The Barbosa Group, Inc. d/b/a Executive Security

Plain-English summary

Barbosa supplied security personnel to a federal immigration detention facility where their duties exposed them to blood and other bodily fluids. The Commission held that Barbosa remained their employer because it hired, paid, scheduled, supervised, and disciplined them, even though the federal agency controlled the facility. Barbosa did not effectively delegate its bloodborne-pathogen compliance duties because it failed to verify that the agency's training and protections met OSHA requirements. The Commission affirmed violations involving an exposure-control plan, training, hepatitis B vaccination, and post-exposure care. It affirmed the vaccine violation as willful but reclassified the post-exposure item as serious because employees received treatment, although they bore co-pays and lost leave. Three serious items received a grouped $6,300 penalty, and the willful vaccine item received $63,000, for a total of $69,300.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.1030(c)(1), 1910.1030(g)(2)(vii)(K), 1910.1030(f)(1)(ii)(A), 1910.1030(f)(2)(i), 1910.1030(f)(3)
• Outcome: All four items were affirmed, one was reclassified from willful to serious, and total penalties were reduced to $69,300.
• Key point: A labor supplier remained responsible for OSHA compliance where it retained substantial control over its workers and did not effectively delegate the cited duties.

Full text (OSHRC public release)

The Barbosa Group, Inc., d/b/a Executive Security, Docket No. 02-0865

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket No. 02-0865

THE BARBOSA GROUP, INC., d/b/a

EXECUTIVE SECURITY,

Respondent.

APPEARANCES:

Eve Marie Stocker, Attorney; Daniel J. Mick, Counsel for Regional Trial Litigation;
Donald G. Shalhoub, Deputy Associate Solicitor; Joseph M. Woodward, Associate
Solicitor; Howard M. Radzely, Solicitor; U.S. Department of Labor, Washington, DC

For the Complainant

Henry L. Solano, Esq.; Le Boeuf, Lamb, Greene & MacRae, Washington DC

For the Respondent

DECISION

Before: RAILTON, Chairman; ROGERS and THOMPSON, Commissioners.

BY THOMPSON, Commissioner:

The Barbosa Group, Inc., d/b/a Executive Security (Barbosa), a Texas-based sole
proprietorship, supplied security personnel under contract to a detention facility operated by the
Immigration and Naturalization Service (INS) in Batavia, New York. In May 2002, following an
inspection of the Batavia facility by the Occupational Safety and Health Administration (OSHA),
OSHA issued Barbosa two citations—one serious and one willful—each alleging two violations of
29 C.F.R. § 1910.1030, OSHA’s bloodborne pathogens (BBP) standard.

The late Administrative
Law Judge Michael H. Schoenfeld affirmed all four violations as alleged and assessed OSHA’s total
proposed penalty of $132,750.

On review, Barbosa does not dispute the existence of the violative conditions. Indeed, as the
judge noted, Barbosa admits that “its contract employees at the Batavia facility were unlawfully
denied adequate protection against blood borne pathogens.” The issues we decide today include (1)
whether Barbosa is the employer responsible for the cited conditions; and (2) whether two of the
citation items—those alleging violations of the BBP standard’s provisions on the hepatitis B virus
(HBV) vaccine and post-exposure follow-up treatment—are not willful because Barbosa reasonably
believed it had no duty and, in fact, was powerless to provide these required protections to its
security personnel under its contract with the INS.

As indicated in this opinion, and in the separate opinions of Chairman Railton and
Commissioner Rogers, we determine that Barbosa was responsible for the cited conditions as an
employer of the contract security personnel it provided to the INS’s Batavia facility and that it failed
to effectively delegate its compliance responsibilities to the INS or any other entity. We, therefore,
affirm the four citation items at issue. However, for the reasons stated herein, Chairman Railton and
I agree to recharacterize one of the willful violations as serious, group the three affirmed serious
violations for penalty purposes, and assess a total penalty of $69,300.

Background

The INS contracted with Barbosa to provide approximately sixty-five security personnel who
worked alongside an equal number of INS security personnel at its Batavia detention facility. It is
undisputed that the INS had control over the Batavia facility as well as all security personnel
physically on the premises, including those provided by Barbosa. The INS’s control even extended
to duty assignments, as well as to discipline and removal.

Barbosa hired all of the security personnel it provided to the INS’s Batavia facility and paid
their salaries and benefits. Barbosa’s security personnel also received day-to-day instructions,
assignments, work schedules, promotions and pay from two Barbosa managers located at the facility.
However, regular on-site supervision was also provided by Barbosa “shift” supervisors who were
hourly employees. Barbosa and the Service Employees International Union were parties to a
collective bargaining agreement covering nonmanagement personnel at the Batavia facility. Under
the Barbosa/INS contract, the INS was required to provide site-specific job training, including BBP
training, to Barbosa security personnel while Barbosa was required to provide separate training to
its on-site supervisors. The U.S. Public Health Service conducted the BBP training for all hourly
security personnel at the Batavia facility.

Discussion

I. Employer under the OSH Act

The first question presented by this case is that of Barbosa’s status as an employer of the
security personnel it provided to the INS at its Batavia facility. In determining whether an employer-employee relationship exists under the Occupational Safety and Health Act of 1970, 29 U.S.C.
§§ 651-678 (OSH Act), the Commission applies the common-law agency doctrine enunciated in
Nationwide Mut. Ins. Co. v. Darden , 503 U.S. 318, 322-23 (1992) (“ Darden ”).

See Froedtert Mem.
Lutheran Hosp., Inc. , 20 BNA OSHC 1500, 1506, 2002 CCH OSHD ¶ 32,703, p. 51, 733 (No. 97-1839, 2004) (“ Froedtert” ). In Froedtert , the Commission applied the Darden analysis to a case
involving co-employment issues that is factually similar to this one. There, OSHA cited a hospital
for violations of the BBP standard based on the exposure to workplace hazards of housekeepers
supplied to the hospital by two temporary help agencies. Applying Darden , the Commission
concluded that the hospital was properly cited under the OSH Act as an employer of the
housekeepers because the hospital directed and controlled the means, methods, location, and timing
of their work, and also provided sole on-site supervision and on-the-job instruction. Froedtert , 20
BNA OSHC at 1505-07, 2002 CCH OSHD at pp. 51,732-35.

Barbosa maintains that the Commission’s holding in Froedtert dictates that the INS is solely
responsible for the cited conditions. This contention is rejected. Application of the Darden factors
clearly establishes that Barbosa had an employment relationship with its security personnel and,
therefore, OSHA could properly cite it under the OSH Act. Barbosa’s managers and supervisors
provided regular on-site supervision to Barbosa security personnel at the Batavia facility. Consistent
with the terms of its contract with the INS, Barbosa supervisors provided first-line direction and
meted out discipline to its contract security personnel at the Batavia facility, unless contravened by
INS personnel. Indeed, these contract security personnel considered Barbosa to be their employer
due, in no small part, to the fact that Barbosa informed them of their daily work assignments and
schedules, provided their pay and promotions, and entered into a collective bargaining agreement
with their union covering the terms and conditions of their employment.

