1

United States of America

Occupational Safety and Health Review Commission

_________________________________________

 :

Secretary of Labor, :

 United States Department of Labor, :

 :

Complainant, :

 :

v. : OSHRC No. 16-1628

 :

Schaad Detective Agency, Inc., :

:

Respondent. :

_________________________________________:

Secretary of Labor's

Petition for Discretionary Review

The Secretary of Labor hereby petitions the Commission

for review of the administrative law judge’s (ALJ) November 20, 

2018 decision (Dec.) vacating the serious citation issued to Schaad 

Detective Agency, Inc. (Schaad).1 See 29 C.F.R. § 2200.91 

(Commission rule for seeking review of ALJ decisions).

Statement of Error

The ALJ erred in vacating the citation on the ground that 29 

C.F.R § 1910.132(a) did not apply to an armed security guard

 

1 An other-than-serious citation was settled. Dec. 3 n.5.
2 

employed by Schaad where the record established that both Schaad

and a reasonable employer familiar with the worksite knew that

armed guards could encounter a shot-by hazard requiring the use 

of personal protective equipment (PPE) to protect the armed guards 

from the potentially deadly harm of being shot in the torso.2 Dec. 

13-14, 47-59, 63. For the same reason, the ALJ erred in finding 

that Schaad lacked fair notice of its obligations under § 

1910.132(a). Dec. 59-62.

Statement of Facts

I. Introduction

On March 20, 2016, a Schaad armed security 

guard, was shot and killed during an attempted armed robbery of 

Schaad’s client, the Pennsylvania Turnpike Commission. Dec. 1-2; 

Hearing Transcript (Tr.) 46. OSHA subsequently issued a serious 

citation alleging a violation of 29 C.F.R. § 1910.132(a) for Schaad’s 

failure to require Mr. to use PPE, i.e., a bulletproof vest, and 

 

2 As the ALJ noted, various terms are used to describe the type of 

PPE at issue in this case. Dec. 2 n.3. The Secretary uses the terms 

bulletproof vests and vests for the sake of simplicity and not to 

describe any specifically required PPE. See Dec. 2 n.3 (noting that 

this latter issue was not contested).

Redacted Redacted
3

Schaad timely contested the citation. Dec. 2-3, 6; Secretary’s 

Exhibit (Ex. C-) 1. ALJ Dennis L. Phillips held a hearing on October 

24 and 25, 2017, and on November 20, 2018, issued a decision 

vacating the citation. Dec. 3, 63.

II. Hearing Evidence

A. Schaad and the Pennsylvania Turnpike Commission

Contract

Schaad provides armed and unarmed security services 

throughout Pennsylvania. Dec. 4. It has approximately 380 

security guards of which approximately sixty-five are armed.3 Dec. 

5, 6; Tr. 124.

Schaad requires its armed guards to have a background in law 

enforcement and to successfully complete lethal weapons training 

under a state law known as Act 235. Dec. 11, 15, 27; Tr. 128.

Schaad provides its armed guards—and only its armed guards—

with guidance on the use of lethal force when faced with the threat 

 

3 The ALJ misconstrued hearing testimony in finding that sixty-five 

percent of Schaad’s guards were armed guards. See Dec. 6 (citing 

Tr. 124 and Stipulation 3 as support for statement that “[a]bout 

65% of Respondent’s employees are armed security guards”); Tr. 

124 (witness seeking and obtaining clarification that question was 

how many armed guards “by number” rather than by percentage 

and answering 65).
4

of lethal force being used against them. Dec. 10, 26-27; Tr. 126-27; 

Ex. C-4. 

In 1997 Schaad obtained a contract to provide the 

Pennsylvania Turnpike Commission with armed security. Dec. 4; 

Ex. C-3. Schaad viewed its armed security guards for the Turnpike 

contract as a deterrent to an armed robber, and required the armed 

guards to wear a uniform that resembles that of a police officer. 

Dec. 30-31, 52; Tr. 137, 142-43; Ex. C-5. Timothy Lenahan, 

Schaad’s general manager, acknowledged that the uniform 

increased the risk that a person “that’s out to do harm” would shoot 

the security guard because he mistook the guard for a police officer. 

Dec. 26; Tr. 122, 137.

