UNITED STATES OF AMERICA 

OCCUPATIONAL SAJFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR. 

Complainant, 

v. 

INTEGRA HEALTH MANAGEMENT, 

INC., 

Respondent. 

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OSHRC Docket No. 13-1124 

~~~~~~~~~--~~~~~) 

BRIEF OF AMICUS CURIAE CALIFORNIA NURSES ASSOCIATION/ 

NATIONAL NURSES UNITED (CNA/NNU) 

IN SUPPORT OF COMPLAINANT SECRET ARY OF LABOR 

RECEIVED OSHRC 

DEC 2 1 2015 

OFFICE OF 

EXECUTIVE SECRETARY 

CALIFORNIA NURSES ASSOCIATION/ 

NA TI ON AL NURSES UNITED (CNA/NNU) 

LEGAL DEPARTMENT 

Pamela Allen 

Carol Igoe 

2000 Franklin Street 

Oakland, CA 9461 2 

Telephone (510) 273-2216 

Fax (510) 663-4822 

pal I en@caln urses. org 

cigoe@calnurses.org 

Counsel for Amicus Curiae 
TABLE OF CONTENTS 

TABLE OF AUTHORITIES .......................................................................................................... ii 

CORPORA TE DISCLOSURE STATEMENT .............................................................................. vi 

I. STATEMENT OF INTEREST OF AMICUS CURIAE ..................................................... 1 

II. SUMMARY OF ARGUMENT ........................................................................................... 1 

111. ARGUMENT ....................................................................................................................... 2 

A Inadequate Workplace Violence Prevention Can Amount to a Hazard 

under the Act. ........................................................................................................... 2 

1. The Plain Text of the Statute Reaches All Recognized Hazards that 

Could Lead to Workplace Injury or Death .................................................. 2 

2. Legislative History Shows Congress Intended to Reach All 

Recognized Hazards that Could Lead to Workplace Injury or 

Death ............................................................................................................ 5 

3. OSHA's Guidance Further Illustrates that Lack of Adequate 

Workplace Violence Prevention Procedures Can Amount to a 

Hazard Under the Act ................................................................................ 10 

4. Megawest Does Not Support Integra's Position Because It Found 

that Workplace Violence Did Amount to a Hazard and Its 

Reasoning on Recognition Is Unpersuasive .............................................. 11 

B. The Risk of Serious Injury or Death from Workplace Violence Is a 

Recognized Hazard in the Healthcare and Social Service Industries ........... ......... 16 

C. It Is Well Established that the Risk of Serious Injury or Death from 

Workplace Violence Can Be Materially Reduced ................................................. 21 

IV. CONCLUSION ............................ ... ......................................................................... .......... 25 
TABLE OF AUTHORITIES 

CASES 

Alaska Dept. of Envtl. Conservation v. EPA 

540 U.S. 461 (2004) ....................................................................................................................... 1 I 

Anning-Johnson Co. v. United States OSHRC 

516 F.2d 1081 (7th Cir. 1975) ..................................................................................................... 6, 9 

ACME Energy Servs. v. OSHRC 

542 Fed. Appx. 356 (10th Cir. 2013) ............................................................................................. 22 

Brennan v. Gilles & Cotting, Inc. 

504 F.2d 1255 (4th Cir. 1974) ....... .................................................................................................. 6 

CH2M Hill, Inc. v. Herman 

192 F.3d 711 (7th Cir. 1999) ........................................................................................................... 6 

Chao v. Gunite Corp. 

442 F.3d 550 (7th Cir. 2006) ......................................................................................................... 22 

Elec. Smith, Inc. v. Sec '.Y of Labor 

666 F.2d 1267 (9th Cir. 1982) ....................................................................................................... 11 

Edgewood Const. Co. 

15 OSAHRC 17 (1975) ................................................................................................................. 16 

Exxon Mobile Corp. v. Allapallah Servs. 

545 U.S. 546 (2005) ..................................................................................................................... 4, 5 

Godwin v. OSHRC 

540 F.2d 1013 (9th Cir. 1976) ................ ........................................................................................ .4 

Hartford Underwriters Ins. Co. v. Union Planters Bank, NA. 

530 U.S. 1 (2000) ........................................ ..................................................................................... 3 

Kelly Springfield Tire Co. v. Donovan 

729 F.2d 317 (5th Cir. 1984) ......................................................................................................... 17 

Jn re Cerro Copper Prods. Co. 

752 F.2d 280 (7th Cir. 1985) ......................................................................................................... 11 

lntegra Health Mgmt, Inc. 

13-1124, 2015 WL 4474372 (CMP'AU June 22, 201 5) ................................ ........................... 21, 22 

l1 
Megawest Fin., Inc. 

17 O.S.H. Cas. (BNA) ~ 1598 (O.S.H.R.C.A. L.J. Dec. 22, 1995) ........................................ passim 

Nat 'l Realty & Constr. Co v. OSHRC 

489 F.2d 1257 (D.C. Cir. 1973) ......................................................................................... 12, 17, 22 

NM Petroleum Marketers Ass 'n v . NM Envtl. Improvement Bd. 

141N.M.678 (N.M. Ct. App. 2007) ............................................................................................... 8 

Otis Elevator Co. v. OSHRC 

581 F .2d 1056 (2d Cir. 1978) ........................................................................................................ 17 

Red Lion Broadcasting v. FCC 

395 U.S. 367 (1969) ....................................................................................................................... 10 

Roberts Sand Co., LLLP v. Sec '.Y of Labor 

568 Fed. Appx. 758 (11th Cir. 2014) ............................................................................................. 22 

Ryder Truck Lines, Inc. v. Brennan 

497 F.2d 230 (5th Cir. 1974) ........................................................................................................... 6 

Skidmore v. Swift & Co. 

323 U.S. 134 (1944) ....................................................................................................................... 10 

St. Joe Minerals Corp. v. OSHRC 

647 F.2d 840 (8th Cir. 1981) ......................................................................................................... 16 

United States v. Pitt-Des Moines, Inc. 

168 F.3d 976 (7th Cir. 1999) ........................................................................................................... 3 

United States v. Sturm, Ruger & Co. 

84 F.3d 1 (1st Cir. 1996) ................................................................................................................ l 3 

Uniled States v. Westinghouse Elec. Corp. 