Unlike the unskilled manual work the housekeepers performed at the hospital in Froedtert ,
the duties performed by the contract security personnel at the Batavia facility required some degree
of skill and prior experience, as evidenced by the Barbosa/INS contract provision that “[a]ll contract
employees shall have a minimum one year’s experience as a law enforcement officer or military
policeman or six months experience as a security officer engaged in functions related to maintenance
of civil order.” While the INS provided site-specific job training to Barbosa’s security guards,
Barbosa provided separate supervisory training to its on-site “shift” supervisors, as required by its
contract with the INS. Thus, regardless of whether the INS had any sort of employment relationship
with the security personnel supplied by Barbosa, the degree of control Barbosa retained over its
contract security personnel compels the conclusion that Barbosa remained their employer in these
circumstances and was properly cited as such under the OSH Act.

II. Delegation of Duty

Based on the record in this case, there is no evidence that Barbosa effectively delegated its
compliance responsibilities under the OSH Act to the INS or any other entity. As the Commission
recognized in Froedtert , “[a]n employer may carry out its statutory duties through its own private
arrangements with third parties, but if it does so and if those duties are neglected, it is up to the
employer to show why he cannot enforce the arrangements he has made.” Froedtert , 20 BNA OSHC
at 1508 (quoting Central of Georgia R.R. Co. v. OSHRC , 576 F.2d 620, 624 (5th Cir. 1978)). See
also Baker Tank Co./Altech , 17 BNA OSHC 1177, 1180, 1993-95 CCH OSHD ¶ 30,734, p. 42,684
(No. 90-1786-S, 1995) (an employer cannot “contract away its legal duties to its employees or its
ultimate responsibility under the Act by requiring another party to perform them”). Here, the
question of delegation arises only with regard to the BBP training provided by the INS to Barbosa’s
security personnel pursuant to their contract.

Barbosa claims on review that the BBP training “included an ‘overview of communicable
diseases and use of universal precautions,’” and that “the INS trained the contract employees along
side [sic] federal employees on blood borne [sic] pathogens.” Barbosa neglects to mention, however,
that the training provided by the INS clearly lacked procedures for employees to follow in the event
that an exposure incident occurred, including how to obtain post-exposure follow-up medical
treatment. These omissions, which would render any delegation ineffective, could have been
discovered by Barbosa had it exercised reasonable diligence. See Automatic Sprinkler Corp ., 8 BNA
OSHC 1384, 1387, 1980 CCH OSHD ¶ 24,495, p. 29,926 (No. 76-5089, 1980) (employer “must
make a reasonable effort to anticipate the particular hazards to which its employees may be exposed
in the course of their scheduled work”). Indeed, Barbosa was more than familiar with the contents
of a comprehensive BBP training program, having provided such training to its personnel located
at other facilities. According to Barbosa’s operations manager, Jeanne McMichael, Barbosa brought
in its own certified trainer for a BBP training program provided to Barbosa employees working for
the federal government in New Jersey. McMichael sat in on four of these BBP training classes
within a six-month period and described the trainer Barbosa hired as “one of the best” with regard
to BBP training. As for the training provided to Barbosa’s contract security personnel at the Batavia
facility, McMichael simply testified that the INS “said that they did” the training. Yet, neither
McMichael nor any other Barbosa manager attended this training nor made any other inquiries prior
to the OSHA investigation to determine whether the training complied with the BBP standard.

Under these circumstances, it is clear that Barbosa not only failed to delegate its compliance
duties with regard to these specific requirements under the BBP standard but also failed to show why
those duties were not carried out with regard to its contract security personnel located at the Batavia
facility. See Central of Georgia , 576 F.2d at 624 (effective delegation of responsibilities to third
parties requires that employer show why it cannot enforce its own arrangements). Accordingly, all
four violations at issue are affirmed.

III. Willfulness

Willful violations are “characterized by an intentional or knowing disregard for the
requirements of the Act or a ‘plain indifference’ to employee safety, in which the employer manifests
a ‘heightened awareness’ that its conduct violates the Act or that the conditions at its workplace
present a hazard.” Weirton Steel Corp ., 20 BNA OSHC 1255, 1261, 2003 CCH OSHD ¶ 32,672,
p. 51,451 (No. 98-0701, 2003) (citations omitted). Willfulness may be obviated by a good faith,
albeit mistaken, belief that particular conduct is permissible. E.g., Gen. Motors Corp., Electro-Motive Div ., 14 BNA OSHC 2064, 2068-69, 1991-93 CCH OSHD ¶ 29,240, pp. 39,168-69 (No. 82-630, 1991) (consolidated).

Here, as indicated in his separate opinion, Chairman Railton and I find that the contrasting
approaches Barbosa took in addressing the conditions covered by the two BBP provisions under
which it was cited for willful violations clearly differentiate these citation items for the purposes of
characterization. With regard to the violation of 29 C.F.R. § 1910.1030(f)(3),

the post-exposure
evaluation and follow-up treatment item, Barbosa paid—either directly or through workers’
compensation—for the initial post-exposure evaluation obtained by its injured security personnel at
a local hospital. All of these personnel also obtained the post-exposure evaluation and follow-up
treatment required by 29 C.F.R. § 1910.1030(f)(3) pursuant to Barbosa’s employer-provided health
care coverage. However, Barbosa not only failed to cover the co-pay associated with this treatment,
but it also charged leave to the injured personnel for the work-time spent obtaining this treatment.
While Barbosa’s conduct does not fully comply with the requirements of the cited provision, its
personnel did receive the treatment required by the standard. Under these circumstances, Chairman
Railton and I find no evidence in the record that Barbosa demonstrated an intentional disregard rising
to the level of willfulness and, therefore, affirm the violation as serious.

See Beta Constr. Co. , 16
BNA OSHC 1435, 1444-45, 1993-95 CCH OSHD ¶ 30,239, pp. 41,652-53 (No. 91-102, 1993)
(employer’s efforts to prevent violation sufficient to negate willfulness, even if efforts are
insufficient to fully eliminate hazardous conditions), aff’d without published opinion , 52 F.3d 1122
(D.C. Cir. 1995).

The willful characterization of the violation based on Barbosa’s failure to provide the HBV
vaccine to its security personnel is another matter altogether. Vaccination is one of the critical ways
of preventing the harmful effects of exposure to bloodborne pathogens. See Occupational Exposure
to Bloodborne Pathogens, 56 Fed. Reg. 64,004, 64,152, 64,154 (Dec. 6, 1991) (“OSHA believes that
the risk of infection is sufficient to require that the employer make Hepatitis B vaccination available
to all employees who have occupational exposure”). The cited standard requires that “[h]epatitis B
[or HBV] vaccination be made available … within 10 working days of initial assignment to all
employees who have occupational exposure.” 29 C.F.R. § 1910.1030(f)(2)(i).

