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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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
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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’
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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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