dissenting.
I respectfully dissent. I would grant Trinity Industries’ (“Trinity”) petition for review in No. 06-2271 and vacate the citations because, in my view, the Secretary of Labor (“Secretary”) lacked jurisdiction over Trinity.
The OSH Act establishes workplace safety duties of “employers” with respect to “employees.” 29 U.S.C. § 654. The Supreme Court has clearly declared that, unless a statute sets forth a broader definition, Congress intended the term “employee” to connote traditional agency law criteria for master-servant relationships. Nationwide Ins. Co. v. Darden, 503 U.S. 318, 322-24, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (describing this principle as “well established”). Under Darden, Trinity is an “employer” for OSH Act purposes only with respect to its own employees. While Trinity would be liable under the Act for actions or omissions that placed its own employees in harm’s way, a failure to safeguard non-employees — in this case, Pli-Brico’s workers — is simply outside the scope of the Act. This is a more sensible approach than that that adopted by the majority, under which the Secretary’s regulations of building and facility owners may be upheld as long as the cited business or facility owner has some employees, somewhere, resulting in applying the OSH Act to building owners on a completely arbitrary and random basis.
Although, as the majority correctly notes, Darden was an ERISA case, its reach is clearly not so limited. Darden announced a general rule of statutory construction in broad language, which the Court has never attempted to limit to ERISA. See id.; see also, e.g., Neder v. United States, 527 U.S. 1, 21-22, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Indeed, the Court reached its conclusion in Darden by examining two previous attempts by the Supreme Court to impose a broader definition of “employee” in the context of other laws, both of which resulted in congressional amendment of the statutes to reflect the common-law definition of “employee.” See Darden, 503 U.S. at 324-25, 112 S.Ct. 1344 (discussing the National Labor Relations Act and the Social Security Act). The Supreme Court and courts of this circuit have consistently applied Darden to other statutes that include definitions of “employer” or “employee” similar to ERISA’s. See, e.g., Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444-51, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003) (Americans with Disabilities Act); Walters v. Metro. Educ. Enters., 519 U.S. 202, 211, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997) (Title VII); Sempier v. Johnson & Higgins, 45 F.3d 724, 728 n. 4 (3d Cir.1995) (Age Discrimination in Employ*404ment Act); Shapiro v. Sutherland, 835 F.Supp. 836, 837-38 (E.D.Pa.1993) (False Claims Act).
ERISA defines “employee” as “any individual employed by an employer.” 29 U.S.C. § 1002(6). That definition is essentially identical to the definition of “employee” in the OSH Act. See id. § 652(6) (“The term ‘employee’ means an employee of an employer who is employed in a business of his employer which affects commerce .”). Other courts of appeals, as well as the Occupational Safety and Health Review Commission itself, have already applied Darden to the Act. See e.g., Slingluff v. OSHRC, 425 F.3d 861, 867-69 (10th Cir.2005); IBP, Inc. v. Herman, 144 F.3d 861, 865 (D.C.Cir.1998); Loomis Cabinet Co. v. OSHRC, 20 F.3d 938, 941-42 (9th Cir.1994); Sec’y of Labor v. Vergona Crane Co., Inc., 15 BNA OSHC 1782 (O.S.H.R.C. 1992). The majority’s refusal to apply traditional agency law principles to this case is therefore contrary to the reasoning of Darden and is out of step with subsequent decisions of the Supreme Court, this circuit, and other courts of appeals.
Were it necessary to reach the question, I also disagree with the majority’s conclusion that the ALJ erred in finding that the Secretary failed to prove that Trinity’s violations were “serious.” As I understand the majority’s logic, every failure to notify or test for asbestos is necessarily a serious violation, regardless whether exposure did occur or even could occur. But caselaw teaches that the test for a serious violation is whether the violation makes possible the occurrence of an event carrying substantial probability of death or serious physical harm.3 Bethlehem Steel Corp. v. OSHRC, 607 F.2d 1069, 1073 (3d Cir.1979). The level and duration of exposure to asbestos is highly relevant to determining whether the “event,” i.e., the asbestos exposure that could occur as a result of Trinity’s failure to test or notify, carried such a probability of harm. Accord Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 131-33 (6th Cir.1978) (rejecting the Secretary’s proposed rule that, because silicosis is a serious disease, any exposure to silica dust exceeding permissible amounts is per se a serious violation); Sec’y of Labor v. Duquesne Light Co., 11 BNA OSHC 2033 (O.S.H.R.C.1984) (holding that one-time exposure to asbestos is not a serious violation unless the Secretary makes an additional showing that the particular incidence of exposure carried a substantial probability of causing a serious disease).
Because the classification of the violation is necessarily a fact-based question subject to review only for “substantial evidence,” see Bianchi Trison Corp. v. Chao, 409 F.3d 196, 204, 208 (3d Cir.2005), I would defer to the ALJ’s sensible and reasonable determination that the asbestos exposure experienced by Pli-Brico employees on March 26 and March 28, 2005' — amounting only to a matter of hours — did not create a substantial probability of death or serious physical harm.
For the reasons set forth above, I would grant the petition for review in No. 06-2271 and vacate the citations issued to Trinity. Alternatively, I would hold that substantial evidence supports the ALJ’s finding that the Secretary failed to prove a *405serious violation and, thus, deny the petition for review in No. 06-2121.
. The OSH Act defines a “serious violation” as:
For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists ... in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
29 U.S.C. § 666(k).