard. But it is well established
that OSHA bears a heavy burden to prove that “the ETS, OSHA’s most dramatic
weapon in its enforcement arsenal, is ‘necessary’ to achieve the projected benefits.”
Asbestos Info. Ass’n/N. Am. v. OSHA, 727 F.2d 415, 426 (5th Cir. 1984); see also Fla.
Peach Growers Ass’n, Inc. v. U.S. Dep’t of Lab., 489 F.2d 120, 130 (5th Cir. 1974). As
Chief Judge Sutton and Judge Larsen exhaustively demonstrate, under the OSH Act,
an “emergency measure must ... be more than ‘reasonably’ needful; it must be closer
to ‘indispensable.’” App. 44-45 (Larsen, J., dissenting); App. 76-77 (Sutton, C.J.,
12
dissenting) (“Once connected, the reference to ‘necessary’ powers to address ‘grave’
dangers in an ‘emergency’ clarifies that ‘necessary’ has the narrower meaning. It
refers only to indispensable or essential measures, not to whatever the Secretary
determines is useful or beneficial.”). This error of law infects the Sixth Circuit’s
decision to vacate the stay below, and OSHA and Respondents’ attempt to establish
necessity.
Second, the availability of obvious alternatives (antibody testing) and a gross
mismatch between the danger (lack of immunity) and the means (vaccinating those
with immunity) preclude a finding of necessity. Respondents continue to fail to
address that OSHA itself has recognized in the past that vaccination is unnecessary
when “antibody testing has revealed that the employee is immune.” 29 C.F.R.
§1910.1030(f)(2)(i) (applying to hepatitis vaccination). Accordingly, the Fifth Circuit
was right to hold that the Mandate does not meet the necessity standard because it
“fails almost completely to address” the fact that “a naturally immune unvaccinated
worker is presumably at less risk than an unvaccinated worker who has never had
the virus.” App. 112.
Third, Respondents cannot establish necessity because OSHA failed to
consider the variability in danger posed by COVID-19 to different age groups and
industries. Studies have isolated individuals in age groups that are not at high risk
from COVID-19. See CDC, Trends in Number of COVID-19 Cases and Deaths in the
US Reported to CDC, by State/Territory, https://bit.ly/3lkVGfR; see also Journal of
Hospital Medicine, Trends in COVID-19 Risk-Adjusted Mortality Rates (Feb. 16,
13
2021), https://bit.ly/3Fto8Uy. Yet OSHA fails account for “what is perhaps the most
salient fact of all: the ongoing threat of COVID-19 is more dangerous to some
employees than to other employees.” App. 112; see also App. 47 (Larsen, J. dissenting)
(“The government’s own data show that unvaccinated workers between the ages of 18
and 29 bear a risk roughly equivalent to vaccinated persons between 50 and 64.”);
App. 78 (Sutton, C.J., dissenting) (“The Secretary could create exemptions for those
least at risk, say cohorts from age 18 to 49, a population range that faces healthcare
risks from COVID-19 at roughly the same level as the Secretary’s own assessment of
what is not a grave risk, with some slightly above and some slightly below.”).
Moreover, “OSHA acknowledge[d] that death rates are higher in ‘[c]ertain
occupational sectors,’ [] yet its rule never considers what results would obtain from
targeting those sectors alone.” App. 47 (Larsen, J., dissenting). These failures
preclude a finding that OSHA tailored its standard to the purported grave danger.
Fla. Peach Growers Ass’n, Inc., 489 F.2d at 130.
Fourth, Respondents continue to utterly ignore their prior position that a onesize-fits-all-industries mandate is inappropriate. The Fifth Circuit recognized that
OSHA itself specifically found that such an approach is inappropriate. See App. 112
(quoting Department of Labor’s Resp. to the Emergency Pet. for a Writ of Mandamus
at 16, 17, 21, 26, In re AFL-CIO, No. 20-1158 (D.C. Cir. May 29, 2020)); see also App.
113 (“[A]n ETS meant to broadly cover all workers with potential exposure to COVID19—effectively all workers across the country—would have to be written at such a
general level that it would risk providing very little assistance at all.”). Nothing has
14
changed in the world since these previous agency findings that make a uniform
standard for all industries appropriate. Cf. F.C.C. v. Fox Television Stations, Inc., 556
U.S. 502, 515 (2009). OSHA’s prior position continues to go unaddressed. See App.
