Central Operating Co.-Philip Sporn

Plain-English summary

Central Operating Company designated 82 employees at its Philip Sporn plant as members of a first-aid crew. The company argued that rendering aid was voluntary, so the crew members were good samaritans rather than employees with occupational exposure to bloodborne pathogens. The judge rejected that argument because the employees were trained, assigned to the crew, required to respond to calls, and had first-aid responsibilities in their job descriptions. The company therefore had to maintain the cited exposure-control plan and training protections. The two items were affirmed as other-than-serious with penalties of $1,000 each, while the remaining citation items were resolved by settlement.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1030(c)(1)(i); 29 C.F.R. § 1910.1030(g)(2)(vii)
• Outcome: Two bloodborne-pathogen items affirmed as other-than-serious with $2,000 in penalties; other items settled
• Key point: A first-aid duty remained occupational exposure even when individual crew members were told they could decline to provide care after responding.

Full text (OSHRC public release)

                          UNITED STATES OF AMERICA
OCCUPATIONAL          SAFETY AND HEALTH REVIEW COMMISSION
                            One Lafayette Centre
                      1120 20th Street, N.W. - 9th Floor
                         Washington, DC 200364419

SECRETARY OF LABOR
Complainant
v. OSHRC DOCKET
NO. 93-0436
CENTRAL OPERATING CO.-PHIiJP SPORN
Respondent.

                 NOTICE OF DOCKETING
           OF ADMINISTRATIVE UW JUDGE’S DECISION
 The Administrative Law Judge’s Report in the above referenced case was

docketed with the Commission on February 13, 1995. The decision of the Jud 4F
will become a final order of the Commission on March 15, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MCJST FILE A PETTI’ION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
March 6, P995 in order to ermit sufkxent time for its review. See
Commission Rule 91,29 cp: . .R. 2200.91.
All f&her pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. h&k Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DO8,
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210

If a Direction for Review is issued bv the Commission then the Counsel for
Regional Trial Litigation will represent the Department of Labor. hY Party
havmg questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION

Date: February 13, 1995 Ray H. Darling, Jr.
Executive Secretary
DOCKET NO. 93-0436
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mi& Esq.
Counsel for Regional Trial Iiti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Catherine Oliver Murphy
De uty Regional Solicitor
02 ce of the Solicito:, U.S. DOL
14480 Gatewa Buildmg
3535 Market Htreet
Philadelphia, .PA 19104

10 South Jefferson Street
P.O. Box 14125
Roanoke, VA 24038 4125

Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety and Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00101182574:03
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. -9th Floor
Washington, DC 200364419

                                         ..

SECRETARY OF LABOR,

  Complainant

           v.                                   Docket No. 93-0436

CENTRAL OPERATING COMPANY i
PHILIP, SPORN PLANT, a0

  Respondent.

Appearances:
Mark Swhlgr, Esq. Dudley F. Woody, Esq.
Office of the Solicitor Woods, Rogers & Hazelgrove,
U.S. Department of Labor P.LL
For Complainant Roanoke, VA
For Respondent

Before: Administrative Law Judge Michael H. Schoenfeld

                              PECISION AND ORDER                  .

Backmound and Procedural Historv

  This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. 5 5

651- 678 (1970) (“the Act”)
Respondent was issued one citation alleging 8 serious violations of the Act and one
citation alleging a single other than serious violation of the Act. All alleged violations
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 200364419

PHONE:
COM(202#6066100 NOTICE OF DECISION
Frs(202)606-6100

 IN REFERENCE TO:

 SECRETARY OF LABOR v. CENTRAL OPERATING COMPANY - PHILIP, SPORN
                    PLANT
 OSHRC DOCKET NO. 93-0436

 1. Enclosed is a copy of my decision. It will be submitted to the Commission’s Executive
 Secretary on February 10, 1995.        The decision will become the final order of the
 Commission at the expiration of thirty (30) days from the date of docketing by the Executive
 Secretary, unless with that time a Member of the Commission directs that it be reviewed.
 All parties wiII be notified by the Executive Secretary of the date of docketing.