638 F.2d 570 (3rd Cir. 1980) ........................................................................................................... 5 

Universal Constr. Co. v. OSHRC 

182 F.2d 726 (10th Cir. 1999) ........................................................................................................ .4 

Whirlpool Corp. v. Marshall 

445 U.S. 1 (l 980) ............................................................................................................................. 4 

Ill 
FEDERAL STATUTES AND REGULATIONS 

* Occupational Health and Safety Act 

29 U.S.C. § 651 ....................................................................................................................... passiin 

29 U.S.C. § 65 l(b) ........................................................................................................................... 3 

29 U.S.C. § 654(a), General Duty Clause ............................................................................... passim 

29 U.S.C. § 655(a) ........................................................................................................................... 3 

29 U.S.C. § 669(a) ........................................................................................................................... 8 

OTHER AUTHORITIES 

12 NYCRR § 800.6 ........................................................................................................................ 19 

116 Cong. Rec. 10616 ..................................................................................................................... 9 

116 Cong. Rec. 17967 ................... , ................................................................................................ 15 

116 Cong. Rec. 42204 ................... ,. ................................................................................................. 9 

Cal. Lab. Code § 6401.8 .......................................................................................................... 18, 19 

Carri Casteel, et al., Hospital Employee Assault Rates Before and After Enactment of the 

California Hospital Safety and Security Act, AEP 19(2) (Feb. 2009) ........................................... 24 

Corinne Peek-Asa, et al., Violent Events and Security Programs in California Emergency 

Departments Before and After the 1993 Hospital Security Act, Journal of Emergency Nursing, 

(Oct. 2002) ............................................................................. ......................................................... 24 

CT Public Act No. 11-1175 ........................................................................................................... 19 

Florida Hospital Association, Workplace Violence in the Healthcare Environment .................... 20 

H.R. 19200, 91st Cong.§ 43 (1970) ................................................................................................ 9 

H.R. Rep. No 91-1291 , 91 st Cong. (1970) ...................................................................................... 9 

MA Executive Order #511 .............................................................................................. .............. 20 

Mark A. Rothstein, Occupational Safety and Health Law (2011 ed.) ........................................... 17 

Md Health-General Code Ann. ~ 19-1410.2 ................................................................................. 19 

MN HF 1087 & SF 1071 ................................................................................................................ 19 

N.C. Dept. of Lab .. Workplace Violence Prevention Guidelines and Program for 

Healthcare. Long Term Care and S'ocial Services Workers .......................................................... 19 

NJ Rev. Stat§ 26:2H-5. l 7(2013) .................................................................................................. 19 

IV 
N. Magnavita, Violence Prevention in a Small-scale Psychiatric Unit: Program Planning and 

Evaluation, lntemational Journal of Occupational Environmental Health (2011) ........................ 24 

Oregon Occupational Safety and Health Div., Dept. of Consumer and Business Serv., 

Program Directive A-123 .............................................................................................................. 20 

OSHA, Guidelines for Preventing Workplace Violence for Healthcare and Social Service 

Workers ( 1996) .............................................................................................................................. 18 

OSHA, Standard Interpretation Letter (Dec. 10, 1992) ................................................................. I 0 

OSHA, Workplace Violence Fact Sheet (2002) ............................................................................ 10 

Rev. Code Wash. §49.19.005 ......................................................................... --............................. 19 

Robert L Weisman, DO, Violence Prevention & Scifety Training for Case Management 

Services, Community Mental Health .J. (Aug. 2002) ............................................................... 20, 23 

Rutter Compliance Blog, New OSHA Guidelines Underscore Workplace Violence Risks Faced 

by Healthcare and Social Service Workers ................................................................................... 20 

Susan Rees, MS, RN, A Program to Minimize Violence and Keep Employees Safe, Journal of 

Emergency Nursing (September 2010) ......................................................................................... 23 

Tom Meehan, et al., Reducing Aggressive Behavior and Staff Injuries: a Multi-Strategy 

Approach, Aust. Health Rev. (2006) ............................................................................................. 24 

v 
CORPORA TE DISCLOSURE STATEMENT 

Pursuant to§ 2200.35 of the Occupational Health and Safety Review Commission's 

Rules of Procuedure, the California Nurses Association/National Nurses United 

(CNAINNU) provides the folllowing corporate disclosure statement: 

CNAINNOC has no parent corporation, no subsidiary corporation or affiliate 

corporations. 

DATED: December 17, 2015 

vi 

Respectfully submitted, 

CALIFORNIA NURSES ASSOCIATION/ 

NATIONAL NURSES UNITED (CNAINNU) 

LEGAL DEPARTMENT 

P~n~ Carol Igoe 

2000 Franklin Street 

Oakland, CA 94612 

Telephone (510) 273-2216 

Fax (510) 663-4822 

pallen@calnurses.org 

cigoe@calnurses.org 

Counsel for Amicus Curiae 
National Nurses United ("NNU") submits this amicus brief in support of the 

Secretary of Labor, Pursuant to the Commission's September 18, 2015, Briefing 

Notice and its November 4, 2015, Order extending the Opposition briefing deadline. 

NNU addresses the principal arguments of Integra, and its amicus, that workplace 

violence falls outside the reach of the Occupational Health and Safety Act, and that 

workplace violence is not a recognized or abatable hazard. 

I. STATEMl~NT OF INTEREST OF AMICUS CURIAE 

NNU represents more than 165,000 registered nurses throughout the country. 

Our nurses work in areas deeply affected by workplace violence, including 

emergency rooms, psychiatric facilities, jail infirmaries, and home care. 

Unfortunately, far too many nurses have been seriously injured because of 

inadequate workplace violence prevention programs. Some have even Jost their 

lives. It is now well established that the frequency and severity of such tragic 

workplace violence can be greatly reduced by adoption of simple strategies like 

those recommended in the citation at issue in this case. But many employers are 

slow to adopt these measures, despite the well known risks. Accordingly, we are 

committed advocates for effective workplace violence prevention practices. Nurses 

must be able to serve their patients without fearing for their lives. In short, we have 

a deep and abiding interest in OSHA 's ability to regulate workplace violence. 

II. SUMMARY OF ARGUMENT 

Congress passed the Occupational Health and Safety Act to combat the 

disturbingly high numbers of worker injuries and death caused by preventable 

workplace accidents. The congressional intent that drove passage was desire to 
eliminate recognized workplace hazards that could result in such losses Foreseeable 

and abatable workplace violence leads to an alarming numbers of injuries and deaths 

in the healthcare and social services industries. Workplace violence is foreseeable in 

these industries because this dire problem is well publicized through state regulation, 

OSHA and state guidance, industry publications, and widely disseminated studies. 

And conscientious experts, familiar with the industry, would prescribe the prevention 

methods specified in the citation at issue in this case-which establishes that this 

hazard is abatable. Accordingly, workplace violence is exactly the type of hazard 

that Congress intended the Act to reach. OSHA, therefore, may properly issue 

citations to protect workers from the recognized and abatable hazard of inadequate 

workplace violence prevention practices. 

III. ARGUMENT 

A. Inadequate Workplace Violence Prevention Can Amount to a Hazard 

under the Act. 