113-14 (“[A]s OSHA itself has previously acknowledged, an ETS appears to be a
‘poorly-suited approach for protecting workers against [COVID-19] because no
standard that covers all of the Nation’s workers would protect all those workers
equally.’”) (quoting Letter from Loren Sweatt, Principal Deputy Assistant Sec’y,
OSHA, to Richard L. Trumka, President, AFL-CIO at 3 (May 29, 2020)).
D.
The Mandate Raises Grave Constitutional Concerns.
Respondents implausibly insist that what is arguably the most significant
expansion of federal authority over the States, private business, and private citizens
has precisely no constitutional implications.
Respondents (at 68-69) have attempted to characterize the decision to forgo
vaccination as economic activity. But this would mean that “the power to regulate
commerce” has no limit. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549
(2012). Just as the decision to forgo purchasing health insurance is noneconomic
activity, id., “[a] person’s choice to remain unvaccinated and forgo regular testing is
noneconomic inactivity,” App. 115. And Respondents ignore that Congress lacks “the
same license to regulate what we do not do,” which, if granted, would “fundamentally
chang[e] the relation between the citizen and the Federal Government.” NFIB, 567
U.S. at 555.
15
Respondents still fail to identify any limiting principle to prevent their
interpretation of the federal government’s powers under the Commerce Clause from
becoming a general federal police power. Vaccination has always been “squarely
within the States’ police power.” App. 115. If the federal government may exercise
control over the unvaccinated in such a sweeping, indiscriminate way, there is truly
no limit on federal police powers and no realm left to the exclusive authority of the
States. But the courts “always have rejected readings of the Commerce Clause ... that
would permit Congress to exercise a police power.” App. 116 (quoting United States
v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring)). Accordingly, the Vaccine
Mandate exceeds the federal government’s authority under the Commerce Clause.
App. 116 (“[T]he Commerce Clause power may be expansive, but it does not grant
Congress the power to regulate noneconomic inactivity traditionally within the
States’ police power.”).
Respondents (at 71-72) also fail to assuage nondelegation concerns. By
continuing to assert that §655(c) is not limited to workplace-specific dangers,
Respondents have waived the only possible intelligible principle guiding OSHA’s
discretion. But the OSH Act cannot constitutionally “authorize a workplace safety
administration in the deep recesses of the federal bureaucracy to make sweeping
pronouncements on matters of public health affecting every member of society in the
profoundest of ways.” App. 105. Accordingly, to avoid this unconstitutional result,
this Court should reject Respondents’ unbounded interpretation of OSHA’s powers.
App. 117 (“At the very least, even if the statutory language were susceptible to
16
OSHA’s broad reading—which it is not—these serious constitutional concerns would
counsel this court’s rejection of that reading.”); see also App. 55 (“Here, the Secretary
asks for maximum authority and maximum discretion; he wants to issue a rule of
national import, covering two-thirds of American workers, and he wants to do it
without clear congressional authorization, without even public notice and comment,
and with a capacious understanding of necessity.”); see also App. 81-82 (“Because our
interpretation of the relevant statutes avoids these constitutional claims and any
others, we need not address them. [] By contrast, anyone who takes the view that the
Fifth Circuit’s stay should be lifted must come to grips with each of the statutory
imperatives, each of the clear statement requirements, and all of the constitutional
claims.”).
CONCLUSION
For the foregoing reasons, Applicants respectfully ask the Court to enter an
injunction against OSHA during the pendency of this appeal, preventing the agency
from implementing or enforcing the Vaccine Mandate. Alternatively, this Court
should vacate the Sixth Circuit’s order dissolving the Fifth Circuit’s stay of the
Vaccine Mandate. At a minimum, Applicants request an administrative stay of the
Mandate to ensure Applicants do not need to continue expending unrecoverable
resources before the Mandate’s legality is determined.
Respectfully submitted,
Patrick Strawbridge
Counsel of Record
CONSOVOY MCCARTHY PLLC
Ten Post Office Square
17
8th Floor South PMB #706
Boston, MA 02109
(703) 243-9423
patrick@consovoymccarthy.com
Jeffrey M. Harris
Daniel Shapiro
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
(703) 243-9423
Robert Alt
THE BUCKEYE INSTITUTE
88 East Broad Street, Suite 1300
Columbus, OH 43215
(614) 224-4422
18
Appendix A
Case: 21-4028
Document: 4-2
Filed: 11/05/2021
Page: 2
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PHILLIPS MANUFACTURING & ToWER
COMPANY,
Petitioner,
V.