Under the Turnpike contract, a Schaad armed guard met with 

a Pennsylvania Turnpike Commission teller each morning between 

5:00 am and 7:00 am. Dec. 6-7; Tr. 53, 88, 95-97. The Schaad 

armed guard accompanied the teller, who drove an unmarked van 

containing bags of money, from tollbooth station to tollbooth station

along the turnpike. Dec. 6-7. At each tollbooth station, the van 

stopped and the teller provided tollbooth personnel with money to 

make change and received the prior day’s toll revenue. Dec. 7, 19-
5 

20, 21. The Schaad armed guard got out of the van to observe the 

teller enter and exit the tollbooths or a nearby building, but stayed 

with the van. Dec. 7, 21, 22; Tr. 88, 95-96. 

On March 20, 2016, Mr. was working the Turnpike 

security job. Dec. 1-2. At approximately 7:00 am, when the van 

arrived at the Fort Littleton turnpike exchange, a toll collector told 

Mr. that an armed robbery was taking place and Mr. got 

out of the van to assist. Dec. 1-2, 7-8. The robber shot Mr. in 

the torso, killing him, and also killed the toll collector who had 

asked Mr. for assistance. Dec. 9. State police shot and killed 

the robber. Dec. 9-10. Fifty-eight thousand dollars was in the van 

at the time of the attempted robbery. Tr. 175; Ex. C-9 at 2. 

B. Schaad’s Use of Bulletproof Vests and the Security 

Industry’s Recognition of the Hazard

In 2008 and 2009, Schaad spent approximately $30,000 on 

bulletproof vests for its armed security guards. Dec. 4, 14; Tr. 131-

34; Ex. C-6. Mr. Lenahan explained that Schaad did so as an

“invest[ment] in officer safety” and that he had discussed the 

investment with Schaad’s president and sole shareholder, Russell 

Wantz, Jr., so that he could “go to sleep knowing that we’ve done 

Redacted Redacted Redacted Redacted Redacted
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everything we can to provide safety for . . . our officers.” Dec. 4; Tr. 

130-31. Mr. Lenahan also explained that Schaad encouraged its 

armed guards to wear the vests, “because its added protection level 

or safety.” Tr. 137. 

 At least six of Schaad’s armed security guards who

worked the Turnpike job generally or always wore a bulletproof vest 

while performing that service. Matthew Titus, Ann Allman, Robert 

Buford, and Robert Stover always or “religiously” wore the vest.

Dec. 20, 31; Tr. 50, 54-55, 75-78, 99, 145. John Spadafora and

Jeffery Aster usually wore the vests but did not when it was “real

hot,” such as when the temperature reached ninety-five degrees. 

Dec. 21; Tr. 53, 90. Additionally, Mr. Lenahan testified that active

law enforcement officers who also worked for Schaad wore their

vests. Tr. 145.

Mr. was not wearing a bulletproof vest on March 20, 

2016, when he was shot and killed. Dec. 4. According to Mr.

Lenahan, the “older element [e.g., Mr. didn’t prefer to wear 

them because of comfort.” Dec. 12; Tr. 46. 

The Secretary’s expert, Dr. Daniel J. Benny, testified that 

Redacted Redacted
7

the Pennsylvania Turnpike Commission job was a “high-risk 

assignment in a high-risk environment.” Tr. 183. He explained 

that armed guards hired to protect persons transporting money face 

a hazard of being shot on the job, because robbers “focus on 

individuals transporting money” and sometimes use a weapon to 

commit their crime. Tr. 175-76; see also Ex. C-8 at 6 (Dr. Benny’s 

report stating that “most . . . robberies related to money are armed 

robberies with the perpetrator using a firearm 40.8% of the time”). 

Schaad’s use of a uniform increases the risk to the security guard

because it identifies the guard as a threat that a determined robber 

will want to eliminate. Tr. 176, 185.

Industry research confirmed Dr. Benny’s conclusion that 

Schaad’s armed security guards faced a hazard while performing 

the Pennsylvania Turnpike Commission job. Tr. 178-83, 189-90. 

The on-job fatality rate for security guards in 2009 was more than 

double the rate for all workers, and nearly two thirds of the security 

guard fatalities were the results of “assaults or other violent acts.” 

