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No. 13-1124 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

UNITED STATES DEPARTMENT OF LABOR, 

Complainant, 

v. 

INTEGRA HEALTH MANAGEMENT, INC. 

Respondent. 

REPLY BRIEF OF INTEGRA HEAL TH MANAGEMENT, INC. 

January 22, 2016 

RECEIVED OSHRC 

JAN 2 7 2016 

OFFICE OF 

EXECUTIVE SECRETARY 

Kevin C. McCormick 

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

7 Saint Paul Street, Suite 1800 

Baltimore, Maryland 21202 

(410) 347-8700 

kmccormick@wtplaw.com 

Counsel for Respondent 
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TABLE OF CONTENTS 

ARGUMENT ......................................................................................................................... I 

I. The ALJ erred in classifying criminal acts of violence by third parties 

as a recognized hazard to employees oflntegra under the general 

duty clause ................................................................................................................. I 

A. The general duty clause cannot validly be applied to the hazard 

of physical assault identified in Citation One, Item One ............................... 1 

B. No workable standards exist for application of the general duty 

clause in the context of workplace violence, and no meaningful 

guidelines are set forth in either the ALJ's Decision or the 

Secretary's Brief ............................................................................................ 5 

II. The evidence in the record as to the efficacy of the proposed abatement 

measures fails under the standard cited as applicable by the Secretary ..................... 7 

111. Application of the general duty clause on the facts of the instant case 

would be unconstitutional. ......................................................................................... 9 

IV. The facts of this case do not support classification of Citation One, 

Ite1n One as a serious violation ................................................................................ 10 

V. The ALJ's consideration of, and reliance upon, evidence not contained 

in the record requires that a new hearing be granted ............................................... 12 

CONCLUSION .................................................................................................................... 14 

CERTIFICATE OF SERVICE ............................................................................................ 15 
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TABLE OF AUTHORITIES 

Statutes 

29 U.S.C. § 654 ............................................................................................................. passim 

29 U.S.C. § 666(k) ............................................................................................................... 10 

Judicial Decisions 

Champlin Petroleum Co. v. OSHRC, 593 F.2d 637, 640 (5th Cir. 1979) .............................. 8 

Cohen v. California, 403 U.S. 15, 24 ( 1971) ........................................................................ .4 

Donovan v. Royal Logging Co., 645 F.2d 822, 831 (9th Cir. 1981) ...................................... 9 

Georgia Electric Co. v. Marshall, 595 F.2d 309 (5th Cir. 1979) .................................. 10, 11 

Sea World of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2013) ............................... 3, 4 

Commission Decisions 

Greene Construction Co. & Massman Construction Co., 

4 BNA OSHC 1808 (No. 5356, 1976) ................................................................................... 6 

Petron Corporation, 12 BNA OSHC 1833, 1835 (No. 82-388, 1986) ............................. .4, 7 

ALJ Decisions 

Megawest Financial Inc., 17 BNA OSHC 1337, 

1995 OSAHRC LEXIS 80 (No. 93-2879, 1995) ........................................................... 1, 2, 3 

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Respondent Integra Health Management, Inc., by undersigned counsel, hereby 

submits its Reply Brief in connection with the Commission's review of the citation issued 

in this case alleging a violation of the general duty clause of the Occupational Safety tmd 

Health Act of 1970 (the "Act"). 

ARGUMENT 

I. The ALJ erred in classifying criminal acts of violence by third parties as a 

recognized hazard to employees of Integra under the general duty clause. 

A. The general duty clause cannot validly be applied to the hazard 

of physical assault identified in Citation One, Item One. 

The hazard upon which the Citation at issue in this case is based is that of "being 

physically assaulted by members with a history of violent behavior." (Exhibit 1) As set 

fo11h in Integra's Brief, application of the general duty clause in this context is contrary to 

both the legislative history and enforcement history of the Act. Indeed, in the only 

previous case since the Act's passage in which an alleged violation of the general duty 

clause premised on criminal violence was considered by an AL.T, the AL.T noted that 

"nowhere in the legislative history pertaining to the Act or in the scope of the then-existing 

standards was there any implication that OSHA should police social behavior." Megawest 

Financial Inc., 17 BNA OSHC 1337, 1995 OSAHRC LEXIS 80 (No. 93-2879, 1995). 

