United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW 

COMMISSION

1120 20th Street, N.W., Ninth Floor 

Washington, DC 20036-3457

ON BRIEFS:

Anne R. Godoy, Attorney; Amy S. Tryon, Attorney; Charles F. James, Counsel for Appellate 

Litigation; Edmund C. Baird, Associate Solicitor of Labor for Occupational Safety and Health; 

Kate S. O’Scannlain, Solicitor; U.S. Department of Labor, Washington, D.C. 

For the Complainant

Melanie L. Paul, Esq.; Jackson Lewis P.C., Atlanta, GA

For the Respondent, UHS of Westwood Pembroke, Inc. 

 Jonathan L. Snare, Esq.; Morgan, Lewis & Bockius LLP, Washington, DC 

 For the Respondent, UHS of Delaware, Inc.

DECISION

Before: ATTWOOD, Chairman and LAIHOW, Commissioner. 

BY THE COMMISSION:

UHS of Westwood Pembroke, Inc. (UHS-WP) owns and operates Pembroke Hospital, a 

psychiatric hospital located in Pembroke, Massachusetts. UHS of Delaware, Inc. (UHS-DE)

serves as the management company for UHS-WP pursuant to a management agreement between 

the two entities. Following an employee complaint of workplace violence due to patient 

aggression at Pembroke Hospital, OSHA inspected the hospital on October 11, 2016, and 

subsequently issued a single citation to UHS-WP and UHS-DE alleging a repeat violation of the 

SECRETARY OF LABOR,

UHS OF WESTWOOD PEMBROKE, INC.,

UHS OF DELAWARE, INC.,

Complainant,

Respondent.

v. OSHRC Docket No. 17-0737
2 

Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1), for exposing 

hospital employees to physical assaults by patients.1 

Administrative Law Judge Keith E. Bell affirmed the citation as to UHS-WP only, rejecting 

the Secretary’s claim that the two companies should be treated as a single employer, and 

recharacterized the general duty clause violation from repeat to serious. Both the Secretary and 

UHS-WP petitioned for review of the judge’s decision. For the following reasons, we find UHSWP and UHS-DE operated as a single employer and affirm the citation as repeat.

2

 

BACKGROUND

Pembroke Hospital (Pembroke) is a 120-bed inpatient psychiatric hospital owned by UHSWP, which operates three facilities as a single entity under one license: Pembroke, Westwood 

Lodge, and the Lowell Treatment Center. UHS-WP is in turn ultimately owned by Universal 

Health Services (UHS). The other cited entity, UHS-DE, which is also owned by UHS, provides

Pembroke with management services and budget oversight. Pembroke’s Chief Executive Officer

(CEO) and Chief Financial Officer (CFO) are both employed and supervised by UHS-DE. 

Pembroke’s Director of Nursing and its Risk Manager also report to UHS-DE employees, 

including Pembroke’s CEO. And UHS-DE’s Loss Control Manager handles Pembroke’s budget 

for workers’ compensation claims and visits the hospital monthly to participate in aggression 

reduction team meetings, which are attended by the hospital’s CEO. 

Pembroke is divided into six patient care units—four for adults, one for adolescents, and 

one for geriatric patients—that each care for approximately 15-25 patients. Registered nurses and 

Mental Health Associates (MHAs) provide direct patient care over three shifts and anywhere from 

one to approximately five MHAs are assigned to each unit.3 MHAs are responsible for providing 

around the clock care to patients, which includes completing wellness and vital checks for each 

patient every 15 minutes (even when they are sleeping), assisting with personal hygiene and 

1 The general duty clause provides that “[e]ach employer . . . shall furnish to each of his employees 

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

or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1).

2 Throughout our decision, each company is referenced by name when relevant to the discussion 

and referenced as Respondent when being addressed as a single employer.

3 The number of MHAs increases or decreases in correlation with the number of patients on each 

unit. For instance, the record reflects that the number of patients on each unit could vary from five 

to twenty-seven, with the corresponding number of MHAs ranging from one to about five.
3 

housekeeping activities, leading group activities, performing admissions duties for new patients, 

and escorting patients outside their units for meetings, fresh air breaks, and meals. 

At least one MHA is expected to always remain on the unit, although MHAs are also 

expected to respond to calls for assistance on other units when incidents relating to patient 

aggression occur. In addition, MHAs are responsible for monitoring and detecting when verbal 

de-escalation or other calming techniques are needed to address patient aggression, and to 

implement those techniques as necessary. Each patient has a personal de-escalation plan that lists 

their proven or preferred calming measures. 

DISCUSSION

To prove a violation of the general duty clause, the Secretary must establish that: (1) a 

condition or activity in the workplace presented a hazard; (2) the employer or its industry 

recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; 

and (4) a feasible and effective means existed to eliminate or materially reduce the hazard. 

Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004). The Secretary must also show 

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

hazardous condition. Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1537 (No. 86-0469, 1992). 

On review, UHS-WP argues that in affirming the violation, the judge erred in finding the 

Secretary established a feasible and effective means of abatement. The Secretary argues the judge 

erred in finding that UHS-WP and UHS-DE should not be treated as a single employer and that 

the violation should not be characterized as repeat. 4

 We turn first to the single-employer issue, 

then to whether a feasible and effective means of abatement has been proven, and last to the 

violation’s characterization.

I. Single Employer 

The three factors relevant to determining whether separate entities operate as a single 

employer for purposes of liability under the Act are whether the entities (1) share “a common 

worksite,” (2) “are interrelated and integrated with respect to operations and safety and health 

matters,” and (3) “share a common president, management, supervision, or ownership.” S. Scrap 

Materials Co., 23 BNA OSHC 1596, 1627 (No. 94-3393, 2011). The Secretary bears the burden 

4 Separate review briefs were filed by UHS-WP and UHS-DE. The briefs filed by UHS-WP 

address the abatement issue and repeat characterization issue. The briefs filed by UHS-DE are 

limited to the single-employer issue. 
4 

of establishing the existence of a single-employer relationship.5 Loretto-Oswego, 23 BNA OSHC 

1356, 1358 n.4 (No. 02-1164, 2011) (consolidated), aff’d, 692 F.3d 65 (2d Cir. 2012). The judge 

found that none of these factors supported finding a single-employer relationship between UHSWP and UHS-DE. 

On review, the parties rely heavily on Loretto-Oswego to support their arguments with 

respect to each factor. 23 BNA OSHC at 1359-61, 692 F.3d at 77-78. In that case, both the 

Commission and the Second Circuit concluded that the cited nursing home did not operate as a 

single employer with its management company primarily because the two entities were not 

interrelated and integrated as to safety matters. 23 BNA OSHC at 1359-60; 692 F.3d at 77. The 

Secretary argues that Loretto-Oswego is distinguishable from this case because “the record [here] 

shows that UHS-Pembroke and UHS-DE handled policy and other safety matters at Pembroke 

Hospital as one company.” In response, UHS-DE argues that this case is closely analogous to

Loretto-Oswego because all three factors weigh against finding a single-employer relationship and 

therefore the Commission should affirm the judge’s decision dismissing the company from the 

case. For the reasons set forth below, we agree with the Secretary and find the record establishes 

that the two cited entities operated as a single employer for purposes of the alleged violation. 

Common worksite 

There is no dispute that the two cited entities have employees working at the same

worksite—Pembroke. Indeed, Pembroke’s CEO is a UHS-DE employee who works onsite fulltime at Pembroke supervising the hospital’s employees and overseeing its day-to-day operations. 

Likewise, a UHS-DE Loss Control Manager is regularly present at the hospital addressing various 

safety matters including the cited workplace violence hazard. The judge nevertheless found that 

UHS-WP and UHS-DE do not share a common worksite because neither of these UHS-DE 

5 After the close of briefing on review, the Secretary filed a letter “direct[ing] the Commission’s 

attention to relevant [single-employer] findings in a recent decision by Administrative Law Judge 

Dennis L. Phillips in Secretary of Labor v. UHS of Delaware, Inc., and Premier Behavioral Health 

Solutions of Florida d/b/a Suncoast Behavioral Health Center, OSHRC Docket No. 18-0731.” In 

that decision, which was issued on April 9, 2021, and is currently pending on review before the 

Commission, the judge found that UHS-DE and the cited mental health facility operated as a single 

employer for purposes of liability under the Act as it pertained to the general duty clause violation 

alleging workplace violence at issue. We do not rely on this unreviewed decision in addressing 

the inquiry before us here and in any event, the judge’s findings are limited to the record in that 

case. See Leone Constr. Co., 3 BNA OSHC 1979, 1981 (No. 4090, 1976) (“[A] Judge’s 

opinion . . . lacking full Commission review does not constitute precedent binding upon us.”).
5 

employees were exposed to the cited workplace violence hazard. He also relied on the fact that 

the two entities have separate business addresses—UHS-DE operates out of Pennsylvania while 

UHS-WP operates its facilities (including Pembroke) out of Massachusetts. 

We agree with the Secretary’s contention on review that the judge erred in making these 

findings. Under Commission and relevant circuit court precedent, mutual employee access to a 

hazard is not a precondition to establishing the common worksite factor. In A.C. Castle v. Acosta, 

882 F.3d 34, 42 (1st Cir. 2018), the First Circuit rejected the notion that a common business address 

or headquarters is necessary to find a single-employer relationship or “that workers from each 

entity must be at the site at the time the violation occurred, or directly exposed to the risk.”6 882 

F.3d at 42. In addition, as the Secretary points out, and we address below, the facts here are 

distinguishable from those in Loretto-Oswego, where the management company had “no physical 

presence” at the inspected nursing home, was rarely onsite, and was not involved in its day-to-day 

operations. Loretto-Oswego, 23 BNA OSHC at 1361. 

As noted above and discussed in detail below regarding the next single-employer factor, 

UHS-DE has two employees, Pembroke’s CEO and UHS-DE’s Loss Control Manager, working 

onsite at Pembroke who are integrally involved in the hospital’s day-to-day operations, including 

hiring, firing, and managing hospital staff, as well as overseeing patient treatment and care and 

addressing the cited workplace violence hazard. C.T. Taylor, 20 BNA OSHC 1083, 1085 (finding 

single-employer relationship where one entity’s employee directed and supervised the work 

performed by the other entity’s employees). And although the two entities have different principal 

addresses and perform their primary work at different locations, the central inquiry is whether they 

share a common worksite. A.C. Castle, 882 F.3d at 42 (noting that a while a shared headquarters 

or business address “generally satisfies the common worksite factor” it is not “necessary” to do so 

and requiring such would rewrite the test to mean “common business address”). There can be no 

dispute here that UHS-DE employees work alongside UHS-WP employees on a consistent basis 

6 The First Circuit is a relevant circuit here, as UHS-WP and Pembroke are located in 

Massachusetts. See 29 U.S.C. § 660(a) (“Any person adversely affected or aggrieved by an order 

of the Commission . . . may obtain . . . review . . . in any United States court of appeals for the 

circuit in which the violation is alleged to have occurred or where the employer has its principal 

office, or in the Court of Appeals for the District of Columbia Circuit . . . .”); see Kerns Bros. Tree 

Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000) (Commission generally applies law of the 

circuit where it is probable a case will be appealed). The Third Circuit is also relevant because 

UHS-DE is based in Pennsylvania.
6 

at Pembroke. For all these reasons, we find the common worksite factor supports finding a singleemployer relationship. 

Interrelation and integration 

We also find that the two cited entities are interrelated and integrated regarding operations, 

including safety and health matters. According to the judge, UHS-WP and UHS-DE are distinct 

businesses, as UHS-WP provides direct patient care at its facilities, while UHS-DE is a 

management and consulting business. The judge also found that Pembroke primarily develops 

and sets its own budgets. As to safety matters, the judge merely stated that “[t]here is no evidence 

that [UHS-WP] lacked sufficient capital or other resources to address worker health and safety.” 

Turning first to operations, we find that the record establishes not only UHS-DE’s direct 

involvement in supervising Pembroke staff and in providing patient care, but also its control of 

and influence over the hospital’s budget and finances, as well as the clinical and operational aspects 

of running the hospital, such as regulatory compliance, licensing, quality of clinical care, and 

clinical programming. The Secretary points to two key undisputed facts demonstrating that UHSDE manages daily operations at Pembroke: (1) Pembroke’s CEO, a UHS-DE employee, is 

responsible for hiring, disciplining, and firing hospital staff, and (2) Pembroke’s Director of 

Nursing and its Risk Manager both report to UHS-DE management. Indeed, at the hearing, Dr. 

Thomas Hickey, Pembroke’s CEO at the time of OSHA’s inspection,7 confirmed the extent of his 

duties at the hospital, and his testimony in this regard stands unrebutted: 

I was responsible for hiring staff, disciplinary actions, firing, maintaining our 

budget, overviewing the quality of the program, addressing regulatory issues, 

making sure we were meeting joint commission and [state] standards, working with 

staff to develop excellent treatment planning and programming for our patients, 

program development, growing our program, making sure our patient beds were 

filled, all of the-- both clinical and operational aspects of running the hospital. 

Dr. Hickey also testified, when asked by the judge about the scope of UHS-DE’s management at

the hospital, that: 

It involves a number of broad areas. One is regulatory compliance, licensing, it 

involves quality of clinical care, developing clinical programming, marketing, 

budget, hiring and firing of staff. I was responsible for hiring medical staff, 

operating the pharmacy, the whole caboodle of what’s involved in running a free7 Dr. Hickey served as Pembroke’s CEO until January 31, 2017, approximately three months 

before OSHA issued the citation. 
7 

standing psychiatric facility and out-patient programs as well. Developing new 

programs, expanding, market share, etc. 

Contrary to UHS-DE’s assertion that clinical and administrative functions at Pembroke are kept 

separate, Dr. Hickey testified that even though his “responsibility was not to make the clinical 

decisions,” he nonetheless was responsible for “mak[ing] sure the [clinical] process happened the 

way it should.” In fact, the two Pembroke managers who work on clinical matters—the Director 

of Nursing and the Risk Manager—both report to Pembroke’s CEO (a UHS-DE employee), as 

well as other UHS-DE management. For instance, Pembroke’s Risk Manager, who is tasked with 

reviewing incidents of patient aggression and coordinating an initiative at the hospital to reduce 

such aggression, regularly works with a Corporate Clinical Director employed by UHS-DE. And 

although Pembroke’s Medical Director manages patient care and has authority over clinical and 

staffing decisions, Dr. Hickey had hiring and firing authority over all employees at Pembroke, 

which would include the Medical Director. Indeed, Dr. Hickey testified that while admitting a 

patient is a clinical decision made by the Medical Director, he participated as CEO in all decisions 

regarding admissions capacity. UHS-DE is also involved in establishing hospital policy through 

Pembroke’s Board of Advisors, which includes both Pembroke managers (the Risk Manager and 

Director of Nursing) and UHS-DE corporate employees (Pembroke’s CEO and CFO and UHSDE Group Director) and is led by UHS-DE’s Regional Vice President. Further, UHS-DE drafts 

the hospital’s Strategic Plan, which is submitted to the Department of Mental Health. The plan 

describes UHS-DE’s implementation of patient care improvements, such as staff training and 

retention. 

Finally, as the Secretary asserts, the management agreement between the two entities 

reflects UHS-DE’s authority over the hospital’s budget and finances. Contrary to the judge’s 

conclusion and UHS-DE’s related arguments, the evidence shows that it is UHS-DE, through its 

employees who serve as Pembroke’s CEO and CFO, that develops the hospital’s budget, which is 

then reviewed and approved by higher-level UHS-DE employees. This is consistent with the 

management agreement, which confirms that UHS-DE is responsible for central financial systems 

at Pembroke, including: “(a) the billing system; (b) the collection system; (c) the disbursement 

system; (d) the payroll system; (e) the insurance claim system; (f) the management information 

system; and (g) the patient safety improvement system.” For all these reasons, we find the 

Secretary has shown that the cited entities have integrated and interrelated operations. 
8 

We also find that the same integration exists regarding safety and health matters. Again, 

the record shows that UHS-DE directs safety and health matters through its onsite CEO, who 

participates in Pembroke’s committees and meetings related to patient aggression and workplace 

violence. Pembroke also reports workplace violence incidents to UHS-DE, and UHS-DE provides 

detailed comparisons between a benchmark created by UHS-DE and various metrics at Pembroke 

relating to patient aggression, such as the rate of restraints and injury. Additionally, UHS-DE 

identifies opportunities to address workplace violence at Pembroke and makes recommendations 

in that regard to the hospital. 

Moreover, UHS-DE’s Loss Control Manager, Gina Gilmore, visits Pembroke monthly and 

attends “aggression reduction” meetings where she presents analyses of patient aggression data

and directly interacts with hospital employees regarding worker safety. Following these meetings, 

she prepares a “loss control summary” in which she compares injuries at Pembroke to targets set 

by UHS-DE and discusses whether Pembroke will receive a prevention credit to its workers’ 

compensation budget if employee injuries fall below the UHS-DE target. In the loss control

summary, Gilmore also analyzes data on patient aggression, identifies times when patient 

aggression is most likely to occur, and specifies corrective action to address such aggression. 

When injuries to staff occur due to patient aggression, she performs root cause analyses, which 

involve interviewing hospital staff, and presents Pembroke’s CEO and other hospital managers, 

including the Risk Manager and Clinical Director, with the results of these analyses. Gilmore also

advises Pembroke on safety training for employees and identifying and mitigating issues related 

to patient aggression. 

Thus, this case is not like Loretto-Oswego where the corporate management entity was

only infrequently and indirectly involved in employee safety and health, and nursing home 

personnel retained primary responsibility for safety matters. 23 BNA OSHC at 1360. Rather, as 

the Secretary asserts, it is clear that UHS-DE and UHS-WP “handled safety matters [at Pembroke] 

as one company.” Compare C.T. Taylor, 20 BNA OSHC at 1083 (single-employer relationship 

established where entity assumed responsibility for employee safety on the job by directly 

intervening in safety matters); with FreightCar Am. Inc., No. 19-0970, 2021 WL 2311871, at *6-

7 (OSHRC March 3, 2021) (single-employer relationship not established where record was unclear

if parent was involved in safety at subsidiary’s worksite). 
9 

Common president, management, supervision, or ownership 

The judge found that this last factor weighed against a single-employer relationship 

because UHS-DE has its own management structure with a separate CEO, CFO, and management 

group. In addition, the judge found that Pembroke’s CEO has no managerial duties for UHS-DE 

and that UHS-DE does not provide daily oversight at the hospital. The Secretary maintains that 

this finding was erroneous, citing the parties’ stipulation that UHS is the ultimate corporate owner 

of both UHS-WP and UHS-DE. Again, the Secretary points to the direct line of management 

between Pembroke and UHS-DE that runs through the hospital’s CEO, who supervises 

Pembroke’s employees and is in turn supervised by UHS-DE employees. UHS-DE asserts the two 

companies’ corporate parent—UHS—operates only as a holding company such that there is no 

shared ownership or management. According to UHS-DE, its role at the hospital is limited to 

administrative and financial functions while Pembroke controls clinical functions. UHS-DE also 

echoes the judge’s finding in arguing that, unlike the entities in Loretto-Oswego, UHS-WP and 

UHS-DE have their own management structures and employees.8

 

For all the reasons already discussed above, we agree with the Secretary that the cited 

entities are linked through Pembroke’s CEO and CFO who are UHS-DE employees supervised by 

higher-level UHS-DE managers. Dr. Hickey testified that as Pembroke CEO, he reported to the 

Regional Vice President and Regional Group Director of UHS-DE. Pembroke’s CFO, in turn,

reports to the CEO as her immediate supervisor, and UHS-DE’s Regional CFO and Regional Vice 

President both have oversight over the CFO’s work. Evidence of shared management is also found 

in Pembroke’s Board of Advisors—as noted, the Board is comprised of both Pembroke and UHSDE employees (including the hospital’s CEO and CFO) and approves policy changes at the 

hospital. And as the parties stipulated, UHS-WP and UHS-DE share the same ultimate corporate 

parent. Cf. S. Scrap Materials Co., 23 BNA OSHC at 1627 (common management factor not met 

where entities were owned by same parent company and shared a company president but record 

lacked evidence that “supervision or management at the two subsidiary companies’ scrap yards 

was shared”); Loretto-Oswego, 23 BNA OSHC at 1359 (“At the time of the violations, LMC and 

8 UHS-DE also relies on the judge’s findings that Pembroke’s CEO and CFO—both UHS-DE 

employees—have no managerial duties for UHS-DE and there are no shared management 

employees between UHS-DE and Pembroke because UHS-DE’s corporate structure does not 

include either hospital official. But this merely shows that Pembroke’s management did not 

control UHS-DE, not the converse. 
10 

the three affiliates shared the same president, chief executive officer, and chief financial officer. 

This outward appearance of a common identity gives way, however, . . . because the record shows 

that on a day-to-day basis, administrative personnel at Loretto-Oswego operated independently of 

LMC.”). Finally, as we have already found, the evidence shows that UHS-DE is integrally 

involved in the day-to-day management of Pembroke, including the hospital’s core function of 

patient care and related safety matters. See C.T. Taylor, 20 BNA OSHC at 1083 (finding singleemployer relationship where direct management and safety involvement was present between the 

two entities.) In short, the key roles that UHS-DE employees play in managing operations, 

including safety, at Pembroke Hospital also establish their shared management.

We therefore reverse the judge and find that all three factors support finding a singleemployer relationship existed between UHS-DE and UHS-WP at the time of the alleged violation. 

II. Abatement

In the citation, the Secretary lists several proposed measures to abate the cited workplace 

violence hazard and these measures address various aspects of hospital operations relating to 

patient care, such as admissions, security, and therapeutics.9

 Prior to the judge’s decision in this 

9 The proposed abatement measures are:

a. Establish a team of nurses and mental health associates (MHAs) that focuses 

primarily on the performance of the tasks associated with the admission and 

assessment of new patients. This team should not be staffed by employees who are 

assigned to care for already-admitted patients.

b. Dedicate a physical area, apart from all other units of the hospital, to the 

admission and assessment of new patients. Do not allow new patients into other 

units until the tasks associated with admission, including clinical assessments and 

the provision of medical orders, are complete. 

c. Cease efforts to interfere with the issuance of medical orders that specify 

required staffing arrangements. Ensure that staffing is sufficient to allow the 

issuance and implementation of medical orders that specify staffing arrangements.

d. Provide personal panic alarms for all employees who may work in close 

proximity to patients, including but not limited to nurses, MHAs, housekeeping 

staff, and case workers. Provide training on this equipment and ensure that the 

equipment is maintained in working order at all times.

e. Provide security staff and/or crisis intervention specialists on all three shifts to 

assist in preventing and responding to violent events. 
11 

case, but after the parties submitted their post-hearing briefs to the judge, the Commission issued 

its decision in another case involving a general duty clause violation, A.H. Sturgill Roofing, Inc., 

No. 13-0224, 2019 WL 1099857 (OSHRC Feb. 28, 2019), and held that because the citation’s list 

of abatement measures were proposed as alternatives, the Secretary could only prevail in that case 

if he proved that none of them were implemented by the cited employer. Id. at 9. In other words, 

the Commission held that implementing any one of the proposed alternatives would constitute 

abatement of the alleged violation. Id. 

The judge did not address Sturgill in his abatement analysis as he relied on other 

Commission precedent to conclude that the Secretary had proposed the citation’s listed measures 

as a process and correctly acknowledged that a process-based approach to abatement is permitted 

where the hazard alleged under the general duty clause cannot be abated with a single action.10 

Pepperidge Farm, Inc., 17 BNA OSHC 1993 (No. 89-265, 1997) (finding that “the appropriate 

response to the hazard [alleged under the general duty clause] . . . was a process that included 

actions selected from a menu of alternatives”); Integra Health Mgmt., Inc., No. 13-1124, 2019 WL 

1142920, at *12-13 (OSHRC March 4, 2019) (considering numerous proposed abatement 

measures as means of materially reducing workplace violence hazard alleged under general duty 

clause); see also BHC Nw. Psychiatric Hosp., LLC, v. Sec’y of Labor, 951 F.3d 558, 564 (D.C. 

Cir. 2020) (Secretary proposed “menu” of abatement options to materially reduce workplace 

violence hazard alleged under general duty clause). 