Tr. 179, 190; see also Tr. 65 (OSHA compliance officer testifying 

that study showed 75% of fatalities of security guards were caused 

by gunshots). In addition, Dr. Benny testified, based on his forty-
8

five years’ experience in the industry, the security industry 

recognized the shot-by hazard Schaad’s armed security guards 

faced while performing the Turnpike job. Tr. 174-80, 189-91. 

Dr. Benny also testified that use of a bulletproof vest would 

materially reduce the shot-by hazard. Tr. 180-83. Research 

confirmed that using a bulletproof vest quadrupled the chances of 

surviving a shot to the torso. Tr. 182. If he were asked to 

recommend a safety program for Turnpike guards, he would 

recommend that vests be mandatory. Tr. 180, 183; Ex. C-8 at 7-8.

Schaad’s expert, Eddie Sorrells, testified that the absence of 

any prior robberies in the previous nearly twenty years that Schaad 

performed the Turnpike job indicated that Schaad’s armed security 

guards faced a “lower risk” of something happening. Tr. 206. In 

his view, this history and the use of an unmarked van gave “rise to 

the conclusion that this is not a high level of risk.” Tr. 207. 

Mr. Sorrells testified that Schaad went “above and beyond” 

what other security companies did when it purchased bulletproof 

vests for its security guards. Tr. 209. He acknowledged, however, 

that security companies require their guards to wear bulletproof 

vests when their contracts with their clients require such use. Tr. 
9 

209, 218. He similarly acknowledged that because Schaad had 

already provided its armed guards with vests, it was appropriate 

after Mr. death for Schaad to require its armed guards to 

wear the vests. Tr. 220-21. If Schaad had not already purchased 

the vests, he testified, he would need to know more about the 

situation before he would recommend the mandatory use of vests 

for armed guards working the Turnpike job. Dec. 41; Tr. 221.

III. The ALJ Decision Vacating the Citation

In his decision, the ALJ set forth findings of fact that he 

characterized as the “most influential to the conclusions of law for 

this case.” Dec. 13. Among these findings are three “undisputed” 

facts: (1) “that [Schaad’s] armed security guards face a hazard of 

being shot on the job;” (2) “that the severity of being shot while not 

wearing PPE is high, potentially leading to death;” and (3) “that a 

bulletproof vest would reduce the harm to an employee if the 

employee were shot in the torso.” Dec. 13-14. The ALJ also found 

that, “[y]es, just as being shot is undisputedly a severe hazard, a 

bullet-proof vest is a form of PPE.” Dec. 61.

Nonetheless, the ALJ vacated the citation on the ground that 

the Secretary failed to show that 29 C.F.R. § 1910.132(a) applied to 

Redacted
10 

Mr. work. Dec. 48-59, 63. In the ALJ’s view, the standard 

did not apply because the Secretary failed to prove that either

Schaad or a reasonable employer familiar with the Schaad worksite

would recognize that Mr. encountered a hazard within the 

meaning of the standard.4 Dec. 48-59. 

The ALJ determined that the Secretary’s evidence that Schaad 

recognized the hazard was “rebutted” by Schaad’s evidence that an 

“unmarked van . . . masked the money transfer process” and that 

Schaad had not previously suffered an incident involving the use of 

lethal force. Dec. 52-55. As a result, the Secretary failed to prove 

Schaad’s knowledge of the hazard because the Secretary did not 

prove that Schaad had “actual knowledge of the likelihood of its 

occurrence.” Dec. 54. 

The ALJ similarly ruled that the Secretary failed to establish

that a reasonable employer familiar with the circumstances of 

 

4 In determining that the Secretary failed to prove Schaad’s actual 

knowledge of a hazard, the ALJ analyzed whether Schaad had 

actual knowledge of a significant risk of harm. Dec. 48-55. In the 

context of applying the term “hazard” as used in standards such as

§ 1910.132(a), whether a significant risk of harm exists is the same 

as whether a hazard exists. See, e.g., Weirton Steel Corp., 20 BNA 

OSHC 1255, 1259 (No. 98-0701, 2003) (“Whether a hazard exists 

depends on whether there is a significant risk”). 