In response to the arguments raised in Integra's Brief, the Secretary simply asserts 

that because the general duty clause contains no explicit exclusion for criminal assaults on 

employees, such assaults are inherently within the scope of the hazards encompassed by 

the clause. In so arguing, the Sec.retary ignores the fact that in the more than forty-year 
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r 

history of the Act, not a single decision by the Commission or by any court has found a 

violation of the general duty clause in the context of a criminal assault on an employee. 

Consistent with this lack of precedent, the Secretary has previously acknowledged this 

issue to be one of "first impression for the Commission." See Secretary's Unopposed 

Motion for Extension at 1. 

Notwithstanding the Secretary's admission as to the absence of precedent, the 

Secretary's Brief points to several citations involving workplace violence which were 

issued and subsequently settled as purportedly supporting his position as to the scope of 

the general duty clause. The fact tl1at citations were issued and settled does not alter the 

fact that no finding of general duty clause violation has ever been made on facts even 

remotely analogous to those of the instant case. Further, the Secretary's reliance on the 

mere issuance of c.itations that were not the subject of any substantive proceedings is 

perplexing in light of the Secretary's previous arguments in these proceedings that no 

weight should be given to the decision in Megawest by virtue of its status as an 

unpublished decision. In Megawest, as fully described in Integra's Brief, the hazard of 

assaults on employees was found not to have been a recognized hazard despite the prior 

occurrence of multiple assaults on employees by tenants residing at the apartment complex 

managed by the respondent. 

The decision in Megawest was reached notwithstanding the fact that the work 

performed by the employees in Megawest - unlike that performed by Integra's service 

coordinators - "resulted in direct confrontations between the staff and the residents." Id. at 

* 19. Indeed, the respondent's president in Megawest went so far as to acknowledge that he 

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"considered responding to tenant threats to be a normal part of the staff's job." Id. at *20. 

Notwithstanding those facts, the ALJ recognized the absence of precedent for construing 

the general duty clause as applying the context of an assault on an employee, and noted 

that "enforcement in this arena could place extraordinary burdens on an employer requiring 

it to anticipate the possibility of civic disorder." Id. at *4. As noted in Megawest, criminal 

violence is "completely different" from the hazards typically addressed by the general duty 

clause. 

The Secretary's Brief attempts to minimize the absence of any precedent to support 

the instant citation by analogizing this case to Sea World of Florida, LLC v. Perez, 748 F.3d 

1202 (D.C. Cir. 2013). In proposing this analogy, the Secretary asserts that there is "little 

substantive distinction ... between workplace violence perpetrated by animals and 

workplace violence perpetrated by third persons." Secretary's Brief at 11. 

This astounding assertion by the Secretary lays plain the fundamental error in the 

proposed inclusion of criminal assaults on employees within the scope of the general duty 

clause. Notwithstanding the Secretary's contention, there is an obvious dhiinction 

between the responsibility that an employer can reasonably be expected to bear when it 

places an employee in the position of handling a wild sea animal as part of an 

entertainment production and when its business involves employees meeting with 

members of the community. As an initial point, the whale that was deemed to be a 

recognized hazard in Sea World was maintained by the employer at its facility. The 

employer had full control over the design of the facility and the conditions under which its 

employees would interact with the whales. That situation differs markedly from that of the 

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face to face interactions that take place between Integra's employees and its Members at 

various locations in the community. 

More importantly, the analogy drawn by the Secretary, as well as the broader 

rationale for applying the general duty clause on these facts, rests on simply ignoring the 

unique considerations inherent to human interaction. The Secretary's analysis casts the 

fellow citizens to whom Integra' s employees provide services as potential hazards, no 

different from the four-ton sea creatures housed at SeaWorld. That premise is wholly 

inconsistent with the "premise of individual dignity and choice upon which our political 

system rests." Cohen v. California, 403 U.S. 15, 24 (1971 ). Stated differently, whales are 

not part of the social compact. Society is premised upon the basic assumption that human 

beings will act in accordance with the law in their interactions with one another, with the 

state holding the police power to impose sanctions on those who violate this standard. 

