UNITED STEELWORKERS 

Writer's Direct Dial 412-562-2413 

Writer's Fax 412-562-!574 

Writer's Email: adomingo@usw.org 

UNITY AND STRENGTH FOR WORKERS------------------------

October 28, 2015 

Occupational Safety and Health Commission 

Re: Secretary of Labor v. Integra Health Management Inc. 

OSHRC Docket No. 13-1124 

To Whom It May Concern: 

Please find enclosed an amicus brief filed by the United Steelworkers with the 

Occupational Safety and Health Commission in the above referenced case. Please do not hesitate 

to contact me with any questions. 

Sincerely, 

Antonia Domingo 

Assistant General Counsel 

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union 

Five Gateway Center, 60 Boulevard of the Allies, Pittsburgh, PA 15222 • 412-562-2400 • www.usw.org 
UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

United States Department of Labor, 

Complainant, 

v. 

INTEGRA HEALTH MANAGEMENT, 

INC. 

Respondent. 

OSHRC Docket No. 131124 

AMICUS CURIAE BRIEF OF 

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, 

ENERGY, ALLIED-INDUSTRIAL AND SERVICE WORKERS 

INTERNATIONAL UNION, AFL-CIO/CLC. 

Dated: October 28, 2015 

Antonia Domingo 

Assistant General Counsel 

United Steelworkers 

60 Boulevard of the Allies, 8th Floor 

Pittsburgh, Pennsylvania 15222 

412-562-2413 

adomingo@usw.org 
TABLE OF AUTHORITIES 

CASES 

Baroid Div. of NL Indus., Inc. v. OSHRC, 660 F.2d 439, 446 (10th Cir. 1981) ............................ 3 

Beatty Equipment Leasing v. Sec'y of Labor, 577 F.2d 534 (9th Cir. 1978) ................................. 6 

Brennan v. OSHRC, 494 F.2d 460, 464 (8th Cir. 1974) ................................................................ 7 

Burford's Tree, Inc., 22 BNA OSHC 1948 (No. 07-1899, 2010) ................................................. 7 

Champlin Petroleum Co. v. OSHRC, 593 F.2d 637, 640 (5th Cir. 1979) ..................................... 6 

Megawest Financial Inc., 1995 WL 383233 (No. 93-2879, 1995) ......................................... 6, 11 

Nat'l Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1267 (D.C. Cir. 1973) ................... 2 

Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1205 (10th Cir. 2009) ........................................ 2, 4 

Reich v. Arcadian Corp., 110 F.3d 1192, 1196 (5th Cir. 1997) .................................................... 2 

SeaWorld of Florida, LLC, 24 BNA OSHC 1303 (No. 10-1705, 2012) ....................................... 6 

Sec'y of Labor v. Integra Health Management, Inc., 2015 WL 4474372 (No. 13-1124, 2015) ... 4 

Sec'y of Labor v. Wal-Mart Stores, Inc .. 2011 WL 12678760 (No. 09-1013, 2011) ................ 2, 8 

Waldon Healthcare Ctr., 16 BNA OSHC 1052 (No. 89-3097, 1993) ........................................... 7 

STATUTES 

29 U.S.C. § 654(a)(l) .................................................................................................................... 2 

MISCELLANEOUS 

AFL-CIO, DEA TH ON THE JOB (2015) ................................................................................................ 3 

Letter from Richard E. Fairfax, Director of Enforcement Programs, OSHA to Morgan Melekos 

(Sept. 13, 2006) .............................................................................................................................. 3 

Letter from Roger A. Clark, Director of Enforcement Programs, OSHA, to John R. Schuller 

(Dec.10, 1992) .............................................................................................................................. 3 

Mark Haynes, Workplace Violence: Why Every State Must Adopt a Comprehensive Workplace 

Violence Prevention Law, CORNELL HR REVIEW (2013) ................................................................ 5 