lntegra asserts that Congress did not intend the General Duty Clause to 

extend to workplace violence. Pet. Br. 12-15. Integra makes this argument without 

accounting for whether workplace violence can foreseeably lead to injury and death 

or whether that risk can be abated by effective prevention practices. Id. This blanket 

assertion is foreclosed by the text of the Act, which ends the inquiry. But even if 

further inquiry were warranted, legislative history and agency interpretation also bar 

Integra's argument. 

1. The Plain Text of the Statute Reaches All Recognized Hazards 

that Could Lead to Workplace Injury or Death. 

The text of the Act is unambiguous. It opens with a "Congressional 

statement of findings and declaration of purpose and policy." 29 U.S.C. § 651 (title 

2 
of section). This section explicitly states that the impetus for the Act was Congress's 

finding "that personal injuries and illnesses arising out of work situations impose a 

substantial burden upon, and are a hindrance to, interstate commerce in terms of lost 

production, wage loss, medical expenses, and disability compensation payments." 

29 U.S.C. § 651(b). For these reasons, the Acts purpose is "to assure so far as 

possible every working man and woman in the Nation safe and healthful working 

conditions and to preserve our human resources .... " 29 U.S.C. § 65 l(b). 

The Act then prescribes specific methods to realize this lofty goal. One key 

method is by charging the Secretary of Labor with "establish[ing] Federal 

standards." 29 uses § 655(a). Another is by requiring that each employer "furnish 

to each of [its] 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 [its] employees." 29 U.S.C. § 654(a). This section is known as the 

General Duty Clause. See United States v. Pitt-Des Moines, Inc., 168 F.3d 976, 982 

(7th Cir. 1999) ("The duty imposed by§ 654(a)(l) is considered [a] 'general' [duty] 

because it asks employers to protect employees from all kinds of serious hazards, 

regardless of the source." (emphasis added)). The text does not contain any 

limitations on the types of hazards it is intended to reach. The text does not exclude 

hazards that Congress had not yet contemplated or that involve conduct of third 

parties. ln fact, the Act does not differentiate types of hazards at all. 

"Congress says in a statute what it means and means in a statute what it says 

there." Hartford Underwriters Ins. Co. v. Union Planters Bank, NA., 530 U.S. 1, 6 

(2000). Accordingly. when "the statute's language is plain, the sole function of the 

3 
courts -- at least where the disposition required by the text is not absurd -- is to 

enforce it according to its terms." Id. (internal quotation marks omitted). Applying 

these bedrock p1inciples of statutory interpretation requires little analysis here. The 

text means what it says. Its purpose is to assure "healthful working conditions.'' It 

does so in part by requiring employers to "furnish to each of [its] 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 [its] employees." 

Nothing in the text in anyway limits the types of hazards Congress intended to reach. 

There are no exclusions. Accordingly, the text of the Act forecloses the argument 

that foreseeable and abatable workplace violence falls outside the scope of the Act. 

See Exxon Mobil Corp. v. AUapattah Servs., 545 U.S. 546, 568 (2005) ("the 

authoritative statement is the statutory text"). 

This faithful plain-text reading of the Act's mandate is especially appropriate 

here because "safety legislation is to be liberally construed to effectuate the 

congressional purpose." Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1980). And 

applying the General Duty Clause to the emerging problem of workplace violence 

furthers the remedial purposes of the Act. Universal Cons tr. Co. v. OSHRC, 182 

F .3d 726, 729 (10th Cir. 1999) (observing that the Act is a "remedial legislation 

designed to protect employees from workplace dangers, and therefore must be 

liberally construed"); Godwin v. OSHRC, 540 F.2d 1013, 1015 (9th Cir. 1976) ("We 

hold also that Congress intended the coverage of the Act to be as broad as the scope 

of the commerce clause.''). 

4 
In sum, there is no support in the text for Integra's argument that Congress 

intended to exclude foreseeable and abatable workplace violence from the reach of 

the General Duty Clause. On the contrary, the plain text of the Act extends that duty 

to all "recognized hazards that are causing or are likely to cause death or serious 

physical harm." Accordingly, the text of the Act forecloses Integra's argument that 

Congress did not intend to reach this type of hazard. 

2. Legislative History Shows Congress Intended to Reach All 

Recognized Hazards that Could Lead to Workplace Injury or 

Death. 

Despite the plain text of the Act, and without engaging with it, lntegra argues 

that the legislative history establishes that Congress intended to exclude workplace 

violence from the reach of the General Duty Clause. Legislative history, however, is 

not relevant here because the text of the Act is clear. "[T]he authoritative statement 

is the statutory text, not the legislative history or any other extrinsic material." 

Exxon Mobil, 545 U.S. at 568. 

But even if the text of the Act were not dispositive, which it is, the legislative 

history supports the plain-text's broad reach rather than Integra's asserted narrower 

scope. "In enacting that statute, Congress noted the 'grim current scene .... in the 

field of occupational health,' and sought, by passage of the statute, 'to reduce the 

number and severity of work-related injuries and illnesses which, despite current 

efforts of employers and government, [were] resulting in ever-increasing human 

misery and economic loss. "' United States v. Westinghouse Elec. Corp., 638 F.2d 570, 

579 (3d Cir. 1980) (quoting Occupational Safety and Health Act of 1970, S.Rep. No. 

1282, 91 st Cong., 2d Sess. (1970), reprinted in (1970) U.S.Code Cong. & 

Admin.News, pp. 5 I 77, 5178, 5177). Tellingly, one of the sentors advocating for 

5 
passage emphasized the need for remedial legislation by explaining that the number 

of ''workers killed by work-related accidents each year represented an annual death 

toll exceeding that of the Vietnam war." Anning-Johnson Co. v. United States 

OSHRC, 516 F.2d 1081, 1087-1088 (7th Cir. 1975) (citing Subcomm. on Labor of 

Senate Comm. on Labor and Public Welfare, Legislative History of the Occupational 

Safety and Health Act of 1970, S, 92d Cong., 1st Sess. 411 (Comm. Print 1971) 

(remarks of Senator Williams)). Ultimately, "[c]onfronting a legislative record which 

showed that each year 14,500 workers died and two million were disabled because of 

their jobs, resulting in $1.5 biillion in lost wages and an $8 billion loss to the GNP, . . . 

Congress passed a wide-ranging bill, characterized by one commentator as 'the most 

revolutionary piece of labor legislation since the National Labor Relations Act.'" 

Brennan v. Gilles & Catting, Inc., 504 F.2d 1255, 1259-1260 (4th Cir. 1974) (citing 

Subcommittee on Labor, 92d Cong., 1st Sess., Legislative History of the Occupational 

Safety and Health Act of 1970, 831, 844 (Comm. Piint 1971 )) (additional citation 

omitted). 