UNITED STATES DEPARTMENT OF
LABOR; UNITED STATES OccUPATIONAL
SAFETY AND HEALTH ADMINISTRATION; )
MARTY WALSH, IN HIS OFFICIAL
CAPACITY AS SECRETARY OF LABOR;
Case No.
JAMES FREDERICK IN HIS OFFICIAL
CAPACITY AS ACTING ASSISTANT
SECRETARY OF LABOR FOR
OccUPATIONAL SAFETY AND HEALTH,
Respondents.
DECLARATION OF ANGELA R. PHILLIPS
L, Angela R. Phillips hereby declare as follows:
1. I am the Chief Executive Officer of Phillips Manufacturing & Tower
Company (Phillips"). Phillips is a 54-year-old company specializing in the
manufacture of specialty welded steel tubing for automotive, R\V,
appliance, and construction industries.
2. I have been the CEO of Phillips for 12 years and I directly oversee day to
day operations. Based on my position, I have personal knowledge and
Case: 21-4028
Document: 4-2
Filed: 11/05/2021
Page: 3
experience to understand the effects of the OSHA "COVID-19
Vaccination and Testing;
Emergency Temporary Standard" (Vaccine
Mandate") on Phillips.
3. Because of its potential impact on Phillips, I have been monitoring the
emergency temporary standard Vaccine Mandate process since President
Biden's September 2021 announcement.
4. Phillips has 104 employees. It is my understanding that the Vaccine
Mandate applies to businesses with 100 or more employees and would
thus apply to Phillips.
5.
Phillips would not impose a vaccine mandate or testing requirement but
for the Vaccine Mandate.
6. I have invested in
antibody
testing for Phillips's workforce to determine
if they have immunity to CCVID-19. While a
survey conducted of Phillips
employees ("Survey") indicates that 28 employees are fully vaccinated, the
results of the antibody tests indicate that 44
employees tes ted had
COVID-19 antibodies and thus possess immunity
to
COVID-19.
Accordingly, a substantial number of Phillips employees (approximately
16 employees) possess natural
immunity as of the time of the antibody
testing
7. Most of my employees are, and
feet in the manufacturing
always have been, separated by at least six
process. In addition to this natural separation,
2
Case: 21-4028
Document: 4-2
Filed: 11/05/2021
Page: 4
management has encouraged six-foot social distancing as a COVID-19
precaution.
8. The Phillips Survey indicates that at least 47 employees have decided not
to get vaccinated. And of Phillips's unvaccinated employees, 17 employees
have reported that they will not get the vaccine, even if it means losing
their job. An additional 27 unvaccinated employees have indicated that
they would not get vaccinated, but would participate in weekly testing if
that were required to keep their jobs.
9. The Vaccine Mandate would have serious effects on Phillips. General
labor shortages in the area have resulted in Phillips being understaffed.
Phillips currently has 7 openings that it has been unable to fill. Due to this
labor shortage, employees are already working overtime shifts, on average
10-hour shifts, 6 days a week.
10.The Vaccine Mandate will exacerbate this labor shortage. Based on my
experience, requiring vaccination or onerous testing will make it even
more difficult for Phillips to fill its currently open positions, let alone new
vacancies created by the Vaccine Mandate.
11.As indicated by the supporting memorandum, the Vaccine Mandate will
cost Phillips at least $818,635.30 annually in recruiting, training, additional
overtime, and other costs.
12. As indicated by the supporting memorandum, annual testing for Phillips
3
Case: 21-4028
Document: 4-2
Filed: 11/05/2021
Page: 5
will cost an additional $96,200 annually.
13.These costs assume that the Phillips will be able to meet existing product
requirements to customers by using additional overtime from existing
employees.
However,
if Phillips is
unable
to
meet production
requirements because the current labor shortage is significantly worsened
by the Vaccine Mandate, then pursuant to contracts entered into between
Phillips and some customers, Phillips could be subjected to signiticant
penalties. One such contract has a damages provision requiring Philips
to pay $25,000 per hour that the customer is without the product.
Accordingly, Phillips's potential losses from the Vaccine Mandate could
be financially devastating.