The record here
shows that Barbosa was aware of the working conditions at the Batavia facility, such as intervening
in fights among detainees, which exposed its contract security personnel to blood and other bodily
fluids. In addition, Barbosa officials were familiar with the BBP standard’s requirement to provide
HBV vaccinations, having both arranged for and attended numerous courses addressing the subject.
Further, Barbosa received repeated requests for the vaccine from its contract security personnel
located at the Batavia facility, yet nonetheless took no steps whatsoever to ensure that these
employees were offered the HBV vaccine.

On review, Barbosa articulates no other reasons for its failure to offer the vaccine other than
its belief that it had no duty to offer the vaccine and that its contract with the INS prevented it from
offering the vaccine. Barbosa’s contention that its conduct is indistinguishable from that of the
hospital in Froedtert is rejected. In Froedtert , the Commission found that willfulness was not
shown, in part, because even the Secretary recognized the propriety of an employer’s efforts to
structure a business arrangement to have temp agencies assume certain employment responsibilities.
Froedtert , 20 BNA OSHC at 1510, 2002 CCH OSHD at p. 51,736. Here, there is no evidence that
Barbosa’s contract was intended to remove OSHA compliance obligations from Barbosa. Nor does
the record provide a reasonable basis for Barbosa to believe that its compliance obligations, as they
relate to federal agencies and their labor-supplying independent contractors, were unclear under the
cited provisions of the BBP standard. Finally, the terms of the Barbosa/INS contract provide
Barbosa with no reasonable basis to conclude it was contractually prohibited from offering the HBV
vaccine to its employees.

Accordingly, my colleagues and I conclude that Barbosa knowingly disregarded its obligation
to provide a preventative means of protecting its employees from exposure to BBPs and, therefore,
affirm the violation of 29 C.F.R. § 1910.1030(f)(2)(i) as willful. See AJP Constr. Inc. v. Sec’y of
Labor , 357 F.3d 70, 74 (D.C. Cir. 2004) (willful violation found where employer knew of standards’
requirements and had notice of deficiencies in compliance ).

IV. Penalties

For penalty purposes, Chairman Railton and I find it appropriate to group Serious Citation
1, Items 1 and 2, and Willful Citation 2, Item 2—all three of which are affirmed as serious
violations. The focus of all three items is the provision of BBP post-exposure evaluation and follow-up treatment. Two of these items require a written exposure control plan and BBP training, but both
the plan and training provided here by the INS failed to address post-exposure evaluation and follow-up treatment procedures for Barbosa’s contract security personnel. As discussed above, however,
Barbosa did provide this treatment to its security personnel at the Batavia facility, though not without
cost or lost work-time to the employees. In view of Barbosa’s provision of post-exposure follow-up
treatment despite the related shortcomings in both the BBP training and exposure control plan,
Chairman Railton and I find that grouping these citation items for penalty purposes is appropriate.
See Pegasus Tower , 21 BNA OSHC 1190, 1191 (No. 01-0547, 2005) (appropriate to assess “one
penalty” for “closely-related violations” (citing L.E. Myers Co. , 16 BNA OSHC 1037, 1048, 1993-95
CCH OSHD ¶ 30,016, p. 41,134-35 (No. 90-945, 1993))). Accordingly, giving due consideration
to the statutory factors set forth at section 17(j) of the OSH Act, a single penalty of $6,300 for these
three citation items is assessed.

My colleagues and I also find that the $63,000 penalty proposed for Barbosa’s willful failure
to offer the HBV vaccine to its employees is appropriate based on the section 17(j) factors. Nacirema
Operating Co ., 1 BNA OSHC 1001, 1972 CCH OSHD ¶ 15,032 (No. 4, 1972). The record shows
that the detainees at this detention facility regularly suffered cuts and scrapes that exposed the
responding security personnel to blood, resulting in a heightened risk of employee exposure to
bloodborne pathogens. In these circumstances, the gravity of the violation, the principle factor to
be considered, is found to be high. Cf. Offshore Shipbuilding, Inc. , 18 BNA OSHC 2169, 2176,
2000 CCH OSHD ¶ 32,137, p. 48,449 (No. 99-257, 2000) (finding exposure control plan violation
not high gravity because shipyard workers unlikely to be exposed to bloodborne pathogens). With
regard to good faith, apart from its unpersuasive claims that it was not required to offer the vaccine
or was prohibited from offering it, Barbosa’s primary reason for not offering the vaccine appears to
have been its cost. Finally, the large size of Barbosa’s business warrants no penalty reduction,
although the proposed penalty was reduced based on its lack of a history of prior violations.
Therefore, the $63,000 penalty assessed by the judge is deemed appropriate.

Order

Citation 1, Items 1 and 2, and Citation 2, Item 2, are affirmed as serious, and a single grouped
penalty of $6,300 is assessed for these violations. Citation 2, Item 1, is affirmed as willful, for which
a $63,000 penalty is assessed.

SO ORDERED.

_/s/_______

Horace A. Thompson

Commissioner

Date: February 5, 2007  

RAILTON, Chairman, concurring:

I concur with my colleagues that the citation items in this case be affirmed, and with
Commissioner Thompson in the characterization of the items and penalty assessments articulated
in his lead opinion. I do so, however, based on the joint employer analysis set out in my concurring
opinion in Froedtert Memorial Lutheran Hospital , Inc. , 20 BNA OSHC 1500, 1512-15, 2002 CCH
OSHD ¶ 32,703, pp. 51,739-41 (No. 97-1839, 2004) (Chairman Railton, concurring). As noted
therein, an employer of contract workers may, in certain factual circumstances, be a joint employer
with its labor-supplying agency, sharing with it OSH Act compliance responsibilities. Froedtert , 20
BNA OSHC at 1513, 2002 CCH OSHD at p. 51,740. I would find in this case that the INS and
Barbosa had shared employment responsibilities with respect to the Barbosa-supplied security guards
working at the INS facility. As with the hospital in Froedtert , the INS was the exposing employer
with full control of the workplace, and was in the best position to control the guards’ exposures to
bloodborne pathogens. Indeed, the record demonstrates that neither Barbosa’s on-site supervisors
nor its guards could avoid the task of quelling fights and disturbances that presented the greatest
exposure risk. The INS supervisors required and demanded the intervention of Barbosa’s civilian
guards to subdue the detainees, and the record identifies a few such disturbances during which the
Barbosa-supplied guards were exposed to blood.