This legislative history further confoms that the purpose of the Act was to 

reduce the workplace death and injury. Nothing in this history suggests that 

Congress meant to exclude some foreseeable and abatable hazards merely because, 

a lntegra and its amicus suggest, the hazard was not then currently recognized as a 

major problem or because Congress did not consider the specific hazard or others 

like it. See also Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 

1974) ('"The Act's goal is to eliminate dangerous conditions in the workplace."); 

CH2M Hill, Inc. v. Herman, 192 F.3d 711, 720 (7th Cir. 1999) ("A per se exception 

6 
excluding professionals, regardless of their duties, from liability under the Act and 

its regulations would diminish the aims of Congress in enacting this legislation."). 

Accordingly, even iflegislative history were relevant, it too forecloses Integra's 

congressional intent argument. 

Ignoring this strong legislative history in support of its broad misreading 

Integra asserts that the "legislative history of the Act contains no suggestions 

whatsoever that the 'recognized hazards' encompassed in the General Duty Clause 

would potentially include criminal behavior by individuals not under the employer's 

control." Pet. Br. at 13. But the fact that Congress did not discuss a particular 

hazard is hardly meaningful <~vidence that Congress meant to exclude that hazard 

from the reach of the Generali Duty Clause. On the contrary, as the New Mexico 

Court of Appeal explained: 

Congress contemplated that the purposes of the federal OSHA would 

be achieved in part by 'stimulat[ing] employers and employees to 

institute new . . . programs providing for safe and healthful working 

condiLions.' 29 U.S.C. § 65l(b)(l) (emphasis added). 'Congress 

specifically included recordkeeping provisions ... to aid in enforcing 

[OSHA] and in preventing future accidents and illnesses.' Mark A. 

Rothstein, Occupational Safety and Health Law 234 (4th ed. 1998). 

Congress authorized 'research, experiments, and demonstrations 

relating to occupational safety and health, including studies of 

psychological factors involved, and relating to innovative methods, 

techniques, and approaches for dealing with occupational safety and 

health problems.' 29 U.S.C. § 669(a)(l) (2000). Responsibility for 

collecting statistics on occupational injuries and illnesses was 

delegated to the Bureau of Labor Statistics. [citation omitted] 

Congress created the National Institute for Occupational Safety and 

Health and directed it to conduct studies and research to develop 

criteria for new or improved safety and health standards. 2 9 U.S. C. § 

671 ( d)(l) (2000). Workplace violence against employees seems to 

us to be precisely the type of emerging workplace hazard that the 

7 
record-keeping and research provisions of OSHA were designed to 

discover and monitor. 

N.M Petroleum Marketers Ass 'n v. NM Envtl. Improvement Bd, 141 N.M. 678, 

681-682 (N.M. Ct. App. 2007). 

Integra's "acts of third parties" argument is also belied by Congress's later 

decision to specifically direc1t the Secretary to "enhance and expand research as 

deemed appropriate on the health and safety of workers who are at risk for 

bioterrorist threats or attacks in the workplace." 29 U.S.C. § 669(a) (enacted 2002). 

Of course Congress is not suggesting that the Act makes employers responsible for 

preventing terrorism or controlling teITorists. Rather Congress recognized that 

employers can adopt policies and procedures that materially reduce the hazard of 

workplace injury or death resulting from bioterrorist threats. This is really just a 

matter of common sense. Congress passed the Act to protect workers from 

preventable injury and death. Employers can minimize the risk of harm from 

terrorism through effective policy and procedure. And were an employer to fail to 

take adequate preventative measures in the face of the recognized hazard of 

bioterrorist threats, that failure would violate the General Duty Clause. The same is 

true of workplace violence. Congress's decision to direct research on ''health and 

safety of workers who are at risk for bioterrorist threats" highlights that Congress did 

not intend to exempt the risk of harm stemming from third party conduct from the 

reach of the Act. 

Alternatively, Integra suggests its argument is supported by Congress's 

decision to shift the final language of the General Duty Clause from requiring 

employers to furnish a place of employment "which is safe and healthful" to one that 

8 
is "free from recognized hazards." This minor shift in language doesn't bear the 

weight Integra seeks to place upon it. The new qualifier that was introduced was 

"recognized." That makes sense. Congress would not want to penalize an employer 

for a truly unforeseeable hazard. Limiting the reach of the General Duty Clause to 

"recognized" hazards eliminates that risk. And, in fact, this is exactly what was 

discussed in Congress when this change was made. Opponents of the "safe and 

healthful" language thought it was "so broad, general and vague as to defy practical 

enforcement." 116 Cong. Rec. 10616 (remarks of Congressman Anderson). As a 

result, "safe and healthful" was replaced by "hazards which are readily apparent." 

H.R. 19200, 91 st Cong., 2d Sess., § 12 ( 1970). Concern then arose that the new 

language was too limiting, as it might exclude hazards that were recognized but not 

readily apparent to the naked eye. So the ultimate compromise was "recognized 

hazards," which was understood to encompass all hazards "that can be readily 

detected on the basis of the basic human senses." 116 Cong. Rec. 42204 (remarks of 

Congressman Steiger). 

Nothing in this compromise suggests that Congress intended to exclude 

foreseeable and abatable workplace violence. On the contrary, "[t]he underlying 

rationale in effectuating [the) purposes [of the Act,] by placing primary 

responsibility on employers is that employers have primary control of the work 

enviromnent and should therefore insure that it is safe and healthful." AnningJohnson, 516 F.2d at 1087-1088 (citing S. Rep. No. 91 -1 282, 9lst Cong., 2d Sess. 9 

( 1970); H.R. Rep. No. 91 - 1291 , 91 st Cong., 2d Sess. 21 (1970)). That rationale 

adheres strongly here because employers control the policies and procedures that can 

9 
minimize the likelihood of employee injury or death from the recognized risk of 

workplace violence. 

3. OSHA's Guidance Further Illustrates that Lack of Adequate 

Workplace Violence Prevention Procedures Can Amount to a 

Hazard Undt~r the Act. 