OSHA, GUIDELINES FOR PREVENTING WORKPLACE VIOLATIONS FOR HEALTH CARE AND SOCIAL 

SERVICE WORKERS (2015) .............................................................................................................. 8 
Press Release, OSHA, Employees Injured by Violent Clients at Birmingham, Alabama Social 

Services Center, USDL 15-1362-ATL (208) (OSHA) (July 13, 2015) ......................................... 3 

Press Release, OSHA, US Labor Department's OSHA Cites Danbury, Conn., Hospital for 

Inadequate Workplace Violence Safeguards, USDL 10-970-BOS (July 16, 2010) ...................... 4 

Press Release, OSHA, US Labor Department's OSHA Cites North Suffolk Mental Health 

Association in Massachusetts for Inadequate Workplace Violence Safeguards, USDL 

11-1111-BOS (July 28, 2011) ........................................................................................................ 7 

Press Release, OSHA, US Department of Labor's OSHA Cites the Acadia Hospital in Bangor, 

Maine, for Inadequate Workplace Violence Safeguards, USDL 11-115, BOS (January 28, 2011)4 

Press Release, OSHA, US Labor Department's OSHA Cites the Renaissance Project in 

Ellenville, NY, for Inadequate Workplace Violence Safeguards Following Worker's Death, 

USDL 11-468-NEW (April 7, 2011) ............................................................................................. 4 

Press Release, OSHA, US Labor Department's OSHA Fines Lakeview Specialty Hospital for 

Inadequate Workplace Violence Safeguards at Waterford, Wis., Center, USDL 12-819-CHI 

(OSHA) (May 1, 2012) .................................................................................................................. 7 

Press Release, OSHA, US Labor Department's OSHA Fines Rescare Ohio for Inadequate 

Workplace Violence Safeguards at Residential Care Facility in Fairfield, Ohio, USDL 12-1922-

CHI (OSHA) (October 3, 2012) ................................................................................................... 3 

Theresa Gorman et al., Controlling Health Hazards to Hospital Workers, 23 NEW SOLUTIONS: J. 

ENV'T & occ'L HEALTH POL'Y 1 (2013) .............................................................................. 5, 10, 11 

U.S. DEPARTMENT OF JUSTICE, WORKPLACE VIOLENCE: ISSUES IN RESPONSE ................................. 5 

ii 
INTRODUCTION 

On December 10, 2012 a client of Integra Health Management Inc. ("lntegra") stabbed 

his service coordinator to death. The client suffered from schizophrenia and had a history of 

violent crimes, including aggravated assault with a deadly weapon. Sec'y of Labor v. Integra 

Health Management, Inc., 2015 WL 4474372 (No. 13-1124, 2015) Integra did not relay 

information regarding the client's diagnosis or his history to the service coordinator, who had 

begun working for Integra approximately three months prior to her death. Id. at *4. The service 

coordinator visited the client three times before the December 12 visit, summarizing each 

encounter in a progress note. Id. at *3-8. After her first visit with the client, the service 

coordinator wrote, "SC [Service Coordinator] is not comfortable being inside alone with member 

[the client] and will either sit outside to complete assessment or ask another SC to accompany 

her." Id. at *4-5. An Integra supervisor reviewed the service coordinator's progress note but the 

company's management did not take any action, such as running a background check on the 

client or arranging for another Integra employee to accompany the service coordinator on her 

home visits. Id. at fn. 4. 

The Secretary of Labor cited Integra for violating section 5(a)(l) or the "general duty 

clause" of the OSH Act. The Administrative Law Judge ("ALJ") upheld the citation, finding that 

the risk of "being physically assaulted during a face-to-face meeting by a member with a history 

of violent behavior" constituted a workplace hazard likely to cause death or serious physical 

harm, that Integra recognized this hazard, and that effective abatement measures are available. 