As required by the cited provisions of the bloodborne pathogen standard, the INS had both
an exposure control plan for the Batavia detention facility and a bloodborne pathogen training
program for all guards employed at the facility, including the Barbosa contract guards. The INS
training program was developed and administered by the U.S. Public Health Service (PHS). Upon
inspection, however, the OSHA compliance officer determined that the INS exposure control plan,
as well as the training administered by the PHS, did not address exposure incidents which might
occur when the INS and Barbosa guards were called upon to subdue detainees, nor did it include the
required information for the Barbosa-supplied guards to obtain post-exposure follow-up medical
treatment. The preamble to the bloodborne pathogen standard specifies that fights and other
disturbances in detention facilities are covered by the standard. 56 Fed. Reg. 64,004, 64,052,
64,097-98 (Dec. 6, 1991). Yet these deficiencies in the INS exposure control plan and training
program were most unfortunate for Barbosa, not the INS.

The lead opinion lightly dismisses any INS responsibility as a joint employer because, as a
Federal agency, the INS is exempt under the definitional section of the OSH Act. See OSH Act §
3(5), 29 U.S.C. § 652(5). While it correctly points out that under Executive Order 12,196 OSHA
can only issue reports of violations to Executive Branch agencies, the lead opinion does not
acknowledge that the government is directed by section 19(a) of the OSH Act, 29 U.S.C. § 668(a),
to comply with OSHA standards, regardless of whether OSHA can enforce compliance. In fact, the
OSHA compliance officer recommended that the INS receive a report noting its willful failure to
comply with the bloodborne pathogen standard, and his inspection file references other
circumstances where OSHA issued a notice of violation to the INS. Inexplicably, OSHA failed to
issue the report here.

With respect to Barbosa’s responsibilities, I concur with my colleagues that Barbosa is the
equivalent of the employment agencies that supplied the housekeepers to the hospital in Froedtert .
In that case, OSHA cited both the employment agencies and the hospital for violations similar to
those cited solely against Barbosa here, although only the citations against the hospital were
contested. Froedtert , 20 BNA OSHC at 1501 n.1, 2002 CCH OSHD at p. 51,729 n.1. Moreover,
the record here shows that, although the Barbosa guards obtained the required post-exposure follow-up medical treatment, they were docked for leave, and their medical insurance co-pays went
unreimbursed. Neither the INS nor Barbosa complied with the standard’s requirement to offer the
hepatitis B virus (HBV) vaccine to the Barbosa guards.

As in Froedtert , the decision here has implications far beyond the facts of this case. Clearly,
it has application to all INS facilities in the nation. Beyond that, civilian contract workers are
engaged in employment alongside Federal employees in other institutions, such as hospitals operated
by the Veteran’s Administration. Indeed, many institutions are operated by states and municipalities
in which I assume exempt government employees work alongside non-exempt contractor employees.
Despite the contrary assertion contained in the lead opinion, OSHA’s compliance instructions
concerning joint employment are confusing. They do not clearly address situations involving shared
responsibilities among civilian and governmental employers who jointly employ contract workers.
OSHA could and should do a better job of providing compliance assistance for joint employer
situations.

Following the contract dispute that ensued between Barbosa and the INS regarding
reimbursement of the additional cost to Barbosa associated with its OSH Act compliance obligations,
the INS did not renew its contract with Barbosa. Employers who obtain workers through such
increasingly common arrangements would be well advised to address OSH Act compliance issues
under the bloodborne pathogen standard in a carefully crafted contract. When disputes do arise as
to which of the joint employers is responsible for providing required protections, employers who fail
to take care of the compliance issues first, and wrangle over the terms of the contract later, may find
that they do so at their own peril.

_/s/_______

W. Scott Railton

Chairman

Dated: February 5, 2007

ROGERS, Commissioner, concurring in part and dissenting in part:

I concur with Commissioner Thompson’s analysis except for the characterization of Citation
2, Item 2, with respect to the failure to provide post-exposure evaluation and follow-up treatment
at no cost. In my view, that item must also be characterized as willful, along with Citation 2, Item
1, with respect to the failure to provide the hepatitis B virus (HBV) vaccine. Indeed, there is no legal
basis for distinguishing the characterizations of the two items.

The record here reflects that Barbosa, despite specific requests from its employees,
consciously refused both (1) to provide the HBV vaccine to its security personnel and (2) to cover
the co-pay associated with post-exposure treatment. Because its state of mind was the same for both
violations, and informed its inaction in both instances, I see no legally cognizable reason for
distinguishing the characterization of the two items. In neither case was there a “plausible” basis for
Barbosa to believe that the security personnel were not its employees and that it had no compliance
obligation to them. Cf. Froedtert Mem. Lutheran Hosp., Inc. , 20 BNA OSHC 1500, 1511, 2002
CCH OSHD ¶ 32,703, p. 51,738 (No. 97-1839, 2004) (Commission majority found that mistaken
belief by hospital that it was not employer of temporary housekeepers obtained from temporary help
agency sufficiently plausible to obviate willfulness). Barbosa’s protestations otherwise are “utterly
unconvincing.” See AJP Constr. Inc. v. Secretary , 357 F.3d 70, 76 (D.C. Cir. 2004). Accordingly,
in both cases, I conclude Barbosa intentionally and knowingly disregarded its obligations under the
Act and thus acted willfully.

My colleagues attempt to distinguish the characterization of the two citation items on the
basis that Barbosa’s personnel did receive the requisite post-exposure treatment, albeit without
Barbosa covering the co-pay. However, that distinction reflects upon the gravity of the violation
rather than Barbosa’s state of mind in intentionally refusing to abide by the requirements of the
standard. Accordingly, since gravity is a factor set forth in section 17(j) of the Act to be considered
in penalty assessment, and in consideration of the reduced gravity of Citation 2, Item 2, I would
assess a penalty considerably lower than the $63,000 assessed by the judge for this item.

_/s/______

Thomasina V. Rogers

Commissioner

Dated:   February 5, 2007  

SECRETARY OF LABOR,

Complainant,

v

DOCKET No. 02-0865

THE BARBOSA GROUP, d/b/a EXECUTIVE
SECURITY ,

Respondent.

Appearances:

Jeffery S. Rogoff, Esq.

Jane Snell Brunner, Esq.

Office of the Solicitor

U. S. Department of Labor

New York, New York

For Complainant

Henry L. Solano, Esq.

LeBeouf, Lamb, Green and
McCrae, LP

Denver, CO

and

Katherine T. Mike, Esq.

Crary, Jewel & McCall, LP

Houston, TX

For Respondent

BEFORE:                    MICHAEL H. SCHOENFELD

Administrative Law Judge

DECISION AND ORDER

The most essential inquiry in this case does not truly raise the question of the degree, if any,
of an employer’s responsibility for the occupational safety and health of its employees who work
at sites not controlled by the employer. The fact that Respondent’s employees perform duties which
may expose them to bloodborne pathogens (“BBP’s”) at a facility not under Respondent’s control
does not serve to insulate Respondent against liability for the particular violations in this case. Most
succinctly stated, Respondent is not charged with failing to prevent or reduce the exposure of its
employees to bloodborne pathogens. The standards violated in this case require Respondent to
undertake compliance activities which could take place at locations other than the site of potential
or actual exposure to the bloodborne pathogens. The gravamen of the violations alleged here
encompass sections of the bloodborne pathogens standards

relating to training, vaccinations, post-exposure testing and treatment and record keeping. All of the violations occurred either before or
after exposure and all require abatement activities not necessarily performed at the situs of the
employee exposure. The cited conditions are thus found to have been created by and under the
control of Respondent.