On review, Respondent invokes Sturgill and now claims that the Secretary proposed the 

abatement measures as alternatives, and because the record contains substantial evidence that it 

has adequately implemented at least some of the measures at Pembroke, the Secretary cannot prove 

the abatement element of the alleged violation. The Secretary responds that the proposed 

f. Maintain staffing that is adequate to safely address changes in patient acuity and 

new patient admissions. For example, do not decrease staffing levels mid-shift 

regardless of the timing of patient discharges.

g. Maintain adequate staffing to support therapeutic activity groups and recreation 

periods, thereby engaging patients in activities that reduce patient agitation and 

incidents of workplace violence. Maintain equipment that is sufficient for the 

implementation of each patient’s individual crisis prevention plan.

10 We note that the judge cited to Sturgill in his analysis of Respondent’s due process claims, which 

he rejected. Those claims are not at issue on review. 
12 

abatement measures “would each cumulatively reduce the hazard” such that every measure

identified in the citation should be implemented. According to the Secretary, “each proposed 

abatement method would help avoid different and separate acts of patient-on-staff violence.” 

We agree with the judge that the Secretary proposed, and the parties tried, the measures

listed in the citation as a process-based approach to abate the cited hazard. Indeed, the Secretary 

explained in his post-hearing brief that while “each of his proposed abatement measures would 

have independently provided a material reduction in the hazard of workplace violence[,]” it may 

also be necessary for UHS to “implement[] . . . multiple abatement measures” to satisfy its “duty 

to remove all preventable instances of the hazard.” Before the judge, Respondent demonstrated

the same understanding, referring in its joint post-hearing brief to the proposed measures as 

“abatement steps” and accusing the Secretary of trying to impose “various abatement methods” 

through a general duty clause citation to effectively create a workplace violence standard. This

supports the Secretary’s position on review that the parties understood the measures were proposed 

as a process, not as alternatives. See Nat’l Realty v. OSHRC, 489 F.2d 1257, 1266-67 (D.C. Cir. 

1973) (“All preventable forms and instances of hazardous conduct must [] be entirely excluded 

from the workplace.”). Cf. Sturgill, 2019 WL 1099857, at *9 n.17 (noting Secretary’s 

acknowledgement during oral argument that abatement measures were proposed as alternatives). 

The Secretary’s approach in this regard aligns with the nature of workplace violence, which as 

alleged here arises in different contexts and conditions at Pembroke, necessitating different 

abatement measures. Cf. Sturgill, 2019 WL 1099857, at *9 (finding abatement measures to be 

alternatives where “any one of them would constitute abatement of the alleged violation”);

SeaWorld, 748 F.3d 1202 (D.C Cir. 2014) (finding two abatement measures proposed as 

alternatives because if one were implemented, the second would offer no further protection). 

Indeed, the citation identifies measures that range from preventative to mitigative. 

 For all these reasons, we reject Respondent’s argument and find that to establish the 

abatement element here, the Secretary need only prove that at least one of the measures he 

proposed was not implemented and that the same measure is both effective and feasible in 

addressing the alleged hazard. Sturgill, 2019 WL 1099857, at *9 (noting where each measure is 

proposed as a “component of a single means of abatement,” the Secretary “need only show a failure 

to implement one of them”); Arcadian Corp., 20 BNA OSHC 2001, 2011 (No. 93-0628, 2004)

(citing Beverly Enters. Inc., 19 BNA OSHC 1161, 1190 (No. 91-3144, 2000) (consolidated) (to 
13 

establish the feasibility of a proposed abatement measure, the Secretary must “demonstrate both 

that the measure[] [is] capable of being put into effect and that [it] would be effective in materially 

reducing the incidence of the hazard”) (citations omitted). And given that Respondent has taken 

measures to address the cited hazard, the Secretary must also show that those measures were

inadequate. U.S. Postal Serv., 21 BNA OSHC 1767, 1773-74 (No. 04-0316, 2006); Cerro Metal 

Prods. Div., Marmon Grp., Inc., 12 BNA OSHC 1821, 1822 (No. 78-5159, 1986)). 

As discussed below, we agree with the judge that the Secretary established Respondent’s 

failure to adequately implement two feasible and effective means of abatement proposed here: the 

provision of personal panic alarms for staff to summon assistance and the provision of adequate 

equipment to support de-escalation efforts for patients in crisis.

11 

Equipment for summoning assistance 

The Secretary proposes that Respondent “[p]rovide personal panic alarms for all employees 

who may work in close proximity to patients” and “[p]rovide training on this equipment and ensure 

that the equipment is maintained in working order at all times.” There is no dispute that 

Pembroke’s employees are not provided with any type of panic alarms. Before the judge and also 

on review, Respondent maintains that employees were nonetheless able to adequately summon 

assistance when faced with patient aggression because the hospital provided them with walkietalkies and access to an intercom system in every common area. The judge disagreed, finding that

(1) walkie-talkies were not consistently available to allow every staff member to carry one; (2) if 

an employee did not have one, there was only access to one phone (connected to the intercom 

system) in the middle of each unit; (3) the walkie-talkies were not reliable due to technical issues, 

such as faulty batteries; and (4) requiring staff to call out for help or make such requests through 

walkie-talkies or the intercom system meant they could be heard by the agitated patient, which 

could escalate the situation further. 

11 The judge also found that the Secretary established that Pembroke was inadequately staffed in 

several respects, including regarding its admissions procedures and found that the Secretary had 

established feasible and effective abatement measures to remedy those deficiencies. Because we 

conclude that the Secretary has proven two of his proposed abatement measures, we need not reach 

these other proposed abatement measures. Sturgill, 2019 WL 1099857, at *9; see S. Scrap 

Materials Co., 23 BNA OSHC at 1599 n.1 (“Although the parties briefed Citation 2, Item 40, as 

requested, we decline to review the judge’s disposition of this item.”) (citations omitted).
14 

We agree with the judge that Pembroke’s reliance on walkie-talkies and the intercom 

system was inadequate. The evidence shows that the hospital supplied three to four walkie-talkies 

per unit at the time of the OSHA inspection but not every employee always carried one during 

their shift. Employees who did carry a walkie-talkie would at times forget to return the device at 

the end of their shift and leave work with one in their possession, making the device unavailable 

for others to use. Even when available, testimony from former Pembroke MHA Andrew Santos, 

former Pembroke Registered Nurse Janine Senatore, and Pembroke’s Director of Nursing shows 

that the walkie-talkies were not reliably functional because the batteries would die over time or 

would not hold a charge; these employees also testified that static or chatter due to the device’s 

shared communication channels made it difficult to decipher a call for help. 

As for the intercom system, the judge found, and the record shows, it was neither practical 

nor widely used—to access the one phone connected to the system located in the middle of each 

unit, an employee had to walk away from a potentially unstable situation to call for help rather 

than remain with the patient in crisis, as Pembroke encouraged. And as we find below, requiring

employees to audibly call for assistance creates the potential to further escalate an agitated patient’s 

distress. In sum, we find that the Secretary established Pembroke’s program was inadequate to 

address the cited hazard because it failed to provide employees with the means to reliably, timely, 

and discreetly summon help when confronted with a threat of workplace violence. 

The Secretary also has proven that the use of personal panic alarms is an effective and 

feasible means of addressing the cited hazard.

12 The Secretary’s expert witness, Dr. Robert 

Welch,13 testified that access to personal panic alarms correlated with significantly lower rates of 

employee assault by hospital patients. Specifically, Dr. Welch stated that employees can wear 

personal panic alarms inconspicuously and silently call for help, making the devices more efficient 

in reducing the likelihood of staff becoming victims of patient violence. He explained that personal 

panic alarms allow employees to immediately seek help without audibly calling for help over a 

walkie-talkie or with a loud voice, as that can agitate a distressed patient and escalate the 

12 Respondent does not dispute the feasibility of providing personal panic alarms to employees. 

13 Dr. Welch, a board-certified physician in psychiatry and neurology, holds degrees from Harvard 

College and Columbia University, and has served as a professor of psychiatry at Harvard Medical 

School; he also has had overall clinical responsibility and served as chief of psychiatry at mental 

health hospitals, and is a member of numerous professional organizations for psychiatry. 
15 

situation.14 Dr. Welch’s opinion was corroborated by former Pembroke Registered Nurse 

Senatore, who testified that she had effectively used personal panic alarms at other behavioral 

health hospitals: “They’re just a very immediate system for alerting that you need help . . . and 

people come right away. There’s very little lag time.” 

On review, Respondent disputes the relevance of Dr. Welch’s testimony, arguing that one

study he relied on to support his opinions involved emergency rooms, not psychiatric hospitals. 

But in both situations medical personnel are caring for potentially violent patients in a hospital 

setting. Put simply, it is apparent from the record that in the face of patient aggression and the 

potential for imminent violence, verbally asking or yelling for help in the presence of the distressed 

individual is not equivalent to silently and discreetly summoning help via a personal panic alarm. 

For all these reasons, we find the Secretary has established that Respondent failed to 

maintain adequate equipment for Pembroke employees to summon assistance when faced with 

patient aggression and that providing personal panic alarms is both feasible and effective.

Equipment for de-escalation 

The Secretary also proposes that Respondent “[m]aintain equipment that is sufficient for 

the implementation of each patient’s individual crisis prevention plan.”15 The judge agreed, 

finding that Pembroke lacked the necessary equipment to implement these plans, also known as

“de-escalation” plans, specifically regarding the availability of music-playing devices. On review, 

Respondent does not dispute that Pembroke lacked enough devices to make them immediately 

available to every patient who wanted or needed one but argues that the hospital had numerous 

alternative techniques to keep patients calm, and the Secretary has not shown that these other 

measures were ineffective. The Secretary maintains that Pembroke’s patients specifically 

14 We note that on review, Respondent does not rely on its expert witness, Monica Cooke, with 

respect to the efficacy of personal panic alarms, or otherwise dispute the judge’s decision to afford 

less weight to Cooke’s expert testimony. According to the judge, “[w]hile satisfying the minimum 

requirements for admissibility,” Cooke failed to identify the source material for her opinions and 

her testimony was largely based on her experience rather than peer-reviewed studies or time spent 

reviewing Pembroke’s records. Indeed, on this particular issue, the judge found that it is unclear 

if Cooke had reviewed any studies or peer-reviewed literature in reaching her conclusion. 

15 Given how this case was argued and tried by the parties, the Secretary need only show that at 

least one of the citation’s proposed abatement measures was feasible and effective to establish this 

element of his case. This does not, however, preclude our consideration of more than one 

abatement measure, and we find that it is appropriate to do so here. 
16 

identified music as a means of de-escalation in their plans, but it was not consistently available to 

them due to the limited supply of devices. The Secretary also argues that regardless of whether 

other measures might calm patients, the record clearly shows that providing sufficient equipment 

would reduce the cited workplace violence hazard.

We agree with the judge that Pembroke lacked sufficient equipment to adequately 

implement its patient de-escalation plans. Approximately nine out of ten patients identified 

listening to music as a “helping” strategy in their respective plans, yet at the time of the inspection, 

Pembroke supplied at most four music-playing devices to each unit. This was plainly inadequate, 

as the record shows that one of the adult units had sixteen patients, but only three music-playing 

devices, and that patient conflicts regarding access to the limited number of music-playing devices

occurred regularly. And while Pembroke permitted units to borrow devices from each other when 

needed, availability was neither assured nor immediate. In short, regardless of whether other 

calming techniques listed in the patient plans were effective, it is nearly impossible to reconcile 

Pembroke’s decision to provide so few devices to each unit with the fact that approximately 90% 

of its patients requested music as their preferred coping strategy. For all these reasons, we find 

the Secretary has established that implementation of Pembroke’s patient de-escalation plans was 

deficient.16

Turning to the effectiveness and feasibility of providing additional listening devices, 

Respondent argues that the Secretary has not shown, through Dr. Welch or otherwise, that 

providing more equipment would materially reduce the cited hazard. We disagree. According to 

Dr. Welch, the use of music as a de-escalation measure can result in a significant reduction in the 

potential for a violent incident: 

[I]t’s largely what the patients [here] . . . identify as their technique, their preferred 

technique for calming down and de-escalating when they are upset. So you’ve got 

patients tell[ing] staff this is what works to help me stay calm and not being able to 

provide that creates a higher risk situation. 

16 On review, Respondent claims that “the decision regarding the appropriate therapeutic means 

for managing patient agitation is a clinical one properly made by a patient’s treating doctors and 

clinical staff and should not be second guessed or regulated by the Secretary with a one-size-fitsall approach.” While a clinical judgment may be present in determining how best to de-escalate a 

situation involving an agitated patient, the fact remains that the vast majority of Pembroke patients 

identified music as their preferred calming strategy, yet the hospital lacked sufficient music 

equipment to meet that demand. 
17 

He also gave an example of how being able to provide a patient with a listening device can assist 

the staff with de-escalating a situation: 

[Y]ou can say, John you seem upset, would [you] like to listen to music and then 

maybe we can talk about what’s getting you upset later. You put the headphones 

on, they walk up and down the hall, you’ve de-escalated the situation right there. 

And Dr. Welch testified that in his experience, hospitals can readily obtain wireless headphones at

minimal expense.

17 

Three employee witnesses confirmed that listening to music helps calm agitated patients. 

Former MHA Sherwin testified that as a verbal de-escalation instructor, she has observed how 

patient aggression, agitation, and pacing can be lessened by listening to music:

So oftentimes you’ll see [patients] continue to keep pacing for a couple more 

minutes, kind of still agitated, and then slowly within 15 to 20 minutes you can see 

them start to calm down and deescalate and then be able to have a conversation 

with staff about what is occurring. 

Former Pembroke nurse Libby offered similar testimony, explaining the positive effect music has 

on patients in crisis: 

It is a great help. And I realized it even more once I became board certified how 

much of a role music can be in deescalating a situation. Especially with patients 

that have a schizophrenic diagnosis. They are hearing voices; it is very helpful. 

And former MHA Santos testified that music was “[s]oothing, calming” and confirmed that he had 

seen listening to music work to calm “patients who were acting aggressive and threatening.” Thus, 

we find that Dr. Welch’s expert testimony, corroborated by these former Pembroke employees, 

shows that providing sufficient music equipment would materially reduce the risk of patient 

assaults by de-escalating situations in which patients may become violent. 

Based on the foregoing, we conclude that the Secretary has established that Respondent 

failed to maintain adequate equipment for Pembroke employees to summon assistance and 

implement patient de-escalation plans, and that the proposed abatement measures in this regard 

are both feasible and effective. Accordingly, we find that the Secretary has established the 

17 After the inspection, Pembroke switched to providing wireless headphones and supplied as many 

as ten pairs per unit. See Pitt-Des Moines, Inc., 16 BNA OSHC 1429 (No. 90-1349, 1993) 

(employer’s post-inspection implementation of abatement measure admissible to establish 

feasibility).
18 

abatement element of the general duty clause violation. As none of the other prima facie elements

of the violation are in dispute on review, we affirm the citation. 

III. Characterization

The Secretary argues that the judge erred in recharacterizing the general duty clause 

violation from repeat to serious. See 29 U.S.C. § 666(a) (setting increased penalties for employer 

that “repeatedly violates” the Act’s requirements). Under Commission precedent, a violation is 

properly characterized as repeat, “if, at the time of the alleged . . . violation, there was a 

Commission final order against the same employer for a substantially similar violation.” Potlatch 

Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979); Lake Erie Constr. Co., 21 BNA OSHC 1285, 

1289 (No. 02-0520, 2005). The Commission has long held that “similarity of abatement is not the 

criterion for finding a repeat violation; it is whether the two violations resulted in substantially 

similar hazards.” Lake Erie Constr. Co., 21 BNA OSHC at 1289 (citing Stone Container Corp., 

14 BNA OSHC 1757 (No. 88-310, 1990)). To determine whether the hazards are substantially 

similar, the Commission looks to the circumstances surrounding the violation. See, e.g., Active 

Oil Serv., Inc., 21 BNA OSHC 1184, 1189 (No. 00-0553, 2005) (finding general duty clause 

citation violations substantially similar where both involved employee exposure to hazard of 

asphyxiation in entering fuel tanks to clean). 

In citing the violation here as repeat, the Secretary relies on a 2015 general duty clause 

citation issued to UHS-WP for exposing employees at its Lowell Treatment Center, an inpatient 

psychiatric care facility also located in Massachusetts, “to acts of workplace violence including, 

but not limited to: verbal threats of assault, physical assaults, choking, punches, kicks, human bites, 

scratches and/or pulling of hair by patients.” Specifically, the 2015 citation alleged that: 

From January 1, 2011 through December 31, 2014 there have been at least 16 

documented cases identified in the OSHA 300 log of employees assaulted on the 

job by patients resulting in approximately 255 restricted duty days and 730 days 

away from work. Additionally there have been at least 38 documented nonrecordable cases resulting in a dislocated shoulder, concussion, sprains, strains, 

contusions, swollen body parts, headaches, human bites, punched in the face, 

kicked, hit, choked, hair pulled, scratched, bitten, grabbed and thrown by patients. 

During 2014 there were at least five instances of workplace violence, including an 

incident on November 30, 2014, when a nurse was punched in the face and knocked 

out unconscious by a patient, resulting in soft tissue damage to the face and jaw, 

contusions, swelling, and headaches. 

The citation was resolved by a settlement agreement and became a final order in April 2016. 
19 

In the present citation, the Secretary alleges that Pembroke employees were exposed to 

assaults by patients in that:

Employees including Nurses, Mental Health Associates (MHAs), and Crisis 

Intervention Specialists (CISs) at UHS of Westwood Pembroke, Inc. (Pembroke 

Hospital) have suffered serious workplace violence related injuries such as 

concussion, fracture, strains, contusions, and burns (from hot coffee thrown at face) 

while performing their job duties, such as attempting to prevent injuries to staff and 

patients, and during restraint holds. 

In rejecting the citation’s repeat characterization, the judge concluded that the Secretary failed to 

proffer sufficient information to determine if the workplace violence hazards at issue in the two 

cases were substantially similar. He acknowledged that the hazards “share some commonality” 

but found that “the limited information in the record reveals only that the cited workplaces had 

significant differences related to the hazard” in that some of the abatement measures proposed in 

the two citations are different. 

On review, Respondent adopts the judge’s rationale in claiming that the Secretary failed to 

establish the two violations are substantially similar and relies on the same underlying fallacy—

that substantial similarity hinges on abatement.

18 But the Secretary need only show that employees 

were exposed to a substantially similar hazard and here, both violations involve employees 

exposed to an almost identical hazard—the hazard of physical assault by patients at a psychiatric 

care facility. Lake Erie Constr. Co., 21 BNA OSHC at 1289 (holding that “similarity of abatement 

is not the criterion for finding a repeat violation”) (citation omitted) (emphasis added). The burden 

therefore shifts to Respondent to rebut the Secretary’s prima facie showing of similarity, and it has 

not done so here given that its arguments focus almost exclusively on abatement.

19 See Manganas 

18 Respondent specifically relies on the Commission’s decision in Angelica Textile Serv., 27 BNA 

OSHC 1246, 1254-59 (No. 08-1774, 2018), vacated as moot, 803 F. Appx. 542 (2d Cir. 2020, 

unpublished), dismissed case on remand, 2020 WL 4475583 (OSHRC July 27, 2020), a case 

identified in the Commission’s briefing notice, to argue that the prior citation “did not place 

[Respondent] on notice of what additional measures were required to prevent subsequent 

violations,” and the present citation should not be characterized as repeat because it does not 

indicate a failure to learn from the prior citation. The Second Circuit, however, has since vacated 

the Commission’s Angelica decision, rendering any arguments that rely on the rationale of that 

case unsupported. 803 F. Appx. 542. Accordingly, we do not consider those arguments here. 

19 Although the similarity of abatement measures is not relevant to the inquiry here, we note that 

at least one of the measures proposed in the prior citation is essentially the same as one proposed 

in the present citation—maintaining sufficient equipment to summon assistance. 
20 

Painting Co. v. Sec’y of Labor, 273 F.3d 1131, 1135 (D.C. Cir. 2001) (once Secretary has made 

prima facie showing of substantial similarity, “burden then shifts to the employer to demonstrate 

that the violations took place under disparate conditions and hazards associated with the separate 

violations”) (citing Potlatch, 7 BNA OSHC at 1061). 

For all these reasons, we affirm the citation as repeat and assess the proposed penalty of 

$25,350.20

SO ORDERED.

/s/ 

Cynthia L. Attwood 

Chairman

/s/ 

Amanda Wood Laihow 

Dated: March 3, 2022 Commissioner

20 Respondent has not disputed the $25,350 proposed penalty throughout these proceedings. 

See KS Energy Servs., Inc., 22 BNA OSHC 1261, 1268 n.11 (No. 06-1416, 2008) (assessing 

proposed penalty where undisputed).
United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

 

SECRETARY OF LABOR,

Complainant, 

v. OSHRC DOCKET NO. 17-0737 

UHS OF WESTWOOD PEMBROKE, INC., 

UHS OF DELAWARE, INC., 

Respondents. 

Appearances:

Kate O’Scannlain, Solicitor of Labor

Maria S. Fisher, Regional Solicitor 

Robin Ackermann, Senior Trial Attorney

Ralph Minichiello, Senior Trial Attorney

U.S. Department of Labor, Office of the Solicitor, Boston, MA 

For the Complainant 

Melanie L. Paul

Raymond Perez, II

Jackson Lewis P.C., Atlanta, GA

For Respondents 

Before: Keith E. Bell, Administrative Law Judge

DECISION AND ORDER

Following its receipt of a complaint about workplace violence, OSHA commenced an 

inspection of UHS of Westwood Pembroke, Inc.’s (“Pembroke’s”) facility located at 199 Oak 

Street in Pembroke, MA (“Pembroke Hospital”). As a result of this inspection, Pembroke received 

a Citation and Notification of Penalty (“Citation”) alleging it violated the Occupational Safety and 

Health Act of 1970, 29 U.S.C. §§ 651-678 (the “Act”). The Citation alleges a violation of 29 

U.S.C. § 654(a)(1), the provision commonly referred to as the general duty clause, for exposing 
2 

employees to the hazard of workplace violence in the form of patient on staff aggression. 

Pembroke timely contested the Citation bringing the matter before the Commission.1 The 

Secretary of Labor (“Secretary”) filed his initial Complaint on April 27, 2017. He moved to amend 

his Complaint to add UHS of Delaware, Inc. (“UHS DE”) as a Respondent and to change the 

classification of the Citation from “serious” to “repeat.” This request was granted in an October 

30, 2017 Order, after which Pembroke and UHS DE together became the Respondents for this 

matter. 

Subsequently, the Secretary moved again to amend abatement in the Citation and

Complaint. This request was uncontested and was approved in a December 13, 2017 Order. A 

hearing was held on July 17-20, 2018 and July 24-25, 2018. 

For the reasons discussed, the Citation is affirmed as serious and a $12,675 penalty is 

assessed. 

I. Jurisdiction

Pembroke filed a timely Notice of Contest bringing this matter before the Commission.2

 

(Stip. 4-6.) Pembroke and its corporate parent, UHS DE, are both employers affecting commerce 

within the meaning of 29 U.S.C. § 659(c) and both are employers under the Act.

3

 (Stip. 1, 10-13.) 

1 The Joint Exhibit of the parties’ Stipulations indicates that: “Respondent timely filed its Notice of Contest on May 

17, 2018.” (Ex. J-1, Sec’y Br. at 1; Tr. 194.) The undersigned accepts the acknowledgment that the Notice of Contest 

was timely, but rejects the date listed in the Stipulation. The record reflects that the Secretary issued the Citation on 

April 7, 2017, and Pembroke filed a Notice of Contest on April 12, 2017. Pembroke then filed an Answer to the 

Secretary’s Complaint on May 17, 2017. (Resp’t Br. at 5.) The record does not reflect a document filed on May 17, 

2018. 

2 Stipulation 4 is: “The Occupational Safety and Health Review Commission has jurisdiction in this proceeding 

pursuant to § 10(c) of the [Act].” Stipulation 5 is: “The Citation and Notification of Penalty underlying this proceeding 

was issued on April 7, 2017.” 

3 Stipulation 1 states: “Respondents are employers engaged in a business affecting commerce within the meaning of 

Section 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 6252(5).”
3 

Based upon the record, including the parties’ admission to jurisdiction, the undersigned concludes 

the Commission has jurisdiction over the parties and the subject matter of this case. (Stip. 1, 4-6.) 