Nothing in the text or history of the Act suggests that the Act should be construed as to so 

deviate from these basic principles as to impose upon individual employers via the general 

duty clause an obligation to assume that third parties will engage in criminal behavior 

against employees and to undertake the responsibility of preventing criminal attacks that 

has historically been allocated to the civil authorities. 

Indeed, the ALJ acknowledged in his Decision that "Integra cannot reasonably be 

expected to control the violent actions of these members." Decision at 68. 

Acknowledgement of that fact is fundamentally at odds with a conclusion that assaults by 

members constitute a hazard within the scope of the general duty clause. See Pelron 

Corporation, 12 BNA OSHC 1833, 1835 (No. 82-388, 1986) ("To respect Congress' 

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intent, hazards must be defined in a way that apprises the employer of its obligations, and 

identifies conditions or practices over which the employer can reasonably be expected to 

exercise control."). 

B. No workable standards exist for application of the general duty 

clause in the context of workplace violence, and no meaningful 

guidelines are set forth in either the ALJ's Decision or the 

Secretary's Brief. 

The arguments advanced by the Secretary also demonstrate the inherent 

unfeasibility of drawing reasonable lines in applying the general duty clause to criminal 

conduct. The ALJ's Decision identified the "rolling off' of Members as the principal 

abatement measure to be used in responding to the hazard of criminal assaults, a position 

that is echoed in the Secretary's Brief. As an initial point, it must be noted again that the 

appropriateness of this measure is premised on the idea that future criminal behavior can 

be effectively predicted by a background check, a proposition for which neither the ALT 

nor the Secretary has provided any analytical support. 

Of greater significance, the Decision offers no guidance as to how such an 

abatement measure would be evaluated for purposes of assessing future compliance. 

While the ALJ referenced the denial of services to individuals "with a history of violent 

behavior," the Decision gives no indication as to the type of behavior that would compel 

exclusion for purposes of compliance with the general duty clause. By example, the 

Decision gives no indication of whether a felony conviction would be necessary to warrant 

exclusion, or whether a misdemeanor would require the same action. Nor does the 

decision indicate what type of crimes would be considered to involve "violent behavior" so 

as to trigger the duty to deny services. Likewise, there is no indication of whether a 

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conviction thirty years in the past would warrant exclusion, or whether an employer should 

only look back a certain period oftime. 

At a more basic level, the Decision offers no guidance as to the source of 

information that an employer is expected to use in evaluating the risk posed by potential 

clients - such as a particular database or other source - nor is there any indication of what 

steps should be taken if information about a particular individual is unavailable. Indeed, 

the very definition of the hazard applied by the ALJ, namely that of "being physically 

assaulted by members with a history of violent behavior," inherently assumes that an 

employer can reliably determine the nature and extent of the criminal history of those 

individuals with whom its employees come into contact. No evidence was presented at the 

hearing to establish the extent to which such infomrntion is available, nor the accuracy or 

reliability of that information which may be accessible to employers or other members of 

the public. 

The circumstances surrounding the individual who killed Ms. 

demonstrate the fundamental impracticality of applying the general duty clause in this 

context. In his Brief, the Secretary concJusively asserts that Mr. criminal history, 

coupled with his mental illness, "should have resulted in his removal from membership." 

As described by the ALJ, Mr. record reflects a number of criminal convictions. 

The most recent offense for which Mr. was convicted, however, took place on 

September 19, 1997. See Decision at 4 n.3. Ms. was killed on December 10, 2012. 

It is thus the Secretary's position that Mr. criminal conduct fifteen years prior to 

the events at issue in the Citation compelled his excJusion from lntegra's program. The 

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(b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6) (b)(6)
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necessary conclusion stemming from that position is that in order to comply with the 

general duty clause, Integra was obligated to ascertain, consider, and act upon information 

contained in the criminal records of its potential Members stretching back a period of more 

than a decade. Such a requirement is not only wholly unprecedented, but is fundan1entally 

at odds with the principle that the scope of the general duty clause extends solely to 

hazards that employers "can reasonably be expected to prevent." Pe/ron Corporation, 

supra; Greene Construction Co. & Massman Construction Co., 4 BNA OSHC 1808 (No. 