14. Out of Phillips's 104 employees, 3 regularly work from home.
I declare under penalty of perjury that the foreguiding is correct. Executed on
thistday of_Woyema, at Middletown, Ohio.
Angela R. Phillips
Case: 21-4028
Document: 4-2
Filed: 11/05/2021
Page: 6
MEMORANDUM
To:
Angela Phillips
CEO
Phillips Manufacturing & Tower Company
From: Michael E. Reed
Associate Economist
The Buckeye Institute
Re:
Analysis of the Economic Impact of a Vaccine Mandate
The Occupational Safety and Health Administration (OSHA), at the direction of President Joe
Biden, has promulgated an emergency regulation requiring all businesses of 100 or more
employees to certify that all employees are vaccinated against COVID-19 or take weekly tests to
determine infection. This brief explains the methodology behind calculations of immediate and
continuous economic impact that the mandate will have upon your company, Phillips
Manufacturing & Tower Company (Phillips).
Our analysis measures the regulation’s immediate economic impact related to the anticipated loss
of employees, and the continuous economic impact of costs incurred by weekly testing. Please
note that this analysis does not include damages that could result if Phillips is unable to meet
contractual delivery requirements to customers due to workforce losses. Phillips represents that
some customers include contractual penalties for delivery failures, which could be substantial.
Phillips could also incur legal costs and fees if disputes arise related to production schedules
impacted by labor shortages.
Based upon survey responses from employees, Phillips expects 23 employees (22 percent of its
existing workforce) to leave the company rather than comply with the new OSHA regulation.
We calculate the economic impact of this loss under three time periods using assumptions and
data provided by Phillips (see, e.g., Phillips’ survey). All calculations are based on maintaining
existing company revenue.
•
•
•
Time Period 1 – a four-week period in which the lost employees are not replaced, and the
remaining employees replace lost productivity by working overtime.
Time Period 2 – a four-week period in which replacement employees have been hired and
earn wages, but as they train, they contribute zero to company revenue.
Time Period 3 – a 22-week period in which replacement employees train and contribute
to company revenue at a lower rate than remaining employees, and remaining employees
replace lower productivity by working overtime.
Replacing the lost employees will require recruiting, interviewing, and initial training of new
employees. Phillips estimates that this process will cost $6000 per new employee for an
estimated total one-time cost of $138,000.
Case: 21-4028
Document: 4-2
Filed: 11/05/2021
Page: 7
During Time Period 1, “lost hours” equals the number of lost employees (23) multiplied by the
number of hours (60) worked per week by each employee for a total of 1,380 lost hours per
week, which remaining employees must replace. For each lost employee, 40 hours per week are
paid the average hourly wage ($33.10/hour) and the remaining 20 hours per week are paid the
overtime rate (1.5*wage Mon-Sat, 2.0*wage Sun). According to Phillips, the lost employee
overtime hours are worked at the lower Mon-Sat rate.
The number of additional overtime hours available per remaining employee is 2 hours/day MonSat and 12 hours on Sunday. Each of the remaining 84 employees can make up 12 hours/week on
Mon-Sat and an additional 12 hours on Sunday. Therefore, overtime hours available for
remaining employees to replace lost hours is 12 hours/week Mon-Sat multiplied by the
remaining 84 employees, which yields 1,008 hours available Mon-Sat. The overtime hours
available on Sunday is 12 hours/week per remaining employee, which yields an additional 1,008
hours.
Because the pay rate is lower Mon-Sat, the analysis assumes that of the 1,380 lost hours/week,
1,008 hours are made up Mon-Sat before allocating the remaining 372 overtime hours on
Sunday. (See Table 1.)
Table 1 – Substitution of Additional Overtime for Lost Hours
Lost Hours
Description
Lost Hours by
Type
Lost Base Pay
Hours
23 employees *
40 base hr/week
= 920 hrs
Lost Overtime
Mon-Sat Hours
Remaining Lost
OT Mon-Sat
Hours
Replacement
Hours
Description
Overtime hrs
Mon-Sat (max
1,008 from
above)
1,380 total loss –
Remaining Mon920 base loss =
Sat OT hrs
460 OT hrs lost
460 – 88
(accounted for in
OT Sunday hrs
above row) =
372
Replacement
Hours by Type
Pay Rate
Difference
920 hrs Mon-Sat
1.5 * $33.10 $33.10 = $16.50
1,008 – 920
(from above
row) = 88 hrs
$0.00, both are
paid 1.5 OT rate
372
2.0 * $33.10 –
1.5 * $33.10 =
$16.50
Proper accounting of replacement hours implies that the total lost hours (1,380) is the same as
the replacement hours (920+88+372) put into appropriate context by using the least cost pay rate
difference available.