Redacted Redacted
11 

Schaad’s worksite would have recognized a hazard requiring the use 

of bulletproof vests. Dec. 55-59. In the ALJ’s view, the Secretary’s

evidence of the hazardousness of the armed security work was 

outweighed by industry practice of not providing vests, Schaad’s 

lack of prior incidents, Shaad’s policy of requiring its armed 

security guards to have a law enforcement background, and the use 

of an unmarked van on the Turnpike job. Dec. 57-59. The ALJ 

also determined that, even if the standard applied, the Secretary 

failed to provide fair notice that Schaad had to require Mr. to 

wear a bulletproof vest on March 20, 2016. Dec. 59-62.

Discretionary Review is Warranted

The ALJ erred in determining that the Secretary failed to 

establish that 29 C.F.R. § 1910.132(a) applied to the hazard of 

armed guards being shot while working the Turnpike detail. 

Contrary to the ALJ’s decision, ample evidence in the record 

established that both Schaad and a reasonable employer familiar 

with the circumstances of the Turnpike job knew or would realize 

that a bulletproof vest was necessary to protect armed guards from 

the hazard of being shot. Similarly, and contrary to the ALJ’s 

decision, Schaad had fair notice of its obligations under § 

Redacted
12 

1910.132(a). The Commission should grant review to ensure that 

employees exposed to deadly, even if relatively infrequentlyoccurring, hazards receive protection before (rather than after) a 

company suffers its first fatality.

I. The Secretary Established that 29 C.F.R. § 1910.132(a)

Applied to Schaad’s Armed Security Work for the 

Pennsylvania Commission Turnpike. 

Under 29 C.F.R. § 1910.132(a), an employer must require its 

employees to use PPE “wherever it is necessary by reason of 

hazards . . . capable of causing injury.”5 The standard applies 

where “either . . . the employer had actual notice of a need for 

 

5 Section 1910.132(a) provides:

Protective equipment, including personal protective 

equipment for eyes, face, head, and extremities, protective 

clothing, respiratory devices, and protective shields and 

barriers, shall be provided, used, and maintained in a 

sanitary and reliable condition wherever it is necessary by 

reason of hazards of processes or environment, chemical 

hazards, radiological hazards, or mechanical irritants 

encountered in a manner capable causing injury or 

impairment in the function of any part of the body through 

absorption, inhalation or physical contact.

There is no dispute that bulletproof vests are a type of PPE. The 

dispute is whether Mr. use of a vest was “necessary by 

reasons of hazards” he “encountered” while performing the 

Turnpike job. 

Redacted
13 

protective equipment or . . . a reasonable person familiar with the 

circumstances surrounding the hazardous condition would 

recognize that such a hazard exists.” Weirton Steel Corp., 20 BNA 

OSHC at 1264. The Secretary established both Schaad’s and a 

reasonable person’s knowledge of a hazard requiring Mr. to 

use PPE while providing armed security services to the Turnpike

Commission, and therefore established that the standard applied. 

The ALJ’s contrary conclusion is unsupported by the record.

 A. Schaad had Actual Notice of the Need for Mr. to 

 Wear his Protective Vest.

The ALJ determined that the Secretary failed to prove Schaad’s 

knowledge of the hazard because, in the ALJ’s view, the Secretary

did not prove that Schaad had “actual knowledge of the likelihood of 

its occurrence.” Dec. 54. To show Schaad’s actual knowledge of 

the hazard, however, the Secretary had to show only that Schaad 

recognized that a shooting was a realistic possibility, i.e., “more 

than a speculative possibility.” Weirton Steel, 20 BNA OSHC at 

1260; see also Beverly Enters., 19 BNA OSHC 1161, 1172 (Nos. 91-

3144, et al., 2000) (under significant risk analysis, the Secretary 

need only show “nontrivial” risk, or “realistic possibility” of harm, or 

Redacted Redacted
14 

that harm could happen “upon other than a freakish or utterly 

implausible concurrence of circumstances”); Dec. 50, 53. The 

Secretary met this burden.