OSHA is the expert on interpreting the Act. OSHA has long recognjzed, and 

cautioned, that failure to adopt adequate workplace violence prevention practices, in 

the face of a recognized risk, can violate the General Duty Clause: "Whether or not 

an employer can be cited for a violation of [the General Duty Clause] is entirely 

dependent on the specific facts . . .. The recognizability and foreseeability of the 

hazard, and the feasibility of the means of abatement, are some of the critical factors 

to be considered." OSHA Standard Interpretations Letter, Dec. I 0, 1992. 1 

"Employers who do not take reasonable steps to prevent or abate a recognized 

violence hazard in the workplace can be cited" for violating the General Duty 

Clause. OSHA Workplace Violence Fact Sheet (2002).2 

Although not due Chevron-level deference, an agency's guidelines 

nonetheless are due respectfal deference where they fall within an agency's 

particular expertise. See Skidmore v. Swift & Co., 323 U.S. at 140 (noting that the 

"rulings, interpretations and opinions" of an agency "constitute a body of experience 

and informed judgment to which courts and litigants may properly resort for 

guidance"); Red Lion Broadcasting v. FCC, 395 U.S. 367, 381 ( 1969) ("the 

construction of a statute by those charged with its execution should be followed 

1 Available at www.osha.gov/SL TC/workplaceviolence/standards.html (last visited 

Dec. 9. 2015). 

2 Available at http://www.osha.gov/OshDoc/data_ General_Facts/factsheetworkplace-violence.pdf (last visited Dec. 9. 2015). 

10 
unless there are compelling indications that it is wrong"). Longstanding guidance 

developed independent of litigation is accorded particular deference. See Alaska 

Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 487-88 (2004) ("We normally 

accord particular deference to an agency interpretation of longstanding duration.") 

(quotation marks omitted). 

Here OSHA developed guidance recognizing that failure to adopt adequate 

workplace violence prevention practices in the face of recognized and abatable risk 

of workplace violence can violate the General Duty Clause. That guidance is 

longstanding. It was developed independent of any litigation. Accordingly, that 

guidance is due respectful deference. This is especially true because the guidance is 

reasonable and consistent with the purpose of the Act. Elec. Smith, Inc. v. Sec y of 

Labor, 666 F.2d 1267, 1270 (9th Cir. 1982) ("The Commission's interpretations of 

OSHA must be treated with deference, and may not be overturned if reasonable and 

consistent with the purposes of the Act."). OSHA's guidance thus further forecloses 

lntegra' s congressional intent argument. 

4. Megawest Doies Not Support Integra's Position Because It Found 

that Workplace Violence Did Amount to a Hazard and Its 

Reasoning oni Recognition Is Unpersuasive. 

Megawest involved a General Duty citation based on workplace violence 

against office staff at an apartment complex known as the "Villa." Both Integra and 

its amicus rely heavily on MegawesL for the proposition that workplace violence is 

simply not the type of hazard the General Duty Clause, or the Act itself, was meant 

to reach. Pet. Br. 14, 22-26; Chamber of Commerce Br. 6-10. That reliance is 

misplaced. First, Megawesr is an unreviewed, administrative law judge decision 

from 1995. It therefore sets no precedent. See Jn re Cerro Copper Prods. Co., 752 

11 
F.2d 280, 284 (7th Cir. 1985) (per curiam) ("An unreviewed ALJ decision does not 

bind OSHRC or the comis a~; precedent.") (citing cases). 

Second, Megawest did not so hold. On the contrary, it rejected the argument 

that workplace violence was not a hazard within the meaning of the Act. The 

decision sta1is its analysis by identifying the four elements of a General Duty 

violation: "( 1) a condition or activity in the employer's workplace presented a hazard 

to employees; (2) the cited employer or the employer's industry recognized the 

hazard; (3) the hazard was likely to cause death or serious physical harm; and (4) 

feasible means existed to eliminate or materially reduce the hazard." Megawest Fin., 

Inc., 17 O.S.H. Cas. (BNA),[ 1598 1995 OSAHRC LEXIS 80, at *18 

(O.S.H.R.C.A.L.J. Dec. 22, 1995). 

The Megawest decision then goes on to find that the first element was 

established. The workplace violence at issue, which "stem[ med] from the critical 

element of the staffs job," presented a hazard to employees within the meaning of 

the Act. Id. at* 19, 23-24. The decision rejected the argument that workplace 

violence did not amount to a hazard because "there was no significant risk residents 

would physically attack staff." Id. at *22-23. "There is no requirement," the 

decision explained, "that there be a significant risk of the hazard coming to fruition, 

only that, if the hazardous event occurs, it would create a significant risk to 

employees. * * * [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. Id. at *23 (citing and quoting Nat'! Realty & Constr. Co. v. OSHRC, 

489 F.2d 1257, 1265 n. 33 (D.C. Cir. 1973)). Accordingly, because there was a risk 

12 
that workplace violence would lead to serious hann if it occurred, and because its 

reoccurrence would be neither freakish nor implausible, it amounted to a hazard for 

purposes of the General Duty Clause. Id. 

In short, Megawest simply did not find that workplace violence calllot 

amount to a hazard. Instead, the decision found that workplace violence was not 

recognized as a hazard by either the industry or the employer. This aspect of the 

Megawest decision, however, is not particularly relevant to the instant matter 

because it was fact bound. Additionally, as an unreviewed administrative law judge 

opinion, its "utility depends solely on the persuasive power, if any, of [its] 

reasoning." United States v. Sturm, Ruger & Co., 84 F.3d I, 5 (1st Cir. 1996). And 

that utility is limited. 

In finding that the hazard was not recognized in the instant case, Megawest 

reasoned that the industry, apartment management, was not one that had been 

identified by OSHA as being at high risk, and it did not share many of the risk 

factors that correlate to those industries. Id. at *31-32. Accordingly, the decision 

concluded, there was no industry recognition. Id. at *32 

The decision further reasoned that the employer did not have actual 

recognition of the hazard even though there had been prior incidents of violence and 

the circumstances make it likely that there would be future incidents. Id. at* 28. 

The Megawest decision reaches this conclusion in part based on the analysis that a 

hazard is not recognized unless the specific incident is anticipated. id. ("an employer 

may legitimately fail to recognize that the potential for a spec(fic violence incident 

exists) (emphasis added). This assertion is unsupported by precedent, the purpose of 

13 
the Act, or common sense. 

If the General Duty Clause only reached specifically anticipated incidents, it 

would be almost meaningless. For example, imagine this standard applied to the 

hazard of blood borne pathogens. A hospital employer knows that treating patients 

creates the risk of exposure to blood borne pathogens through needle sticks. The 

employer knows that this exposure has resulted in serious injury to its employees in 

the past. The employer knows this is likely to happen again in the future. But under 

the "specific incident" standard, the employer would have no duty to protect 

employees from this serious, foreseeable, and abatable hazard because it's 

impossible to anticipate the exact next specific incident in which an employee might 

be stuck by a needle containing a blood born pathogen. This "specific incident" 

standard would render the General Duty Clause virtually application-less, thus 

undermining its purpose. Accordingly, this aspect of the Megawest decision is 

unpersuasive and ought not be applied to future analysis of General Duty claims. 