II. Background 

A. Corporate Structure

Pembroke operated three facilities at the time of the inspection: Pembroke Hospital, 

Westwood Lodge, and Lowell Treatment Center. (Tr. 697; Ex. R-38 at 2.) While each facility 

was located at a separate address, collectively the sites shared a license and were a single legal 

business entity. (Tr. 723-24.) Pembroke is a wholly-owned subsidiary of UHS DE. (Stip. 12.) 

UHS DE, in turn, is a wholly-owned subsidiary of Universal Health Services, Inc. (“UHS”). (Stip. 

13.) Thus, UHS owns UHS DE and indirectly owns Pembroke. (Stip. 13; Tr. 752-53.) 

UHS DE is described as a “management company” for Pembroke. (Tr. 740; Ex. C-27.) At 

the time of the inspection, Pembroke’s CEO and CFO were both employees of UHS DE.4

 (Stip. 

10-11; Tr. 598, 693, 757.) UHS DE employees provided oversight for the work of Pembroke’s 

CEO and CFO. (Tr. 599, 696, 757-58, 1325, 1327-28.) In addition, Gina Gilmore, a Loss Control 

Manager at UHS DE, handled Pembroke’s budget for workers’ compensation claims and visited 

the facility every month. (Tr. 549-551.) During these visits, she would meet with Pembroke’s 

CEO and attend the facility’s Aggression Reduction Team meetings. (Tr. 553-54.) The Director 

of Nursing, Claire Kent, and the Risk Manager, Stacey Coke Burns, were Pembroke employees 

but also reported to individuals employed by UHS DE. (Tr. 369-70, 457, 497-98, 502.) 

4 As explained by Stipulation 10, “Raymond Robinson, Gary Gilberti, Diane Airosus, and Gina Gilmore were 

employed by UHS of Delaware, Inc. during the time of the inspection.” Thomas Hickey was the chief executive 

officer (“CEO”) from the start of the inspection until January 21, 2017. (Tr. 692-93; Stip. 11 (“Thomas Hickey was 

employed by UHS Delaware, Inc. during a portion of the time of the inspection.”) 
4 

B. Respondents’ Request for Judicial Notice 

In its brief, Respondents assert that the Secretary has pursued general duty clause violations 

at “several other [UHS] managed hospitals.” (Resp’t Br. at 3.) Respondents fail to discuss whether 

these other citations were issued to UHS DE or entities affiliated with Pembroke. However, in a 

footnote elsewhere in the brief, Respondents ask the undersigned to take judicial notice of “other 

Citations that have been issue to behavioral hospitals.” (Resp’t Br. at 33.) It requests judicial 

notice of three specific cases: 

Secretary of Labor v. BHC Northwest Psychiatric Hospital, LLC d/b/a Brooke Glen 

Behavioral Hospital, (OSHRC Docket 17-0063), Secretary of Labor v. UHS of 

Westwood Pembroke, Inc., d/b/a Lowell Treatment Center (OSHRC Docket 17-

1302 and 17-1304) and UHS of Delaware, Inc. (“UHS DE”) and Premier 

Behavioral Health Solutions of Florida, Inc., d/b/a Suncoast Behavioral Health 

Center (OSHRC Docket 18-0657). 

(Resp’t Br. at 33.) The first matter listed concerns BHC Northwest Psychiatric Hospital (“BHC”). 

Respondents do not explain how or if that entity is affiliated with them. Id. The undersigned is 

aware that a matter involving BHC has become a final order of the Commission. However, BHC

is appealing the matter and the matter is currently pending before the D.C. Circuit. BHC Nw. 

Psychiatric Hosp. LLC d/b/a Brooke Glen Behavioral Hosp., 27 BNA OSHC 1862 (No. 17-0063, 

2019) (ALJ), argued, 19-1087 (D.C. Cir. Jan. 9, 2020). 

Federal Rule of Evidence 201(b) permits judicial notice of a “fact” that is not subject to 

reasonable dispute because it: (1) is generally known within the court’s territorial jurisdiction; or 

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be 

questioned. Even though Respondents do not discuss their affiliation with BHC, the undersigned 

can and has reviewed the ALJ’s decision, BHC Nw. Psychiatric Hosp. LLC d/b/a Brooke Glen 

Behavioral Hosp., 27 BNA OSHC 1862 (No. 17-0063, 2019) (ALJ). However, taking judicial 

notice of a non-binding decision that is still on appeal is not appropriate. 
5 

As for the other two matters highlighted by Respondents, both are active disputes without 

final determinations. As such, there are no established facts for which judicial notice is 

appropriate. At the hearing, Respondents did not attempt to offer any evidence regarding the 

relevance of these matters or how Premier Behavioral Health Solutions of Florida, Inc. is affiliated 

with them. As a result, the Secretary was deprived of an opportunity to respond to these claims. 

Further, Respondents assert that UHS DE had only a minimal role at Pembroke Hospital and asks 

for the entity to be dismissed from this pending matter. (Resp’t Br. at 40.) Asking the undersigned 

to now undertake a search of other citations issued to behavioral health centers is not the purpose 

of judicial notice and the late request is denied. 

The undersigned notes that the Secretary offered evidence of another citation issued against 

Pembroke, the same employer cited in the present matter. That citation, which became a final 

order on May 27, 2016, is a part of the record before me and has been considered in reaching this 

decision. (Exs. C-14 thru C-17.) 

C. Nature of the Workplace

Pembroke Hospital is an inpatient psychiatric hospital with six patient care units, serving 

up to 120 patients at a time.5

 (Stip. 2-3; Tr. 290, 373; Ex. R-38 at 1, 8.) Four units focus on adults, 

one is for adolescents, and the sixth is for geriatric patients. (Tr. 373.) Nurses and Mental Health 

Associates (“MHAs”) work directly with patients in the units. (Tr. 669, 821-824.) Units always 

have a registered nurse. (Tr. 380.) 

The MHAs at Pembroke Hospital have many responsibilities, including providing security 

and fulfilling housekeeping responsibilities. (Tr. 50-52, 96.) The nurse on the unit could not see 

5 Stipulation 2 states: “Pembroke Hospital is an inpatient psychiatric hospital.” Stipulation 3 states: “Pembroke 

Hospital has six patient care units with a total of 120 beds.” 
6 

patients from his or her workstation. (Tr. 58.) So, the MHAs functioned as the “eyes and ears of 

the nursing staff” and were responsible for monitoring patient behavior, including for signs of 

aggression or agitation. (Tr. 50.) MHAs searched patient belongings to identify prohibited items 

that could hurt patients or staff. (Tr. 79, 81, 86.) MHAs conducted these searches alone in small 

rooms on the unit. (Tr. 79, 81.) MHAs had to make sure certain doors remained locked. They 

would open and close bathrooms when requested by patients, which might occur fifty times a shift. 

(Tr. 55, 827.) MHAs also accompanied patients off units for certain meetings, fresh air breaks, 

and meals.6

 (Tr. 55-56.) If a patient was unable to leave the unit for meals, an MHA would leave 

the unit instead and get the patient’s meal. (Tr. 52.) MHAs also left the units for laundry and 

other housekeeping tasks. (Tr. 50-54, 96.) Consequently, while more than one MHA was assigned 

to each unit, the staff was often divided between those on the unit and those off the unit. (Tr. 822, 

863.) 

D. Prior OSHA Inspections of Pembroke 

About a year before the inspection leading to the Citation before the undersigned, OSHA 

inspected Pembroke Hospital. (Ex. R-38.) That inspection led to the issuance of a letter on 

October 2, 2015, which indicates that MHAs were exposed to workplace violence hazards but that 

“it is not considered appropriate at this time to invoke the Section 5(a)(1), the general duty clause 

of the [Act].”7

 (Ex. R-37 at 2 (emphasis added).) The letter does not state that OSHA considered 

workplace violence hazards to be outside of the scope of the general duty clause. (Resp’t Br. at 

6 Mealtimes themselves were a “very high time for assault” at Pembroke. (Tr. 960; Exs. C-55 at 2, C-58 at 2.) 

7 Respondents neglect to note the critical phrase “at this time” when discussing this document. (Resp’t Br. at 21.) 
7 

21.) Rather, OSHA exercised its discretion to issue a letter at the end of the investigation.

8

 The 

letter goes on to outline several methods of feasible abatement for workplace violence hazards

Pembroke could adopt, but does not demand any specific action.9 (Ex. R-37.) 

After the letter was issued, OSHA commenced an inspection of Pembroke’s facility in 

Lowell, MA (the Lowell Treatment Center). After the inspection, the Secretary issued Pembroke 

a citation for a violation of the general duty clause because it exposed employees to workplace 

violence in the form of, among other things, patients assaulting staff through punches, kicks, bites, 

scratches, and hair pulling. (Exs. C-14, C-15 at 2, R-38 at 2.) While Pembroke initially contested 

the citation, it subsequently agreed to accept it as issued and agreed to take several abatement 

actions to address the workplace violence hazards at the Lowell Treatment Center. (Ex. C-15.) 

E. Current Inspection

In October 2016, OSHA received another complaint about worker safety at Pembroke 

Hospital. (Tr. 277; Ex. C-8.) The complaint cites a worker injury following an instance of patient 

aggression. (Ex. C-8.) This complaint led OSHA to commence another inspection of Pembroke 

Hospital. (Tr. 277.) OSHA Compliance Safety and Health Officer Salvatore Insogna (“CO”) led 

the investigation. Id. He first visited the site on October 11, 2016. (Tr. 342.) In addition to the 

initial complaint triggering the investigation, OSHA received a second complaint on March 27, 

2017. (Ex. C-11.) Like the prior complaint, the second one cites employee injuries from 

8 There is no evidence that the conditions, particularly those related to the cited hazard, were the same during the two 

inspections. For example, the number of staff injuries increased in the year after this letter was sent. (Exs. C-60; C68, C-69; R-38 at 3.) 

9 After the 2015 inspection, but before the one which led to the present matter, OSHA conducted another inspection 

of Pembroke Hospital. That investigation commenced after OSHA received two employee complaints alleging several 

hazards related to workplace violence. (Ex. R-38 at 1-2.) Pembroke Hospital participated in the investigation, 

including by answering questions and providing responses to various document requests. Id. at 3-5. Ultimately, 

OSHA closed this inspection on August 4, 2016, without issuing any citations. Id. at 5. 
8 

workplace violence in the form of assaults by patients against staff. Id. The CO’s investigation 

included a review of documents related to employee injuries and illnesses, and interviews with ten 

or more non-management employees. (Tr. 290-92, 297; Ex. C-68.) When the investigation 

concluded, the Secretary issued the Citation that is the subject of this litigation. 

III. Legal Standard 

A. Due Process Claims

Respondents claim that the Citation’s issuance violated due process. (Resp’t Br. at 19.) 

The Commission ensures that OSHA provides due process by upholding violations of the general 

duty clause only where the employer or its industry recognized the hazard before the citation was 

issued. The inquiry is whether the employer or its industry could reasonably foresee an accident 

capable of causing death or serious injury. Armstrong Cork Co., 8 BNA OSHC 1070, 1074 (No. 

76-2777, 1980), aff'd, 636 F.2d 1207 (3d Cir. 1980) (unpublished). Knowledge of the hazard 

provides adequate notice to satisfy the requirement of due process. See e.g., Cape & Vineyard 

Div. of New Bedford Gas & Edison Light v. OSHRC, 512 F.2d 1148 (1st Cir. 1975) (finding that 

actual knowledge of the hazard provides fair notice); Bethlehem Steel Corp. v. OSHRC, 607 F.2d 

871, 875 (3d Cir. 1979) (finding that fair notice is addressed by the requirement that the hazard is 

recognized); Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1164 (3d Cir. 1980) (concluding 

that either the employer or its industry must be aware of the hazard). 

Respondents raise no challenges to how the Secretary defined the hazard here or 

Pembroke’s recognition of both the hazard and its presence at Pembroke Hospital. Indeed, they 

stipulated that the “hazard of workplace violence, specifically defined in this case as violence 

and/or assault by patients against staff, was recognized by [Pembroke].” (Stip. 8.) And they 
9 

stipulated that the “hazard of workplace violence, specifically defined in this case as violence 

and/or assault by patients against staff is recognized in the industry.” (Stip. 9.) 

Even if Pembroke had not stipulated to the definition and recognition of the hazard, the 

record still provides ample support for such findings. Patient attacks on employees routinely 

occurred at Pembroke Hospital. (Exs. C-8, C-11, C-68.) One employee indicated he was hit or 

kicked approximately fifty different times by various patients in his four years working for 

Pembroke. (Tr. 56-57.) See Gen. Dynamics Land Sys. Div., Inc., 15 BNA OSHC 1275, 1285 (No. 

83-1293, 1991) (accidents put the employer on notice of the hazard), aff’d, 985 F.2d 560 (6th Cir. 

1993) (unpublished). Pembroke was aware of these events through accident reports employees

could choose to complete after incidents and through the direct knowledge of supervisors, some 

of whom were exposed to the hazard themselves. (Tr. 794, 802; Exs. C-55, C-56.) 

Moreover, Pembroke had specific and direct knowledge of the Secretary’s view that the 

general duty clause applied to the hazard of workplace violence. On May 19, 2015, Pembroke was 

cited for violating the general duty clause because its employees “were exposed to acts of 

workplace violence.” (Ex. C-14.) This citation was issued in 2015 and became a final order on 

May 27, 2016, months before the commencement of the inspection and issuance of the present 

citation. (Exs. C-15 thru C-17.) So, Pembroke accepted responsibility for a violation of the general 

duty clause based upon the presence of the hazard of workplace violence before the investigation 

leading to the instant Citation commenced.10 This establishes direct notice of the applicability of 

the general duty clause to workplace violence hazards at Pembroke’s facilities. See Corbesco Inc. 

10 This citation related to the Lowell Treatment Center. After this Pembroke’s acceptance of this citation, another 

inspection of Pembroke Hospital concluded without the issuance of any citations. (Ex. R-38 at 5.) However, OSHA 

never indicated there were no hazards at Pembroke Hospital or that Pembroke did not have a duty to provide its 

employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious 

physical harm.” 29 U.S.C. § 654(a)(1). 
10 

v. Sec'y of Labor, 926 F.2d 422, 428 (5th Cir. 1991) (holding notice is provided through 

Commission decisions); Armstrong, 8 BNA OSHC at 1073 (finding that the employer itself 

recognized the hazard because it took an abatement action). 

Besides Pembroke’s direct knowledge, the Secretary provided other evidence that the 

industry was on notice of the hazard. First, there is no dispute that experts familiar with the 

industry would take the hazard of workplace violence into account in prescribing a safety program 

for a behavioral health hospital. See Nat’l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266 

(D.C. Cir. 1973). Experts for both parties recognized that any risk assessment of a facility like 

Pembroke Hospital would include assessing workplace violence and the hazard would be relevant 

to any safety program. (Tr. 903, 915-17, 1455.) Second, OSHA published guidance documents 

to inform the industry of the hazard and ways to address it. In 2015, it published Preventing 

Workplace Violence: A Road Map for Healthcare Facilities (“Road Map”). (Ex. C-102.) The 

Road Map describes the problem of workplace violence in healthcare facilities and provides 

information on how to identify hazards and respond to risks identified. Id. The Road Map is 

related to an earlier OSHA publication, Guidelines for Prevention of Violence in Healthcare 

(“Workplace Violence Guidelines”). (Exs. C-97, C-102 at 4.) Neither the Workplace Violence 

Guidelines nor the Road Map constitute specific standards. At the same time, the documents do 

not suggest that there is some type of immunity from citation for failing to free a workplace of 

recognized hazards, as the general duty clause requires. Id. These OSHA publications bolster the 

uncontested point that Pembroke and its industry are aware of the hazard. 

Perhaps in recognition of its actual awareness of both the hazard and its presence at 

Pembroke Hospital, Respondents suggest another due process test. (Resp’t Br. at 20.) They argue 

the Citation failed to set forth the “specific actions” to be taken so that Respondents can avoid 
11 

future citations. Id. Respondents argue they must have notice of the Secretary’s views regarding 

appropriate abatement before a citation can be issued. Id. at 20-21, 23. 

Respondents attempt to conflate the due process fair notice requirement, which is driven 

by Constitutional constraints, with the abatement requirement, which is a statutory interpretation 

created by binding precedent. The Constitution precludes depriving “any person of life, liberty, 

or property, without due process of law.” U.S. Const. amend V. The Commission sets forth 

requirements to ensure that proceedings before the Commission provide due process. For example, 

the citation must sufficiently define the hazard and the abatement so that the employer can 

reasonably defend itself. The Secretary must make the employer aware of what he alleges are 

feasible means of abatement prior to the hearing, but the Commission has not required such 

information before the issuance of a citation. See Erickson Air-Crane Inc., No. 07-0645, 2012 WL 

762001 (O.S.H.R.C, Mar. 2, 2012). In Erickson, the Secretary proposed various abatement 

methods but the ALJ concluded that none of the proposed methods were feasible. Id. at *2-3. 

Nonetheless, the ALJ went on to determine that the hazard could be feasibly abated through some 

other action. Id. The parties had neither tried nor consented to try whether that action was feasible. 

Id. The Commission considered this a due process violation because the pleadings did not put the 

employer on notice that the alternative abatement method was at issue. Id. Notice must be given 

before the record closes as to what is being considered feasible means of abatement. Id. The 

Commission did not hold that the employer must know before the citation’s issuance what 
12 

constitutes feasible means of abatement.11 Id. 

Respondents cite cases where the parties disputed the presence of a hazard, the employer’s 

recognition of it, or are otherwise not relevant to the due process issues before me. (Resp’t Br. at 

20-21.) Respondents rely on Asamera Oil (U.S.), 9 BNA OSHC 1426 (No. 1426, 1980) 

(consolidated), a non-binding ALJ opinion addressing a specific standard, not the general duty 

clause, and a non-binding Ninth Circuit decision, Donovan v. Royal Logging Co, 645 F.2d 822 

(9th Cir. 1981).

12 See Asamera, 9 BNA OSHC at 1427 (affirming the ALJ’s decision but according 

it only “the precedential value of an unreviewed judge’s decision”); Integra Health Mgmt., Inc., 

27 BNA OSHC 1838, n.15 (No. 13-1124, 2019) (noting that Royal Logging is “not relevant 

precedent” for cases, like the present matter, that cannot be appealed to the Ninth Circuit). 

Respondents’ reliance on Davey Tree Expert Co., 11 BNA OSHC 1898 (No. 77-2350, 1984) is 

also misplaced. (Resp’t Br. at 24.) Unlike that case, in this matter, Respondents explicitly chose 

not to contest the Secretary’s definition of the hazard or Pembroke’s recognition of it.13 (Stips. 7-

9.) Here, Pembroke recognized the hazard of patient on staff violence and knew this hazard was 

present in its facility. (Stips. 8-9.) 

The recognition requirement relates to “knowledge of the hazard, not recognition of the 

11 A.H. Sturgill Roofing, Inc., 27 BNA OSHC 1809 (No. 13-0224, 2019) is also instructive. There, the citation was 

somewhat ambiguous about the scope of the proposed abatement. 27 BNA OSHC 1818-19. However, before the 

record closed, the Secretary subsequently clarified it. Id. The Commission did not require the Secretary to show that 

the employer understood the proposed methods of abatement before the citation was issued. Id. The Commission 

was satisfied that during the hearing the Secretary made clear that the measures in the citation were alternative means 

of abatement. Id. 

12 This case can be appealed to the First and D.C. Circuits. See 29 U.S.C. § 660(a) (“Any person adversely affected 

or aggrieved by an order of the Commission ... may obtain ... review ... in any United States court of appeals for the 

circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court 

of Appeals for the District of Columbia Circuit ....”); Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-

1719, 2000) (Commission generally applies law of circuit where it is probable case will be appealed). 

13 Respondents also quote the discussion in Missouri Basin Well Service, 26 BNA OSHC 2314 (No. 13-1817, 2018) 

about how the hazard must be defined and attempt to apply the statements more broadly. (Resp’t Br. at 20, 28.) In 

this matter, there is no dispute as to how the hazard is defined or Pembroke’s recognition of it. 
13 

means of abatement.” Kansas City Power & Light Co., 10 BNA OSHC 1417, 1422 (No. 76-5255, 

1982), citing Gen. Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453 (1st Cir. 

1979). See also Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377 (D.C. Cir. 1985) (noting in the 

context of a violation of a specific standard that “The constitution does not require that employers 

be actually aware that the regulation is applicable to their conduct”). Fair notice challenges to a 

general duty clause citation fail when the abatement measures are available to and readily 

knowable by the industry. Integra, 27 BNA OSHC 1851 at n.15. Like the abatement measures in 

Integra, the abatement measures proposed for Pembroke track the Workplace Violence Guidelines 

and Road Map as well as those specified in a letter issued to Pembroke after a previous inspection. 

Id. The Secretary set forth specific abatement measures and Respondents were informed of them 

in advance of the hearing. The Secretary’s Amended Complaint sets forth his proposed abatement 

and there is no allegation that Respondents were not aware of his proposal well before the hearing. 

The feasibility of the specific measures discussed herein was tried with the full consent of the 

parties. (Jt. Pre-Hr’g Stmt. at 16.) See Beverly Enters., 19 BNA OSHC 1161, 1168-69 (No. 91-

144, 2000) (consolidated) (excusing a lack of precision in the complaint because, “at the time of 

the hearing” the Secretary sufficiently specified the alleged hazard). 

Respondents then take another tack and argue that because they were not cited after prior 

inspections, they lacked fair notice they would be cited in the future. (Resp’t Br. at 21-22.) 

Respondents make this argument without citation to precedent. Id. An employer cannot deny the 

existence of a hazard or its knowledge of it “by relying on the Secretary's earlier failure to cite the 

condition.” Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1244 (No. 88-821, 1991). 

Employers must comply with the Act regardless of whether they have been previously informed 

that a violation exists. Id.
14 

Respondents claim that the Citation, including the Secretary’s proposed abatement, 

violates the Constitution is rejected.14 

B. Test to Establish a General Duty Clause Violation 

The general duty clause requires every employer to provide its employees with a workplace 

“free from recognized hazards that are causing or are likely to cause death or serious physical 

harm.”15 29 U.S.C. § 654(a)(1). As interpreted by the Commission, to establish a violation of this 

clause, the Secretary must show: (1) there was an activity or condition in the employer’s workplace 

that constituted a hazard to employees; (2) either the cited employer or its industry recognized that 

the condition or activity was hazardous; (3) the hazard was causing or was likely to cause death or 

serious physical harm; and (4) there were feasible means to eliminate the hazard or materially 

reduce it. Waldon Health Care Ctr., 16 BNA OSHC 1052, 1058 (No. 89-3097, 1993). The 

evidence must also show the employer knew, or with the exercise of reasonable diligence, could 

have known of the hazardous condition. Otis Elevator Co., 21 BNA OSHC 2204, 2207 (No. 03-

1344, 2007). 

Despite agreeing that Waldon sets forth the test for finding a violation of the general duty 

clause, Respondents, citing National Realty, argue that the Secretary must meet various other 

14 Separate from these Constitutional considerations is the requirement for the Secretary to establish feasible means 

of abatement. The requirement is not set forth in the text of the general duty clause itself. 29 U.S.C. § 654(a)(1). See 

e.g., SeaWorld of Fla. v. Perez, 748 F.3d 1202, 1207 (D.C. Cir. 2014); A.C. Castle Constr. Co., Inc. v. Acosta, 882 

F.3d 34, 44 (1st Cir. 2018) (limiting the scope of the fair notice requirement); Mark A. Rothstein, Occupational Safety 

and Health Law §§ 6:1, 6:9 (2019 ed.). It arose as a means to interpret the Act so as to avoid the application of strict 

liability. See 29 U.S.C. § 651(b) (requiring employers “to assure so far as possible ... safe and healthful working 

conditions”). Respondents other contentions that the Secretary failed to meet the abatement prong of the test for 

establishing a violation of the genera duty clause as developed by the Commission and relevant Circuits are discussed 

below. 

15 The parties stipulated that this is an applicable principle of law. (Am. Pre-Hr’g Stmt. at 16; Resp’t Br. at 6.)
15 

requirements.

16 (Am. Pre-Hr’g Stmt. at 16; Resp’t Br. at 6, 28-30.) In National Realty, the D.C. 

Circuit distinguishes between an unrecognized hazard and one, like the situation at hand, that is 

recognized. 489 F.2d at 1266. Hazard recognition does not automatically trigger liability. Id. 