Procedural History

A detention facility of the U.S. Department of Justice, Immigration and Naturalization
Service (“INS”), was inspected by a compliance officer (“CO”) of the Occupational Safety and
Health Administration (“OSHA” or “Complainant”). As a result of that inspection, the Barbosa
Group, doing business under the name Executive Security, ("Barbosa” or “Respondent") was issued
one citation alleging two serious violations of the Act and one citation alleging two willful violations
of the Act on or about May 2, 2002. Respondent timely contested. Following the filing of a
complaint and answer and pursuant to a notice of hearing, the case came on to be heard in the course
of a three-day hearing in Buffalo, New York. No affected employees sought to assert party status.
Both parties have filed post-hearing briefs and have responded to the administrative law judge’s
request for supplemental briefs.

Jurisdiction

Complainant alleges and Respondent does not deny that it is an employer engaged in the
business of supplying security personnel. It is undisputed that at the time of this inspection
Respondent provided security personnel to INS at its Buffalo Federal Detention Facility in Buffalo,
New York. Respondent does not deny that it uses tools, equipment and supplies which have moved
in interstate commerce. (Complaint and Answer, ¶¶ 2 & 3). I find that Respondent is engaged in a
business affecting interstate commerce.

Based on the above finding, I conclude that Respondent is an employer within the meaning
of section 3(5) of the Act.

Accordingly, the Commission has jurisdiction over the subject matter
and the parties.

Alleged Violations

Barbosa does not dispute that the standards apply, that its employees were “unlawfully”
denied adequate protection against bloodborne pathogens (“BBP”), that it did not have an exposure
control plan, that there was inadequate BBP training of its employees and that its employees did not
get the required vaccinations or adequate follow-up care as required by the BBP standard. (Resp.
Brier, pp. 3-4). Respondent thus admits that the conditions of employment of its employees failed
to comply with the standards cited.

Respondent raises several defenses. First, it maintains that INS, as the “actual employer” at
the work site, is the entity responsible under the Act. Second, it argues that under the multi-employer doctrine, INS is the “controlling and creating employer,” such that Barbosa is not
responsible for the violations. Third, Respondent also maintains that the Secretary should be
estopped from proceeding against it because it is being selectively prosecuted. Respondent’s
arguments as to its responsibility are rejected in totality.

Barbosa began operations in July of 1983 as a business supplying security guard services.
It obtained its first government contract in about 1988 and has consistently had government contracts
since that time. (Tr. 231, 384, 395 584-85). As business grew, the founder and owner, George R.
Barbosa, brought in an operations manager, Ms. Jeanie McMichael, and a contracting officer, Mr.
Bob VanZant. These corporate officials work in the home office in Houston, Texas. As contracting
officer, VanZant administered Respondent’s contracts for work at federal installations. (Ex. R-10).
With extensive experience in government contracting, he described his responsibility for the cited
facility as answering questions regarding the contract (Tr. 284-5) and administrative matters (Tr.
350). McMichael, is the “overall boss for all guard activity” (Tr. 350) including such things as
disciplinary problems and promotions. (Tr. 386). Not a quidnunc, she was in phone contact with
Barbosa’s managers at the facility on just about a daily basis. (Tr. 386).

In1998, Barbosa contracted with INS to provide security officers for it’s newly opened
facility in Buffalo. Extensive testimony was taken from a number of witnesses as to Barbosa’s
operations at the facility. At any given time starting in1998 to March 31, 2003, when their contract
with INS ended, approximately sixty-five (65) Barbosa security personnel worked alongside an
approximately equal number of INS security personnel (Tr. 60-1). Barbosa had two management
employees at the facility. Curtis Archer, the Project Administrator, established work schedules for
the Barbosa individuals as well as scheduling their time off and vacations. He also prepared and
submitted payroll records to Respondent’s offices in Houston. Project Manager, Eugene Richley,
was responsible for supervising and disciplining Barbosa personnel at the facility.

Archer or
Richley, or both, were in touch with McMichael nearly every day. (Tr. 386).

Neither Archer nor
Richley, as salaried employees, were eligible to join the union. All Barbosa personnel at the facility
were hired by Barbosa. Their salaries and benefits were paid by Barbosa. They received their day
to day instructions, assignments, work schedules, promotions and pay from Barbosa. In addition,
they all viewed Barbosa as their employer.

It is undisputed that INS retained the right to have final control of all activities of all
personnel, including its own employees, staff supplied by two companies under contract with the
INS, visitors and the detainees, for the entire time such people were physically on the premises. In
addition, individuals Respondent sought to hire for work at the facility had to pass muster with the
INS. Respondent could be precluded from hiring any individual not approved by INS. INS could
also control virtually every activity, duty assignment, discipline and removal of every Barbosa
employee while on the premises. Further, INS could remove any Barbosa employee from the site
and deny entry to the facility to any Barbosa employee it deemed inappropriate for any reason. There
is no doubt that INS had virtually absolute control of everyone and all conditions on the premises
of the detention facility.

The facts here are similar to those in Rockwell Int’l Corp. , 17 BNA OSHC 1801 (No. 93-228,
93-233 and 93-234, 1996) (“ Rockwell” ), in which the Commission, applying the test announced in
Van-Buren--Madawaska Corp. , 13 BNA OSHC 2157 (Nos. 87-214, 87-217 and 87-450 through
459, 1989), held that members of a “debris team” were employees of Rockwell although they carried
out their duties at a NASA facility where NASA “exercised a high level of control over all
activities....” 17 BNA OSHC at 1805. The distinction in Rockwell lies in the fact that the hazards
in Rockwell arose and could only be abated by activities near the launch pad. A more closely parallel
situation was addressed by the United States Court of Appeals for the Seventh Circuit. In a case
challenging the validity of the BBP standards, the Seventh Circuit was highly concerned with
situations in which employers in the “home health and medical personnel industries” supply health
care workers who perform their duties at locations not under the control of the employers.
Addressing the question as one within the “multi-employer worksite defense,” the court invalidated
those parts of the BBP standards “insofar as it applies to sites not controlled either by the employer
or by a hospital, nursing home, or other entity that is itself subject to the bloodborne-pathogens rule.”
American Dental Ass’n v. Secretary of Labor, 984 F.2d 823, 830 (7th Cir. 1993), cert denied, 510
U.S. 859 (1993). The court, however, noted that the work site control problem “does not affect
compliance with the parts of the rule relating to HBV vaccination, post-exposure testing and
treatment, and record keeping....” 984 F.2d at 829. The court focused its concern on circumstances
where an employer would be cited for conditions which the employer could not know of or correct
in that its employees worked in locations and situations which neither the employer nor another
entity subject to the standard had control. (The court was addressing the situation where a home
health care supplier employed nurses or aides who perform their duties in private residences). The
rationale of the court is instructive and compelling. It is appropriate to apply it here.