Id. at *69. The Occupational Safety and Health Review Commission ("OSHRC" or "the 

Commission") will review the ALJ's order. OSHRC has sought briefs from interested amici, 

1 
addressing whether, in a situation such as the Integra case, an employer's failure to protect its 

employees from the violent acts of third parties violates the general duty clause of the OSH Act. 

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and 

Service Workers International Union, AFL-CIO/CLC ("United Steelworkers" or "USW") 

accepts the Commission's invitation. USW represents approximately 50,000 healthcare 

employees and has a substantial interest in the safety of its members. Thus, USW is deeply 

concerned with the government's ability to hold employers accountable for violating workplace 

health and safety laws. 

ARGUMENT 

While Congress initially promulgated the OSH Act out of a concern for "traditional 

work-related hazards," it recognized that the government would not be able to anticipate every 

workplace health and safety issue suitable for regulation. Ramsey Winch Inc. v. Henry, 555 F.3d 

1199, 1205 (10th Cir. 2009). Therefore, Congress included the general duty clause in the OSH 

Act, which requires that, "[ e ]ach employer [ ] shall furnish to each of his employees employment 

and a place of employment which are free from recognized hazards that are causing or are likely 

to cause death or serious physical harm to his employees." 29 U.S.C. § 654(a)(l). "This section 

of the Act has been described as a 'catchall provision' designed to redress hazardous conditions 

not covered by a specific standard." Sec'y of Labor v. Wal-Mart Stores, Inc .. 2011 WL 

12678760, *29 (No. 09-1013, 2011) (citing Reich v. Arcadian Corp., 110 F.3d 1192, 1196 (5th 

Cir. 1997)). This catchall provision does not impose strict liability on employers, but it does 

require them to exclude all "preventable forms and instances of hazardous conduct" from the 

workplace. Nat'l Realty & Constntction Co. v. OSHRC, 489 F.2d 1257, 1267 (D.C. Cir. 1973). 

2 
In other words, employers must eliminate "feasibly avoidable recognized hazard[s]." Baroid Div. 

of NL Indus., Inc. v. OSHRC, 660 F.2d 439, 446 (10th Cir. 1981), citing Beatty Equipment 

Leasing v. Sec'y of Labor, 577 F.2d 534 (9th Cir. 1978); Champlin Petroleum Co. v. OSHRC, 

593 F.2d 637, 640 (5th Cir. 1979). 

OSHA acknowledges that workplace violence is a recognized hazard. 

Workplace violence is a clear example of a feasibly avoidable recognized hazard. In two 

interpretation letters, OSHA acknowledged as much: 

In a workplace where the risk of violence and serious personal injury are significant 

enough to be 'recognized hazards,' the general duty clause would require the employer to 

take feasible steps to minimize those risks. Failure of an employer to implement feasible 

means of abatement of these hazards could result in the finding of an OSH violation. 

Letter from Richard E. Fairfax, Director of Enforcement Programs, OSHA to Morgan 

Melekos (Sept. 13, 2006), available at 

https://www .osha.gov/pls/oshaweb/owadisp.show _document?p_table=INTERPRET A TI 

ONS&p_id=25504, attached as Exhibit A; and Letter from Roger A. Clark, Director of 

Enforcement Programs, OSHA. to John R. Schuller (Dec. 10, 1992), available at 

https://www .osha.gov/pls/oshaweb/owadisp.show _document?p_table=INTERPRET ATI 

ONS&p_id=20951, attached as Exhibit B. 