The Secretary still must demonstrate “at the hearing” what the employer should have done. Id. at 

1266-68. When discussing whether feasible abatement can be found after the hearing, as opposed 

to beforehand, the D.C. Circuit notes the concept of preventability. Id. If the conduct resulting in 

the hazard is something “conscientious experts, familiar with the industry” would take it into 

account when “prescribing a safety program,” then the Secretary can establish a violation. Id. at 

1266. In the present matter, the testifying experts agree that workplace violence is something 

facilities like Pembroke Hospital must consider when prescribing a safety program. While the 

hazard is not entirely preventable, there are steps employers can take to reduce the likelihood of 

such incidents and the severity of the ones which occur. See Integra, 27 BNA OSHC 1841 at n.3 

(discussing National Reality in the context of a general duty clause violation based on workplace 

violence hazards); Armstrong, 8 BNA OSHC at 1074 (noting that the inquiry into foreseeability is 

limited to whether the hazard will result in serious injuries or death). 

1. Presence of a Hazard

While National Realty analyzes what it means for a workplace to be free of a recognized 

hazard, Waldon and more recent cases apply a four-part test to assess general duty clause 

violations. Under this framework, the first element the Secretary must prove is that “a condition 

or activity in the workplace presented a hazard.” 16 BNA OSHC at 1058. The parties stipulated: 

Employees at the worksite were exposed to the hazard of workplace violence, specifically defined 

16 National Realty predates Waldon and the development of the Commission’s four-part test for sustaining violations 

of the general duty clause. See Integra, 27 BNA OSHC 1841 at n.3. 
16 

in this case as violence and/or assault by patients against staff, during the six months prior to the 

issuance of the citation (October 11, 2016 to April 7, 2017). (Stip. 7; Tr. 203, 923.) At the hearing, 

Respondents’ counsel also made plain that they conceded the presence of a hazard to which 

employees were exposed. (Tr. 194-95.) The Secretary established that employees at Pembroke 

Hospital were exposed to the hazard of violence and/or assault by patients against staff. 

2. Recognition and Knowledge of the Hazard

The second element looks at whether the employer or its industry recognized the condition 

as a hazard. Again, there is no dispute that Pembroke and the behavioral health industry both 

recognized the hazard of workplace violence in the context of patient on staff violence.17 (Stips. 

8-9; Resp’t Br. at 1.) As for knowledge of the hazard, establishing this does not require a showing 

that the employer was actually aware that it was in violation of the Act. See e.g., Peterson Bros. 

Steel Erection Co., 16 BNA OSHC 1196, 1199 (No. 90-2304, 1993), aff’d, 26 F.3d 573 (5th Cir. 

1994). Knowledge is established if the record shows the employer knew or should have known of 

the conditions constituting a violation. Peacock Eng’g Inc., 26 BNA OSHC 1588, 1592 (No. 11-

2780, 2017). 

Here, Pembroke had actual knowledge of the hazard’s on-going presence at its workplace. 

It also knew its employees were exposed to both actual and potential incidents of workplace 

violence. Pembroke knew patients had the potential to become aggressive towards staff. (Resp’t 

Br. at 1.) It trained employees about the fact that patients may be assaultive or even homicidal. 

(Exs. C-30, R-32.) And it knew that injuries from violence had occurred. Written employee 

accident reports detailing injuries from violence were provided to management. (Ex. C-3.) 

17 In addition to the stipulation, Respondents’ counsel also acknowledged at the hearing that both Pembroke Hospital 

and the industry as a whole recognized the hazard. (Tr. 924.) 
17 

Employee injuries were discussed by management at daily meetings. (Tr. 1441-42.) An MHA

explained that she repeatedly communicated safety concerns to multiple supervisors, including 

discussing a violent incident directly with the Director of Nursing, Claire Kent.

18 (Tr. 853.) Loss 

control reports provided to Pembroke’s CEO routinely documented many employee injuries and 

noted the link between the injuries and patient aggression. (Exs. C-55 thru C-60.) Supervisors 

were also made aware of occurrences of the hazard through verbal reports and by witnessing

assaultive behavior directly. (Tr. 559, 564, 1263, 1268, 1302-3; Exs. C-3, C-55 thru C-60, R-38, 

R-39, R-40.) 

The Secretary established recognition and knowledge of the hazard of workplace violence 

present at Pembroke Hospital. 

3. Serious Physical Harm

The third element of the test is also met: the cited hazard was causing or was likely to cause 

death or serious physical harm. A hazard is likely to cause death or serious physical harm if the 

likely consequence of employee exposure to the hazard would be serious physical harm. 

Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1122 (No. 88-572, 1993). 

The Secretary offered expert testimony on this point.19 (Tr. 919; Exs. C-66, C-99.) Dr. Robert 

Welch opined that at the time of the inspection the hazard of workplace violence was causing 

serious injury at Pembroke Hospital. (Tr. 923-24, 926.) Before reaching his conclusion, Dr. Welch 

18 This MHA (KS) was employed by Pembroke for over two years. (Tr. 792.) She left her position approximately 

two weeks before the hearing to work in another type of psychiatric care facility. (Tr. 792-93.) Her demeanor lent 

her testimony credibility. Her testimony about safety concerns related to the hazard of workplace violence at 

Pembroke was supported by the documentary evidence. 

19 Respondents’ expert, Monica Cooke, was offered only as an expert who evaluated the suggested feasible abatement 

methods offered by the Secretary. (Tr. 1463.) She was not offered (or accepted) as an expert who assessed whether 

the hazard was causing serious physical harm. 
18 

reviewed the employee accident reports and records of OSHA recordable injuries for the two years 

before the Citation. (Tr. 926.) He identified thirty-two injuries attributable to patient violence

over that time. Id. The incidents included episodes of staff being bit, concussed, head butted, spit 

at, and suffering hand injuries. Id.

Other record evidence supports Dr. Welch’s conclusions. Pembroke provided training to 

new employees about risk management. (Tr. 519; Exs. C-3, C-30.) The training explains that 

Pembroke’s patients may have the potential for assaultive or even homicidal behavior.20 (Ex. C30 at 19, 22.) Pembroke employees reported suffering physical harm as a result of patient on staff 

violence. (Exs. C-3, C-56, C-57, C-58; Tr. 648, 794, 810-11.) The CO reviewed Pembroke 

Hospital’s records of OSHA recordable injuries and found that a “very substantial majority were 

workplace violence related.” (Tr. 292.) Injuries to employees constitute at least prima facie 

evidence that the hazard was likely to cause death or serious injury. See e.g., Usery v. Marquette 

Cement Mfg. Co., 568 F.2d 902, 910 (2d Cir. 1977). 

Pembroke’s records detail five different employee injuries from violence in one month 

alone of the inspection period.21 (Exs. C-3, C-56.) KS worked as an MHA on the adolescent unit 

on both the day and evening shifts. (Tr. 793-94.) She described multiple assaults over the nearly 

two-year period when she worked for Pembroke Hospital. (Tr. 792-94.) During the inspection 

period, on November 12, 2016, KS was injured by a patient. (Exs. C-3, C-74; Tr. 794, 803, 857.) 

The incident occurred on the adolescent unit on a Saturday during the evening shift. (Tr. 794, 

853.) KS and another staff member tried to calm an agitated patient verbally, consistent with their 

20 Respondents risk management training does not appear to label any particular behavior as “workplace violence,” 

but discusses “issues inherent” in the patient population and indicates that patients are to be monitored for increases 

in “assaultive/homicidal potential ....” (Ex. C-30 at 8-9.) 

21 Five employee injury reports all dated in November 2016 refer to injuries from patient aggression. (Exs. C-3, C-60 

at 2-3.) In each of these circumstances, the employee required medical attention. (Tr. 563; Ex. C-60 at 3.) 
19 

training.22 (Tr. 795-96.) Their efforts were not successful, and the patient began throwing 

shampoo bottles and other objects. (Tr. 796.) The patient then proceeded to physically assault 

KS. Id. KS attempted to restrain the patient, but before she could, the patient was able to grab 

KS’s hair. Id. The patient pulled with such force as to lift KS’s head and remove chunks of hair. 

(Tr. 796, 1266.) Another employee, JQ, was also punched in the head as he tried to assist with the 

restraint. (Tr. 1264-65.) 

Following the attack, the patient was put on 1:1 observation. (Tr. 801.) 1:1 observation is 

a staffing arrangement to assign a staff member to stay with a single patient. (Tr. 77-78.) This is 

typically done as a result of violent or self-injurious behavior and must be approved by a doctor. 

Id. However, not long after this arrangement was put into place, the order for 1:1 observation was 

removed. KS was concerned by this, particularly because of the severity of the incident and the 

fact that it was not the first time the patient exhibited violent behavior.23 (Tr. 797-98.) She 

informed the nursing supervisor, Kristin Devane, of her concerns. (Tr. 814-15; Ex. C-3.) The 

supervisor did not dispute the concern for violent behavior but indicated there was not enough staff 

at the time to have the patient on 1:1 observation. (Tr. 815.) 

KS completed her shift and returned to work the next day, which was a Sunday. (Tr. 803-

4.) Near the end of her shift, a physical conflict developed between two groups of patients. The 

same patient involved with the attack against KS on the prior day acted as the “ringleader” for one 

of the factions. (Tr. 804.) When the staff attempted to intervene to protect the patients, the patients 

began to assault staff. (Tr. 804-5.) Patients kicked staff in their heads, their backs, and their legs. 

22 AS, a former MHA at Pembroke, explained that employees were trained to verbally de-escalate patients by using 

conversation to engage a patient and then attempt to calm them down. (Tr. 89.) 

23 For example, about one week before her assault, KS reported to her supervisor that the same patient tried to hit her. 

(Tr. 798.) The patient was not placed on 1:1 observation after that incident. (Tr. 799.) 
20 

Staff members were punched, scratched, and bitten during the incident. (Tr. 805.) The incident 

lasted for about two hours before it was appropriately contained. (Tr. 807.) 

Besides the assaults on November 12 and 13, 2016, KS described another incident which 

occurred on November 3, 2016. The incident involved a dispute over a music player. Many 

patients rely on music as a method to calm themselves. Two patients began fighting over an MP3 

music player. (Tr. 809.) KS attempted to intervene to restrain the primary aggressor. Id. KS 

sustained a tear to the triangular fibrocartilage complex in her wrist. (Tr. 809, 811.) The injury 

required emergency treatment and eventual surgery. (Tr. 809-11.) KS still has ongoing numbness 

in two fingers. (Tr. 811.) Two additional employees assisted with the restraint and were also 

injured. (Tr. 810.) One of these employees was kicked with enough strength to knock her into the 

opposite wall. Id. The assault caused her to suffer cranial nerve damage. (Tr. 810-811.) 

KS’s experiences at Pembroke Hospital were not unique. Other employees also described 

injuries from workplace violence. AS, an MHA, indicated he was hit or kicked approximately 50 

times during his four-year employment with Pembroke.24 (Tr. 47, 56-57.) He described one 

instance that occurred during the inspection period. He was about to commence the required search 

of a newly arrived patient’s belongings. (Tr. 86.) The patient became angry and pushed AS into 

a wall. Id. Another nurse recalled multiple assaults, including an incident where a patient nearly 

tore an employee’s ear off.25 (Tr. 217-18; Ex. C-60.) 

The assaults against staff resulted in multiple employee injuries. (Tr. 805; Exs. C-3, C-68, 

24 AS was employed by Pembroke during the inspection and left after the Citation was issued. (Tr. 47.) 

25 In addition, a former nurse at the facility, TL, indicated that in her three years at the facility serious staff injuries 

from assaults regularly occurred. (Tr. 651-52.) She left before the latest investigation commenced. However, her 

testimony is relevant to whether the recognized hazard was capable of causing serious physical harm. Although TL 

was terminated, her testimony had multiple indices of credibility. She explained that she had wanted to leave the 

position but remained on for financial and family reasons. She was forthright in her testimony, directly answering 

questions without a suggestion of malice or ill will toward her former employer. 
21 

C-69.) Employee injuries included concussions, bruises, scratches, and bites. (Tr. 364, 446, 448, 

466-67, 805; Exs. C-3, C-60, C-68, C-69.) Some of the injuries required employees to seek care 

in an emergency room and some staff injuries persisted for a long time. (Tr. 805, 810-11; Exs. C3, C-60, C-68, C-69.) While some injuries are documented in accident reports, the decision to 

complete an accident report was left to the employees themselves. (Tr. 1273-74.) Further, besides 

incidents requiring medical attention, there were many more incidents of aggression against 

employees.26 (Tr. 563; Exs. C-57, C-58, C-60 at 3, C-61 at 1.) Respondents do not dispute these 

accounts of routine assault and injury. The Secretary established that the recognized hazard was 

causing serious physical harm at Pembroke. 

4. Pembroke’s Abatement Measures Were Inadequate

As to the fourth element, abatement, the parties agree that under Waldon the Secretary must 

show there are feasible means to eliminate or materially reduce the hazard. (Resp’t Br. at 6.) 

However, they disagree as to what constitutes such a showing and whether the Secretary satisfied 

the requirements in this case. 

Although the parties cobble together snippets of various cases in an attempt to create 

abatement tests suited to their respective positions, the Commission’s decision in Integra sets forth 

a straightforward three prong test to determine whether the Secretary established that there are 

feasible means to materially reduce a hazard. 27 BNA OSHC at 1849-50. In Integra, which also 

involved a violation of the general duty clause due to the hazard of workplace violence, the 

Commission explains that the threshold question is whether the abatement actions the employer 

26 In October and November 2016, there were seven incidents of aggression for which medical attention was sought 

and an additional six incidents of aggression, such as hits or kicks, for which the affected employees declined to seek 

medical attention. (Tr. 563; Ex. C-60.) Overall, UHS DE tracked 151 incidents of aggressive behavior for the fourth 

quarter of 2016. (Ex. C-61.) 
22 

took are inadequate. Id. at n.14, quoting U.S. Postal Serv., 21 BNA OSHC 1767, 1774 (No. 04-

0316, 2006). If the Secretary shows that the employer’s abatement is inadequate, then he must 

propose abatement measures which can be put into effect, i.e., show that the measures are 

“feasible.” Id. at 1849-50. If the measures are feasible, then the Secretary must show the measures 

will materially reduce the incidence of the hazard, i.e., the Secretary must show the identified 

measures will be effective. Id. 

Turning first to the abatement measures in place at the time of the inspection, Pembroke’s 

approach to minimizing the hazard centers around training, policies, and procedures. (Resp’t Br. 

at 24-27.) Pembroke describes its abatement methods for the hazard to include: (1) staffing, (2) 

written policies, (3) management commitment, (4) employee participation, (5) worksite analysis 

and hazard identification, (6) hazard prevention and control, (7) training, (8) program evaluation, 

(9) medical orders, and (10) procedures and equipment for responding to staff calls for assistance. 

(Resp’t Br. at 2, 24-27.) Collectively, these things constitute Pembroke’s Workplace Violence 

Prevention Program, which Respondents’ argue appropriately protected staff from patient 

aggression. (Resp’t Br. at 27.) Respondents concede that their abatement efforts did not eliminate 

the hazard of workplace violence. Id. Still, they argue the measures adequately addressed the 

hazard and the Secretary failed to establish otherwise. (Resp’t Br. at 23.) 

The Secretary finds fault with Pembroke’s existing measures because of the number of 

workplace violence incidents that continued to occur at the facility. (Sec’y Br. at 52.) While 

Pembroke cites various policies as part of its Workplace Violence Prevention Program, most are 

brief, generic, and focus on patient care rather than protecting staff. For example, the one-page 

Management of Assaultive Behavior policy refers to patient arguments with other patients and 

visitors, but not arguments with staff. (Ex. R-10.) It calls for patients to be “monitored” for violent 
23 

behavior and changes related to “assaultive potential” are to be reported to the supervising nurse. 

Id. It does not reference to precautions staff should take. Id. Similarly, the one-page Patient 

Observation Rounds checklist has a space for nurses to check a box indicating the patient has the 

potential for “assaultive or destructive behavior,” but does not specifically refer to staff safety risks

or how to address them.27 (Ex. R-17.) 

Further, some of the measures called for by the policies were not consistently or thoroughly 

implemented. There was significant disconnect between the stated policies and what occurred in 

practice. For example, Pembroke’s Seclusion and/or Restraint Use policy does not require 

debriefings if a workplace violence incident did not result in a patient being restrained or 

secluded.28 (Ex. R-12 at 2.) Also, the assessments Pembroke did conduct after workplace violence 

incidents were often incomplete. (Ex. C-74.) Staffing levels were not considered relevant to the 

assessment of injuries. (Tr. 513-14.) Even if an employee cited insufficient staffing as a cause of 

an injury, such information was not included in the analysis. (Tr. 559.) Additionally, although 

called for by the policies, patient treatment plans were not always updated after a patient had been

restrained or secluded. (Ex. R-13.) The December 2016 Massachusetts Department of Mental 

Health (“DMH”) survey, which overlapped the OSHA inspection period, made recommendations 

to address shortfalls with Pembroke’s debriefing practices, such as failing to adequately note 

triggers for violent behavior.29 Id. at 10-11. So, while Pembroke indicated that it conducted root 

cause analyses of injuries, its program was incomplete. (Tr. 852, 854-58; Exs. C-26 at 12, R-12, 

27 The form specifies that only nurses should complete this section of the form; not the MHAs who typically perform 

the Observation Rounds. (Ex. R-17.) 

28 Although Pembroke cites this document as its policy on debriefings, it indicates that Pembroke “shall develop 

procedures to ensure debriefing activities occur.” (Ex. R-12 at 2 (emphasis added).) 

29 After the December 2016 regulatory visit, Pembroke indicated to the DMH that it corrected, or planned to correct, 

these deficiencies. (Exs. C-26, R-13.) 
24 

R-13.) See Chevron Oil Co., 11 BNA OSHC 1329, 1333 (No. 10799, 1983) (finding employer’s 

abatement approach inadequate in part because of the lack of accurate measuring and monitoring 

of data collected through inspections). 

Dr. Welch testified in support of the Secretary’s view that Respondents failed to adequately 

abate the hazard. Dr. Welch practiced medicine as an attending psychiatrist at multiple facilities 

during his career and his work experience includes training staff about the management of violence 

in psychiatric care facilities and handling behavioral emergencies. (Ex. C-66; Tr. 915.) Also, he

previously served on the Workplace Violence Committee for a healthcare system. (Ex. C-66.) 

Before offering his opinion at the hearing, Dr. Welch reviewed and analyzed: employee 

statements, an employee survey focusing on safety, notes from employee interviews, OSHA 300 

logs, UHS DE loss control reports, staffing grids and 1:1 staffing information, employee accident 

reports, photographs of the physical layout of space at Pembroke Hospital, and DMH inspection 

reports and corrective action plans for the facility. (Tr. 919-20, 922-23, 1143-44.) Dr. Welch also 

reviewed approximately 60 articles from medical, nursing, and hospital security literature. (Tr. 

921-922.) Finally, he surveyed other psychiatric facilities in the same geographic area as 

Pembroke Hospital to assist with the evaluation of the Secretary’s proposed methods of abatement. 

(Tr. 920-21.) 

The abatement measures in place at Pembroke Hospital were inadequate because the 

Secretary showed: (1) the hazard remains at Pembroke Hospital; (2) staffing was inadequate; (3) 

employees lacked sufficient means to summon assistance; and (4) Pembroke failed to properly 

implement patient de-escalation plans. 

a) Hazard Remains at Pembroke Hospital 

Despite clinical attempts to address patient aggression, the hazard of workplace violence 
25 

remained prevalent at Pembroke Hospital during the inspection period. All the non-management 

employees described multiple incidents of workplace violence and Respondents’ records detail 

additional injuries. Dr. Welch identified “many, many reports” of Pembroke employees 

documenting their injuries resulting from workplace violence. (Tr. 927.) OSHA 300 and 300A 

forms for 2016 identified 23 recordable injuries. (Tr. 290-92, Ex. C-68.) From this self-reported 

information, the CO compared rates of injury at Pembroke Hospital with national averages for 

psychiatric hospitals.30 (Tr. 293.) In comparing injury rates, the CO only considered injuries that 

resulted in lost work time, restricted duties or job transfers. (Tr. 291, 293-94.) Pembroke 

Hospital’s injury rate was approximately two and a half times the national average for psychiatric 

facilities. (Tr. 293-94, 355, 927.) 

Respondents point out that the existence of injuries does not establish that its abatement 

efforts were inadequate. (Resp’t Br. at 27.) While accurate, the presence of a higher than average 

injury rate is relevant to assessing the sufficiency of Pembroke’s program. SeaWorld, 748 F.3d at 

1215 (existing safety procedures held inadequate where evidence showed employer’s training and 

protocols did not prevent continued injuries). Injuries and incidents are not dispositive, but they 

do lend support to the Secretary’s claim that the abatement methods, as implemented, were 

inadequate. 

b) Staffing was Inadequate 

One of Pembroke’s abatement methods was staffing. Both experts agreed that staffing is 

a way to reduce the hazard of workplace violence in a behavioral health setting. (Tr. 937-40, 942-

952, 959-60, 966, 980-81, 1510.) Dr. Welch explained that higher staffing levels mitigate violence 

30 Because it is based on days away, restricted duties and transfers, the rate of injury is often referred to as the DART 

rate. (Sec’y Br. at 7.) 
26 

and provide a safer working environment. (Tr. 946-47, 952.) He discussed peer reviewed studies 

that supported his view that adequate staffing reduced the hazard.31 (Tr. 950-52, 962, 989; Exs. 

C-94, C-96, C-98, C-100, C-101.) Understaffing is linked to more assaults while higher staff to 

patient ratio resulted in fewer patients escalating to a point where they became violent and fewer

patient emergencies. (Exs. C-96, C-97, C-98, C-100, C-101; Tr. 980-81.) Pembroke employees 

working at the site during the inspection period confirmed that, in their experience, insufficient 

staffing harmed worker safety. (Tr. 90, 329-31, 325-26, 666, 793.) 

Dr. Welch concluded Pembroke’s staffing was inadequate to manage the risk of workplace 

violence at Pembroke. (Tr. 939, 1067.) Most shifts at Pembroke had less staff per patient than the 

national averages for similar facilities. (Tr. 939, 1046-47.) Pembroke does not dispute this, but 

argues it follows the minimum staffing requirements set by the DMH for patient care. (Resp’t Br. 

at 13, 26.) The DMH requirements vary with the number of patients (i.e. the census) at the facility. 

(Ex. C-20.) Pembroke uses a document referred to as the “grid” to determine when the census

reaches a point that additional hours are needed under the DMH requirements.

32 (Ex. C-20; Tr. 

371-72, 387-88, 930-33, 1316.) At a minimum, there is one nurse and one MHA for each unit. 

(Ex. C-20; Tr. 380.) As the census increases, additional staffing hours may be added. (Tr. 371-

72, 387-88; Ex. C-20.) Each additional patient does not automatically trigger an increase in 

staffing. (Ex. C-20.) The grid is focused on minimum staffing levels per patient for their medical 

31 Dr. Welch relied on several studies, including, Paul Morrison & Michael Lehane, Staffing Levels and Seclusion 

Use, 22 J. of Advanced Nursing 1193-1202 (1995) (hereafter, Lehane Study). The Lehane Study found “a highly 

significant difference between the levels of staffing” and the number of violent incidents requiring patient seclusion. 

Id. at 1193. Similarly, Vanya Hamrin, et al., A Review of Ecological Factors Affecting Inpatient Psychiatric Unit 

Violence: Implications for Relational and Unit Cultural Improvements, Issues in Mental Health Nursing, 30:214-226 

(2009), also found that violence is prevented by having adequate staff to patient ratios. (Ex. C-101 at 9.) 

32 Because admissions and discharges alter the number of patients, the census is based on the average number of 

patients on the unit as counted at least once during a shift. 
27 

care. (Tr. 931.) In setting the minimum staffing levels, the DMH does not focus on staff safety or 

workplace violence. (Tr. 931-33.) 