Resting upon the power of INS at the site and its contract with INS, Respondent maintains
that the INS is “the controlling and creating employer” of the Buffalo facility and, as such, the INS,
and not Respondent, is “citable” for any OSHA violations at the facility. Even taking the facts most
favorable to Barbosa, the “OSHA violations” with which it has been cited

revolve around hazards
arising at and which could be abated at locations other than the detention facility. They were not
violations which took place at the facility. The violations here arose out of Respondent’s failure or
refusal to take actions which it could have taken. Moreover, the activities required to comply with
the cited standards could have been accomplished at sites other than the detention facility. Barbosa
is thus found to be both the “creating” and the “controlling” entity.

While it is clear that INS had control of the conditions and activities at the site, the same is
not true as to the hazards for which Barbosa is cited. The hazards in this case are not the exposure
to BBP’s per se , they are the dangers of having employees who are in work situations where
exposure to BBP’s could occur without having had appropriate training beforehand or having
assured appropriate medical treatment afterward. The hazards thus sought to be remedied by the
particular standards cited here arose not at the time and place of the employees’ contacts with BBP.
Those conditions were controlled by INS. Rather, they arose due to Respondent’s failure to take
actions which could have taken place at physical locations other than the INS facility and before or
after exposure incidents occurring at the INS facility. Thus, I conclude that Respondent is the actual
employer of the exposed employees who worked at the INS facility, that Respondent created the
hazardous conditions, and that it had the requisite “control” to abate the hazardous conditions.

Barbosa posits several additional arguments. First, it maintains (correctly) that its employees
at the facility attended BBP training conducted by INS. To the extent that Respondent seeks to
absolve itself of responsibility for the completeness and adequacy of INS training, its claim is
rejected. An employer is ultimately responsible for the adequacy of the training its employees
receive, even where it arranges for training to be conducted by others. See, Baker Tank Co./Altech ,
17 BNA OSHC 1177, 1180 (No. 90-1786, 1995). Second, its claim that it did not or could not
reasonably know that its personnel could be exposed to BBP’s at the facility because the detainees
were tested prior to their entering the general detainee population is factually incorrect. All detainees
were not so screened. Detainees, if screened and found to be HIV positive or to have Hepatitis B
virus, were not segregated from the general detainee population. And, information identifying
detainees who were “known positives” was not available to Barbosa personnel. (Tr. 69, 129,185,
210). Also, Respondent’s highest level management officials reasonably should have known of the
potential BBP contact by its employees at the facility by virtue of their duties there. (Tr. 247, 255,
365-67, 416-17).

Respondent has also raised the claim that the Secretary should be estopped from pursuing
the case against it because the Secretary did not pursue the same or a similar case against INS.
Respondent maintains that the decision to proceed against it amounts to forbidden “selective
prosecution.”

Specifically, Barbosa argues that:

by choosing to close the case against the INS without citing the INS
for any violations, contrary to the investigator’s recommendations,
the Secretary is now estopped from citing Barbosa for identical
conduct.

(Corrected Resp. Reply Brief, p. 24).

There is no real dispute that the facts as stated by Respondent are correct. That is, that
investigations by OSHA of both INS and Respondent were conducted, that the OSHA Compliance
Officer initially recommended that the same or similar citations be issued against both INS and
Respondent and that INS was never cited while Respondent has been. (Tr. 570).

The Commission has recognized a defense of “discriminatory enforcement” in DeKalb Forge
Co ., 13 BNA OSHC 1146, 1152-53 (No. 83-299) (“ DeKalb”) . The Commission stated that:

a claim of selective prosecution is judged by ordinary equal protection
standards (footnote omitted), under which it must be shown that the
alleged selective enforcement had a discriminatory effect and was
motivated by a discriminatory purpose. (Citations omitted).

Id . at 1153.

Respondent’s defense is rejected because a defense of selective prosecution cannot succeed
where, as here, the cited employer seeks to compare itself with a similarly situated federal
government entity. A federal government agency cannot, under section 3(5) of the Act, 29 U. S.C.
§ 652, be an “employer.” Thus, the Secretary is not authorized by the Act to issue citations to or
penalize federal agencies. See also, Executive Order 12196, 45 F.R. 12769. In addition, there is
no evidence that the INS failed to comply with the cited standards in regard to its own employees.
Such a “citation,” if issued to INS, would have had to rest upon the argument that INS was the
employer of Barbosa personnel at the site. On this record, and for the reasons set forth above and
under the principles enunciated in Rockwell, supra, Barbosa personnel at the INS detention facility
were employees of this Respondent, not the INS. Finally, in light of the Secretary’s “broad
prosecutorial discretion” in issuing citations, Barbosa has not fulfilled its burden of proving the
existence of an improper motive or lack of a rational basis for OSHA’s determination not to issue
a citation to INS. DeKalb , 13 BNA OSHC at 1153. Accordingly, Respondent’s defense is rejected.

Based on Respondent’s concession that the violative conditions existed, and the above
findings and conclusions, Items 1 and 2 of Citation 1 and Items 1 and 2 of Citation 2 are
AFFIRMED.

Classification of Violations

Under section 17(k) of the Act, 29 U.S.C. § 666(j), a violation is serious where there is a
substantial probability that death or serious physical harm could result from the violative condition.
Each of the violative conditions, that is lack of an exposure control program, lack of appropriate
training, lack of assured availability of vaccination and lack of assured medical follow-up, and the
refusal to provide follow-up care at no cost to employees, all increased the likelihood that a Barbosa
employee whose duties resulted in his possible exposure to BBP’s, could contract Hepatitis B or
HIV. In light of the nature of the health consequences involved, all of the violations are serious.
Accordingly, Citation 1, Items 1 and 2 and Citation 2, Items 1 and 2 are all found to be serious
violations.

Willfulness

Item 1 of Citation 2 alleges that Respondent’s failure to make the hepatitis B vaccination to
employees having occupational exposure to blood and other potentially infections material was
willful. Item 2 of Citation 2 alleges that Respondent’s failure to make follow-up medical care
available at no cost to exposed employees was also willful.