Multiplying the appropriate replacement hours (Table 1, column 4) by the pay rate difference
(Table 1, column 5) by the assumed number of weeks (4) provides the total cost of replacing lost
employee productivity with remaining employee overtime during Time Period 1: $85,530.40.
During Time Period 2, the method of calculating overtime replacement cost is the same because
although replacement workers have been hired, they do not produce any company revenue.
Case: 21-4028
Document: 4-2
Filed: 11/05/2021
Page: 8
Because Time Period 2 is also 4 weeks, its additional overtime cost is the same as Time Period 1:
$85,530.40. Replacement employees earn $33.10/hour and work 40 hours/week. These wages
present Phillips with a direct cost, which is found by multiplying the number of replacement
employees (23) by 40 hours/week by the average wage ($33.10/hour) by the number of weeks
(4), yielding a total cost of $121,808.
During Time Period 3, our analysis assumes that replacement employees work 60 hours/week
and earn the same total as the lost employees, but the productivity of the replacement workers
during this 22-week period is lower than the lost employees’ productivity. The productivity
difference is replaced by assigning overtime to experienced employees in order to maintain premandate company revenue.
The annual productivity of an experienced employee is $404,000/year and the annual
productivity of a trainee is $300,000/year. The hourly productivity of each is found by dividing
the annual productivity by the expected number of hours worked per year. This calculation yields
a productivity value of $129.49/hour for experienced employees and $96.15/hour for trainees.
The amount of lost productivity in a week is found by taking the difference of the productivity
rates ($129.49/hour - $96.15/hour = $33.34/hour) and multiplying it by the number of hours
worked in a week by replacements (1,380) which yields a total lost productivity of $46,009.20
per week. To make up for this lost productivity, the value of lost productivity per week is divided
by the productivity rate of an experienced employee yielding 355 hours of needed experienced
productivity per week. This extra overtime is charged at the full rate (1.5 * $33.10/hour) because
these hours are in addition to the pre-mandate hours and the replacement employees are earning
the wages of the lost employees. The total cost of this overtime equals the wage per hour (1.5 *
$33.10/hour) times the number of makeup hours per week (355) time the number of weeks in
Time Period 3 (22), which yields a total cost of $387,766.50.
Our analysis of the continuous economic impact incurred due to the new OSHA regulation
focuses on costs associated with Phillips testing its employees weekly. Based upon survey
responses from employees, Phillips estimates that 35 percent of its existing 107 employees will
choose to remain and participate in weekly testing. According to Phillips, each test will cost it
$50 to purchase and process. Multiplying the expected 37 employees choosing testing by 52
weeks by $50/test yields a continuous annual cost of $96,200.
The estimated immediate and continuous economic impact of the new OSHA regulation that will
require Phillips to replace lost employees and conduct on-going weekly employee testing is
summarized in Table 2.
Table 2 – Summary of Economic Impacts
Description
Search and Training
Time Period 1 Additional Overtime
Time Period 2 Additional Overtime
Time Period 2 Replacement Employee Wages
Time Period 3 Additional Overtime
Economic Impact
$138,000.00
$85,530.40
$85,530.40
$121,808.00
$387,766.50
Case: 21-4028
Document: 4-2
Filed: 11/05/2021
Total One-Time cost to Replace Lost
Employees (sum of above)
$818,635.30
Annual Cost for Employee Testing
$96,200/year
First Year Total Cost
$914,835.30
Page: 9
Appendix B
Page: 2
Filed: 11/05/2021
Document: 4-3
Case: 21-4028
)
PHILLIPSMANUFACTURING
& TO\VER )
COMPANY
)
)
and
)
)
SIXARP,LLC,
)
)
Petitioners,
)
V.
