                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-24-2005

Genesis Eldercare v. OSHRC
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4380




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No: 04-4380

           GENESIS ELDERCARE d/b/a COOPER RIVER EAST CENTER,

                                            Petitioner


                                            v.

        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION,

                                             Respondent

                        Petition for Review of an Order of the
                  Occupational Safety and Health Review Commission
                                 Agency No. 03-0300

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                 September 16, 2005

                  Before: ROTH, McKEE and FISHER, Circuit Judges


                                       OPINION

McKEE, Circuit Judge.

       Genesis Eldercare petitions for review of a decision by the Occupational Safety

and Health Review Commission which affirmed the Secretary of Labor’s citations for

serious violations of the Occupational Safety and Health Act, 29 C.F.R. §

1910.1030(d)(2)(I). For the reasons below, we will affirm the Commission’s decision

and deny the petition for review.
                                             I.

       Inasmuch as we are writing primarily for the parties, we need not recite the facts or

procedural history. As we stated in Alden Leeds, Inc. v. Occupational Safety and Health

Review Commission, 298 F.3d 256, 260 (3d Cir. 2002): “We review the Commission’s

findings of fact as conclusive if supported by substantial evidence on the record,

considered as a whole.” Id. (citing 29 U.S.C. § 660(a)). Adjudicatory conclusions

are reviewed to determine if they are “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with the law.” Id. (citing 5 U.S.C. § 706(2)(A);

Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 547 (3d Cr. 1976)).

                                             II.

       The relevant portion of the Occupational Safety and Health Act requires that:

       Engineering and work practice controls shall be used to eliminate or
       minimize employee exposure. Where occupational exposure remains after
       institution of these controls, personal protective equipment shall also be
       used.

29 C.F.R. § 1910.1030(d)(2)(I).
       "Engineering controls" means controls (e.g., sharps disposal
       containers, self-sheathing needles, safer medical devices, such as
       sharps with engineered sharps injury protections and needleless
       systems) that isolate or remove the bloodborne pathogens hazard
       from the workplace.
Id. § 1910.1030(b). Genesis argues that these regulations are unconstitutionally

vague because they do not specifically identify add-on devices as a mandatory

requirement. The ALJ rejected this claim explaining that “[a]dd-on needle guards



                                              2
are controls that isolate the bloodborne pathogen hazard created by using a pre-

filled syringe without a built-in guard” and therefore fall under the definition of

engineering controls. Petitioner’s App. 12. The ALJ believed that the absence of

the words “add-on devices” was irrelevant. The list of controls in the definition is

preceded by “e.g.,” which indicates that the list is illustrative, not exclusive. Id.

Additionally, Genesis had fair notice that the regulation applied to add-on devices

because Cooper River East’s 2002 Bloodborne Pathogens Exposure Control Plan

identified add-on devices as an “engineering control.”

       The Secretary may prove employer knowledge by establishing the

foreseeability of the violations. Foreseeability can be established by demonstrating

the inadequacy of the employer’s safety program, training or supervision.

Secretary of Labor v. Interstate Brands Corp., 20 O.S.H. Cas. (BNA) 1102, *2

(2003). In the instant case, Genesis concedes that several of its employees were

inadequately trained and failed to follow safety protocols. Petitioner’s Br. at 24-25.

Under a reasonable diligence standard, which “requires adequate supervision of

employees and the formulation and implementation of an adequate training

program and work rules,” a failure to meet even one of the listed requirements

constitutes a lack of reasonable diligence. Secretary of Labor v. Mosser Constr.

Co., 15 O.S.H. Cas. (BNA) 1408 (1991). Thus, the Secretary has shown training

and supervision to be inadequate. This showing also undermines Genesis’


                                               3
assertion that two nurses’ failure to use add-on devices constituted unpreventable

employee misconduct.

          We also reject Genesis’ challenge to the penalty that was imposed. When

assessing penalties, the Commission must give due consideration to four factors:

the size of the employer’s business; the gravity of the violation; the employer’s good

faith; and the employer’s prior history of violations. Secretary of Labor v. J.A. Jones

Construction, 15 O.S.H. Cas. (BNA) 2201, *15 (1993). Nothing on this record

establishes that the ALJ misapplied these factors here. Moreover, the penalty

assessed was significantly below the statutory maximum of $7,000.00. 29 U.S.C. §

666(b).

                                               III.

          For the reasons above, we will affirm the Commission’s decision and deny the

petition for review.




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