Besides the individuals “on the grid,” other personnel can assist with workplace violence 

incidents. (Tr. 475-76.) During the day shift on weekdays, additional support staff and medical 

personnel are available to prevent and respond to workplace violence situations. (Tr. 475, 819, 

1299.) However, not all personnel can respond to a code or request for assistance. (Tr. 1299.) At 

least one person must stay on each unit at all times. (Tr. 375-77, 871; Ex. R-17.) The employee 

assigned to conduct patient checks is limited to that task only. Id. Further, the number of 

additional potential responders is not the same on all three shifts. On the evening shift, there is a 

single “crisis intervention specialist” who can assist units as needed. (Tr. 871, 1233.) The Director 

of Nursing explained that “a lot of crises” happen on the evening shift. (Tr. 1437.) The crisis 

intervention specialist is not involved in direct care and tries to be “proactive” to identify problems

before they become “huge issues.” (Tr. 473.) 

On the night shift, each staff member was responsible for the greatest number of patients. 

(Tr. 388; Exs. C-20, C-78.) There is no crisis intervention specialist and fewer other employees 

as well. (Tr. 374; Ex. C-78.) For example, by the grid, there only needs to be one nurse per adult 

unit unless the census for that unit exceeds twenty-three patients.33 (Ex. C-20.) And, even when 

the census reaches a point that more staffing hours are required, the grid typically only requires 

four more hours of care, i.e., an additional employee for only half of the eight-hour shift. Id. After 

the four hours of care are provided, the employee could be sent home, even if additional admissions 

33 The adolescent unit also only has one nurse on the night shift, but its census is capped at eighteen patients. On the 

night shift, Pembroke added one “float” position on for the entire hospital. (Tr. 375, 730.) The DMH concluded that 

this was insufficient. (Ex. C-47 at 6-7.) During its four-day survey in the spring of 2016 (before the OSHA inspection 

commenced, the DMH noted one unit operating with 22 patients but only two employees (one nurse and one MHA). 

Id. While there was a float, that employee was also needed in another unit. Id. 
28 

are anticipated. (Tr. 107-8, 1316.) 

As with the night shift, on weekends there were fewer employees at the hospital who could 

respond in the event of a workplace violence incident. There was only one doctor for all 90 patients 

on weekends. (Tr. 961-62.) There were fewer social workers and case managers as well. (Tr. 

960-62.) Patients often were not seen by a psychiatrist, social worker, or case manager until 

Monday if they were admitted on the weekend. Id. In fact, 40% of assaults took place on weekends 

when there was significantly less staff on site.

34 (Tr. 960.) 

The Secretary contends that Respondents failed to have sufficient staff to abate the hazard 

of workplace violence.35 The evidence reveals that staffing was the overwhelming safety issue for 

employees and Dr. Welch agreed with employee concerns. (Tr. 306.) According to Dr. Welch, 

the baseline level of staffing at Pembroke Hospital was both inadequate and significantly below 

other hospitals he surveyed or worked in. (Tr. 939, 1067-68.) The staff to patient ratios were 

inadequate to successfully manage the hazard. (Tr. 1067.) Dr. Welch cited multiple occasions 

during the inspection period when Pembroke fell below its own minimum staffing requirements 

and employees reported injuries. (Tr. 942.) Studies have found that there is a higher rate of 

violence and aggression from patients when each staff member is responsible for a higher number 

of patients. (Tr. 943, 946-47; Ex. C-101.) As discussed in more detail below, the Secretary showed 

that Respondents’ approach to staffing resulted in an insufficient number of people to 

34 Ms. Gilmore’s letters regarding her loss control visits to Pembroke Hospital also note increased episodes of 

aggression on weekends. (Ex. C-59.) 

35 The Secretary does not specifically allege that staffing was inadequate from a medical perspective. However, he 

does argue that the “unmet needs” of patients increases the likelihood of a workplace violence incident. (Sec’y Br. 

37-38.) As discussed above, patients were dependent upon staff for meals, bathroom access, medication and other 

needs. If there was inadequate staff to respond to such needs, certain patients can become aggressive and angry. (Tr. 

946-47; Ex. C-101 at 7-9.) “A recurring theme in the research was that unmet needs trigger aggression or violence.” 

(Ex. C-101 at 9.) Pembroke’s training materials on de-escalation also acknowledged this can occur. (Ex. R-32.) 
29 

accommodate medical orders for 1:1 supervision, to safely address changes in patient acuity, and 

to handle new patient admissions. (Sec’y Br. at 51, 54, 61.) Pembroke also failed to maintain 

adequate staffing levels for appropriate de-escalation and for therapeutic activities. 

(1) Inadequate Staffing for 1:1 Medical Orders

Pembroke argues that one of its methods for addressing the hazard was to allow staff to 

seek a higher level of observation for certain patients. (Resp’t Br. at 14, 27.) MHAs and nurses 

could request a doctor to order an MHA to be assigned directly to a particular patient. Doctors 

could order an MHA to stay within arm’s reach of a single patient. (Tr. 78, 683; Ex. R-11 at 2.) 

This level of observation is referred to as a 1:1, meaning one employee for one patient. The 

arrangement permits focused de-escalation and prompt notification of co-workers if a patient starts 

to become violent. (Tr. 1040-41, 1045, 1125.) While assaultive behavior could support a 1:1 

assignment, employee safety was not a specific reason for a patient to be placed on 1:1 

observation.36 (Tr. 1191; Ex. R-11 at 2.) Typically, such arrangements were called for because 

the patient was injuring themselves. (Tr. 479-80, 1191; Ex. R-11.) 

The Secretary agrees with the importance of 1:1 assignments as a method for both reducing 

workplace violence incidents and reducing the likelihood such incidents cause serious injuries. 

(Tr. 1045-46.) He does not call for more 1:1 assignments or cite issues with Pembroke’s policies 

addressing 1:1s. Rather, the Secretary’s concern lies with how Pembroke addressed, or failed to 

address, the need for staff to allow the implementation of orders for 1:1s. In particular, there was 

not always enough staff to fill a recommendation for 1:1 staffing. (Tr. 233-36, 453-55, 657, 666, 

814-15; Ex. C-78.) Nor did placing a patient on 1:1 supervision typically result in additional staff 

36 Pembroke’s policy permitted “special precautions” for “Assaultive/Destructive Behavior” as well “other reasons 

deemed appropriate by the physician or nursing staff.” (R-11 at 2.) 
30 

being assigned to the unit. (Tr. 332, 383, 453, 945-46; Ex. C-38.) Often an MHA was re-assigned 

from helping a group of patients on the unit to instead focus on a single patient. (Tr. 383, 388-89, 

946.) This was particularly the case if more than one patient required 1:1 staffing. (Tr. 332, 383.) 

Ms. Kent acknowledged it was not a policy to bring an additional staff member in to cover the first 

1:1 ordered on a unit. Id. Typically, it would be covered on the next shift, regardless of when the 

doctor first ordered it. Id. If there was a need to place a second patient on 1:1 observation due to 

violent behavior, Pembroke generally did not add additional staff. (Tr. 332, 383, 388-89; Ex. C47.) Staff reported “tension” between management’s desire to remove a patient from 1:1 

observation to improve the staff to patient ratio and the belief of front-line workers that doing so 

was premature and could result in assaultive behavior. (Tr. 235-36, 664, 657-58.) 

Even with a history of violence, 1:1 observation was not assigned until after a patient was 

violent towards others or engaged in serious self-injurious behavior at Pembroke Hospital. The 

potential for violence to employees did not result in additional staff. (Tr. 77-78, 799.) The patient 

had to demonstrate violence or self-injurious behavior to a sufficient degree before a doctor would 

order 1:1 observation. (Tr. 77-78.) If a patient previously assaulted medical professionals or others 

before arriving at Pembroke, that was not sufficient. Id. They had to exhibit violent behavior at 

Pembroke. Id. 

For example, during the inspection period, a patient attempted to punch an MHA in the 

face. (Tr. 798.) The incident was reported to supervisors. Id. A week later, the same patient 

succeeded in assaulting the MHA. (Tr. 798-99.) Even at that point, the patient was only briefly 

placed on 1:1 observation for part of a shift. (Tr. 800-1.) According to the MHA, the 1:1 

observation was discontinued not because anyone thought the patient no longer needed it, but 
31 

because there was no female MHA available to fill the role.37 (Tr. 801-2.) The same patient was 

then involved in another violent attack against staff the following day. (Tr. 804-5.) 

Pembroke understood the need for additional staff to implement1:1 assignments. In 2016, 

before the latest OSHA inspection commenced, the DMH identified several deficiencies in 

Pembroke’s approach to staffing. (Ex. C-47.) The DMH found that Pembroke lacked enough staff 

to allow for emergency coverage.38 Id. In response to the DMH’s investigation, in December 

2016, Pembroke submitted a Plan of Correction to the DMH that called for 1:1 assignments to be 

handled by additional staff, rather than by reassigning workers from providing care for all patients 

to caring for a single patient. (Tr. 396, 703-4; Exs. C-26, C-38, C-47.) In practice, Pembroke 

admits that it failed to adhere to its Plan of Correction. (Tr. 332, 736; Ex. C-38.) On multiple 

shifts during the inspection period, placing a second patient on 1:1 observation did not increase

the number of staff members on the unit, despite Pembroke’s commitment in the Plan of 

Correction.39 (Exs. C-26, C-38.) 

The Secretary argues that Respondents tried to conceal the number of patients on 1:1 

observation to make their staff to patient ratio appear better than it was in reality.40 (Sec’y Br. at 

31.) Melissa Heron prepared staffing records for production to OSHA. (Tr. 417-19.) The staffing 

records initially contained the number of patients, the total number of staff, and how many 

employees were assigned a single patient (i.e., how many were assigned to 1:1 observations). (Tr. 

37 Per Pembroke’s “Special Precautions Guidelines” there was a preference for the assigned staff member to be of the 

same gender, but it was not required other than during certain time, such as for personal hygiene and toileting. (Ex. 

R-11.) 

38 While DMH findings relate to patient care, not employee safety, they still had the impact of notifying Respondents 

that its staffing levels were low. 

39 The Secretary does not allege that Pembroke’s approach to 1:1 staffing would still be deficient if it had followed 

what was called for by the December 2016 Plan of Correction consistently during the inspection period.

40 The undersigned notes that the DMH review of Pembroke over three days in December 2016 found that 

documentation about what level of precaution patients were on was not consistent. (Ex. R-13.) 
32 

419, 423-24, 887-89; Ex. C-78.) Before turning over the documents, Pembroke removed the 

information related to 1:1 assignments. (Tr. 417-19, 889.) By removing this information, it could 

appear that there was adequate staff for all patients and that the units were less acute. (Tr. 887-88, 

1054-55.) This perception was corrected when before the hearing, Pembroke provided the 

removed information to OSHA. (Tr. 417-19, 421-22, 883-84, 887-88; Ex. C-78.) Considering the 

record as a whole, the Secretary did not establish the editing warranted adverse inferences.41 

Dr. Welch concluded that Pembroke’s approach to staffing was inadequate and left too few 

employees responsible for too many patients and tasks. The approach of not consistently adding 

staff when there was a doctor ordered 1:1 observation reduced the effectiveness of Pembroke’s 

Special Precaution Guidelines, and left staff more vulnerable to the hazard. 

(2) Inadequate Staffing for Acuity

Pembroke argues that it altered staffing based on a unit’s acuity to address the hazard. In 

the context of a behavioral health hospital, the “acuity” of a unit refers to the level of activity and 

risk. (Tr. 1001-2.) Factors influencing the level of acuity include how many patients, staff, and 

visitors are present, and the condition of the patients. (Tr. 1002-3.) The higher the level of acuity 

within a unit, the more staff that are needed. (Tr. 576.) 

In practice, employees explained that increasing staff for acuity did not consistently 

41 The Secretary also cites Pembroke’s coaching of employees only to answer the questions investigators asked and 

to not offer information. (Tr. 113, 119, 125; Ex. C-1.) After management provided information about how it expected 

employees to act during investigations in writing, employees were specifically directed to destroy the instructions. 

(Tr. 125.) Respondents argue that the instructions were perfectly appropriate. The written instructions do not direct 

employees to lie or provide misinformation. (Ex. C-1.) AS acknowledged that he did not fear reprisal after speaking 

with OSHA. (Tr. 184.) Although the Secretary’s curiosity about why Pembroke would direct employees to destroy 

instructions about regulatory investigations is understandable, he did not establish that the coaching practices warrant 

adverse inferences. 
33 

occur.42 (Tr. 132, 307; Ex. C-22.) Dr. Welch evaluated staffing at the facility and agreed with the 

employees’ view that Pembroke did not sufficiently staff for acuity during the inspection period.43 

(Tr. 1053-54, 1056, 1058.) Pembroke’s claims about increasing staff for acuity were not supported 

by its records. (Tr. 1055-56.) Although Pembroke took steps to ensure that the minimum level of 

staffing called for by the grid was met before employees could leave, this requirement did not 

extend to situations where a unit’s level of acuity required a higher ratio of staff per patient. (Tr. 

454.) Pembroke’s goal was to ensure that the base level of staffing for patient care was met, not 

to have enough staff for purposes of abating the hazard of workplace violence. 

Even by the grid, the facility was understaffed for parts of shifts on at least three dates 

during the inspection period. (Tr. 942; 1443-44.) Injuries from workplace violence incidents were 

documented on understaffed shifts. (Tr. 942, 960; Ex. C-78.) In one instance, on November 14, 

2016, one adult unit was operating for the evening shift with only one nurse and one MHA. There 

had been a series of assaults in the same unit during prior shifts. Just at the start of the night shift, 

a patient bit an employee during a restraint. As was always the case on the night shift, there was 

no crisis intervention specialist who could move onto the unit if the violent behavior continued 

and only one float employee for all the units. 

Inadequate staffing harmed preventative actions and responses to violence. Both experts 

agreed that when staff is available to attend to patients’ initial signs of agitation, verbal intervention 

alone can be effective at preventing physical violence. (Tr. 947, 1512.) The experts also agreed 

42 In 2016, UHS DE conducted a staff survey of “safety culture.” Several of the comments cite a need to staff 

appropriately for acuity. (Ex. C-22.) Although admissible, less weight is given to these survey results than the 

testimony of the current and former employees at the hearing. There is no information about the credibility of the 

persons providing the information in the survey and it is not clear what time period the survey responses relate to. Id. 

43 The undersigned notes that in contrast to the scope of Dr. Welch’s review of staffing at Pembroke, Ms. Cooke only 

reviewed two days of staffing records in depth. 
34 

that having numerous potential responders in the event of behavioral health emergencies aids 

safety. (Tr. 947-48, 1512.) It facilitates addressing the individual whose behavior started the 

situation and limits the ability of other patients to take advantage of an employee’s isolation or 

distraction during a workplace violence incident. Id. Dr. Welch explained that “at least five 

people” are required for each behavioral health emergency.

44 (Tr. 947-48, 1000.) He cited an 

employee accident report involving a patient who weighed 388 pounds. (Tr. 948.) A situation

involving such a large patient could require as many as eight employees to ensure safety for all. 

Id. At times during the inspection period, there were only twelve MHAs for the whole facility. 

(Ex. C-78.) 

KS, a former MHA at Pembroke, explained that she did not feel safe working at Pembroke 

because routinely there was not enough staff to address the unpredictability of patient behavior. 

(Tr. 793.) She described one situation during the inspection period that spiraled into a melee. (Tr. 

794.) Even after calls for all available staff to respond, there was still not enough support. (Tr. 

806, 1482-83.) The situation progressed to a point where some patients started to restrain other 

patients for the safety of everyone in the unit. (Tr. 794, 807, 856, 948.) KS noted that the situation 

would have been worse had it not occurred near the end of one shift and the start of the next. (Tr. 

806.) Because of this coincidence, some people who had arrived early for their shift could assist 

with bringing the situation under control. Id. Had the incident occurred mid-shift such resources 

would not have been available. Id. 

44 Pembroke’s policy Code Greens also contemplates the involvement of multiple employees. (Ex. R-9 at 3.) 
35 

(3) Inadequate Staffing for Admissions 

In addition to prior violent incidents, new admissions also impact the acuity of the units.45 

(Tr. 1057-58; Exs. C-55, C-101 at 9.) When a patient arrived at Pembroke, a nurse would briefly 

take vital signs just inside the door to the unit. (Tr. 75.) An MHA would then bring the patient to 

“a very small room” on the unit.46 Id. The MHA would continue the admissions process alone in 

the room with the patient. (Tr. 75, 81.) There were no cameras in the room and only a very small, 

high window.47 (Tr. 88, 512.) The MHA’s assessment included searching the patient and their 

belongings for contraband, i.e. items that could harm staff or patients. (Tr. 81, 837, 1181-82; Exs. 

R-1, R-8.) AS explained that he did not feel safe to be alone with patients at this point in the 

admissions process. (Tr. 81-82.) First, the patient’s condition was not yet well understood. Id. 

Second, the patient and MHA are in the room alone before the contraband search is completed.

48 

Id. Pembroke’s Contraband and Restricted Articles policy notes numerous types of objects that

could pose a danger to staff. (Ex. R-1.) AS explained that some patients became aggressive during 

the searches.49 (Tr. 81-82.) In addition to contraband a patient may come in with, the room used 

for the searches also had multiple objects that could be used as projectiles. Id. The location and 

size of the room made it difficult to call for help even with a radio. (Tr. 82.) Thus, admissions

45 A UHS DE conducted regular “loss control” visits of Pembroke Hospital and prepared summary letters after the 

visits. (Ex. C-55.) The December 12, 2016 letter notes an increase of “aggression episodes on weekends due to large 

number of admissions ....” Id. at 2. 

46 AS indicated that the room was eight feet by eight feet in one of the units. (Tr. 82.) Some of the other units might 

have had slightly bigger rooms. Id. 

47 The window is described as about the size of “loaf of French bread.” (Tr. 88.) There were no security cameras on 

the units, but a few offices have cameras. (Tr. 512.) 

48 Searches were also required after patients returned to the units from appointments off-site. (Ex. R-8.) 

49 Per Pembroke’s policy, patients could decline the searches. (Ex. R-8.) According to the policy, the patient was to 

“remain in open areas unit assessed” if they declined. Id. The policy does not call for them to be secluded from staff. 

Id. 
36 

were one of the “scarier” parts of the job. Id. 

After the MHA completed his or her assessment, the new patient moved to the common 

room where the existing patients were until it was possible to meet with a physician.50 (Tr. 91-92, 

861-62.) The wait to meet with a physician could take several hours, particularly on weekends, 

when only one doctor attended the hospital. (Tr. 861-62.) New patients would often become 

agitated or aggressive after being moved into the common room, particularly if in need of 

medication,.51 (Tr. 79.) 

Admissions impacted acuity in multiple respects. First, arriving patients were typically 

distressed and at their sickest. (Tr. 1057.) As they were not fully assessed yet, the practice of 

having the new patient enter the common room directly increased risk and acuity. (Tr. 1014.) 

Second, Pembroke did not set separate limits for the number of violent patients being admitted. 

(Tr. 77.) Often there were multiple admissions of patients with a history of violent behavior during 

a single shift. Id. Third, the admission process itself was very time consuming and could occupy 

both a nurse and an MHA for long periods. (Tr. 1058.) Admitting a patient typically required 

twenty to thirty minutes of time from an MHA and as much as 90 minutes for the nursing tasks. 

(Tr. 653-54, 837-38, 1006-7.) In general, according to the Director of Nursing, there were 6.9 

admissions per day. (Tr. 1346.) But admissions, both in terms of their number and their timing, 

varied significantly. (Tr. 863, 1008, 1382, 1436, 1516). Pembroke’s Director of Admissions 

explained that “every day is very different.” (Tr. 1382.) Sometimes there would be as many as 

50 It can take up to twenty-four hours before a physician completes his or her complete assessment of the patient. (Tr. 

1291; Ex. R-7.) Typically, at Pembroke, a doctor sees a patient within two hours to assess their competency and 

conduct a brief assessment. Id. Patients are also seen by a social worker within three days (72 hours). (Tr. 1423; Ex. 

R-7.)

51 Ms. Gilmore, the UHS DE Loss Control Manager, also noted that the lack of clinical case management for patients 

admitted over the weekends can increase these patients becoming upset. (Ex. C-58 at 2.) 
37 

seven admissions to a single unit during a shift. (Tr. 863.) Dr. Welch pointed to another shift 

during the inspection period with fourteen admissions. (Tr. 1014.) While admitting a patient, the 

staff member could not focus on de-escalating potentially violent patients and timely intervening 

to address assaultive behavior towards staff. Fourth, admissions could result in staffing levels that 

fell below the minimum “floor” required by the grid. (Tr. 455.) Pembroke Hospital had no staff 

dedicated to handling the admissions tasks. Moreover, it did not consistently staff in anticipation 

of admissions. (Tr. 242-43, 381-82, 455, 878-79; Ex. C-78.) Rather, the shift would often continue 

with the same number of employees working despite the number of admissions. (Tr. 878-79.) 

Additional staff would only be added for the next shift. Id. Fifth, when there was a high influx of 

patients, admission tasks had to be performed hastily and sometimes potential weapons were 

overlooked. (Tr. 837.) This could increase the risk of injury from workplace violence. For these 

reasons, Dr. Welch concluded that Respondents failed to assign enough staff for admissions and 

that this increased both the likelihood and potential severity of workplace violence. (Tr. 962, 1056-

58.) Admissions increased the number of patients for each staff member and created additional 

work to assess the newly admitted patients. (Tr. 838-39, 1057-58; Ex. C-55.) 

Respondents note that discharges reduce the number of patients. Discharges only occurred 

on the day shift when there already was additional staff who could respond to workplace violence 

events. In contrast, admissions occurred throughout the twenty-fours and were not evenly 

distributed. (Tr. 1382, 1014.) Admissions also did not automatically result in increased staff until 

the next shift, while discharges could result in staff being sent home mid-shift. (Tr. 107-8, 1316.) 

Staff reductions occurred even when new patients were anticipated but had not yet arrived. (Tr. 

107-8, 838-39.) Discharges also impacted the acuity of units. The patients likely to be discharged 

are, by definition, the healthiest and most stable. (Tr. 1056-57.) The most stable patients were 
38 

then replaced with the newly admitted, sicker patients. (Tr. 1005, 1056-57.) The patients arriving 

for admission are “acutely decompensated.” (Tr. 1012.) They may not yet be medicated, and Dr. 

Welch described it as a “very high-risk time.” Id. 

The Secretary established that Pembroke’s approach to admissions was inadequate.

(4) Inadequate Staff to Verbally De-escalate Patients

Pembroke argues that its use of verbal de-escalation, which included a written policy and 

training, was adequate. Pembroke’s Management of Aggression policy was a one-page document 

described by the risk manager as a review for staff about how to manage assaultive behavior. (Tr. 

1186-87; Ex. R-10.) But the document does not provide guidance on how to accomplish this. (Ex. 

R-10.) Instead, it notes that patients will be assessed for assault risk and monitored for behavior. 

Id. Changes in behavior or events related to the potential for assaultive behavior are to be reported

to the charge nurse, and such reports may alter treatment. Id. Staff did receive other training, 

including being taught a technique called Handle with Care, which the Risk Manager indicated 

was a method to safely intervene with patients at risk of harming themselves or others.

52 (Tr. 747, 

1188, 1419-20; Ex. R-32.) 

In addition to the Handle with Care training, Respondents allege that Pembroke also

presents a “Workplace Violence Prevention PowerPoint” to employees and indicates that Exhibit 

R-32 is this presentation. (Resp’t Br. at 7.) At the hearing, Mr. Quinn described Exhibit R-32, not 

as a Workplace Violence Prevention PowerPoint, but as the “Handle With Care with the Verbal 

De-escalation PowerPoint.” (Tr. 1235.) He did not refer to it as workplace violence training and 

52 Pembroke’s “Seclusion and/or Restraint Use” policy indicates that staff was also to be trained annually in “Handle 

with Care” and “Trauma Informed Care.” (Ex. R-12 at 1.) Ms. Kent cited trauma informed care as being part of the 

initial training, but it’s unclear if that was also part of the annual re-training. (Tr. 1420-21.) 
39 

his description matches what is listed on the first page of the document.

53 Id. Ms. Burns, 

Pembroke’s risk manager, was not asked whether Exhibit 32 constituted Pembroke’s workplace 

violence training. (Tr. 497.) She testified that, in general, employees were trained about workplace 

violence, but she did not provide such information to staff. (Tr. 1219-20.) When shown Exhibit 

C-31, a different collection of PowerPoint slides that uses the phrase “workplace violence,” she 

could not confirm whether it was used at Pembroke to train employees. Id. So, the record does 

not show that employees were trained on, given, or reviewed Exhibit C-31.54 

Dr. Welch acknowledged that almost all behavioral health hospitals use verbal deescalation and that it is an appropriate, albeit incomplete, intervention for certain patients. (Tr. 