A willful violation is one committed voluntarily with either an intentional disregard for the
requirements of the Act or with plain indifference to employee safety. A.C. Dellovade,Inc. , 13 BNA
OSHC 1017, 1019 (No. 83-1189, 1987); Asbestos Textile Co. , 12 BNA OSHC 1062, 1063 (No. 79-3831, 1984). A willful violation is differentiated from a non-willful violation by a heightened
awareness that can be considered as conscious disregard of or plain indifference to the standard, See,
i.e., General Motors Corp., Electro-Motive Div ., 14 BNA OSHC 2064, 2068 (No. 82-630, 1991)
(consolidated); Williams Enter. Inc. , 13 BNA OSHC at 1249, 1256-57 (No. 85-355, 1987). This test
describes misconduct that is more than negligent but less than malicious or committed with specific
intent to violate the Act or a standard. Georgia Electric Co. , 595 F.2d 309, 318-19 (5th Cir. 1979);
Ensign-Bickford Co. v. OSHRC , 717 F.2d 1419, 1422-23 (D.C. Cir. 1983). The Commission has
identified the employer’s state of mind as the “focal point” for finding a violation willful. The
Commission has also stated that there are two ways in which the Secretary can establish willfulness.
First, the employer “knows of the legal duty to act,” and, knowing an employee is exposed to a
hazard, nonetheless “fails to correct or eliminate the hazardous exposure.” Second, the employer’s
state of mind was “such that, if informed of the duty to act, it would not have cared.” Branham Sign
Co., 18 BNA OSHC 2132, 2134 (No. 98-0752, 2000)

The Secretary maintains that the evidence is such that it demonstrates Respondent’s
knowledge of its duty to act. She places great emphasis on the evidence showing that Respondent’s
management, both at the site and at its offices, knew or should have known that Barbosa’s employees
at the facility had occupational exposures to blood and other bodily fluids. Barbosa’s denial in this
regard is rejected. Its officials and its employees made it abundantly clear that guards at the facility,
as would be expected, had to intervene during fights amongst detainees, and had to search detainee
premises and persons where contact with razors and other possible blood-bearing items or materials
was possible. (Tr. 365-67, 399-400, 416-17, 244-45, 255). There is also uncontroverted evidence
that Barbosa officials had seen written injury reports noting that its employees had been bitten or cut
on the job. (Tr. 247, 255, Ex. R-14, Ex. C-3, Ex. C-5) Respondent’s officials were also familiar with
the requirement to provide Hepatitis B vaccinations to employees at risk of exposure and had taken
as well as taught courses dealing with the requirements. (Tr. 244, 257, 321, 329, 361, 393-96) In
addition, copies of the standard were given to Barbosa supervisory personnel at the site and faxed
to management officials at Barbosa offices by its employees (Tr. 44, 165-66, 244, 246, Ex. R-14)
several of whom specifically asked to have the vaccinations made available to them. (Tr. 43-45, 79-80, 108-09, 165-66, 189-90, 245) Respondent’s president personally declined to make the
vaccinations available. (Tr. 43, 350). Barbosa’s claim that it relied on its contract with INS for the
belief that it was not obligated to make the vaccine available is rejected. Barbosa’s asserted reliance
on a contract provision is unreasonable given the evidence on this record. Here, Respondent knew
of its duty to act, and made a deliberate and carefully calculated decision not to act. (Tr. 245.) Under
the tests enunciated by the Commission, I find that the violation contained in Citation 2, was willful.

Similarly, Respondent’s failure to make certain that post-exposure medical follow-up would
be made available at no cost to the affected employee, as alleged in Citation 2, Item 2, and as
required by 29 C.F.R. § 1910.1030(f)(1)(ii)(A), was willful. Barbosa knew of the requirement for
the reasons stated above, and made the economically-based decision not to supplement whatever the
employees’ medical insurance covered. Barbosa did so in the full knowledge that employee medical
insurance coverage was insufficient to render post-exposure care cost free to the employees.

Finally, Respondent’s management personnel narrowly concentrated on the terms and
definitions of their contract with INS and the added cost of providing employees with additional
protection, vaccinations and medical follow-up. (Tr. 388-91, 420, 424-25, 505-06, 511-12, 525-26).
Respondent’s President asserted that he directed management officials to provide vaccinations and
that Respondent “would argue with the INS over the money later.” (Tr. 602-03) This assertion,
however, is undocumented and vaccinations, in any case, were not provided, even after Barbosa
received written instructions from INS to do so. (Ex. R-11, Tr. 351-52, 381-82). I find that Barbosa’s
maintaining such a narrow focus on the terms of its contract with INS, and its seeking to absolve
itself of responsibility, especially in the face of employee requests, complaints and faxes, constitutes
plain indifference.

Penalties

The Commission has long held that in determining appropriate penalties for violations, “due
consideration” must be given to the four criteria under section17(j) of the Act, 29 U.S.C. § 666(j).
Those factors include the size of the employer’s business, the gravity of the violation, the employer’s
good faith its history of prior violations. While the Commission has noted that the gravity of the
violation is generally “the primary element in the penalty assessment,” it also recognizes that the
factors “are not necessarily accorded equal weight.” Nacierma Operating Co. , 1 BNA OSHC 1001
(No. 4, 1972).

The record in this case establishes that the Secretary took into account the necessary penalty
factors. (Sec. Brief, pp. 29-31.). The gravity of the violations here is of the highest order. Moreover,
Respondent’s failure to act in the face of full knowledge that its employees at the facility were
incompletely trained, were exposed to BBP’s, and were and not receiving appropriate treatment in
the presence of such exposure, warrants a finding of a total absence of good faith in regard to the
health of its employees. Accordingly, I find that the penalties proposed for Citation 1, Items 1 and
2, and Citation 2, Items 1 and 2, are appropriate.

The willful violation identified in Item 2 of Citation 2, failing to provide appropriate follow-up medical attention at no cost to employees, requires more discussion. While the monetary injury
to a few employees might raise the specter of an other-than-serious violation with a minimal penalty,
I find otherwise. The Commission’s conclusion in a 1983 decision that an employer’s failure to
provide medical examinations “without cost” to employees exposed to inorganic arsenic was serious
within the meaning of the Act was affirmed by the United States Court of Appeals for the Ninth
Circuit. Phelps Dodge Corp. v. OSHRC , 725 F. 2d 1237 (9th Cir. 1984) (“ Phelps-Dodge”)
Similarly, the harm the cited regulation seeks to prevent is the unknown and unchecked progression
of diseases caused by contaminated blood or body fluids, including HIV, AIDS and Hepatitis B.
There is little room for doubt that the effect of these conditions is within the ambit of serious injury
or death.