5356, 1976). 1 

11. The evidence in the record as to the efficacy of the proposed abatement 

measures fails under the standard cited as applicable by the Secretary. 

As fully set forth in Integra's Brief, no evidence was presented at the hearing in this 

case to support the Secretary's assertion that the proposed abatement measures would have 

materially reduced the hazard of criminal assaults. In his Brief, the Secretary does not 

challenge Integra's assertion that no statistical or quantitative evidence was introduced as 

to the effectiveness of any of the proposed abatement measures. Instead, the Secretary 

asserts that no such evidence was necessary, and contends that that he need only show that 

knowledgeable persons familiar with the industry would regard the proposed measures as 

both "necessary and valuable." 

Under the standard cited by the Secretary, the evidence presented at the hearing 

was woefully insufficient. The sole individual who offered testimony in support of the 

proposed abatement measures was Janet Nelson. Not only did Ms. Nelson fail to offer any 

1 Assuming arguendo that the general duty clause were held to be applicable to acts of criminal 

violence, application on the specific facts of this case is improper for the reasons discussed in Part 

1.B of Integra's Brief. 

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testimony to establish that knowledgeable people viewed the proposed abatement measures 

as necessary, she readily acknowledged that she could not confirm that they would have a 

meaningful effect: 

(Tr. 615). 

(Tr. 625). 

Q: In your opinion, even though Service Coordinators 

are not clinicians, would more - more adequate, 

more, uh, appropriate safety training have made them 

less exposed to the workplace violence, risk of 

workplace violence? 

A: I don't know if they would be less exposed. They 

may be better able to aqsess -

Q: Hum-hum. 

Q: Are you saying that, uh, Integra should have required 

its Service Coordinators to always be partnered? 

A: No, no. Uh, I think given the population they're 

dealing with and because they have a paucity of 

information, that double teaming on an initial, uh, 

helps. Does that mean violence won't happen? It 

still could. It still could. 

Ms. Nelson also offered no testimony as to the extent to which the various 

proposed abatement measures have been adopted by other employers in the industry. 

Given the absence of evidence as to either the effectiveness of the proposed measures or 

the extent to which other employers have found them sufficiently essential to adopt, it 

cannot reasonably be concluded that the Secretary has established that knowledgeable 

persons in the industry would deem the abatement measures "necessary." See also 

Champlin Petroleum Co. v. OSHRC, 593 F.2d 637, 640 (5th Cir. 1979) ("It is the 

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Secretary's burden to show that demonstrably feasible measures would materially reduce 

the likelihood that such injury as that which resulted from the cited hazard would have 

occurred."). 

Ill. Application of the general duty clause on the facts of the instant case would be 

unconstitutional. 

The issues discussed supra further support the position set forth in Integra' s Brief 

that application of the general duty clause in this case would be unconstitutional. Courts 

considering the general duty clause have stated the "problems of fair notice" inherent to the 

clause only dissipate when the clause is read "as applying when a reasonably prudent 

employer in the industry would have known that the proposed method of abatement was 

required under the job conditions where the citation was issued." Donovan v. Royal 

Logging Co., 645 F .2d 822, 831 (9th Cir. 1981 ). 

For the reasons discussed supra in Part II, a reasonable employer in Integra's 

position would not have known that the abatement measures proposed in this proceeding 

were required. In the course of this proceeding, the Secretary has produced no evidence to 

indicate that the proposed abatement measures would be effective, let alone that they were 

the standard among employers in the industry such that Integra should have recognized 

that their adoption was required. Given that fact, the general duty clause, as applied in this 

case, is unconstitutionally vague. 

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IV. The facts of this case do not support classification of Citation One, Item One 

as a serious violation. 

As fully set forth in lntegra's Brief, in the event that the Commission were to 

affirm the ALJ's conclusion that the general duty clause was violated, any such violation 

cannot properly be classified as a serious violation as that term is defined in the Act. 

The Act provides that a violation cannot be classified as serious where the 

employer "did not, and could not with the exercise of reasonable diligence, know of the 

presence of the violation." See 29 U.S.C. § 666(k). For the reasons described supra, 

lntegra could not reasonably have known of the violation as found by the ALJ. The sole 

argument advanced on this issue by the Secretary asserts, citing Georgia Electric Co. v. 