1010.) He did not raise specific issues with Pembroke’s training but explained that Pembroke’s

approach to handling workplace violence hazards requires enough staff so employees can promptly

identify who is escalating and intervene quickly.55 Id. Pembroke failed to consistently have 

enough staff to implement the techniques called for by its Handle With Care Program. Id. 

So, as implemented, Pembroke’s approach to verbal de-escalation was not sufficiently 

effective at abating the hazard. (Tr. 1010.) Training could not make up for the lack of adequate 

53 Exhibit R-32 does not include the term “workplace violence” but does refer to violence and “dangerous behaviors.” 

(Ex. R-32.) It states that one of the goals of the training is to “Reduce staff and patient injuries.” Id. 

54 Respondents did not introduce Exhibit C-31 (a PowerPoint presentation discussing workplace violence) or raise it 

with any witness. The Secretary’s counsel showed Ms. Burns Exhibit C-31 on cross examination. (Tr. 1219-20.) Ms. 

Burns did not use the materials herself and was unsure if the other employees who conducted training used them. Id. 

55 Dr. Welch also noted that verbal de-escalation can be ineffective. (Tr. 1010-1011.) For example, if the patient is 

already violent or if their untreated psychosis precludes rational conversation, verbal de-escalation is ineffective. Id. 

Ms. Gilmore, the Loss Control Manager for UHS DE, noted in both her October 25, 2016, and December 12, 2016 

letters that while non-clinical staff can recognize escalating situations and had training on verbal de-escalation, at the 

time of her visit certain employees “DO NOT know how to defend themselves if attacked.” (Ex. C-55 at 2 

(capitalization in original); Ex. C-59 at 2 (same capitalization).) 
40 

staff to handle psychiatric emergencies.56 (Ex. C-96 at 15.) 

(5) Inadequate Staff for Therapeutic Activities

Dr. Welch explained that therapeutic group activities are effective at reducing incidents of 

workplace violence. (Tr. 949, 968-69; Ex. C-101.) Regularly scheduled and predictable activities 

promote engagement and decrease levels of acuity on the units. (Tr. 820-21, 949-50, 1061-62.) 

Pembroke recognized the importance of regularly scheduled therapeutic groups.57 (Exs. C-55, C57, C-59, R-32.) Its de-escalation training called for increasing structure as a means to control 

crises. (Ex. R-32 at 13.) The Handle With Care training cites schedules and programs as helpful 

in avoiding power struggles that can lead to violence. (Ex. R-32 at 22.) Before regulatory visits, 

Pembroke instructed employees to check to make sure details about groups were written, that 

groups occurred, and that schedule changes were noted.58 (Ex. C-1 at 1-2, 4-5, 7-8.) Pembroke 

also agreed with the DMH’s audit findings that the posted information about groups failed to

adequately describe what groups were actually going to occur. (Exs. C-26, R-13, R-29.) 

Despite this recognition of the importance of making sure groups occurred, groups were

regularly canceled due to insufficient staff. (Tr. 221.) KS indicated that at least three times a week 

a group would be canceled. (Tr. 819.) This most frequently occurred on the evening shift, which 

had fewer available employees. Id. Still, even on the day shift, groups were routinely canceled. 

56 The Handle with Care program also called for structure and having employees be able to provide calming modalities. 

(Ex. R-32.) As discussed below in addition to a lack of adequate staffing, Pembroke also fell short in implementing 

these aspects of the program. Id. 

57 Ms. Gilmore assessed whether groups were occurring and how they were functioning as part of her routine reviews 

of Pembroke Hospital. (Tr. 549; Exs. C-55, C-57, C-59.) Her reports discuss how groups can help patients and how 

not having groups as scheduled can trigger aggression. (Ex. C-59 at 2; C-57 at 2.) 

58 One witness said that she was not aware of any policies related to when groups would be canceled. (Tr. 228.) The 

risk manager indicated that Pembroke had an “activities therapy policy,” as well as policies related “running groups” 

and the “staff to patient ratio” for groups. (Tr. 535.) Pembroke did not introduce any of these policies into the record. 
41 

(Tr. 50, 137.) Groups were canceled because staff was too busy with admissions or because of the 

need to respond to emergencies. (Tr. 138, 221, 677-78, 820.) There was not enough staff to 

consistently run the groups and handle the other tasks. Id. Groups were an “afterthought,” rather 

than an effective means of abatement. (Tr. 677-78; Exs. C-26 at 3, R-13, R-28, R-29.) 

c) Inadequate Means to Summon Assistance 

Pembroke argues that staff could adequately summon additional assistance when needed 

to prevent or end patient on staff violence. Pembroke’s units often only had three employees. (Tr. 

380, 1047; Ex. C-20.) There is no debate that this was insufficient to address all workplace 

incidents. Staff could verbally announce a “Code Green” to seek assistance in the event of violence 

or if they anticipated the need for additional support. (Tr. 57; Ex. R-9.) Typically, at least one or 

two times a day, staff would seek assistance through the Code Green process. (Tr. 827.) 

Code Greens could also be called over two-way radios (i.e., walkie talkies) if available or 

by using a phone that could connect to an overhead public address system.59 (Tr. 57, 59-60.) 

Employees were instructed to stay with the patient even when summoning assistance. (Ex. R-9.) 

However, if the employee did not have a radio, they would need to access the one phone located 

in the middle of the unit.

60 (Tr. 59.) There was no phone in the area used for admissions. Id. The 

number of two-way radios on each unit varied but there were never more than four.

61 (Tr. 60-61, 

59 Per Pembroke’s Code Green policy, psychiatric emergencies also “should be announced using walkie talkies and 

the overhead paging system.” (Ex. R-9.) Employees described using either a walkie or the phone system. (Tr. 57, 

59-60.) Some incidents would require multiple calls for assistance. 

60 It is unclear if patients also used these phones. (Ex. R-28.) An audit by the DMH from May 2016 specifically 

called for more phones in at least two units. Id. 

61 More recently, Pembroke increased the number of radios to six per unit and implemented steps to make sure each 

unit had a sufficient number of working radios. (Tr. 456.) The Secretary does not argue that this revised approach 

was still deficient. However, the suitability of Pembroke’s abatement program is assessed as of the time in the 

Citation. 
42 

456-57.) Staff who could not access the phone or a radio could verbally request that someone else 

commence the Code Green process. (Tr. 59.) There was no equipment or procedures to silently 

alert others of the need for assistance. 

Employees discussed various issues with the radios. First, there were not enough to permit 

every staff member to carry one while working on the units. (Tr. 60-61, 231; Ex. C-78 at 3.) 

Second, the radios had reliability issues. (Tr. 60.) Problems included static, faulty batteries, and 

radio airwaves shared with maintenance workers. (Tr. 60, 815.) During fresh air breaks for 

patients, a single MHA is responsible for seven patients. (Tr. 56.) At such times, staff must rely 

on the radio to summon additional assistance. Id. A nurse described multiple occasions when she 

attempted to use the radio to call for a Code Green and just heard static or was not able to reach

enough employees. (Tr. 221.) Sometimes staff would have to make multiple calls for help with 

both the radios and through the one phone on the unit in order to get enough people to respond to 

the situation. (Tr. 806-7.) One nurse described a situation during the inspection period that 

continued to escalate as attempts to get assistance were repeatedly made. (Tr. 806, 1482-83.) In 

short, there was both difficulty in communicating the need for help and then a lack of people who 

could respond. (Tr. 221, 815.) 

Dr. Welch concluded that Pembroke lacked an adequate system for employees to summon 

assistance. (Tr. 1000.) In addition to the problems with the radios and the limited number of 

phones, there was also no way to silently seek assistance. Staff communications over the radios, 

verbal calls for assistance, and use of the unit phone could be audible to potential assailants. In 

contrast, panic alarms allow for discreet requests, which may help to avoid escalating a patient

further. (Tr. 1049.) The Secretary established that Pembroke’s approach was inadequate. 
43 

d) Failure to Properly Implement De-Escalation Plans

To help manage patient aggression and thereby reduce incidents of workplace violence,

Pembroke sought information from patients about activities or interventions that successfully

calmed them in the past. (Tr. 512, 1255, 1293; Exs. R-12, R-18, R-32 at 9.) This information was 

then used to develop crisis intervention plans for staff to follow in order to limit patient aggression. 

(Tr. 512-13.) Staff could augment the information from the patient based on what they observed 

during treatment. Id. 

The Secretary does not dispute that Pembroke sought information for de-escalation plans 

and communicated the findings to staff. His contention is that the facility lacked sufficient 

equipment to implement one aspect of the plans. Staff were instructed as part of their verbal deescalation training to employ the calming techniques patients identified. (Ex. R-32.) “Listening

to music” is the first option listed in the “helping or comforting strategies” section of the form used 

for the de-escalation plans and many of the plans called for its use. (Tr. 830, 1434; Ex. R-18.) Dr. 

Welch and employees reported that music was effective for de-escalating aggressive patients. (Tr. 

73-74, 666, 830-31, 962-63, 1064, 1245, 1293, 1306.) However, employees discussed situations 

where they were unable to allow patients to listen to music because there were too few devices. 

(Tr. 74, 667.) The insufficient number of music playing devices also led to conflicts among 

patients.

62 (Tr. 74-75, 809-10.) The failure to have the equipment necessary to implement the 

plans rendered the policy ineffective at abating the hazard. See Chevron, 11 BNA OSHC at 1332-

33 (finding inspection program to be an inadequate method of abatement because of how it was 

implemented). 

62 About six months before the hearing, Pembroke had implemented a new approach that improved patient access to 

music for de-escalation. (Tr. 1255-56.) The Secretary’s arguments are limited to the conditions observed at the time 

of the inspection.
44 

e) Pembroke’s Abatement was Inadequate 

Pembroke’s approach to staffing, summoning assistance, and implementing de-escalation 

plans was inadequate. While Pembroke’s training program was not shown to be deficient, staff 

training alone is insufficient to abate the hazard.

63 Dr. Welch, supported by research, concluded 

that to address the hazard, workplace violence programs must include adequate staffing and the 

use of engineering controls such as maintaining systems to quickly summon assistance. (Tr. 986, 

1000.) Despite the abatement measures implemented by Pembroke, the facility continued to 

experience higher than average injuries. Pembroke failed to appropriately implement the safety 

measures it had identified to address the hazard. See SeaWorld, 748 F.3d at 1206, 1215 (finding 

existing procedures inadequate). The Secretary established that Pembroke’s program was 

inadequate. Cf. U.S. Postal, 21 BNA OSHC at 1773-74. 

The general duty clause requires employers to “take all feasible steps” to protect against 

recognized hazards and implement every abatement measure “whenever it is recognized by safety 

experts as feasible, even though it is not of general usage in the industry.” Gen. Dynamics, 599 

F.2d at 464. As discussed below, the Secretary identified currently available engineering and 

administrative controls that can be feasibly taken and will materially reduce the hazard. See Pelron 

Corp., 12 BNA OSHC 1833, 1836 (No. 82-388, 1986) (finding that the Secretary may establish 

that an employer's existing safety procedures were inadequate by demonstrating that there were 

“specific additional measures” required to abate the hazard). 

5. Feasible Means to Abate the Hazard Exist

Despite acknowledging it recognized the hazard and arguing it has taken multiple effective 

63 Dr. Welch cited a study that pointedly notes the lack of research supporting the effectiveness of training alone in 

reducing workplace violence. (Ex. C-96 at 15.) 
45 

steps to abate it, Pembroke claims the hazard is too unpredictable to be abated. (Resp’t Br. at 28-

29.) However, its own expert flatly refuted this contention. She explained “there are certainly 

methods” to reduce the risk of workplace violence. (Tr. 1508.) Dr. Welch concurred with her that 

there are feasible means to reduce incidents of workplace violence.

64 (Tr. 934-35.) Unpredictable 

events do not remove an employer’s obligation to adhere to the general duty clause and address 

recognized hazards with feasible means of abatement. SeaWorld, 748 F.3d at 1207, 1215; 

Armstrong, 8 BNA OSHC at 1074 (finding the employer’s contention that it should not be found 

in violation of the general duty clause when it could not foresee the sequence of events that led to 

injury to be without merit). 

Respondents also criticize the nature of the Secretary’s multi-prong abatement. Yet, when 

a workplace contains a recognized hazard that is likely to cause death or serious harm, the 

employer must take “all feasible steps to eliminate or materially reduce the hazard.” Armstrong, 

8 BNA OSHC at 1074, citing Gen. Dynamics, 599 F.2d at 464. Feasible abatement may take the 

form of a process rather than a single one-time action. In Pepperidge Farm, Inc., 17 BNA OSHC 

1993 (No. 89-265, 1997), the hazard could not be abated with a single action, so it was permissible 

for OSHA to require the employer to engage in a process approach to abatement to determine what 

action or combination of actions would materially reduce the hazard. 17 BNA OSHC at 2033. 

See also Pegasus Tower, 21 BNA OSHC 1190, 1191 (No. 01-0547, 2005) (finding that following 

a detailed compliance directive was a feasible means of abatement). Similarly, in Integra Health, 

64 Dr. Welch acknowledged the role of patient behavior but argued that individual patient factors should not be overemphasized at the expense of other factors, particularly environmental or administrative factors well within the 

facility’s control. (Tr. 973, 1010-11.) Peer reviewed literature supports his opinion. (Exs. C-95 at 2-3, C-96 at 16.)
46 

several actions were found to be feasible methods for reducing workplace violence hazard.65 27 

BNA OSHC at 1849-51. The Secretary does not have to prescribe an action or series of actions 

that address all situations where the hazard arises. Abatement may still be feasible even if it cannot 

be used in all situations. See Wheeling-Pittsburgh Steel Corp., 10 BNA OSHC 1242, 1245 (No. 

76-4807, 1981) (consolidated). 

While not a process per se, the Secretary has set forth multiple abatement methods here.66 

He argues that each method is feasible and will materially reduce the hazard. (Sec’y Br. at n.7.) 

The Secretary argues that all these actions should be taken. Id. But, if the undersigned concludes 

that one or more of the methods are not feasible, the Secretary argues that each remaining method

is feasible and would materially reduce the hazard. Id. 

Several of the proposed abatement actions relate to maintaining appropriate staffing at the 

facility:

1. Cease efforts to interfere with the issuance of medical orders that specify

required staffing arrangements. 

2. Ensure that staffing is sufficient to allow the issuance and implementation of 

medical orders that specify staffing arrangements.

3. Maintain staffing that is adequate to safely address changes in patient acuity 

and new patient admissions. For example, do not decrease staffing levels midshift regardless of the timing of patient discharges.

4. Maintain adequate staffing to support therapeutic activity groups and recreation 

periods, thereby engaging patients in activities that reduce patient agitation and 

incidents of workplace violence. 

5. Provide security staff and/or crisis intervention specialists on all three shifts to 

65 The abatement methods proposed for the workplace violence hazard in Integra included: creating a written 

workplace violence prevention program, creating a system for reporting and tracking safety concerns, providing 

employees with a reliable way to summon assistance when needed, and increasing the number of staff for certain types

of assignments. 27 BNA OSHC 1849-50.

66 The Secretary divides his proposed abatement into seven paragraphs, labeled (a) through (g). (Sec’y Br. at 4.) Some 

of the paragraphs require more than one action. Id. 
47 

assist in preventing and responding to violent events.

(Sec’y Br. at 4.) Three actions focus on how and where new patients are admitted. 

1. Establish a team of nurses and mental health associates (MHAs) that focuses 

primarily on the performance of the tasks associated with the admission and 

assessment of new patients. This team should not be staffed by employees who 

are assigned to care for already-admitted patients.

2. Dedicate a physical area, apart from all other units of the hospital, to the 

admission and assessment of new patients. 

3. Do not allow new patients into other units until the tasks associated with 

admission, including clinical assessments and the provision of medical orders, 

are complete.

Id. The final abatement measures relate to the provision of equipment to summon assistance and 

implement patient crisis prevention plans:

1. Provide personal panic alarms for all employees who may work in close 

proximity to patients, including but not limited to nurses, MHAs, housekeeping 

staff, and case workers. Provide training on this equipment and ensure that the 

equipment is maintained in working order at all times.

2. Maintain equipment that is sufficient for the implementation of each patient’s 

individual crisis prevention plan. 

(Sec’y Br. at 4.) 

Pembroke does not allege that any of these steps are technologically or economically 

infeasible. Notably, Respondents argue that Pembroke already complies with some of the 

abatement methods. Nor does Pembroke allege it lacked the authority or control to implement the 

proposed abatement measures. Instead, Respondents argue that the Secretary failed to provide 

enough detail about what constituted adequate abatement and therefore it was deprived of the fair 

notice of the abatement required. (Resp’t Br. at 21.) In their view, besides showing fair notice of 

the hazard, the Secretary should also have to prove the employer knew how to materially abate the 

hazard before the citation was issued. (Resp’t Br. at 21-23.) 

Discussions of “fair notice” in Commission cases involving alleged violations of the 
48 

general duty clause typically center on the employer’s notice of an obligation to address a hazard 

in the workplace, not on whether the employer had notice about how to abate or materially reduce 

a hazard. See e.g., Otis, 21 BNA OSHC at 2206 (discussing fair notice in the context of how the 

Secretary defined the hazard); Beverly, 19 BNA OSHC at 1163 (noting that although the complaint 

may not have been precise, “at the time of the hearing” the Secretary sufficiently specified the 

alleged hazard). Having found above that the Secretary provided sufficient notice of the hazard to 

satisfy the Constitution's due process clause, it is time to assess Respondents’ demand that the Act 

requires the Secretary to show that employers had fair notice of the required abatement. 

The requirement to show feasible means of abatement relates to the Commission’s test for 

ensuring that the Act does not impose strict liability. The Commission has not articulated the 

abatement test in the manner Respondents seek. Under the Commission’s test, the abatement 

prong requires the Secretary to establish the existence of feasible means to eliminate or materially 

reduce the hazard. See e.g., Integra, 27 BNA OSHC at 1849 (addressing a violation of the general 

duty clause for a workplace violence hazard); Waldon, 16 BNA OSHC at 1062 (affirming a 

violation of the general duty clause for a viral exposure risk at a healthcare facility). Showing 

feasibility requires the Secretary to put forth abatement methods that are capable of materially 

reducing the hazard while also being technologically and economically possible. 27 BNA OSHC 

at 1849-51. The Secretary does not have to show that the abatement methods would eliminate the 

hazard. Arcadian Corp., 20 BNA OSHC 2001, 2011-13 (No. 93-0628, 2004) (finding two of the 

Secretary’s proposed methods of abatement feasible). Nor is he tasked with showing that the 

absence of the abatement method was the sole cause of harm. Id. His obligation is to show that 

the proposed abatement is capable of being put into place and effective. Acme Energy Servs., 23 

BNA OSHC 2121, 2127-29 (No. 10-0108, 2012) (finding the abatement prong met because 
49 

prescribed action would materially reduce the harm, even though it would not eliminate the 

hazard), aff’d, 542 F.App’x 356 (5th Cir. 2013) (unpublished). 

Respondents point to no precedent imposing an obligation on the Secretary to establish an 

employer’s knowledge of the proposed abatement methods prior to a citation being issued. In 

Chevron Oil, the Commission concluded that the Secretary had to show that feasible means to 

eliminate the hazard exist. 11 BNA OSHC at 1330. It was not the Secretary’s burden to show that 

the employer or its industry recognized the necessity for proposed safety equipment. Id. at 1330-

31. Instead, the Act requires the Secretary to establish recognition of the hazard and that it can be 

materially reduced feasibly. Id. See also Kansas City, 10 BNA OSHC at 1422 (“the recognition 

element of an employer’s duty under the general duty clause refers to knowledge of the hazard, 

not recognition of the means of abatement); Integra, 27 BNA OSHC at 1849, 1851. 

In the present matter, the employer had notice of effective methods of abatement before 

the Secretary issued the citation. The methodologies proposed here, while tailored for the issues 

identified at Pembroke Hospital during the inspection, align with the OSHA Road Map and 

Workplace Violence Guidelines. (Exs. C-97, C-102.) The Road Map specifically discusses 

administrative controls to address the hazard, including, assessing patients for violence during 

admission, ensuring adequate staffing on all units and shifts, and having policies and procedures 

that minimize stress for patients. (Ex. C-102 at 18-19.) It also discusses engineering controls such 

as panic buttons. Id.

Besides these publications, a letter sent to Pembroke prior to commencement of the 

investigation that lead to the instant Citation outlines similar approaches to abatement as those the 

Secretary now seeks. (Ex. R-37.) The letter explains that MHAs are exposed to workplace 

violence hazards at Pembroke Hospital. Id. But, as noted above, the letter states that OSHA 
50 

elected not to cite the hazard.67 Still, the letter encourages Pembroke to act and advises that 

feasible and acceptable means to reduce the hazards of workplace violence at Pembroke Hospital 

include: (1) modifying admissions process, (2) improving responses to crises, (3) making 

adjustments to staffing, and (4) providing staff with personal panic alarms: 

Carefully review admissions to ensure your staff are equipped to handle acute 

patients who have a history of violent behavior. If an admitted patient has a known 

history of violent behavior from previous institutions, increase staffing levels for 

the unit and inform all workers of the potential of violent behavior. 

Conduct a workplace analysis ... to find existing or potential hazards for assaults 

and workplace violence. This process should involve record analysis, tracking of 

injuries, and monitoring trends based on location, shift changes, and staffing levels. 

Workplace analysis should include review of personnel ability to respond to unit 

crisis on all shifts. Review the staffing on all shifts to ensure that it reflects the 

daily acuity of the patient as well [as] patient census and to ensure workers are able 

to work without putting themselves at risk for a violent assault. 

Change the present grid to increase staffing levels on the acute units and other units 

where attacks are occurring. Ensure that extra staff is in place when a patient’s 

condition requires a one to one watch and when there has been a history of attacks 

in a unit. An increase in staff levels has the potential to decrease injuries in the 

workplace. ... . 

... A silent button that is carried by staff would provide an additional and immediate 

way to alert staff, in the event of an escalating situation with a patient and may 

reduce response times. Ensure that if purchased, all employees are trained and that 

the panic buttons are maintained and tested according to manufacturer instructions. 

... 

Id. The letter goes on to point Pembroke to the OSHA Workplace Violence Guidelines and 

indicates the facility can request a free on-site consultation to identify other feasible measures of 

abatement. Id. The letter does not provide an obligation independent of the Act to take the specific 

steps identified therein. Id. Pembroke was free to adopt different feasible abatement measures to 

67 In the year prior to this letter, Pembroke had thirteen injuries related to aggressive behavior. (Ex. R-37.) After its 

issuance, the number of injuries at Pembroke increased. (Tr. 292, 926; Exs. C-60, C-68, C-69.) 
51 

address recognized hazards in its workplace. See Pepperidge Farm, 17 BNA OSHC at 2032

(employers are free to develop solutions different than what the Secretary proposes to render their 

workplace “free” of recognized hazards); Brown & Root, Inc., Power Plant Div., 8 BNA OSHC 

2140, 2144 (No. 76-1296, 1980); Chevron, 11 BNA OSHC at 1334, n.16 (emphasizing that the 

employer could institute “other equally effective methods as long as its alternative methods

achieve at least as great a reduction of the hazard”).

Although the letter did not obligate Pembroke to approach the hazard the way the Secretary 

suggests, it also did not provide immunity from complying with the Act. When employers know 

existing safety standards do not adequately address hazards, they must take all feasible steps 

necessary to protect employees. Int’l Union, United Auto., Aerospace & Agric. Implement 

Workers of Am., et al. v. Brock, 815 F.2d 1570, 1577 (D.C. Cir. 1987). “The question is whether 

a precaution is recognized by safety experts as feasible, and not whether the precaution's use has 

become customary.” Beverly, 19 BNA OSHC at 1191. 

Pembroke did not adopt the suggested measures outlined in the letter. The number of

employee injuries from the hazard increased from 2015 to 2017. (Exs. C-68, C-69.) Dr. Welch 

identified thirty-two employee accident reports attributable to patient on staff violence in the 

Pembroke records he reviewed. (Tr. 926.) The Secretary showed that Pembroke’s alternative 

approach to abating the hazard was inadequate. So, rather than a lack of fair notice, this case 

represents a situation of notice of both the presence of a hazard (something Respondents do not 

dispute) as well as notice of feasible abatement measures. 