The Megawest decision also rested its conclusion that the employer did not 

recognize the risk on the premise that a "high standard of proof must be met to show 

that the employer itself recognized the hazard of workplace violence. It is not 

enough ... that there has been a previous injury from a violent incident." Id. at *29. 

This reasoning is likewise unsupp011ed by any citation to case law. And because of 

the facts of the case, this aspect of the Megawest decision is wholly unpersuasive. 

As the decision recognized, the Villas were in a high crime area. Id. at *31. The 

office staff were responsible for issuing and enforcing notices of eviction, car 

towing, non-compliance with rent, and refusal to return security deposit. Id. at * 19-

14 
20. They were also ·'expected to confront irate residents." Id. at *22. As a result, 

the office staff were often subjected to threats, belligerent conduct, and even physical 

attack. Id. at *7. 

There were several very serious attacks in the two years before the citation 

issued. For example, an angry tenant maced two staff so severely that they were 

hospitalized and out of work for a week. Id. at *8. In another illustrative incident, 

on the day the OSHA compliance officer visited, and in his presence, an irate tenant 

slapped and scratched a staff person in the face. id. at* 12. There were also 

numerous threats in the months leading up to the citation. For example, one tenant 

threatened that "irmocent people in the office were going to get hurt" if he didn't get 

what he wanted. Id. at * 10. Such threats were so typical that Mega west's president 

"considered responding to tenant threats to be a nom1al part of the staff's job." Id. at 

*20. 

Yet even in the face of all this evidence of risk of violence, "there were no 

positive measures in effect to discourage attacks.'· Id. at *23. Megawest did not 

enforce lease provisions that provided sanctions for tlu·eats or violence. Id. at *21. 

Staff were not trained to diffuse anger or handle potential incidents until police 

arrived. Id. at *22. Megawest even failed to take basic preventative measures, such 

as two-way radios or panic buttons. Id. And there was no security during the day, 

the time during which the staff worked and the incidents occu1Ted. id. at * 12. 

On these facts, the ALJ's finding that Megawest did not recognize the risk of 

future workplace violence is simply unpersuasive. A recognized hazard is 

"'something that would be recognized by all people." 116 Cong. Rec. 17967 

15 
(remarks of Senator Saxbe). Any person with a modicum of common sense would 

recognize the risk on these facts. And anyone would recognize that basic security 

measures would reduce this risk. Accordingly, these facts show that Megawest had 

actual or constructive knowledge of the risk. See, e.g. , St. Joe Minerals Corp. v. 

OSHRC, 64 7 F .2d 840, 845 (8th Cir. 1981) (holding employer had actual and 

constructive knowledge of risk because employer had been warned by at least one 

engineering firm that its method of operating its elevator "increased the risk of 

accident"); Edgewood Conslr. Co., 15 OSAHRC 17 (1975) (holding that evidence 

the employer had actual notice of gas leaks in sewage manholes on four previous 

occasions established the employer should have known of the existence of the 

obvious and recognized hazard). 

In sum, Megawest does not support Jntegra's contention that workplace 

violence cannot amount to a hazard under the Act because Megawest found that the 

workplace violence at issue did amount to a hazard under the Act. And Megawest' s 

reasoning on recognition does not support Integra's position because the facts of the 

ca e establish that the employer had actual and constructive knowledge. That aspect 

of the decision is therefore unpersuasive, and thus, as an unreviewed ALJ decision, 

provides no guidance on the question. 

B. The Risk of Serious Injury or Death from Workplace Violence is a 

Recognized Hazard in the Healthcare and Social Service Industries. 

Integra argues that it did not recognize the risk of serious injury or death 

resulting from workplace violence, and that the risk was not recognized in its 

industry. Pet. Br. 15-20, 22-26. This amicus leaves the argument about Integra's 

recognition to the Secretary. and merely notes that Integra' s knowledge of its client 

16 
base and the deceased's particular concerns, along with its passing efforts to prevent 

injury from workplace violence are at least sufficient to establish constructive 

knowledge. See, e.g., Otis Elevator Co. v. OSHRC, 581F.2d1056, 1058 (2d Cir. 

1978) (rejecting employer's argument that it did not recognize hazard as 

"paradoxical" in the face of its own rules concerning the same risk); Kelly 

Springfield Tire Co. v. Donovan, 729 F.2d 317, 321-322 (5th Cir. 1984) (explaining 

that "where a hazard is obvious and glaring, the Commission may determine that the 

hazard was recognized without reference to industry practice or safety expert 

testimony"). 

With respect to industry recognition, unfortunately, it is far too well 

established that workers within the healthcare, psychiatric care, and social service 

industries face risk of serious injury or death resulting from workplace violence.3 As 

Megawest persuasively explained, "[p]ublicized studies, enactment oflegislation, 

industry publications, or similarly disseminated information known to an applicable 

industry are alJ relevant to industry recognition." 1995 OSAHRC LEXIS 80, at *29; 

accord MARK A. ROTHSTEIN, OCCUPATIONAL SAFETY AND HEALTH LAW,§ 6:5 

(2011 ed.) (collecting cases and explaining sources that give rise to inference of 

industry recognition). "[C]ommon knowledge of safety experts who are familiar 

with the circumstances of the industry'' also establishes industry recognition. Nat 'l 

Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973). 

The public record is replete with such information. For example, in 1996, 

3 The risk appears to also be an established hazard within many aspects of the 

service industry, such as late night convenience stores. But in the interest of brevity 

and focus, this brief limits itself to the industries with which this Union is more 

familiar. 

17 
OSHA published Guidelines for Preventing Workplace Violence for Healthcare and 

Social Service Workers.4 This Guidance, last updated in 2013, is thoroughly 

substantiated by forty-eight published studies and articles. See Guidance at pp. 40-

45. And the studies are explicit. For example, the Guidance explains that 

"[b]etween 2011and2013, workplace assaults ranged from 23,540 and 25,630 

annually, with 70 to 74% occurring in healthcare and social service settings." 

Guidance at p. 2. This Guidance is widely disseminated. A Google search for the 

Guidance's exact title, restricted by quotation marks, returns over 2,500 results.5 

This OSHA Guidance does not stand alone. Many states have adopted 

regulations recognizing the ri.sk to workers in these industries. California. for 

example, recently enacted legislation requiring workplace violence prevention plans 

in hospitals because of recognition that violence in healthcare settings is a serious 

occupational hazard for healthcare workers in California and throughout the nation. 