Multiple pieces of evidence show that Schaad recognized that a 

shooting was a realistic possibility that Schaad’s guards could 

“encounter” while performing the Turnpike security detail. See 

supra p. 12 n.5 (quoting § 1910.132(a)). Schaad entered into a 

contract requiring it to provide armed security guards for people 

transporting significant sums of money, and Schaad’s standard 

operating procedures for performing the contract expressly 

designated those guards a “deterrent” to an attempted robbery 

during that work. Dec. 4, 30-31; Tr. 143, 175; Exs. C-3, C-5, C-9 

at 2. Schaad’s standard operating procedures for the Turnpike 

contract also prescribed how its armed guards should respond to 

an attempted robbery. Dec. 29-30; Ex. C-5. Moreover, Schaad 

instructed its armed guards on the use of lethal force when facing a 

threat of lethal force. Dec. 10, 26-27; Tr. 126-27; Ex. C-4. Mr. 

Lenahan, Schaad’s general manager, recognized that Schaad’s 

uniform made the guards a target for an assailant. Tr. 137. And, 

eight years before Mr. death, Schaad spent approximately 

Redacted
15

$30,000 on bulletproof vests and encouraged its armed guards to 

wear them for the protection they provided in the event of a 

shooting. Dec. 4, 14; Tr. 131-34, 137, 145-46; Ex. C-6.

In determining that the Secretary failed to overcome Shaad’s 

“rebuttal,” Dec. 51, the ALJ implicitly found that the Secretary’s

evidence was sufficient to establish a prima facie showing of 

Schaad’s knowledge of the cited shot-by hazard. See Dec. 51-54. 

Nevertheless, the ALJ found that Schaad “rebutted” the Secretary’s 

showing that Schaad recognized that a shooting was a realistic 

possibility because (1) an unmarked van “masked the money 

transfer process” and (2) Schaad had not suffered any prior 

incidents in the “previous 45 years . . . (including during the near 

20 years of providing armed guard security to the [Pennsylvania 

Turnpike Commission]).” Dec. 53-55. The ALJ’s conclusion does 

not withstand analysis.

The “mask[ing]” an unmarked van provided was at least 

partially obviated when the armed uniformed security guard got out 

of the van to observe the teller; Schaad knew, and the ALJ found, 

that the guard was “a target” because of his uniform. Dec. 52, 54; 
16

Tr. 137. The use of an unmarked van therefore does not undermine 

the evidence of Schaad’s awareness of the hazard.

The absence of prior incidents also does not diminish Schaad’s 

awareness that a shooting was a realistic possibility. A realistic

possibility encompasses unlikely events likely to cause severe harm

if they occur. See, e.g., Beverly Enters., 19 BNA OSHC at 1172 

(equating “realistic possibility” of harm with harm that could 

happen “upon other than a freakish or utterly implausible 

concurrence of circumstances”); Pratt & Whitney Aircraft, Div. of 

United Techs. Corp. v. Donovan, 715 F.2d 57, 63 (2d Cir. 1983) 

(significant risk of harm concept includes “[u]nusual or infrequent 

hazards” that pose a “meaningful possibility of injury”). Similarly, 

“as the severity of the potential harm increases in a particular 

situation, its apparent likelihood of occurrence need not be as 

great.” Dec. 48 (quoting Weirton Steel Corp., 20 BNA OSHC at 

1259); see also Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 

910 (2d Cir. 1977) (the seriousness of the recognized hazard

“warranted precautions against even the slightest possibility of its 

occurrence”).
17 

Here, Schaad knew that the severity of the potential harm in 

an attempted robbery was great. See Dec. 14 (finding it undisputed 

that the “severity of being shot while not wearing PPE is high, 

potentially leading to death”); Dec. 31 (quoting Mr. Lenahan’s 

testimony that all he could do was “hope and pray” that all of his 

armed guards wore their vests); Dec. 50 (“the evidence regarding 

severity of the harm is undisputed and undeniable: being shot in 

the torso could lead to an employee’s death,” and as a result, the

“severity related to this hazard is high”); Dec. 54 (“the record is 

replete with undisputed evidence regarding actual knowledge of the 

severity of the hazard”). Thus, the absence of a prior shooting is 

entirely consistent with the evidence demonstrating that Schaad 

knew a shooting was a realistic possibility that faced Mr. on 

March 20, 2016, while performing the Turnpike job; and the 

Secretary had no obligation to rebut Schaad’s evidence that it had 

not previously experienced a shooting. See Arcadian Corp., 20 BNA 

OSHC 2001, 2008-10 (No. 93-0628, 2004)(rejecting employer’s 

argument that lack of prior accidents outweighed evidence that

employer recognized the cited hazard). 