The OSHA publications and letter to Pembroke alone do not satisfy the Secretary’s burden 

on the abatement prong. The Secretary must show that his proposed abatement will materially 

reduce the hazard. To meet that obligation, the Secretary largely relies on the expert testimony of 
52 

Dr. Welch. Before offering his opinion, Dr. Welch conducted an extensive review of Pembroke 

documents and relevant peer reviewed literature. (Tr. 919-23, 1143-44.) He also surveyed how 

other similar facilities abated the hazard. Id. Based on his experience and research, he concluded 

that each abatement measure outlined in the amended citation was a feasible means by which an 

employer could materially reduce the hazard of workplace violence. (Tr. 923-24.) See Arcadian, 

20 BNA OSHC at 2011 (“Feasible means of abatement are established if conscientious experts, 

familiar with the industry would prescribe those means and methods to eliminate or materially 

reduce the recognized hazard”). 

Respondents also offered expert testimony on the issue of abatement from Ms. Cooke. Her

testimony was largely based on her experience rather than peer reviewed studies or time spent 

reviewing Pembroke Hospital. (Tr. 1458.) Throughout much of her testimony, Ms. Cooke failed 

to identify the source material for her expressed beliefs. (Tr. 1458-59.) When asked, Ms. Cooke 

did not identify any specific literature she reviewed before evaluating this matter. She said that 

she “might’ve (sic)” re-looked at the Workplace Violence Guidelines or the Joint Commission’s 

Sentinel Event Alert on Preventing Violence in the Health Care Setting (“Sentinel Alert”). (Tr. 

1458; Exs. C-97, C-98.) However, these publications were not identified as documents she 

reviewed in her opinion letter. (Tr. 1459.) Similarly, Ms. Cooke indicated that she “attempted” 

to look up “some of the research” relied on by Dr. Welch, but does not indicate which studies, if

any, she reviewed either before issuing her opinion letter or before testifying at the hearing. (Tr. 

1458.) Ms. Cooke was not sure how much time she spent on her review but “would venture to 

guess” it was 25-30 hours.68 (Tr. 1461.) 

68 “About six hours” of her time was spent at Pembroke Hospital itself. (Tr. 1474.) 
53 

Ms. Cooke was offered for only limited purposes. (Tr. 1463.) She offered no opinion on 

whether Pembroke could have materially reduced the hazard of workplace violence. (Tr. 1461.) 

She was accepted as an expert who evaluated “the suggested feasible abatement methods offered 

by the Secretary in this case.” Id. In contrast, Dr. Welch was asked to assess, among other things: 

(1) the risk of workplace violence at Pembroke, (2) the recognition of the risk of workplace 

violence; (3) what measures would create a material reduction in that risk; and (4) were those 

methods identified feasible for Pembroke to implement. (Tr. 902.) While satisfying the minimum 

requirements for admissibility, Ms. Cooke’s testimony is given less weight than that of Dr. Welch. 

His opinions more fully addressed the contentions at hand and were backed by specifically 

identified peer reviewed literature. 

a) Staffing

As discussed in the evaluation of the existing methods of abatement in place, staffing at 

Pembroke was deficient. Dr. Welch, supported by peer reviewed studies, testified that increasing 

staffing could materially reduce the risk from the hazard and that doing so was feasible. (Tr. 903, 

937-38, 985; Exs. C-97, C-98, C-101.) Ms. Cooke agreed that examining staffing was relevant to

the cited hazard. (Tr. 1498-99.) She acknowledged that one of the ways to reduce the risk 

associated with workplace violence is to both review and have “good staffing.” (Tr. 1510.) She 

has advised hospitals that adequate staffing is important to prevent workplace violence. (Tr. 1529.) 

The Director of Nursing, Ms. Kent, also recognized the role extra staff can play in diffusing 

aggressive events. She explained that the facility experienced more crises on the evening shift and 

that adding an additional person was helpful to both prevent and address crises. (Tr. 1437.) The 

Secretary established a link between shifts with inadequate staffing and increases in the hazard. 

(Exs. C-3, C-78.) 
54 

The Secretary showed that it was feasible to increase staffing at Pembroke Hospital. Levels 

of staffing at Pembroke Hospital were objectively lower than at similar facilities in the region and 

nationally. (Tr. 104-5, 937-38.) For example, depending on the shift, Pembroke Hospital had 

approximately 15-30% fewer nurses than a similar psychiatric facility in the same state.69 (Tr.

937.) AS, who worked both at Pembroke Hospital and another similar facility with the same sized 

units, explained that there was less direct care staff at Pembroke. (Tr. 105.) The other facility had 

more nurses per shift and no less than three MHAs per unit. Id. In comparison, Pembroke’s units 

typically operated with fewer nurses and MHAs. (Tr. 105-6.) The competitor facilities in the 

region surveyed by Dr. Welch maintain higher levels of staffing and Respondents failed to counter 

his research that implementing the abatement called for by the Secretary was feasible.70 See Trinity 

Indus., 15 BNA OSHC 1481, 1485 (No. 88-2691, 1992) (finding in connection with a violation of 

a specific standard that the implementation of a safety measure at other facilities shows the action 

was feasible).

The Secretary proposes five methods to address the staffing deficiency. (Sec’y Br. at 4.) 

The proposed abatement implicitly acknowledges that there was more than one way to increase 

staffing at the facility. Respondents twist this flexibility to argue that the Secretary failed to 

establish the specific steps it must take to sufficiently reduce the hazard. In fact, the Secretary 

showed that Respondents failed to maintain a sufficient level of staffing: (1) to allow for increased 

observation of particular patients; (2) for the acuity of particular units; (3) for anticipated 

admissions; (4) to respond to crises, particularly on the evening and overnight shift; and (4) to 

69 Pembroke also had more patients per doctor than other facilities surveyed by Dr. Welch. (Tr. 938.) 

70 Respondents do not contend that the facility failed to make a profit. Respondents did not introduce any information 

regarding the facility’s finances such as budget documents. There is no evidence the facility could not afford any of 

the Secretary’s proposed abatement measures. See Capeway Roofing Sys., Inc., 20 BNA OSHC 1331, 1342-43 (No. 

00-1968, 2003) (party would have produced evidence if it had been favorable). 
55 

engage patients in therapeutic group activities. The Secretary established that bringing the facility 

into alignment with the baseline staffing at other similar facilities was feasible and would reduce 

the hazard by addressing these deficiencies. 

(1) Staffing for Medical Orders

The Secretary argues that Pembroke interfered with the issuance of medical orders for 

staffing and failed to ensure there was enough staff to implement such medical orders: 

Cease efforts to interfere with the issuance of medical orders that specify required 

staffing arrangements. Ensure that staffing is sufficient to allow the issuance and 

implementation of medical orders that specify staffing arrangements.

As noted above, when a patient is at high risk for assaultive behavior, a doctor can issue a medical 

order for direct observation by assigning an MHA to stay at all times within arm’s reach of a 

patient.71 (Tr. 378-79, 1190-91.) Pembroke considered such orders to be a “last resort” to handling 

patients and were used only temporarily. (Tr. 1191, 1300.) Orders for 1:1 observation are 

reviewed by the management team. (Tr. 1191.) The focus of these reviews is to assess whether 

the patient continues to need the higher level of observation.72 Id. 

Dr. Welch expressed his view that administrators were pressuring staff to remove patients 

from 1:1 observation. (Tr. 1037-38.) He explained that interference, by management, with the 

medical determination of whether such 1:1 observation is inappropriate and increases the risk of 

workplace violence. (Tr. 1038.) His opinion was based on employee statements as well as 

71 Sometimes 1:1 observation would be limited to only those times that the patient was awake. (Tr. 379.) Patient 

behavior is unpredictable, and patients wake at unexpected times. In such instances, there would be an immediate 

need for an employee to observe the patient directly. (Tr. 379-80.) Ms. Devane indicted that in such situations the 

supervisor would have the float take over that patient. (Tr. 380.) However, only one person worked as a float on the 

overnight shift. 

72 A smaller group also assesses the need for such observation at other times, so that orders for 1:1s are reviewed 

approximately every eight hours. (Tr. 1191.) 
56 

testimony about management’s involvement in the decisions about orders for 1:1s. (Tr. 919-24.) 

He was surprised that the medical decision to implement a 1:1 required notification of the CEO 

and opined that this practice alone could pressure employees to refrain from seeking a 1:1 even 

though safety concerns warranted such an arrangement. (Tr. 1004, 1006, 1038.) 

An MHA explained her view that 1:1 observation was not consistently put in place when 

called for on the grounds of employee safety. She testified that after a patient attacked her, the 

patient was only briefly placed on 1:1 observation for part of the shift.

73 (Tr. 799-801.) Staff also 

described pressure to have just enough staff to meet the minimum requirements. (Tr. 1044.) On 

some shifts, there were just three employees for a unit. (Tr. 380.) If one of the MHAs was assigned 

to observe a single patient, the other two employees had to handle the remaining patients and tasks. 

Id. If a second patient required a 1:1, that could not always be accommodated until the next shift. 

Id. The CEO described receiving “heat” about his decisions around the number of staff per patient 

but asserted that his determinations about staffing were not over-ridden. (Tr. 732-33.) Still, 

Pembroke’s approach of having the least number of employees working as possible made fulfilling 

staffing requests difficult, particularly during the overnight shift. (Tr. 801, 1044.) Notably, 

Pembroke was not able to consistently implement the Plan of Correction it submitted to the DMH

which called for 1:1 assignments to be handled by adding staff. (Tr. 396, 703-4; Exs. C-38, C-47.) 

Compared to other facilities, staff to patient ratios were consistently lower at Pembroke 

Hospital than at other stand-alone psychiatric hospitals. (Tr. 1046-47.) On average, Pembroke 

Hospital had less nursing staff per occupied bed as compared to national averages.74 (Tr. 1046-

73 Ms. Devane explained that 1:1 observation could be intrusive for patients. (Tr. 1191.) The Secretary does not 

dispute this. His contention is limited to situations when 1:1 observation is clinically warranted for assaultive behavior 

that creates a risk of violence directed at employees. 

74 Pembroke Hospital operated shifts with 15 to 20 percent fewer nurses than other similar psychiatric facilities in the 

same state. (Tr. 1047.) 
57 

47.) Dr. Welch opined that it would be feasible for Pembroke to maintain a higher level of baseline 

staff to bring it in line with other similar facilities. Id. Such staffing would permit 1:1s to be put 

in place more quickly rather than waiting for the next shift to begin. (Tr. 1044-47.) While Ms. 

Cooke indicated staffing was adequate, she did not dispute or counter the evidence relied on by 

Dr. Welch in reaching his conclusion that increasing the level of staff would reduce the hazard. 

As for the other part of this proposed abatement, the interference with medical orders 

concerning staffing arrangements, the record reveals that Pembroke was already abiding by this. 

Rather than interference with the issuance of orders for 1:1s, the issue was Pembroke’s ability to 

staff the assignments. The Secretary established that having a greater staff to patient ratio would 

permit the prompt, appropriate use of 1:1 observation to materially reduce the hazard. 

(2) Staffing for Acuity and New Admissions 

The Secretary argues that to materially reduce the hazard, Respondents need to maintain 

adequate staffing to address changes in patient acuity and new patient admissions: 

Maintain staffing that is adequate to safely address changes in patient acuity and 

new patient admissions. For example, do not decrease staffing levels mid-shift 

regardless of the timing of patient discharges.

(Sec’y Br. at 4.) Dr. Welch, supported by peer reviewed literature, explained the need for 

appropriate staffing, particularly to handle admissions, which are a “high risk time for acuity.” 

(Tr. 1058.) Increased admissions are associated with workplace violence incidents. (Ex. C-101.) 

Respondents agree with the need to staff for acuity and admissions. Still, as discussed,

Pembroke largely only met the minimum number of staffing hours per patient. There’s no debate 

that this minimum number was not the appropriate average ratio of staff per patient for all 

circumstances. In other words, the DMH’s view is that it is never appropriate to have less than the 

ratio of staff per patient called for by the grid. However, no one contends that the level of staffing 
58 

called for by the grid is always adequate to address the hazard of patient on staff violence. There 

is no dispute that to keep workers safe, each unit will routinely require higher staff to patient ratios

to address acuity. 

While the staffing records showed 1:1 assignments, there was little evidence of increased 

staffing to address overall acuity. Increasing the number of patients on 1:1 observation caused the 

remaining employees to be responsible for a higher number of patients. (Tr. 1045.) For example, 

on some shifts, there were just three employees for a unit. (Tr. 380.) If one of the MHAs was 

assigned to observe a single patient, the other two employees had to handle the remaining patients 

and tasks. Id. Ordering 1:1 observation helped to minimize risks associated with a single patient 

in acute distress, but it left fewer employees to monitor the rest of the patients for agitation or other 

signs of potential violence. (Tr. 871, 1010-11.) Each employee was responsible for more patients, 

making it more difficult to work on de-escalation.75 Id. 

Maintaining adequate staff for admissions was also a feasible abatement method which the 

Secretary showed would reduce the hazard. Respondents’ expert, Ms. Cooke, acknowledged that 

new patients “really need a lot of attention and a lot of care.” (Tr. 1467-68.) She described 

admissions as “very difficult” and “critical junctures.” Id. In her view, they present “an 

opportunity for danger.” (Tr. 1468.) Patients may be harmful to others during the transition into 

the facility. Id. Adequate staffing was necessary to address the potential of violence from the 

75 Dr. Welch explained that verbal de-escalation requires several people. (Tr. 966, 1010.) It requires enough staff 

who can both quickly identify who is escalating and then change tasks so there can be a quick intervention. Id. Even 

then, patients may not have sufficient connection with reality for verbal intervention to work. (Tr. 1010-11.) So, a 

program needs additional forms of abatement to be effective. (Tr. 1011.) Similarly, Mr. Quinn, the crisis intervention 

specialist, indicated that he can spend considerable amounts of time trying to talk to a patient to find reasonable 

alternatives to their violent behavior. (Tr. 1250.) However, there are six patient units and typically only one crisis 

intervention specialist on one shift for all the units. (Tr. 1250-53.) KS, an MHA, explained that often there were 

multiple agitated patients and frequently there were not enough people to de-escalate two or three agitated patients. 

(Tr. 871-72.) 
59 

arriving patient. Admissions also triggered the need for adequate staff to work with the already 

admitted patients to minimize risks and respond quickly if assaultive behavior occurred. (Tr. 947, 

963, 966, 1010, 1057-58.) 

Dr. Welch opined that there were simply not enough employees to prevent workplace 

violence incidents and minimize the consequences of such occurrences. (Tr. 963, 1031, 1047-48.) 

Pembroke argues it staffed for acuity and admissions but did not offer documentary evidence 

showing a pattern of higher staffing levels to accommodate acuity or anticipated admissions. In 

contrast to the management witnesses, direct care employees testified that Pembroke did not 

consistently staff for admissions or acuity. (Tr. 132, 839, 863, 871-72, 879.) The number of 

admissions varied greatly. On at least one shift during the inspection period 14 patients were 

admitted. (Tr. 1008.) KS recalled having seven patients admitted to one unit during a shift. (Tr. 

863.) Another MHA explained that admissions took a patient to staff ratio that was “already 

stretched too thin” to an even lower level. (Tr. 84.) 

Records reveal consistently low staffing levels, and even some occasions where the level 

of staff did not meet the DMH minimum requirements. (Exs. C-29, C-47, C-78.) The testimony 

from direct care providers about the failure to staff appropriately for admissions and acuity is 

credited over the management witnesses on this issue. Management employees could have offered 

documentary evidence to support their claims, if it was available, but chose not to do so. See 

Capeway, 20 BNA OSHC at 1342-43. Dr. Welch explained that Pembroke could feasibly maintain 

sufficient staffing to accommodate changes in patient acuity and new patient admissions. He noted 

that another similar facility maintains a much higher patient to staff ratio for newly admitted 

patients. (Tr. 1117-18.) The higher ratio allows more staff to safely respond to assaultive behavior 

as opposed to Pembroke’s approach of having a single employee in an isolated room handle 
60 

searches and other tasks with the new patients. (Tr. 947, 1031, 1118.) The Secretary showed it is 

feasible for Pembroke to maintain staffing that is adequate to safely address changes in patient 

acuity and new patient admissions. 

As for the second part of this abatement method, ending the practice of sending employees 

home mid-shift, employees explained that when the ratio of patients to staff exceeded the minimum 

requirement set out in the grid, an employee would be sent home before the end of his or her shift. 

(Tr. 109, 329, 838-39.) AS and KS both described instances where staff was sent home, and then 

a new admission would leave the unit short staffed for the remainder of the shift. (Tr. 109, 838-

39.) According to AS, the other psychiatric facility he was familiar with did not adjust staffing 

downward partway through shifts.76 (Tr. 109.) Pembroke acknowledges that this occurred and 

recognizes that the facility “may or may not” be able to add staff after the start of a shift if 

admissions increase the census to the point that additional staff is needed either by terms of the 

grid or because of acuity. (Tr. 382.) Dr. Welch viewed the practice of mid-shift reductions as 

unsafe, particularly given the low baseline level of staffing at Pembroke. (Tr. 1060-61.) The 

practice made it more likely that Pembroke would be left unable to respond appropriately to 

prevent or mitigate violent situations if admissions or the overall level of acuity changed. Id. 

Pembroke had no separate staff focused on admissions, so being understaffed when a new patient 

arrived, made it particularly difficult for staff to handle potentially violent patients who may be in 

acute distress.77 (Tr. 1059-61.) The Secretary established that ending the practice of sending 

76 The other facility was a state-run hospital. (Tr. 103.) It has fewer units, but the unit size is the same as at Pembroke 

Hospital. (Tr. 103-4.) 

77 Dr. Welch also explained that when staff was tied up with admissions tasks, other patients have “unmet needs.” 

(Tr. 1030-31.) The frustration associated with unmet needs is a well-documented pre-cursor to violent acts by patients. 

(Tr. 946-47, 962, 1033; Ex. C-101.) KS explained that this occurred at Pembroke Hospital. (Tr. 871-72.) There were 

times when the number of agitated patients exceeded the number of caregivers resulting in staff being unable to timely 

address patient agitation. Id. 
61 

employees home mid-shift was one way to increase the number of workers available to address 

changes in unit acuity and handle new admissions.78 

(3) Provide security staff and/or crisis intervention specialists

The Secretary proposes security staff “and/or” crisis intervention specialists on all three 

shifts. (Sec’y Br. at 4.) Dr. Welch, supported by peer reviewed literature, opined that the presence 

of security personnel reduces the rate of assaults. (Tr. 980; Ex. C-96.) Similarly, having 

inadequate security is a risk factor for workplace violence. (Tr. 985, 995; Ex. C-97, C-99.) 

Pembroke did not have “security” personnel. (Tr. 96.) Instead, all individuals with direct 

patient care responsibilities were trained in a de-escalation technique, called Handle with Care. 

(Tr. 1189; Exs. R-10, R-32.) Only on the evening shift did Pembroke employ a “crisis intervention 

specialist.” (Tr. 1233.) The crisis intervention specialist is not assigned to any particular unit and 

does not have direct patient care tasks. (Tr. 964, 1437.) The employee rounds through the units 

to identify problems and address them before they escalate. Id. The individual is also responsible 

for making sure doors are appropriately locked. (Tr. 964.) 

In proposing security or crisis intervention specialists for all shifts, the Secretary does not 

insist that Pembroke specifically designate employees as “security”—the proposal permits use of 

crisis intervention specialists instead. (Sec’y Br. at 4.) The abatement method calls for there to 

be employees without specific direct care tasks focused on safety who could immediately respond 

to actual or threatened incidents of violence. The Secretary argues that having such people 

available is feasible and would materially reduce the hazard. 

Dr. Welch conceded that the crisis intervention specialist on the evening shift was effective. 

78 Ending the practice of having employees leave mid-shift was not the only way to maintain sufficient staffing to 

manage increases in acuity and/or admissions. 
62 

(Tr. 1009, 1051.) However, it was only one employee on one shift. The one employee was 

responsible for six units, including making sure multiple doors were locked and secured. (Tr. 

1009.) Dr. Welch opined that there should have been enough people available on all three shifts 

to ensure safety and to prevent and minimize the hazard. (Tr. 1010, 1051-52.) He explained how 

abating the hazard required regular rounds focused on security. (Tr. 995.) And, he emphasized 

the importance of having staff dedicated to responding to immediate crises. (Tr. 1052, 1087.) 

At Pembroke Hospital, MHAs and nurses had numerous patient care tasks, such as 

dispensing medications, running groups, housekeeping, and coordinating care. (Tr. 1087.) Many 

tasks could not be instantly stopped to permit the person to respond to a call for assistance. Id. In 

addition, MHAs were responsible for routinely taking patients off units for fresh air breaks and 

meals in the cafeteria. (Tr. 55-56, 863.) When conducting such tasks, MHAs could not leave 

patients alone to respond to requests for assistance. (Tr. 863, 949.) 

Dr. Welch also explained that some staff did not feel physically capable of managing very 

large, violent patients --- particularly on their own. (Tr. 1087.) In his view, Pembroke needed 

employees physically capable of assisting with restraining large patients and who were focused on 

safety as opposed to other tasks. (Tr. 1087, 1093-94.) The single person in the role of crisis 

intervention specialist on one shift was not adequate for the degree of patient aggression and the 

number of workplace violence incidents. (Tr. 1051.) Dr. Welch opined that other behavioral 

health facilities were able to have staff dedicated primarily to safety and opined that Pembroke 

could feasibly do the same. (Tr. 1053.) 

While Ms. Cooke had concerns with maintaining a security staff, she acknowledged the 

value of having additional staff available to respond to crises and manage situations. (Tr. 1492, 

1495-96.) She noted that managing patient behavior is particularly difficult on the evening shift. 
63 

(Tr. 1496.) However, in her view, having only one person on the evening shift as a crisis 

intervention specialist was not problematic. As for the lack of someone in such a role on the night 

and day shift, Ms. Cooke cited the float position at night and the availability of other staff during 

the day. (Tr. 1478.) However, the float could be assigned patient care tasks, including a 1:1 

assignment that would prevent him/her from being available to respond to a crisis. (Tr. 374-75, 

379, 1437, 1478.) 

Importantly, Ms. Cooke did not dispute Dr. Welch’s opinion that having staff focused on 

security was feasible. She did not specifically review the studies relied on by Dr. Welch in 

reaching his conclusions. (Tr. 1518.) Also, she admitted awareness of other facilities that had 

building security. (Tr. 1493-94.) In particular, she acknowledged being familiar with facilities 

that have security respond to a code, such as to “be manpower” and “help restrain” patients or deescalate situations.79 (Tr. 1492-93.) Ms. Cooke did not address the two concerns with Pembroke’s 

approach cited by Dr. Welch: (1) the lack of anyone assigned only to safety on the day and night 

shifts; and (2) the lack of physical capabilities of some of the individuals tasked with controlling 

violent patients. Additionally, her testimony failed to rebut the Secretary’s evidence of feasibility

and effectiveness. Altogether, Ms. Cooke’s testimony did not rebut the Secretary’s evidence that 

having security staff “and/or” crisis intervention specialists on all three shifts was feasible and 

would materially reduce the hazard.

(4) Staffing for Therapeutic Activity Groups and Recreation Periods 

The Secretary proposes that Pembroke maintain sufficient staffing for “therapeutic activity 

79 Pembroke’s Code Green policy directed employees to contact 911 for “psychiatric emergencies or as deemed 

appropriate.” (Ex. R-9 at 3-4.) Ms. Cooke argued that uniformed personnel could increase a patient’s agitation but 

did not discuss Pembroke’s policy of contacting outside emergency responders for psychiatric emergencies. (Tr. 

1495.) 
64 

groups and recreation periods.” (Sec’y Br. at 4.) Dr. Welch, supported by peer reviewed literature, 

explained that canceling therapeutic activities can increase the level of acuity for the unit. (Tr. 

969-70; Ex. C-101.) Boredom and insufficient activities are also precipitants for violence. (Tr. 

967-68, Ex. C-101.) Structured organized activities, along with the reliability and predictability 

of their occurrence promotes positive engagement and reduces acuity. (Tr. 820-21, 949-50, 1062.) 

Conversely, unmet needs can trigger violence. (Tr. 946-47, 949-50, 960, 1030; Ex. C-101 at 9.) 