Cal. Lab. Code § 6401.8; Ex. 1, Padilla Deel. at ~ 8. That legislation was authored 

by then Senator, now Secretary of State, Alex Padilla. Ex. I at~ 1-3. Secretary 

Padilla justified the need for this legislation based on widely available studies 

documenting the problem. !d. at~~ 5-6. This included: 

• findings from the U.S. Bureau of Labor Statistics, which show 

that from 2003 to 2007, a worker in healthcare and social 

assistance was nearly 5 times more likely to be the victim of a 

nonfatal assault or violent act by another person than the average 

worker in all other industries combined. (Available at: 

http://wvvw.bls.gov/iif/osh_ wpvs.htm); and 

• a 2007 report commissioned by the National Institute of 

4 Available at https://www.osha.gov/Publications/osha3 l 48.pdf (last visited Dec. 9. 

2015). 

5 Search lastrunDec.14,20 15. 

18 
Occupational and Environmental Health, titled 'Evaluation of 

Safety and Security Programs to Reduce Violence in Healthcare 

Settings.' * * * The report explained that healthcare workers, 

especially nurses, have long been recognized as experiencing a 

hjgh risk of work-related assault, with an average of almost 

70,000 violent victimizations reported per year. 

Id. at ~ ~ 5-6. Based on these readily available studies, and strong anecdotal 

evidence from nurses and other healthcare workers, Secretary Padilla concluded that 

workplace violence in the healthcare industry is a recognized hazard which needed to 

be addressed through legislation and regulation. Id. at~~ 7-9. That legislation is 

now law. Cal. Lab. Code§ 6401.8. 

And California is in good company. Washlngton, Connecticut, Illinois, 

Maryland, New Jersey all recognize and regulate workplace violence in healthcare, 

social services, or both. See Rev. Code Wash. §§ 49.19.005 et seq., 72.23.400 et seq. 

(healthcare and state hospitals); CT Public Act No. 11-175; 405 Ill. Comp. Stat. 90/1 , 

et seq. (healthcare including mental health); Md. Health-General Code Ann. § 19-

1410.2 (nursing homes); NJ Rev Stat§ 26:2H-5.17 (2013) (healthcare facilities).6 

See also MN HF I 087 & SF 1071 (pending legislation); 12 NYCRR § 800.6 

(regulating workplace violence in public employment). 

Several additional states seek to educate employers about the hazard of 

workplace violence through published guidance. North Carolina, for example, 

published guidelines explaining that healthcare, long term care, and social service 

workers all face an increased 1isk of work-related assaults. See N.C. Dept. of Lab., 

Workplace Violence Prevention Guidelines and Program.for Healthcare, Long Term 

6 This list is illustrative. and does not purport to be exhaustive. 

19 
Care and Social Services Workers.

7 See also Oregon Occupational Safety and 

Health Div., Dept. of Consumer and Business Serv., Program Directive A-123 

(explaining how workplace violence amounts to a recognized hazard);8 MA 

Executive Order #511 (similar).

9 

Industry publications and programs also showcase that workplace violence is 

a recognized hazard by heralding risk reduction programs. E.g., Florida Hospital 

Association, Workplace Violence in the Healthcare Environment (advising on how to 

reduce risk of workplace violence in hospitals); 10 Rutter Compliance Blog, New 

OSHA Guidelines Underscore Workplace Violence Risks Faced by Healthcare and 

Social Service Workers (explaining the risk of citation for unabated workplace 

violence and offering courses on workplace violence prevention); 

11 Robert L. 

Weisman, DO, Violence Prevention & Safety Training/or Case Management 

Services, COMMUNITY MENTAL HEALTH J., Aug. 2002, 339-48 (providing "practical, 

prevention-based safety training for case managers" and citing 27 supporting 

references). 

12 

7 Available at http://www.nclabor.com/osha/etta/indguide/ig5 l .pdf (last visited 

Dec. 9. 2015). 

8 Available at http://www.orosha.org/pdf/pds/pd-283.pdf (last visited Dec. 9. 2015). 

9 Available at http://www.mass.gov/lwd/labor-standards/massachusetts-workplacesafety-and-health-program/12-workplaceviolence-standards.pdf (last visited Dec. 9. 

2015). 

10 Available al http://www.floridahealth.gov/programs-and-services/emergencypreparedness-and-response/ _ documents/workplace-vio lence-in-hosp-env. pdf (last 

visited Dec. 9. 2015). 11 Available at http://www.wecomply.com/blog/post/2638376-New-OSHAGuidel ines-U nderscore-Workplace-Violence-Risks-Faced-by-Healthcare-and-SocialService-Workers (last visited Dec. 9. 2015). 

12 Availohfe at 

https://www.urmc.rochester.edu/medialibraries/urmcmedia/psychiatry/ 

20 
These are but several illustrative examples of the vast number of publicized 

studies, state actions, industry publications, expert opinions, and other publicly 

disseminated information which demonstrate pervasive awareness of the risks of 

workplace violence in these industries. And as even this brief canvas of the public 

record shows, the insurmountable evidence that healthcare and social service 

workers, including case managers, face se1ious injw-y or death from workplace 

violence is now ubiquitous. Accordingly, industry recognition is established. 

C. It Is Well Established that the Risk of Serious Injury or Death from 

Workplace Violence· Can Be Materially Reduced. 

Integra further asserts that the Secretary failed to establish a violation of the 

General Duty Clause because the Secretary failed to prove that the risk reduction 

methods identified in the citation would abate the hazard oflntegra staff "being 

assaulted during a face-to-face meeting by a member with a history of violent 

behavior." Pet. Br. 26-28. lntegra primarily argues Janet Nelson, the Secretary's 

expert, did not state definitively that any one of the abatement measures suggested 

by the Secretary would prevent all violence and that she did not have statistical 

evidence to support her conclusions. This argument fails because it misunderstands 

the relevant legal standards and mistakes the nature of Ms. Nelson's testimony. 

As Judge Phillips explained. "feasible means of abatement are established if 

conscientious expe11s, familiar with the industry would prescribe those means and 

methods to eliminate or materially reduce the recognized hazard." Jntegra Health 

Managmenl, Inc., 13-1124, 2015 WL 4474372, at *44(CMPAU June 22, 2015) 

(emphasis added) (quoting Arcadian, 20 O.S.H. Cas. (BNA) ~ 2011 (O.S.H.R.C. 

documents/violencepreventiontraining.pdf (last visited Dec. 9. 2015). 

2 1 
Sept. 30, 2004); see also Roberls Sand Co., LLLP v. Secy of Labor, 568 Fed. Appx. 

758. 760 (11th Cir. 2014) (holding abatement established because experts would take 

the proposed abatement measures). There is no requirement that abatement 

eliminate all risk. On the contrary, the standard is materially reduce. ACME Energy 

Sen1s. v. OSHRC, 542 Fed. Appx. 356, 365 (10th Cir. 2013) ("To establish this 

fourth element, the Secretary must show that demonstrably feasible measures would 

materially reduce the likelihood that such injury as that which resulted from the cited 

hazard would have occurred.") (internal quotation marks omitted). Likewise, there is 

no requirement that an expe1t base her opinion on statistics. On the contrary, the 

Secretary can establish abatement even where the prescribed methods are not widely 

adopted. ·'The question is whether a precaution is recognized by safety experts as 

feasible. not whether the precaution s use has become customary." Nat 'I Realty, 489 

F.2d at 1267 n37. 