And while OSHA has not yet promulgated a standard specifically addressing workplace 

violence, the agency has issued 26 citations under the general duty clause in response to 

employers' failure to abate this particular recognized hazard. AFL-CIO, DEATH ON THE JOB 37 

(2015 ), available at 

http://www.aflcio.org/content/download/ l 5467l/3868441/DOTJ2015Finalnobug.pdf, attached as 

Exhibit C. Many of these citations involve situations similar to the instant case. See Press 

Release, OSHA. Employees Injured by Violent Clients at Birmingham, Alabama Social Services 

Center, USDL 15-1362-ATL (208) (OSHA) (July 13, 2015) (employees physically assaulted by 

adolescents known to exhibit violent tendencies), attached as Exhibit D; Press Release, OSHA, 

US Labor Department's OSHA Fines Rescare Ohio for Inadequate Workplace Violence 

3 
Safeguards at Residential Care Facility in Fairfield, Ohio, USDL 12-1922-CHI (OSHA) 

(October 3, 2012) (employees of nursing home facility exposed to physical assaults during 

routine interactions with residents), attached as Exhibit E; Press Release, OSHA, US Labor 

Department's OSHA Fines Lakeview Specialty Hospital for Inadequate Workplace Violence 

Safeguards at Waterford, Wis., Center, USDL 12-819-CHI (OSHA) (May 1, 2012) (employee 

severely injured by client at health care and treatment facility), attached as Exhibit F; Press 

Release, OSHA, US Labor Department's OSHA Cites North Suffolk Mental Health Association 

in Massachusetts for Inadequate Workplace Violence Safeguards, USDL 11-1111-BOS (July 28, 

2011) (employee fatally injured by client at residential group home while performing regularly 

assigned duties), attached as Exhibit G; Press Release, OSHA, US Labor Department's OSHA 

Cites the Renaissance Project in Ellenville, NY, for Inadequate Workplace Violence Safeguards 

Following Worker's Death, USDL 11-468-NEW (April 7, 2011) (client kills employee of 

addiction treatment facility), attached as Exhibit H; Press Release, OSHA, US Department of 

Labor's OSHA Cites the Acadia Hospital in Bangor, Maine, for Inadequate Workplace Violence 

Safeguards, USDL 11-115, BOS (January 28, 2011) (employees of psychiatric hospital assaulted 

by violent patients), attached as Exhibit I; Press Release, OSHA, US Labor Department's OSHA 

Cites Danbury, Conn., Hospital for Inadequate Workplace Violence Safeguards, USDL 10-970-

BOS (July 16, 2010) (employees of hospital's psychiatric ward assaulted by violent patients), 

attached as Exhibit J. 

And in Ramsey Winch Inc., 555 F.3d at 1205 (internal citations omitted) the 10th Circuit 

recognized OSHA's increased focus on workplace violence: 

In recent years ... OSHA has recognized workplace violence as a serious safety and 

health issue. To that end, OSHA has issued voluntary guidelines and recommendations 

for employers seeking to reduce the risk of workplace violence in at-risk industries. 

4 
OSHA updated its guidelines this year, recommending the implementation of violence 

prevention programs and safety training for employees of hospitals and residential treatment 

facilities and for workers, such as the Service Coordinator, who make home visits. OSHA, 

GUIDELINES FOR PREVENTING WORKPLACE VIOLATIONS FOR HEALTH CARE AND SOCIAL SERVICE 

WORKERS (2015), available at https://www.osha.gov/Publications/osha3148.pdf, attached as 

Exhibit K. 

Workplace violence is a serious and prevalent employee safety issue. 

OSHA's increasing recognition of workplace violence addresses a serious and 

widespread problem. Workplace violence is the second-leading cause of workplace fatalities in 

the United States. DEATH ON THE JOB, supra, at 8. In 2013, 773 victims died from workplace 

violence. Id. at 8. Workplace violence remains grossly underreported; still, a Department of 

Justice report estimates that about 1.7 million incidents of workplace violence occur annually. 

U.S. DEPARTMENT OF JUSTICE, WORKPLACE VIOLENCE: ISSUES IN RESPONSE 12, available at 

http://www.fbi.gov/stats-services/publications/workplace-violence, attached as Exhibit L. 