Redacted
18

In addition to improperly weighing the evidence regarding the 

use of an unmarked van and the absence of prior incidents, the ALJ 

also ignored evidence showing that Schaad recognized that a 

shooting was a realistic possibility. See Dec. 52-55. This evidence 

includes Shaad’s policies on the use of lethal force and on how to 

respond to an attempted robbery as well as its purchase of 

bulletproof vests and encouragement to its armed guards to wear 

them. Dec. 4, 10, 14, 26-27, 29-30; Tr. 126-27, 130-34, 137, 145-

46; Exs. C-4, C-5, C-6. The ALJ justified his approach on the 

ground that an employer’s “safety policy alone cannot be used to 

establish the employer’s knowledge of an alleged hazard.” Dec. 54

(emphasis added). This was error because Schaad’s safety policies

do not stand alone in this record.

Instead, the record also includes evidence that the 

Pennsylvania Commission Turnpike contract required the use of 

armed guards, Dec. 4; Ex. C-3; guards transporting significant 

sums of money face a risk of an armed robbery, Tr. 78, 175-76;

Schaad’s guards protected a teller transporting significant sums of 

money, Dec. 4, 6-7; Tr. 175; Ex. C-9 at 2; wearing a uniform makes 

the guard a target for robbers, Dec. 52; Tr. 137, 176, 185; being 
19

shot is highly likely to cause death or serious physical harm, Dec. 

14, 61; bulletproof vests provide meaningful protection from being 

shot, Dec. 14; Tr. 130, 182; and at least some in the industry 

recognize the hazard. Infra pp. 20-23.

When evidence of an employer’s safety policies does not stand 

alone, those policies are “properly . . . considered” in determining 

whether the employer “recognized the hazard in question.” Dec. 57 

(quoting Trinity Indus., Inc., 15 BNA OSHC 1481, 1485 n.8 (No. 88-

2691, 1992)). And when the evidence of Schaad’s safety policies is 

“considered in conjunction with” the other relevant evidence in this 

record, Dec. 57, the question of Schaad’s actual knowledge of the 

hazard requiring the use of bulletproof vests is not a close call. See, 

e.g., Lukens Steel, 10 BNA OSHC 1115, 1124 (No. 76-1053, 1981) 

(employer’s safety practices established its awareness of need for 

PPE). The ALJ therefore erred in finding that Schaad did not have 

knowledge of the cited hazard, and § 1910.132(a) applied.

B. The Private Security Industry Recognized the Hazard.

The ALJ also erred in determining that the Secretary failed to 

show that a reasonable person (or employer) familiar with the 

circumstances surrounding the Turnpike job would recognize that a 
20

shot-by hazard existed. The Secretary presented expert testimony 

from Dr. Benny, who had forty-five years’ experience in the security 

industry, that the security industry recognized the hazard of being 

shot while protecting persons transporting money. Tr. 174-80, 189-

91; see also supra p. 7 (discussing evidence establishing high 

fatality rate for security guards caused by assaults, violent acts, 

and gun shots). The Secretary also presented testimony that at 

least six security guards who worked the Turnpike job always or 

almost always wore their bulletproof vests. Tr. 50, 53-55, 75-78, 

90, 99, 145. And, the Secretary explained that it was not necessary 

to examine industry practice when the hazard is readily apparent, 

and supported his contention that the hazard here was readily 

apparent with citations to case law establishing the hazardous 

nature of armed security work. See Dec. 57. 

The ALJ found the Secretary’s evidence insufficient because (1)

other security companies did not provide vests to their security 

guards; (2) Schaad’s lack of prior incidents and the Turnpike

Commission’s use of an unmarked van “affected the likelihood 

assessment of the risk of the hazard [Schaad’s] armed guards 

faced;” (3) only “some” of Schaad armed guards used vests; and (4) 
21

nothing “connect[ed]” the cases establishing the hazardous nature 

of armed security work “to the particular worksite in this case.”6

Dec. 57-59. The ALJ erred.