The Secretary presented substantial evidence that the methods in the citation 

would abate the hazard through Ms. Nelson's testimony. Judge Phillips properly 

admitted Ms. Nelson as an expert. lntegra, 2015 WL 4474372, at *28. The test for 

establishing expert testimony is whether the witness "has specialized knowledge that 

the Jay person cannot be expected to possess and reasonably applies that knowledge 

to the relevant facts. " Chao v. Gunite Corp., 442 F3d 550, 559 (7th Cir. 2006) 

(internal quotation marks omitted). Judge Phillips found that "Ms. Nelson's 

experience in the field, and years of providing safety and safety awareness training to 

those in similar workplaces. is persuasive when weighing the issues presented in this 

cas ."' Integra. 13-1124, 2015 WL 4474372, at *28 (citing ACME EnergySen1s. dba 

22 
Big Dog Drilling, 23 BNA OSHC 2121, 2125 (No. 08-0088, 2012) (comparing 

expe1ts and finding one "in a better position" based on "professional training and 

extensive experience"), ajf'd, 542 F. App'x 356 (5th Cir. 2013) (unpublished)). He 

further found that she "proved to be a credible, informative witness whose opinions 

assisted the Court." Id. (citing Resp't Br. at 13 n.4; Tr. 82-83). Therefore, Ms. 

Nelson was a proper expert for testimony on the Secretary's proposed abatement 

methods. And Ms. Nelson testified that the abatement strategies recommended by 

OSHA were "feasible and would materially reduce instances of workplace violence." 

Id. at *44. Accordingly, the Secretary has met his burden of establishing that the 

proposed abatement measures would materially reduce the hazard. 

Moreover, Ms. Nelson's testimony is consistent with other published expert 

opinions. E.g., Susan Rees, MS, RN, A Program to Minimize Violence and Keep 

Employees Safe, JOURNAL OF EMERGENCY NURSING, September 2010, at 460-465 

("Program components include a stages of escalation grid, visual cues, a huddle, a 

plan for access control, security presence, and staff training."); Robert L. Weisman 

DO, Violence Prevention & Safety Training for Case Management Services, 

COMMUNITY MENT HEAL TH J., Aug. 2002, at 339-48 ("effo1ts to train case managers 

should be offered as early as possible, and should consider addressing risk factors for 

patient violence. providing environmental assessments, and teaching the essentials of 

communication along with crisis de-escalation and exit strategies"). 13 

These expert opinions are further buoyed by studies on the efficacy of several 

13 Available al 

https://www.urmc.rochester.edu/medialibraries/mmcmedia/psychiatry/documents/vi 

olencepreventiontraining.pdf (last visited Dec. 9. 2015). 

23 
of the Secretary's recommended abatement measures. For example, at least two 

major studies documented significant reduction in emergency department assault 

rates after California enacted a policy calling for comprehensive security plan, 

including training, risk assessment, environmental modification, and work practice 

changes like those recommended in the Integra citation. See Casteel, Cani et al. 

2009, Hospital Employee Assault Rates Before and After Enactment of the California 

Hospital Safety and Security Act, AEP 19(2): 125-133 Feb 2009 (assault rates in 

California emergency departments decreased 48%); Peek-Asa, Corinne et al. 2002, 

Violent Events and Security Programs in California Emergency Departments Before 

and After the 1993 Hospital Security Act, JOURNAL OF EMERGENCY NURSING, Oct. 

2002, at 420-426 (violence decreased 1990 to 2000, with conesponding increases in 

security measures). 

Another study found that assault rates in a psychiatric unit fell significantly 

after implementation of a violence prevention program that included increased 

qualified staffing, improved lighting, security alarms, and a training course on 

handling violent incidents. Magnavita, N. (2011 ), Violence Prevention in a Smallscale Psychiatric Unit: Program Planning and Evaluation, INTERNATIONAL 

JOURNAL OF OCCUPATIONAL .E VIRONMENTAL HEALTH, at 336-344. Yet another 

found that injury levels to staff in a mental health facility decreased significantly 

after adoption of violence prevention program which included staff training risk 

assessment, and incident monitoring/reporting. Meehan, Tom et al., Reducing 

Aggressive Behavior and Stqfflnjuries: A Multi-strategy Approach, AUST. HEAL TH 

REV., 2006, at 203-210 (injury levels to staff decreased significantly after violence 

24 
prevention program which included staff training, risk assessment, and incident 

monitoring/reporting). 

In sum, Ms. Nelson's expert testimony shows that the practical prevention 

measures recommended in Integra's citation would materially reduce the hazard of 

"being assaulted during a face-to-face meeting by a member with a history of violent 

behavior." And her expert testimony is consistent with other experts in the field, as 

well as supported by studies showing abatement after adoption of similar riskreduction strategies. Because experts would adopt the proposed measures, 

abatement is established. 

IV. CONCLUSION 

Ultimately, this case iis about a young woman who was murdered on the job 

because her employer did not charge itself with the responsibility of adopting an 

effective workplace violence prevention program despite the obvious risk. That 

failure is inexcusable in light of the foreseeability of the risk: Integra serves a highrisk population, often in high crime areas. It requires face-to-face initial assessments 

by lone, scarcely trained community service coordinators. The murdered young 

woman repeatedly reported concerns that showcased this client's deteriorating 

mental health and disassociation from reality. The risk to this young woman's life 

could have been materially reduced by simple prevention measures: thorough 

training, risk assessment, mandatory buddy system for high-risk clients, and other 

appropriate measures. By placing this young woman squarely in the face of this 

foreseeable hazard without proper risk management in place, Integra fai led its 

obligation to provide ''a place of employment . .. free from recognized hazards that 

25 
are causing or are likely to cause death or serious physical harm." In so doing, 

Integra violated the General Duty Clause of the Occupational Safety and Health Act, 

as well as its moral obligation to the community. Accordingly, NNU respectfully 

requests the Review Commission affinn the citation. 

DATED: December 17, 2015 

26 

Respectfully submitted, 

CALIFORNIA NURSES ASSOCIATION/ 

NATIONAL NURSES UNITED (CNAINNU) 

LEGAL DEPARTMENT 

Pamela Allen { 

Carol Igoe 

2000 Franklin Street 

Oakland, CA 94612 

Telephone (510) 273-2216 

Fax (510) 663-4822 

pallen@calnurses.org 

cigoe@calnurses.org 

Counsel for Amicus Curiae