Employee victims of workplace violence lose $55 million in wages each year, while employers 

spend $4.2 billion annually in workplace violence related expenses. Mark Haynes, Workplace 

Violence: Why Every State Must Adopt a Comprehensive Workplace Violence Prevention Law, 

CORNELL HR REVIEW (2013 ), available at http://www.cornellhrreview.org/workplace-violencewhy-every-state-must-adopt-a-comprehensive-workplace-violence-prevention-law/, attached as 

Exhibit M. Exposure to violence at work can have indirect effects as well, such as anxiety, 

increased absenteeism, and poor work quality. Theresa Gorman et al., Controlling Health 

Hazards to Hospital Workers, 23 NEW SOLUTIONS: J. ENV'T & OCC'L HEALTH POL'Y 1, 132 

(2013), attached as Exhibit N. 

5 
Several states with OSHA-approved State Plans have already acted to address workplace 

violence. For example, California, Connecticut, Illinois, New Jersey, and Washington have all 

recognized workplace violence as a hazard. These states have implemented standards to protect 

employees from violence on the job. Additionally, New York has implemented a law to protect 

public employees from workplace violence. DEATH ON THE JOB, supra, at 37-38. 

Acknowledging employers' responsibility to address workplace violence under the general duty 

clause does not conflict with OSHA 's existing practice. 

As mentioned above, OSHA has already responded to a number of workplace violence 

incidents by issuing citations under the general duty clause. And although there have been few 

cases addressing the general duty clause and workplace violence, upholding the AU' s 

determination in Integra does not conflict with OSHA's existing practice. 

Both the Secretary of Labor and lntegra discussed the application of Megawest Financial 

Inc., 1995 WL 383233 (No. 93-2879, 1995) to the instant case .. Integra at *65. InMegawest, the 

employees staffed an office located inside an apartment complex. The complex had a high crime 

rate and the residents subjected the employees to threats and physical attacks. While the AU 

found that the violent incidents constituted a foreseeable workplace hazard, she concluded that 

the apartment management industry did not recognize the hazard and vacated the citation. 

Megawest at *12, 17. 

As recognized by the ALJ in the Integra case, the AU's decision in Megawest is not 

binding on OSHRC. /ntegra at fn. 97. See also Sea World of Florida, LLC, 24 BNA OSHC 1303 

(No. 10-1705, 2012), aff'd, 748 F.3d 1202, 1210 (D.C. Cir. 2014) ("Megawest is an unreviewed 

AU decision with no precedential value for the Commission"). Megawest is also distinguishable. 

/ntegra employees, and other healthcare workers who are subjected to physical violence from 

6 
clients, do not manage apartment complexes; they provide social services to individuals with 

mental health issues and violent histories. The possibility of workplace violence is a recognized 

hazard in the healthcare field. See Gorman, supra, at 131. 

Further, the Secretary may also establish that the hazard is recognized through actual 

knowledge of the employer, rather than industry recognition. As the Integra AU noted, "the 

record establishes that lntegra recognized the hazard of being physically assaulted by members 

with a history of violent behavior during a face-to-face interaction." Integra at *70 (citing 

Waldon Healthcare Ctr., 16 BNA OSHC 1052, 1061 (No. 89-3097, 1993); Brennan v. OSHRC, 

494 F.2d 460, 464 (8th Cir. 1974)). lntegra told its employees to use "'universal precautions"' 

and to '"[a]ssume everybody you deal with could have the potential for harm."' Integra at *71. 

Clearly, the company recognized that potential violent interactions with clients was far from 

"freakish [orJ utterly implausible." Waldon Healthcare Ctr., 16 BNA OSHC at 1060) (" ... 

[T]he existence of a hazard is established if the hazardous incident can occur under other than a 

freakish or utterly implausible concurrence of circumstances"). Prior to the December 10, 2012 

fatality, several Service Coordinators had expressed concern about their clients' violent or 

aggressive behavior in weekly calls to Integra management and in progress report notes. Integra 

at *72. The record establishes that management read these progress notes, specifically the note in 

which the Service Coordinator stated she was "not comfortable being inside alone with [the 

client]." Integra at *4, 71-72. Further, the client had a publicly available and documented history 

of violent criminal behavior. Even if Integra did not have actual knowledge of the client's 

potential danger, the company surely possessed constructive knowledge of his violent 

tendencies. See Burford's Tree, Inc., 22 BNA OSHC 1948, 1950 (No. 07-1899, 2010) ("To 

establish a violation of the general duty clause violation, the Secretary must prove ... that the 

7 
employer knew, or with the exercise of reasonable diligence, could have known of the hazardous 

condition"). 