In regard to Citation 2, Item 2, section 10(c) of the Act, 29 U.S.C. § 659(c), provides that the
Commission may issue an order “affirming, modifying or vacating the Secretary’s citation or
proposed penalty, or directing other appropriate relief....” The Commission has not spoken directly
to the parameters of its authority to direct “other appropriate relief.” Cf., Amax Lead Co. , 13 BNA
OSHC 2169, 2173-74 (No. 80-1793, 1989) (Commission equally divided on whether it has the
authority to grant back pay relief to employees who were removed from usual jobs due to elevated
blood lead levels). In this case, there is unrebutted evidence that a number of Respondent’s
employees sought and received at least some medical treatment following exposure to blood or other
bodily fluids which might have contained BBP’s and that their expenses, including lost wages and/or
sick leave time and days, was not fully reimbursed or paid for by Barbosa. It is therefore appropriate
that the Secretary submit an accounting of such unreimbursed expenses and that Respondent be
directed to compensate the affected employees in the amounts to which they are entitled under this
standard. Accordingly, for good cause and in order to effect justice in this case, the matter of
appropriate reimbursement will be severed pursuant to Rule 10, 29 C.F.R. § 2200.10

, and assigned
a separate Commission docket number (No. 03-2042). An Order will issue forthwith for further
proceedings to determine what amounts, are due to Respondent’s employees as a result of it’s failure
to comply with the subject standard.

FINDINGS OF FACT

All findings of fact necessary for a determination of all relevant issues have been made
above. Fed. R. Civ. P. 52(a). All suggested or proposed findings of fact and conclusions of law
inconsistent with this decision are hereby denied.

CONCLUSIONS OF LAW

1. Respondent was, at all times pertinent hereto, an employer within the meaning of section
3(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. § §  651 - 678 (1970).

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties
and the subject matter.

3. Respondent was in violation of section 5(a)(2) of the Act in that it failed to comply with
the standard at 29 C.F.R. § 1910.1030(c)(1), as alleged in Citation 1, Item 1. The violation was
serious. A civil penalty of $ 4,500.00 is appropriate.

4. Respondent was in violation of section 5(a)(2) of the 2Act in that it failed to comply with
the standard at 29 C.F.R. § 1910.1010(g)(2)(vii)(K), as alleged in Citation 1, Item 2. The violation
was serious. A civil penalty of $ 2,250.00 is appropriate.

5. Respondent was in violation of section 5(a)(2) of the Act in that it failed to comply with
the standard at 29 C.F.R. § 1910.1030(f)(2)(i), as alleged in Citation 2, Item 1. The violation was
serious and willful. A civil penalty of $63,000.00 is appropriate.

6. Respondent was in violation of section 5(a)(2) of the Act in that it failed to comply with
the standard at 29 C.F.R. § 1910.1030(f)(3), as alleged in Citation 2, Item 1. The violation was
serious and willful. A civil penalty of $63,000.00 is appropriate.

7. Pursuant to section 10(c) of the Act, reimbursement to employees of Respondent for
medical and reasonably related expenses not paid for by Respondent which were incurred in
obtaining and receiving appropriate evaluation, treatment, medication and follow-up after exposure
to bloodborne pathogens at the Federal Detention Facility in Buffalo, New York, is appropriate.

ORDER

1. Citation 1, Item1 is AFFIRMED. A civil penalty of $ 4,500 is assessed.

2. Citation 1, Item 2 is AFFIRMED. A civil penalties of $ 2,250 is assessed.

3. Citation 2, Item 1 is AFFIRMED. A civil penalty of $63,000.00 is assessed.

4. Citation 2, Item 2 is AFFIRMED. A civil penalty of $ 63,000.00 is assessed.

5. The matter of an accounting and reimbursement of medical expenses is severed
   and assigned OSHRC Docket Number 03-2042.

/s/  

Michael H. Schoenfeld

Judge, OSHRC

Dated: November 24, 2003  

Washington, D.C.

SECRETARY OF LABOR,

Complainant,

v

DOCKET No. 02-0865

THE BARBOSA GROUP, d/b/a EXECUTIVE
SECURITY,

Respondent.

DECISION AND ORDER

APPENDIX A

CITED STDS AND CITATION ITEM DESCRIPTIONS

Citation 1 (Serious), Item 1

Cited Standard: 29 C.F.R. § 1910.1030(c)(1)

Exposure Control Plan.

1910.1030(c)(1)(i)

Each employer having an employee(s) with occupational exposure as defined by
paragraph (b) of this section shall establish a written Exposure Control Plan designed
to eliminate or minimize employee exposure.

Description in Citation:

The employer having employee(s) with occupational exposure did not establish a
written Exposure Control Plan designed to eliminate of minimize employee
exposure:

a) INS Buffalo Federal Detention Facility - On or about 11/04/2001, the employer
having employees with occupational exposure did not establish a written Exposure
Control Plan designed to eliminate or minimize employee exposure.

Citation 1 (Serious), Item 2 - Serious

Cited Standard: 29 C.F.R. § 1910.1010(g)(2)(vii)(K)

The training program shall contain at a minimum the following elements

1910.1030(g)(2)(vii)(K)

An explanation of the procedure to follow if an exposure incident occurs, including
the method of reporting the incident and the medical follow-up that will be made
available

Description in Citation:

The bloodborne pathogens training program did not contain an explanation of the
procedure to follow if an exposure incident occurred, including the method of
reporting the incident or the medical follow-up that would be made available:

a) INS Buffalo Federal Detention Facility - On or about 11/04/2001, the employer did
not provide employees having occupational exposure to blood or other potentially
infectious material with training that included an explanation of the procedure to
follow if an exposure incident occurred, including the medical follow-up that would
be made available.

Citation 2 (Willful), Item 1 - Willful

Cited Standard: 29 C.F.R. § 1910.1030(f)(2)(I)

1910.1030(f)(2) Hepatitis B Vaccination.

1910.1030(f)(2)(i)

Hepatitis B vaccination shall be made available after the employee has received the
training required in paragraph (g)(2)(vii)(I) and within 10 working days of initial
assignment to all employees who have occupational exposure unless the employee
has previously received the complete hepatitis B vaccination series, antibody testing
has revealed that the employee is immune, or the vaccine is contraindicated for
medical reasons.

Description in Citation:

Hepatitis B vaccination was not made available after the employee had received the
training required in 29 C.F.R. § 1910.1030(g)(2)(vii)(I) or within 10 working days
of initial assignment to employees who had occupational exposure to blood or other
potentially infectious materials:

a) INS Buffalo Federal Detention Facility - On or about 11/04/2001, the employer did
not make the hepatitis B vaccination available to employees having occupational
exposure to blood and other potentially infectious material.

Citation 2 (Willful), Item 2

Cited Standard: 29 C.F.R. § 1910.1030(f)(3)

1910.1030(f)(3)

Post-exposure Evaluation and Follow-up. Following a report of an exposure incident,
the employer shall make immediately available to the exposed employee a
confidential medical evaluation and follow-up, including at least the following
elements:

1910.1030(f)(1)(ii)(A)

Made available at no cost to the employee;

Description in Citation:

Following a report of an exposure incident the employer did not make immediately
available to the exposed employee a confidential medical evaluation or follow-up:

a) INS Buffalo Federal Detention Facility - On or about 11/04/2001, following the
report of an exposure incident, the employer did not make immediately available to
the exposed employee a confidential medical evaluation or follow-up.