Marshall, 595 F.2d 309 (5th Cir. 1979), that classification of the violation is determined 

solely by reference to whether the employer should have known of the "violative 

condition," not whether the employer knew "that the condition violated the Act." 

Secretary's Brief at 27. As an initial matter, the Secretary's interpretation appears to 

overlook the statement in Georgia Electric that the "only question relevant to the 

employer's state of mind is whether he knew or with the exercise of reasonable diligence 

could have known of the violation." Id. at 318-19. Moreover, the distinction that the 

Secretary draws - between knowledge of the condition and knowledge of the violation -

collapses when the alleged violation at issue concerns a type of hazard that has never 

before been held to be encompassed by the general duty clause. 

Georgia Electric provides an instructive contrast. The citation at issue in General 

Electric was issued following the electrocution of a worker when the light pole he was 

helping to erect made contact with a nearby electrical transmission line. Id at 311-12. 

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The portion of the court's holding cited by the Secretary as to the classification of a 

violation as serious concerned the violation of a published standard directly applicable to 

the case, which mandated a certain amount of clearance between the pole being erected 

and the transmission line. Id. at 312, 318. Moreover, the court noted that the employer 

had been provided with a copy of the applicable regulation as part of an OSHA 

investigation into a prior violation. Id. at 313. Given those circumstances, the court 

deemed the violation willful. Later in its opinion, the court found a serious violation of the 

general duty clause based upon the fact that the control panel on the truck used to lift the 

pole was reversed, such that when the lever controlling the pole was moved to the "raise" 

position the crane was lowered, while moving the lever to the "lower" position would raise 

the crane. Id at 317. The operator's inadvertent lowering of the crane had directly 

resulted in incident underlying the citation. In addressing the classification of the violation 

as serious, the court concluded that "[i]n light of the potential danger in operating a crane, 

known to be defective, within close range of live power lines, the Company was given 

adequate notice that such might violate the general duty clause." Id at 322 n.32. 

In contrast to the situation presented in Georgia Electric, the hazard upon which 

the instant citation is based is not the subject of any OSHA standard, nor has it been the 

basis for any previous finding of a violation by the Commission. While it is in no way 

surprising that Georgia Electric deemed that a reasonable employer should have known of 

a violation involving the operation of a defective crane in unlawfully close proximity to 

live electrical lines, those facts are in no way comparable to those of this case. A 

reasonable employer in Integra's position would not have known that a violation existed 

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because the circumstances underlying the Citation have never been deemed to constitute a 

recognized hazard under the general duty clause in any previous case. 

V. The ALJ's consideration of, and reliance upon, evidence not contained 

in the record requires that a new hearing be granted. 

Assuming arguendo that the Commission were to conclude that the general duty 

clause is applicable to the facts of this case, and that the Secretary has produced evidence 

capable of supporting the existence of a recognized hazard and the feasibility of abatemen~, 

a new hearing is warranted based upon the ALJ's consideration of evidence outside the 

record. 

As described in Integra' s Brief, the ALJ expressly stated in his Decision that he 

was according less weight to the credentials of Dr. Melissa Amott, Integra's Vice President 

of Community Programs, based upon his consideration of evidence regarding her alma 

mater that was not part of the record. See Decision at 22 n.36. Compounding this issue, 

the evidence upon which the ALJ relied in discounting Dr. Arnott's testimony consisted of 

criticism of the university contained in an administrative decision made twenty-five years 

prior to the time Dr. Arnott obtained her doctoral degree from the school. Id. 

In response to this breach of the baseline tenet of administrative proceedings that 

decisions are to be made solely based upon record evidence, the Secretary simply asserts 

that the error is harmless because Dr. Arnott' s testimony did not form the basis of the 

ALJ's substantive findings. That contention erroneously seeks to recast Dr. Arnott's 

testimony as collateral to the determinative issues in this case. Contrary to the Secretary's 

assertions, Dr. Arnott's testimony touched upon virtually all of the factual issues 

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underpinning the Decision, including Integra' workplace safety policies and the Neumann 

training program and other employee training programs provided to the Service 

Coordinators. (Tr. 341-42, 344-49, 353-55, 890-909, 976-79). Of particular note, Dr. 