The Secretary need not prove the security industry uniformly 

uses PPE to prove that that a reasonable employer familiar with the 

circumstances surrounding the hazardous condition would 

recognize that a hazard warranting the use of PPE exists. Weirton 

Steel Corp., 20 BNA OSHC at 1264; accord Voegele Co. v. OSHRC, 

625 F.2d 1075, 1078-79 (3d Cir. 1980). Moreover, the ALJ

underestimated the extent to which the security industry used 

bulletproof vests. See Dec. 57. Even where security companies do 

not voluntarily provide vests to their armed guards, they require 

their armed guards to use bulletproof vests when their use is part of 

the contract with their clients. Tr. 209, 218.

 

6 The ALJ also referred to the fact that “all of Respondent’s security 

officers had documented law enforcement officer experience as a 

prerequisite to being hired as an armed security guard for” Schaad. 

Dec. 59. The ALJ did not explain the relevance of this fact to the 

industry’s recognition of the hazard, however, and this fact does not 

support the ALJ’s finding on this point. The record does not 

support the ALJ’s suggestion that armed security guards with law 

enforcement experience are less likely to encounter the cited shotby hazard than armed security guards without that experience. 
22 

It is immaterial that the lack of prior incidents and the 

Turnpike Commission’s use unmarked van “affected the likelihood 

assessment of the risk of the hazard [Schaad’s] armed guards 

faced.” Dec. 58. Even a lower likelihood is sufficient to meet the 

Secretary’s burden to demonstrate a realistic possibility of the 

hazard occurring, particularly in light of the principle that “[a]s the 

severity of the potential harm increases in a particular situation, its 

apparent likelihood of occurrence need not be as great.” Weirton 

Steel Corp., 20 BNA OSHC at 1259. And, for the same reasons that

the use of an unmarked van and the lack of prior shootings did not 

undermine the evidence that Schaad recognized the hazard, these 

factors likewise do not undermine the evidence that the security 

industry recognized the hazard. See supra pp. 15-17.

The ALJ similarly erred in discounting the testimony that most 

of Schaad’s armed security guards wore bulletproof vests. Although 

the “older element,” such as Mr. did not regularly wear their 

vests, the record shows consistent use by every other employee 

discussed at the hearing.7 Tr. 46, 50, 53-55, 75-78, 90, 99, 145. 

 

7 The record shows that six out of seven armed guards (including 

Mr. consistently wore bulletproof vests while working the 

Redacted Redacted
23 

Employee use does not have to be unanimous for it to be probative 

evidence that a reasonable person familiar with the circumstances

would recognize that armed security guards performing the 

Turnpike job were exposed to a shot-by hazard warranting the use 

of a bulletproof vest. See General Motors Corp., GM Parts Div., 11 

BNA OSHC 2062, 2066 (Nos. 78-1443 & 79-4478, 1984) (employee 

practices are relevant to reasonable person inquiry and relying on 

fact that most employees did not wear safety shoes to find that 

Secretary failed to establish that a reasonable person would have 

recognized a hazard requiring the use of safety shoes), aff’d, 764 

F.2d 32 (1st Cir. 1985). 

Also contrary to the ALJ’s analysis, the Secretary “connect[ed]” 

the case law establishing the hazardous nature of armed security 

work “to the particular worksite in this case.” The Secretary cited 

 

Turnpike job. Tr. 46, 50, 53-55, 75-78, 90, 99, 145. In addition, 

active law enforcement personnel who were Schaad armed guards 

consistently also wore their bulletproof vests. Tr. 145. Against this 

evidence, is Mr. failure to wear his vest on March 20, 2016, 

and Mr. Lenahan’s statement that an undisclosed number of “older” 

guards did not prefer to wear their vests. Tr. 46. Accordingly, the 

most reasonable reading of the record in this case is that most of 

Schaad’s armed security guards familiar with the circumstances of 

the Turnpike job regularly wore bulletproof vests.

Redacted
24 

case law establishing that the “possibility of a face-to-face 

encounter with a criminal is an ordinary and obvious risk incident 

to employment as an armed security guard.” Atlanta Braves, Inc. v. 