Actual and constrnctive knowledge aside, the Megawest AU also worried that preventing 

violence in the complex was beyond the employer's control. Megawest already screened 

residents and was in compliance with recommended preventative measures, issued by the 

National Institute for Occupational Safety and Health. Megawest at * 17. In contrast, Integra does 

not rnn background checks, conduct risk assessments, provide employees with adequate safety 

training, or utilize a "buddy system" for required face-to-face visits with clients. Further, lntegra 

assigns high caseloads, which makes it impractical for service coordinators to request a buddy. 

Integra at *68-69, fn. 105. 

Finally, the Megawest AU stated that, "[e]mployers have less control over employees 

than they do over conditions because employees have a will, an intention, and an intellect that 

drives their behavior, and they are not always amenable to control ... The employer has even 

less control over the behavior of third parties not in its employ." Megawest at* 14. While it is 

trne that employers cannot control the potentially violent behavior of clients or residents, they 

can implement preventative hazard control measures, such as conducting violence risk 

assessments, providing adequate training, increasing communication between staff and 

supervisors, and managing caseloads. See Gorman, supra, at 133; Hayes, supra, 4-5. 

Further, the AU in the Integra case is not the only Administrative Law Judge to uphold a 

citation based on an employer's failure to address the violent acts of a third party. In Wal-Mart, 

supra, a Wal-Mart employee was crnshed to death by a crowd attempting to enter the store on 

Black Friday. The AU agreed with the Secretary that Wal-Mart did not implement effective 

8 
crowd management techniques. In finding that the implementation of effective crowd 

management was a feasible method of addressing the hazard, the AU stated that, "the Secretary 

must establish by a preponderance of the evidence than an abatement method will significantly 

reduce the hazard; the hazard need not be completely eliminated." Id. at *35 (citing Pratt & 

Whitney Aircraft, 8 BNA OSHC 1329 (No. 13591, 1980)). 

While Wal-Mart could not exercise complete control over an unruly crowd, it could 

feasibly implement measures to mitigate the possible harm. Similarly, lntegra and other 

healthcare and service providers can implement prevention controls to protect their employees 

from potentially violent clients. 

CONCLUSION 

Workplace violence is a significant issue affecting lntegra employees and workers in 

similar industries. Employers can adopt feasible and effective preventative measures to reduce 

this recognized hazard. Therefore, the Commission should uphold the AU's finding that 

lntegra's failure to implement precautionary measures violated the general duty clause of the 

OSH Act. 

Respectfully submitted, 

0 

Assistant General Counsel 

United Steelworkers 

--~-----~ 

\ 

60 Boulevard of the Allies, gth Floor 

Pittsburgh, Pennsylvania 15222 

412-562-2413 

adomingo@usw.org 

9 
CERTIFICATE OF SERVICE 

I certify that on this 28th day of October, a true copy of this Brief of Amicus Curiae was served 

by first class mail and electronically upon the following: 

Lydia J. Chastain, Esq. 

Rolesia Butler Dancy, Esq. 

United States Department of Labor 

200 Constitution A venue, NW 

Washington, D.C. 20210 

Counsel for Complainant 

and 

Kevin C. McCormick, Esq. 

Whiteford, Taylor & Preston , L.L.P. 

7 Saint Paul Street, Suite 1800 

Baltimore, Maryland 21202 

410-347-8700 

kmcormikc@wtplaw.com 

Counsel/or the Respondent 

Antonia Domini) 

10