Arnott testified extensively regarding Integra's working file on including 

with regard to the meaning of notes made during interviews of Mr. by Ms. 

That testimony went directly to the issue of whether Mr. diagnoses indicated that 

he posed a heightened risk of dangerous behavior. (Tr. 356-66). 

Given the wide-ranging nature of Dr. Arnott's testimony, the Secretary's 

suggestion that the ALJ's conduct in discrediting her testimony based on information 

outside the record can be neatly separated from the reminder of the Decision is without 

merit.2 It is a basic principle of administrative law that a party is entitled to respond to the 

evidence against it and that the decision is to be made on the evidence in the record. 

Integra was deprived of that basic protection in the instant case, and suffered prejudice as a 

result given that the ALJ discredited the testimony of Integra's chief witness based on 

matters not raised at any point during the hearing. In the event that the Commission were 

to conclude that the general duty clause is applicable on the facts of this case, the matter 

should be remanded for a new hearing. 

2 The Secretary also asserts that the ALJ did not err in considering the information used to 

discredit Dr. Arnott's testimony, and suggests that "Integra docs not dispute the factual 

underpinnings of the court documents and administrative case" cited by the ALJ. 

Secretary's Brief at 27 n.12. This argument misstates the issue, in that Integra had no 

opportunity to dispute those matters given that the issue was not raised at any point prior to 

the issuance of the Decision. In any event, the information cited by the ALJ was irrelevant 

to Dr. Arnott's credentials, given that it involved criticism of the university's programs 

made in a decision that predated Dr. Arnott's graduation from the university by more than 

two decades. 

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CONCLUSION 

For the reasons discussed in this Reply and in its Brief, Integra Health 

Management, Inc. respectfully requests that the Commission reverse the ALJ's decision in 

the instant case and deny enforcement of Citation One, Item One. 

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CERTIFICATE OF SERVICE 

I certify that counsel for the Secretary has consented that all papers required to be 

served may be served and filed electronically. I further certify that a copy of the foregoing 

Reply Brief was served on January 22, 2016 on counsel for the Secretary as follows via 

electronic mail and first-class mail: 

Charles F. James 

Lee Grabel 

Office of the Solicitor, U.S. DOL 

Room S4004 

200 Constitution Ave., NW 

Washington, D.C. 20210 

email: James.Charles@dol.gov; Grabel.Lee@dol.gov 

I further certify that a copy of the foregoing Reply Brief was served upon the 

following amici curiae, if unrepresented, or their counsel, if represented, via first-class 

mail: 

Sky Westerlund, LMSW 

Executive Director 

Kansas Chapter, National Ass'n of Social Workers 

700 SW Jackson, Ste. 1109 

Topeka, Kansas 66603 

Counsel/or Chamber of Commerce 

Steven P. Hehotsky 

Warren Postman 

U.S. Chamber Litigation Center, Inc. 

1615 H St., NW 

Washington, DC 20062 

Jacqueline M. Holmes 

Jones Day 

51 Louisiana Avenue, N.W. 

Washington, D.C. 2001 

Counsel for United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, AlliedIndustrial and Service Workers International Union, AFL-CIOICLC 

Antonia Domingo 

Assistant General Counsel 

United Steelworkers 

60 Boulevard of the Allies, 8th Floor 

Pittsburgh, PA 15222 

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Counsel for the American Federation of Labor and Congress of Industrial Organizations 

Lynn K. Rhinehart 

Harold C. Becker 

YonaRozen 

Angelia Wade Stubbs 

815 Sixteenth Street, NW 

Washin&rton, DC 20006 

Counsel for National Association of Social Workers, National Council for Occupational 

Safety and Health and Service Employees International Union 

Randy Rabinowitz 

Occupational Safety & Health Law Project 

P.O. Box 3769 

Washington, DC 20027 

16 

Kevin C. McCormick 

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

7 SaintPaul Street, Suite 1800 

Baltimore,.Maryland 21202 

(410) 347-8700 

kmccormick@wtplaw.com 

Counsel for Respondent