 2. Any party that is adversely affected or aggrieved by the decision may file a petition for
 discretionary review by the Review Commission. A petition mav be filed with this JudE
 within twentv (20) davs from the date of this notice. There after. anv petition must be filed
 with the Review Commission’s Executive Secretarv within twentv (20) davs from the date of
 the Executive Secretarv’s notice of docketing. See paragraph No. 1. The E;Kecutive
 Secretary’s address is as follows:

                                      Executive Secretaxy
                                Occupational Safety and Health
                                      Review Commission
                                     One Lafayette Centre
                                1120 20th Street, N.W. 9th Floor
                                 Washington, D.C. 200363419

  3. The full text of the rule governing the filing of a petition for discretionary review is 29
  C.F.R. 2200.91 (51 Fed. Reg. 32026, Sept. 8, 1986). It is appended hereto for easy
  reference, as are related rules prescribing post-hearing procedures.




                                                   MICHAEL H. SCHOENFELD
                                                   Judge, OSHRC
  Dated:           January 20,199s
                   Washington, D.C.

except items Nos. 6 and 8 of the serious citation have been set&L1
The remaining items in contest (Serious Citation Items 6 and 8) allege violations of
two of OSHA’s bloodbome pathogens standards. Item 6 alleges that Respondent did not
have any written Bloodbome Pathogen Exposure Control Plan as required by 29 C.F.R.
Q 1910.1030(c) while Item 8 alleges that Respondent failed to ensure that employees with
occupational exposure to infectious materials were trained. The latter alleged violation
specifies as separate sub-parts, nine elements each required by a different sub-section of 29
C.F.R. 1910.1030(g)(2). .
The parties, with the approval of the Administrative Law Judge, requested that the
case be submitted for decision without a hearing pursuant to Rule 61.2 The parties had an
opportunity to present written as well as oral argument and to respond to the proffer into
evidence by the Administrative Law Judge of exhibit AL&l? No affected employees have
asserted party status.

 ’ The settlement agreement between the parties is attached hereto and incorporated

frilly into this decision and order. The settlement agreement meets all of the requirements
of Commission Rule 100, 29 C.F.R. 0 2200.100 and, accordingly, it is approved in its
entirety.

2 Rule 61,29 C.F.R. 0 2200.61, provides:

          5 2200.61      Submission without hearing.

          A case may be fully stipulated by the parties and submitted to
          the Commission or Judge for a decision at any time. The
          stipulation of facts shall be in writing and signed by the parties
          or their representatives. The submission of a case under this
          rule does not alter the burden of prooc the requirements
          otherwise applicable with respect to adducing proof; or the
          effect of failure of proof. Motions for summary judgment are
          covered by Fed.R.Civ.P. 56.

 3 At the oral argument the Administrative Law Judge notified the parties that he would

take official notice of and place into evidence as Exhibit ALJ-1, a document published by
OSHA’s Directorate of Compliance Programs entitled OccupatibnulExposureto Bhdbome
Patbgm Interpretive Qui@ (IQs),JurteI993 Vemid The parties were afforded ample time
following the oral argument to file comments, objections or replies regarding AI&l. See,
Rule 201, Fed. Rule Evid. Both parties have filed post-hearing comments.
Discussion
The determinative issue in this matter is whether, under the specific facts of the case,
the cited standards are applicable to Respondent.4
The cited standards apply if the members of the first aid crews have “Occupational
Exposure” (to bloodborne pathogens) as defined by 29 C.F.R. g 1910.103O(c)(1) which states:
OccupatibnaZ lZ$msure means reasonably anticipated skin, eye
mucous membrane, or other parental contact with blood or
other potentially infectious materials that mav result from the
performance of an emDlovee’s duties.

(Emphasis added.)
Respondent’s basic position is that because members of its first aid crew are
instructed that it is informal company policy that the rendering of first aid is voluntary, the
actual performance of first aid procedures upon an injured person is not part of these
employees’ duties.
It is undisputed that- of its 355 employees, 82 are members of Respondent’s First Aid
Crew. (Stip. 0 9 1,17). Respondent argues that the crew members actually have the option
to decline to render first aid. Respondent’s first aid trainer stated in his affidavit that his
training classes include the instruction to employees on the first aid crew that the actual
rendering of first aid to a victim in need is voluntary (Powers affidavit, 11c 8 - 11).
According to Respondent, since the rendering of first aid is voluntary, it cannot be said that
any exposure to bloodborne pathogens5 “results from the performance of the duties of the

4 In general, to prove a violation of a standard, the Secretary must demonstrate by a

preponderance of the evidence (1) that the cited standard applies, (2) non-compliance with
the terms of the standard, (3) employee exposure or access to the hazard created by the
non-compliance, and (4) the employer knew or, with the exercise of reasonable diligence,
could have known of the condition.Astia Phmaceuticalhdktq Inc., 9 BNA OSHC 2126,
2129 (No. 78-6247, 1981); Dun-Par EngineeredFom Co., 12 BNA OSHC 1949 (No. 7%
2553), rev’d & remanded on othergrounds, 843 F.2d 1135 (8th Cir. 1988), dkisbn on remcrnnd
13 BNA OSHC 2147 (1989). Respondent defends in this case solely by arguing that the
cited standards are not applicable.