Leslie, 378 S.E.2d 133, 135 (Ga. App. 1989), quoted in Secretary of 

Labor’s Post-Hearing Brief 19. The Secretary explained that this 

principle applied, as shown by additional case law and common 

sense, to armed security guards protecting persons transporting 

money—the task Mr. was performing on the day of his death. 

Dec. 57. And the Secretary did so to support his argument that the 

hazard requiring Mr. to wear a bulletproof vest was “readily 

apparent,” and that therefore industry practice was not relevant to 

whether a reasonable person would have recognized the hazard that 

cost Mr. his life. See Fleming Foods of Neb., Inc., 6 BNA OSHC 

1233, 1235 (No. 14484, 1977) (“it is not necessary to examine 

industry practice when the hazard is readily apparent”). 

In sum, the Secretary established that a reasonable person or 

employer familiar with the circumstances of the Turnpike security 

job would have known that Mr. was exposed to the shot-by 

hazard, and § 1910.132(a) therefore applied. The ALJ erred in 

concluding otherwise. 

Redacted Redacted Redacted Redacted
25 

II. Schaad had fair notice of § 1910.132(a)’s requirements.

The ALJ held that even if the standard applied, “the Secretary 

provided insufficient notice of the requirements of the standard 

such that [Schaad] would be deprived of due process if held 

accountable under the standard.” Dec. 59-62. The sole basis for 

this ruling is the ALJ’s belief that neither Schaad nor its industry 

realized that Mr. was exposed to a hazard within the meaning 

of § 1910.132(a). Dec. 59-62. As shown above, both Schaad and 

the security industry recognized the cited hazard, and therefore the 

ALJ erred in concluding that Schaad lacked notice that it had to 

require Mr. to wear his bulletproof vest. Weirton Steel Corp., 

20 BNA OSHC at 1264.

The standard provides clear notice that, for a recognized 

hazard capable of causing injury, the employer must require its 

exposed employees to wear PPE that protects the employees from 

the hazard. See 29 C.F.R. § 1910.132(a). Getting shot obviously 

can cause injury, and Schaad indisputably knew that bulletproof 

vests provide meaningful protection for employees exposed to that 

hazard. Dec. 14; Tr. 130. Moreover, OSHA publicly posted an 

interpretive letter in 2014 explaining that bulletproof vests were a 

Redacted Redacted
26 

form of PPE within the meaning of § 1910.132(a). Dec. 5; Ex. C-10. 

In addition, prior to Mr. death, OSHA had issued at least

three citations for the failure of armed guards to wear bulletproof 

vests. Exs. C-11 through C-13. Schaad therefore had fair notice of 

its obligation to require Mr. to wear his vest. See Weirton 

Steel Corp., 20 BNA OSHC at 1264; Lukens Steel Co., 10 BNA OSHC 

at 1123. 

Conclusion

For the foregoing reasons, the Commission should direct the 

ALJ’s decision for review.

 KATE O’SCANNLAIN

 Solicitor of Labor

 EDMUND C. BAIRD

Acting Associate Solicitor of Labor 

for Occupational Safety and Health

 HEATHER R. PHILLIPS

 Counsel for Appellate Litigation

 /s/ Ronald Gottlieb

RONALD J. GOTTLIEB

 Senior Trial Attorney

 U.S. Department of Labor

 Constitution Ave., N.W.

 Washington, D.C. 20210

(202) 693-5494

 gottlieb.ronald@dol.gov

Redacted Redacted
27 

CERTIFICATE OF SERVICE 

 

I hereby certify that on the 10th day of December, 

2018, I served a copy of the foregoing Secretary of Labor’s 

Petition for Discretionary Review by email on: 

 

 L.C. Heim, Esquire

 KATHERMAN HEIM & PERRY 

 345 East Market Street 

 York, PA 17403

 lc@khlaw.us 

 

 

/s/ Ronald Gottlieb 

 RONALD J. GOTTLIEB 

 Senior Trial Attorney 

 U.S. Department of Labor 

Office of the Solicitor 

Room S-4004 

 200 Constitution Ave., N.W. 

 Washington, D.C. 20210 

(202) 693-5494

gottlieb.ronald@dol.gov