If an MHA can engage some patients in an activity, this frees staff to better intervene with sicker 

patients. (Tr. 970.) Dr. Welch, informed by the employee statements, noted that the lack of 

activities was particularly detrimental for the adolescent units. Id. Teenagers “tend to be very 

stimulus prone” and failing to engage them consistently can lead to adverse consequences such as 

agitation. (Tr. 965, 970-71.) Engaging patients in therapeutic group activities and recreation 

reduces patient agitation and incidents of workplace violence, making it an effective method to 

materially reduce the hazard.

80 (Tr. 967-68, Ex. C-101.) 

As discussed, therapeutic groups were routinely canceled due to inadequate staffing. (Tr. 

819-20.) Dr. Welch explained that increased staffing would allow therapeutic group activities to 

occur consistently as scheduled. (Tr. 1062-63.) He noted that another similar facility has a 

dedicated staff for conducting therapeutic group activities. (Tr. 1063.) Because the employees 

running the groups have no direct care responsibilities, the need to handle admissions or 

emergencies did not result in therapeutic activities being canceled. Id. Ms. Cooke recognized that 

group activities were regularly canceled but alleged that the number of cancellations was not “an 

80 The proposed abatement calls for both group activities and recreation periods. (Sec’y Br. at 4.) MHAs took patients 

off the units for fresh air breaks. (Tr. 55-56.) The Secretary failed to show that the few times during the inspection 

period when these breaks did not occur materially contributed to the hazard. Pembroke appeared to have sufficiently 

implemented the need for fresh air breaks. 
65 

overabundance.” (Tr. 1503.) She did not refute Dr. Welch’s view that therapeutic groups 

materially reduce the hazard. Nor did she address whether Pembroke could maintain a higher staff 

to patient ratio to ensure groups more consistently occurred as scheduled. The Secretary 

established that it was feasible to maintain a higher level of staffing which would reduce the 

frequency with which groups were canceled. The Secretary also established that maintaining 

therapeutic group activities would materially reduce the hazard. 

b) Change how admissions occur

The next proposed abatement method is to have an admissions area separate from the ongoing care units for admissions and requiring that new patients remain in the separate area until all 

clinical assessments are complete. Specifically, the Secretary proposes that Pembroke: 

1. Establish a team of nurses and mental health associates (MHAs) that focuses 

primarily on the performance of the tasks associated with the admission and 

assessment of new patients. This team should not be staffed by employees 

who are assigned to care for already-admitted patients.

2. Dedicate a physical area, apart from all other units of the hospital, to the 

admission and assessment of new patients. 

3. Do not allow new patients into other units until the tasks associated with 

admission, including clinical assessments and the provision of medical 

orders, are complete.

(Sec’y Br. at 4.) The first method calls for an admissions team focused solely on the tasks 

associated with admitting new patients. The Secretary showed there was an overall need for 

additional staff at the facility to reduce the cited hazard. (Tr. 1058.) Carefully screening newly 

admitted patients was critical to addressing the hazard. The initial assessments looked at the 

patients’ history of violent behavior and sought information on how patients could be de-escalated. 

(Exs. R-1, R-9.) As part of this assessment, MHAs searched patient belongings to identify 

materials that could harm staff. Id. Most of the admissions process took place in a small room 
66 

with the MHA alone with the patient even before the belongings search was completed. (Tr. 81.) 

The room had no phone to commence a Code Green and even with a radio it was difficult to call 

for help from the room. (Tr. 82.) 

The record reveals that admissions tasks are time consuming and that there is an increased 

risk for an employee to experience violence during this time. (Tr. 1006-7, 1011-13.) The overall 

level of staffing was often too low to handle the acuity of existing patients and more than a few 

admissions. Admissions took time away from existing patients and sometimes introduced an acute 

patient into the unit population before he/she had adequate medication. (Tr. 1030-31.) 

In those instances where there was enough staff to adequately handle the admissions tasks 

and care for existing patients, the Secretary did not adequately explain how precluding employees 

who handle admissions from other care responsibilities would materially reduce the hazard. In 

other words, the Secretary showed that Pembroke failed to maintain adequate staffing levels but 

he did not show how implementing the additional abatement method of precluding admissions 

staff from having other care responsibilities would materially reduce the hazard if staffing was 

already adequate to handle admissions. Unlike other facilities, Pembroke Hospital does not accept 

“walk-ins,” i.e. patients that have not yet been assessed by someone outside of the facility. (Ex. 

R-9.) The information obtained during these pre-admissions calls is often incomplete. Still, the 

facility had some information about the patients and sometimes the patients were stabilized before 

their arrival at Pembroke.81 (Tr. 1468-69; Ex. R-9.) Dr. Welch indicated that admissions could 

81 When Ms. Cooke was discussing admissions, she was not always clear about whether she was describing the 

situation at Pembroke or her experience at other facilities. (Tr. 1469.) For example, she indicated that at “most” inpatient facilities she was aware of, or worked act, they would not accept “highly psychiatrically unstable” patients. 

(Tr. 1468.) She did not clarify whether that was true of Pembroke. (Tr. 1468-69.) Further, when describing the 

threats associated with newly admitted patients, she said that “we mitigate the risk.” (Tr. 1468.) When asked by 

counsel whether she meant “Pembroke” when she used the term “we,” Ms. Cooke explained that she meant Pembroke 

or was using the term “we” in the sense of the “behavioral health world.” (Tr. 1469.) 
67 

take as many as twenty-two hours of nursing time per day. (Tr. 1008.) On average, however, 

much less time was necessary for admissions at Pembroke. To reach twenty-two hours of nursing 

time, there would have to be fifteen admissions, and each would have to take ninety minutes. (Tr. 

1008.) While some admissions took the full ninety minutes and sometimes there were many 

admissions, the record indicates that in 2016, on average, Pembroke had approximately seven 

admissions per day. (Tr. 1436.) 

Regarding the admission and assessment of new patients in a dedicated physical area, Dr. 

Welch opined that a separate admissions unit would materially reduce the risk of workplace 

violence. (Tr. 1028-30.) In his view, the existing spaces on the units used for some of the 

admissions tasks were unsafe because they were isolated and small. (Tr. 1031.) Further, patients 

went directly from the small rooms into the common area with existing patients. (Tr. 1033.) The 

newly admitted patients find themselves in uncertain situations, may be frustrated, and could lack 

proper medication. (Tr. 1032-34.) Dr. Welch explained that Pembroke’s approach creates a 

“destabilizing situation.” (Tr. 1034.) AS and KS also asserted that a separate unit would be helpful

to abate the hazard. (Tr. 83-84, 861-65.) AS explained that while a separate unit would not change 

patient behavior it would eliminate “a big risk factor” in terms of the new patient interacting with 

existing patients. (Tr. 164.) Similarly, Ms. Wollner, the Director of Admissions, acknowledged 

that a separate admissions unit would reduce the burden on the units. (Tr. 1386-87.) 

In terms of technical feasibility, the facility had space apart from the units that could be 

used for admissions. (Tr. 93, 1034.) Other similar facilities also had dedicated admissions areas. 

(Tr. 104-5.) Dr. Welch discussed other similar facilities at which the assessment, evaluation, and 

medication of new patients occur in dedicated areas apart from where existing patients are located. 

(Tr. 936, 1027, 1031-32, 1034, 1101.) The Secretary presented evidence that it was 
68 

technologically feasible to dedicate a physical area apart from the other unitsto handle assessments 

before patients are moved into the treatment units.

However, the Secretary falls short on persuading how moving admissions from the units 

to this separate area would materially reduce the hazard if Pembroke was adequately staffed to 

handle such admissions and addressed the difficulties with summoning assistance. Again, the 

Secretary showed that Pembroke failed to consistently staff in anticipation of admissions and 

addressing this deficiency would materially reduce the hazard. Rather than being a separate 

abatement method, the proposal to have a separate admissions area appears to be one approach to 

handling the inadequate staffing and insufficient means to summon assistance. In other words, if 

Pembroke had enough employees on the units and employees could quickly summon assistance, 

then a separate admissions unit might not be necessary to further reduce the hazard. See Cerro 

Metal Prods. Div. 12 BNA OSHC 1821, 1822-23 (No. 78-5159, 1986) (noting that the abatement 

actions must be “necessary and valuable”).

As for Pembroke’s practice of allowing new patients into the units before all assessments 

and the provision of medical orders are complete, the evidence reveals that this increased acuity

and created workplace violence risks. The evidence of record also reveals that increasing staff to 

appropriately address acuity and 1:1 assignments would materially reduce the risk. The Secretary 

established that waiting to integrate new patients into the units was one way to handle the acuity 

new admissions bring. However, if the facility had adequate staff and means to summon assistance 

it is not clear that segregating the patients would further reduce the hazard. See Cerro, 12 BNA 

OSHC at 1822-23. 

The Secretary proved that establishing a team of nurses and MHAs focused primarily on 

the performance of the tasks associated with the admission and assessment of new patients, was 
69 

feasible and would materially reduce the hazard. He failed to show that if the other identified 

abatement was in place, (1) that the employees on this team could not have any other 

responsibilities; (2) that admissions had to occur in an area apart from all other units of Pembroke 

Hospital, or (3) that patients had to remain segregated until all of the tasks associated with 

admission were complete. 

c) Equipment 

Finally, the Secretary calls for two types of equipment: personal panic alarms and 

equipment to implement patient crisis prevention plans. (Sec’y Br. at 4.) 

(1) Personal Panic Alarms

The Secretary proposes that Pembroke provide “personal panic alarms for all employees 

who may work in close proximity to patients, including but not limited to nurses, MHAs, 

housekeeping staff, and case workers.” Id. Pembroke’s approach to summoning help in the event 

of a workplace violence incident was ineffective. JS, a nurse, discussed her experience with 

personal panic alarms at two other behavioral health hospitals. (Tr. 241.) She found them to be 

an effective way to seek immediate assistance. (Tr. 241-42.) Dr. Welch explained that personal 

panic alarms are more effective at summoning assistance than Pembroke’s current approach, and 

that providing them would reduce the likelihood of staff members becoming victims of workplace 

violence. (Tr. 937, 974-75.) Unlike radios and the overhead paging system, panic alarms allow 

for discreet requests during emergencies. (Tr. 1049.) Dr. Welch relied on studies which found 

that access to panic alarms correlated with significantly lower rates of assault against staff in a 

healthcare setting. (Tr. 972-74, 995, Ex. C-95 at 3-10, C-96.) Workers without access to such 

equipment were victims of workplace violence more often. (Ex. C-95 at 10.) Regarding 

feasibility, other similar facilities provide personal panic alarms and literature discusses their 
70 

successful use in healthcare settings.82 (Tr. 974, 1049; Ex. C-95.) 

Ms. Cooke argued that there was no evidence to support the efficacy of panic alarms in 

reducing risk. (Tr. 1481.) It is unclear if she reviewed the studies Dr. Welch cited in reaching his 

conclusion that panic alarms are effective at materially reducing the hazard. (Tr. 1458.) She only 

indicated that she “might’ve (sic)” re-looked at the Sentinel Alert. Id. The Sentinel Alert describes 

physical and verbal violence against health care workers. (Ex. C-99 at 1-2.) It cites, among other 

things, lack of access to emergency communication such as a “call bell” as a contributing factor to 

violence against healthcare workers.83 (Ex. C-99 at 3, 6.) Ms. Cooke acknowledged there were 

times when panic alarms may be easier, but said they were not “standard.” (Tr. 1485-86, 1521.) 

The general duty clause requires employers to “take all feasible steps” to protect against 

recognized hazards. Gen. Dynamics, 599 F.2d at 464. Employers must implement abatement 

measures safety experts agree are feasible even if they are “not of general usage in the industry.” 

599 F.2d at 464. See also Beverly, 19 BNA OSHC at 1191 (finding abatement measures may be 

required even if the practice is not yet customary in the industry). Ms. Cooke did not testify that

panic alarms were technologically or economically infeasible and agreed they may be an easier

way to obtain assistance with a violent patient. (Tr. 1483.) No witness testified they were too 

expensive or would not work at Pembroke for technological reasons. Ms. Cooke’s testimony does

not refute the evidence establishing that personal panic alarms would materially reduce the hazard

and constitute a feasible means of abatement. 

82 One peer reviewed study Dr. Welch relied on, Simha F. Landau, Personnel Exposure to Violence in Hospital 

Emergency Wards: A Routine Activity Approach, 34 Aggressive Behavior 88, 91 (2008), described access to an 

“emergency button” as a “widely used” and “important physical protective device.” (Ex. C-95.) 

83 The Sentinel Alert was issued after the inspection occurred and was not considered as evidence of Respondents’ 

knowledge of the hazard. (Ex. C-99.) However, it was reviewed by Dr. Welch and possibly by Ms. Cooke to assess 

the feasibility of the proposed abatement. 
71 

The Secretary’s burden is to establish that the abatement in place, a limited number of 

unreliable radios, was ineffective and that this issue could be addressed feasibly. Integra, 27 BNA 

OSHC at 1849; Armstrong, 8 BNA OSHC at 1073-74 (upholding a violation of the general duty 

clause when the employer failed to maintain an abatement measure it implemented). Dr. Welch’s 

opinion that personal panic alarms are feasible and effective at reducing the likelihood a worker 

would be injured by the hazard was well supported by the testimony of other witnesses and 

numerous studies. (Tr. 241, 309-10; Exs. C-95, C-96, C-99.) The Secretary established that 

personal panic alarms are a feasible and effective means to abate the hazard by making it easier 

for additional people to respond to violent incidents or threats of violence. 

(2) Equipment for Crisis Intervention Plans 

The final abatement method proposed calls for Pembroke to “maintain equipment that is 

sufficient for the implementation of each patient’s crisis prevention plan.” (Sec’y Br. at 4.) 

Pembroke asks patients to complete forms about what helps to calm them down and what helps 

them to cope with situations. (Tr. 512, 1423, 1432, 1439; Ex. R-18.) Some patients decline to 

complete it. (Tr. 512, 1432.) However, staff can add information to the plans even if a patient 

does not provide any. (Tr. 512-13, 1249, 1431-32.) The plans assist staff with knowing how to 

deescalate a patient who becomes aggressive. (Tr. 512-13, 1432.) Most of the plans call for the 

use of music to de-escalate patients. (Tr. 73, 830, 1434.) 

Dr. Welch opined that having music playing equipment would significantly reduce the risk 

of workplace violence and indicated that the equipment necessary for patients to have access to 

music could be affordably obtained. (Tr. 1064.) He explained that patients most often cite music 

as a calming technique, and he had seen it work effectively. (Tr. 962.) Dr. Welch asserted that 

providing access to calming modalities would decrease the hazard. (Tr. 1064-65.) In his 
72 

experience, the headsets for playing music could be affordably maintained to allow them to be 

given out by request, rather than having waiting lists as was the case at Pembroke during the 

inspection period. (Tr. 963.) Employees agreed that providing music worked effectively at 

Pembroke to soothe and calm aggressive patients. (Tr. 73-74, 666, 831.) A nurse considered it a 

great help in handling patients who were distressed or agitated. (Tr. 666.) Ms. Cooke did not 

dispute the evidence regarding the usefulness of crisis prevention plans or providing music when 

patients indicate it has helped calm them in the past. Rather, her testimony revealed that she was 

unaware of any studies that proposed a specific number of devices based on the patient count. (Tr. 

1505-6.) The Secretary established that being able to implement patient crisis prevention plans by 

providing music to calm distressed patients would materially reduce the hazard. 

As for technical feasibility of implementing the abatement, by the time of the hearing, 

Pembroke had improved the ability of caregivers to routinely provide music consistent with deescalation plans. Fed. R. Evid. 407 (evidence of subsequent remedial measures may be admitted 

to show “the feasibility of precautionary measures”); SeaWorld, 748 F.3d at 1215. Accordingly, 

there is no dispute that providing music as part of implementing patient crisis prevention plans 

was technologically and economically feasible.84 

IV. Relationship of UHS DE and Pembroke 

The Secretary contends that despite being separate corporate entities, UHS DE and 

Pembroke should be treated as a single employer of the workers exposed to the hazard. Related 

employers are treated as a single entity when “they share a common worksite, have interrelated 

84 To the extent that the proposed abatement could be interpreted as requiring other types of equipment, the Secretary 

failed to sufficiently identify such equipment or establish how it would materially abate the hazard.
73 

and integrated operations, and share a common president, management, supervision, or

ownership.”85 Loretto-Oswego Residential Health Care Facility, 23 BNA OSHC 1356, 1359 (No. 

02-1174, 2011) aff’d, 692 F.3d 65 (2d Cir. 2012); C.T. Taylor Co., 20 BNA OSHC 1083, 1086 

(No. 94-3241, 2003) (consolidated); Trinity Indus., Inc., 9 BNA OSHC 1515, 1518 (No. 77-3909, 

1981). The Secretary fails to satisfy these criteria.

Pembroke and UHS DE have different worksites: UHS DE operates out of Pennsylvania, 

while Pembroke operates in Massachusetts. (Tr. 724.) As the First Circuit explained in A.C. 

Castle, the common worksite element requires consideration of the location of where the 

employees work and are exposed to the hazard. 882 F.3d at 42. The Secretary does not allege that 

any UHS DE employees were exposed to the cited hazard. Nor does he allege that employees 

were exposed to the hazard of workplace violence at locations other than Pembroke Hospital. The 

record is clear that UHS DE and Pembroke have different business addresses and there is no 

allegation of workplace hazards at both locations. 

With regard to operations, Gary Gilberti, the Senior Vice President in the Behavioral 

Health Division for UHS DE, testified that UHS DE and Pembroke were related, but distinct 

businesses. (Tr. 724.) Pembroke provides direct patient care, while UHS DE is a management 

and consulting business. Id. Pembroke primarily develops and sets its own budgets.86 (Tr. 643-

44, 1326.) See Loretto-Oswego, 23 BNA OSHC at 1359 (finding healthcare facility and 

management company were not a single employer). There is no evidence that Pembroke lacked 

sufficient capital or other resources to address worker health and safety. 

85 The parties agree that this is the appropriate test to assess whether two legal entities functioned as a single employer. 

(Am. Pre-Hr’g Stmt. at 16; Resp’t Br. at 6.) 

86 Respondents assert that Pembroke set its own budget. (Resp’t Br. at 42.) However, Ms. Gilmore, a UHS DE 

employee testified that she handled the workers’ compensation budget for Pembroke Hospital. (Tr. 550; Stip. 10.) 
74 

As for personnel, Pembroke Hospital’s CEO (Dr. Hickey) was employed by UHS DE. (Tr. 

695; Stips. 10-11.) Other UHS DE employees routinely visited the Pembroke Hospital but did not 

provide daily oversight of Pembroke Hospital. (Tr. 533-34.) UHS DE had its own management 

structure with a separate CEO, chief financial officer, and management group. (Tr. 741.) Dr. 

Hickey had no managerial duties for UHS DE. (Tr. 741.) Cf. C.T. Taylor, 20 BNA OSHC at 1085

(finding two entities to be a single employer when both companies were owned and controlled by 

the same person and operated from the same office). The Secretary failed to establish that UHS

DE and Pembroke operate as a single entity. Accordingly, the finding of a violation and 

assessment of a penalty are against UHS of Westwood Pembroke only. The Secretary’s allegation 

against UHS DE is DISMISSED.

V. Repeat Characterization

Respondents argue that if UHS DE and Pembroke are not a single employer, then the 

citation cannot be characterized as repeat. (Resp’t Br. at 42.) This misconstrues the record 

evidence of Respondents’ own corporate structure. The Secretary does not rely on a citation issued 

to UHS DE to support the repeat characterization. Instead, he relies on one issued to Pembroke

itself. (Exs. C-14 thru C-17.) 

A violation is repeated if the same employer was previously cited for a substantially similar 

violation. Potlach Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979); Lake Erie Constr. Co., 

21 BNA OSHC 1285, 1289 (No. 02-0520, 2005) (similarity of hazards is a “principle factor” in 

assessing the appropriateness of a repeat characterization). A violation of the general duty clause 

may be “found to be repeated on the basis of either a prior section 5(a)(1) or section 5(a)(2) 

violation.” 7 BNA OSHC at 1064. When relying on previous general duty citation, the Secretary 

must show substantial similarity based on the circumstances surrounding the hazard. GEM Indus., 
75 

Inc., 17 BNA OSHC 1861, 1865-66 (No. 93-1122, 1996) (declining to rely on a previous 5(a)(1) 

citation to support characterizing a subsequent violation of a specific standard as repeat) aff’d, 149 

F.3d 1183 (6th Cir. 1998). 

The Secretary argues that the hazard cited in 2016 at Pembroke’s Lowell Treatment Center 

and the one cited in 2017 at Pembroke Hospital are substantially similar. (Sec’y Br. at 74.) But, 

the Secretary failed to offer enough information about the circumstances surrounding the cited 

hazard at Lowell Treatment Center. The limited information in the record reveals only that the 

cited workplaces had significant differences related to the hazard. For example, while the 

Secretary proposed some similar abatement measures, others were notably different. (Ex. G-14.) 

The undersigned finds that while the hazards appear to share some commonality the record does 

not establish that the two violations are sufficiently similar to support a repeat characterization. 

GEM, 17 BNA OSHC at 1866 (declining to conclude that two violations were substantially similar 

even though both involved fall hazards). 

The Secretary has met his burden to establish, by a preponderance of the evidence, that 

UHS of Westwood Pembroke violated 29 U.S.C. § 654(a)(1) of the Act and such violation was 

“serious” rather than “repeat”.

VI. Penalty 

“Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that when assessing penalties, the 

Commission must give due consideration to four criteria: the size of the employer's business, the 

gravity of the violation, the employer’s good faith, and any prior history of violations.” Hern Iron 

Works, Inc., 16 BNA OSHC 1619, 1624 (No. 88-1962, 1994). When determining gravity, the 

Commission considers the number of exposed employees, the duration of their exposure, whether 

precautions could have been taken against injury, and the likelihood of injury. Capform, Inc., 19 
76 

BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d, 34 F.App’x 85 (5th Cir. 2000 

(unpublished). Gravity is typically the most important factor for determining the penalty. Id. 

When initially issued, the Citation included a proposed penalty of $12,675. In the 

Amended Complaint, the Secretary increased the proposed penalty to $25,350. This amount could 

only be imposed if the violation was characterized as repeat rather than serious. Under the Act, as 

amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, 

Public Law 114-74, sec. 701, the maximum penalty for a violation cited in 2017 and characterized 

as “serious” was $12,675.00. 

Having considered the four factors, the undersigned finds that a penalty of $12,675 is 

appropriate. The hazard caused serious injury and was capable of causing death. Many employees 

were exposed to the hazard, with several suffering serious injuries. (Ex. C-60.) There is no 

evidence that Pembroke is a small employer. While it took some steps to mitigate the hazard, it 

failed to implement feasible abatement measures even after they were identified. In terms of 

history, it was previously cited for a violation related to workplace violence. (Ex. G-14.) Although 

the prior citation is not enough to support a repeat characterization, it is relevant to the evaluation

of Pembroke’s history. 

As to good faith, as noted above, employees felt pressure to be less than forthcoming with 

investigators. (Ex. C-1; Tr. 883-84, 886-89.) Also, it is worth noting that MHAs were provided 

with a “cheat sheet” on how to communicate with regulators and then told to destroy it after 

reviewing it. (Tr. 125-26.) However, there is no evidence of actual obstruction. The MHA AS 

explained that they were to be direct and honest with surveyors, including OSHA. (Tr. 181-82.) 

Further, Respondents had a safety program and, as noted, had taken steps to minimize the hazard. 
77 

On this record, neither an increase nor a decrease for good faith is warranted.87 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The foregoing constitutes the findings of fact and conclusions of law in accordance with 

Rule 52(a) of the Federal Rules of Civil Procedure. 

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that: 

Citation 1, Item 1 for a violation of section 5(a)(1) of the Act is AFFIRMED as 

SERIOUS, and a penalty of $12,675 is ASSESSED against UHS of Westwood 

Pembroke. 

SO ORDERED.

 __/s/_________ 

 Keith E. Bell

Administrative Law Judge, OSHRC 

Dated: February 19, 2020 

 Washington, D.C. 

87 Respondents limit their argument on the penalty amount to asserting that if the violation is affirmed it should not be 

characterized as repeat. (Resp’t Br. at 43.)