)
)
UNITEDSTATESDEPARTMENT
OF
)
LABOR;UNITEDSTATESOCCUPATIONAL)
SAFETYANDHEALTHADMINISTRATION;
)
MARTYWALSH,IN HISOFFICIAL
)
CAPACITY
ASSECRETARY
OF LABOR;
)
DOUGLASL. PARKER,IN HISOFFICIAL ) Case No. 21-4028
CAPACITY
ASASSISTANT
SECRETARY
OF )
LABORFOROCCUPATIONAL
SAFETY
)
ANDHEALTH,
)
)
Respondents.
)
)
DECLARATION OF RICK KING
I, Rick King, hereby declare as follows:
1. I am the President of Sixarp, L.L.C. Sixarp is a full service contract
packaging company specializing in Secondary Packaging operations for
the consumer product, cosmetics, food & beverage, over the counter
(OTq and prescription (Rx) pharmaceuticals, and promotional products
industry as well as primary filling and packaging of oral solid dosage
tablets.
2. As President of Sixarp, I have personal knowledge of out facilities,
operations and experience to understand the effects of the OSHA
"COVID-19 Vaccination and Testing; Emergency Temporary Standard"
('~ accine Mandate") on Sixarp.
Page: 3
3. Sixarp has focused on the potential challenge posed by the emergency
temporary standard Vaccine Mandate process since President Biden's
Case: 21-4028
Document: 4-3
Filed: 11/05/2021
September 2021 announcement.
4. Sixarp owns and operates multiple packaging facilities. Its primary facility
in Grand Rapids, Mich., employs more than 600 people and is thus subject
to the Vaccine Mandate, which I understand applies to businesses with
100 or more employees. We also employ dozens of people at other
facilities, including one in the Columbus, Ohio, area, that I also
understand is subject to the Vaccine Mandate because of the overall size
of Sixarp.
5. Sixarp would not impose a vaccine mandate or testing requirement but
for the Vaccine Mandate.
6. Many of the employees at Sixarp's facilitiescan work in a sociallydistanced
manner, particularly those who work in our warehouse and quality control
divisions. We have encouraged the use of face masks and social distancing
(where practicable) in our facilities. We also have imposed staggered
lunches.
2
7. Based on information made available to us from voluntary company
reporting, at least 60 employees at our Michigan facility have had COVID
and thus possess natural immunity. Only about one-third of the workforce
has indicated it is actually vaccinated. Many of our employees have
Page: 4
indicated they will quit before taking the vaccination.
8. We currently face difficulty in filling our positions; there are more than 20
Case: 21-4028
Document: 4-3
Filed: 11/05/2021
open positions in Grand Rapids and another dozen-plus at our other
facilities.
9. We have had to tum to temporary employment agencies to fill our
positions, and even then still have jobs left unfilled.
10. The Vaccine Mandate will exacerbate this labor shortage. Based on my
experience, requiring vaccination or onerous testing will make it even
more difficult for Sixarp to fill its currently open positions, let alone new
vacancies created by the Vaccine Mandate.
11. We have been advised that imposing weekly testing for COVID-19 could
cost $27,600 weekly for the primary Grand Rapids facility alone, and more
than $44,000 weekly across the company. The Vaccine Mandate thus
imposes millions of dollars of potential annual additional costs to Sixarp.
12. Preparing to impose the Vaccine Mandate, including the alternative testing
protocols, will require us to devote time and substantial costs immediately,
as that ramp-up will take place in the coming weeks and over the Holidays.
3
13.A number of Sixarp's employees have expressed interest in a religious
exemption. Some of our employees are foreign immigrants who distrust
western medicine, others have religious objections based upon the
I declare under penalty of perjury that the foreguiding is correct. Executed on
this J/aay of Ndt..£41:h:4(,at Grand Rapids, Mich.
Wt,l
Rick King
Case: 21-4028
Document: 4-3
Filed: 11/05/2021
Page: 5
teachings of the Amish, Christian Scientist, Scientologist religions.
4
Appendix C
Case: 21-7000
Document: 328-2
Filed: 12/07/2021
Page: 1
)
OBERG INDUSTRIES, LLC,
)
Petitioner,
)
)
V.
)
)
UNITED STATES DEPARTMENT OF
LABOR; U ITED STATES OCCUPATIONAL
SAFETY AND HEALTH ADMINISTRATION;
MAR.TYWALSH, IN HIS OFFICIAL
CAPACITY AS SECRETARY OF LABOR;
DOUGLAS L. PARK.ER, IN HIS OFFICIAL
CAPACITY AS ASSISTANT SECRETARY OF
LABOR FOR OCCUPATIO AL SAFETY
AND HEALTH,
)
)
)
)
)
)
)
)
)
Nos. 21-7000(lead), 21-
4027/4028/4031/4032/4033,214080,21-4091/4090,214093/4088/4101/4096,214097/4102/4083
MCL
o. 165
)
)
)
)
)
)
)
Respondents.
)
DECLARATION OF RICH BARTEK
I, Rich Bartek, hereby declare as follows:
1.
I am CEO of Oberg Industries. Oberg Industries is a metals contract
manufacturer that was founded in 1948. Oberg manufactures products for a variety of
markets, including medical, food & beverage, commercial and residential building
construction, consumer products, defense, energy and automotive sectors.
2.
Oberg currently employees 697 full-ti.me employees, the vast majority of
Case: 21-7000
Document: 328-2
Filed: 12/07/2021
Page: 2
whom are highly skilled machinists and operators. Oberg operates manufacturing
facilities in four locations: Freeport, Pennsylvania; Sarver, Pennsylvania; Chicago,
Illinois; and Wallingford, Connecticut. .Allbut our Connecticut facility have more than
100 employees on site.
3.
As CEO of Oberg, I have personal knowledge of our facilities, employees,
operations and experience. Moreover, because Oberg is self-insured, I have knowledge
as to many of our employees' experiences with COVID-19 and the available vaccines
to date. I am thus able to describe the effects of the OSHA "COVID-19 Vaccination
and Testing; Emergency Temporary Standard" ("Vaccine Mandate") on Oberg.
4.
As mentioned above, we employ hundreds of employees at four different
manufacturing facilities. I understand that all of these facilities would be subject to the
Mandate given the overall size of Oberg.
5.
Oberg Industries has worked hard to address the risks associated with the
pandemic while maintaining safe operations for our employees. Since the spring of
2020, we have hired agencies for deep cleaning services to disinfect work areas;
deployed hand sanitizers, face coverings, and wipes; practiced social distancing where
possible; used temperature checks on employees to screen for infections; emphasized
personal hygiene; implemented flexible work hours, working from home, and staggered
work schedules and lunches; improved HV AC ventilation; formed a COVID
committee to ensure we continue to follow proper procedures; and regularly
communicated our policies and efforts to limit spread.
2
Case: 21-7000
Document: 328-2
Filed: 12/07/2021
Page: 3
6.
These efforts have cost the company more than $84,000 per year.
7.
Since January of 2020, more than 180 employees have tested positive for
COVID-19 and thus possess some form of natural immunity.
8.
We know that 43% of Oberg's full time employees have received the
vaccine (although this may not account for some employees whose vaccines were
administered or covered outside the company's health insurance plan).
9.
Due to the state of the economy and Oberg's need for skilled labor, Oberg
has had difficulty filling its open positions. As of November 2021 there were more than
21 open positions across the company.
10.
Based on communications with employees and the number who have not
yet been vaccinated, we estimate that a vaccination requirement could lead to the loss
of more than 200 employees-nearly 30% of our existing workforce. Even if we lost
only half of those employees, it would equate to a 322 million loss per year in revenue
to the company, based on current efficiencies.
11.
Moreover, we estimate a loss of seven additional employees in the event
we mandated only testing.
12.
Given the difficulty of filling existing openings, the anticipated losses
associated with these Vaccine Mandate would be economically crippling to Oberg,
endangering its ability to fulfill existing orders.
13.
Apart from the employment effects, the Vaccine Mandate will impose
substantial economic hardship on Oberg. We have investigated the feasibility of setting
3
Case: 21-7000
Document: 328-2
Filed: 12/07/2021
Page: 4
up weekly testing at our sites. Due to the limited number of suppliers of the PCR testing
kits (which, per our health insurance contractor, currently costs more than $100 per
kit), we anticipate that testing our 286 unvaccinated employees could cost more than
$32,000 per week, or up to $1.7 million annually. And this does not account for the lost
employee time necessary to accomplish the testing.
14.
These costs are economically unsustainable for Oberg, and would force
us to curtail operations and ultimately eliminate jobs.
I declare under penalty of perjury that the foreguiding is correct. Executed on this ~
day of ~s<.~M½V
, at Pennsylvania.
Rich Bartek, CEO, Oberg Industries
4
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.