’ The parties stipulated that in rendering first aid, crew members could reasonably be

anticipated to contact infectious materials. Stip., lL8.
employees.” Respondent claims that the provision contained in the job descriptions of many
of its employees to the effect that the employee “carry out first aid assignments” does not
alter the voluntary aspects of its first aid policy. It also notes that under its policy it would
not discipline an employee member of the first aid crew who was present but declined to
render first aid. There have been, however, no such incidents recorded. (Stip. 1 13).
Moreover, Respondent maintains that the job descriptions do not necessarily include the
rendering of first aid as a part of the job duties but merely identify the job classifications
from which the first aid crew members are designated Finally, Respondent argues that
when employees on the first aid crew voluntarily provide first aid, they are acting as “good
samaritans” and are thus exempt from coverage of the cited standard~.~
Complainant relies on the employees’ job descriptions which contain “first aid duties”
amongst other requirements.’ The Secretary disagrees with Respondent’s good samaritan
argument. He claims that the preamble to the standard distinguishes between first aid
rendered by a good samaritan as opposed to first aid rendered by a memkr of a first aid
team.
I reject Respondent’s position and conclude that the standard is applicable to
members of Respondent’s first aid crew.
First, the wording of the standard is reasonably unambiguous. Where an employee’s
job duties include placing that employee in a position where it is reasonable to anticipate
that he or she might come into contact with potentially infectious materials, the employee
is to be protected under the blood borne pathogene standards. Respondent’s claims that
the job descriptions’ references to first aid are not in a mandatory tone and that its first aid

6 Respondent also intimates that applying the standards to its first aid crew members

would be detrimental to workplace safety overall and that compliance with the standard
would be bothersome and difficult. These arguments, suggesting the “greater hazard” and
“infeasibility”defenses are rejected in that they were neither pled nor are they supported by
any evidence at all.

 ’ Several of the job descriptions in appendix C submitted as part of the stipulation

between the parties, contain the following under “DUTIES:” “[c]arrying out assignments in
training for or performing fire fighting and first aid?
crew members are subject to an “informal policy” described above warrant little weight. First
aid responsibilities are included as “duties”in employee job descriptions as are other job
functions. They are described in the same or similar language suggesting that the employee
is to anticipate being called upon to perform “assignments in. . qerforming. l Jirst aicL’”
It is thus within the employees’ job duties to be trained in and to provide first aid if so
directed by the employer. Second, training an employee in first aid and assigning him or her
to the first aid crew raises the reasonable expectation that the individual will render medical
assistance as part of his or her job at some time or another. Explanatory materials fkom
OSHA make it clear that assignment to a first aid team is one way in which an employer can
be found to have reasonably anticipated that the employee so assigned would render first
aid. An interpretation of the applicability of 6 1910.1030 issued by the Kansas City regional
office of OSHA warns that contact with infectious materials is reasonably anticipated where
an employee providing first aid to another employee “is a member of a first aid team or &
otherwise expected to render medical assistance as one of his or her duties.” (Emphasis
added.)’
Third, Respondent’s assertion that employees who render first aid are “good
samaritans” exempted fkom coverage of the standard and its similar reliance on its “policy”
that first aid crew members can refuse to render first aid without fear of disciplinary action
is unrealistic and unpredictable and is thus unreasonable. Even though it is stipulated (and
must be accepted as an established fact) that Respondent instructs its first aid team

 ’ See, e.g,, Stipulation, Exhibit C, Job description of Maintenance Mechanic - C, which

lists 26 job duties.

 9 This interpretation is quoted at length in Judge Schwartz’s opinion in Patterson DriEhg

CO BNA OSHC 9 (No. 93-1371, June 4, 1971). The parties have discussed the
PaGeG opinion at lesand are both thoroughly fZ&liar with its contents.
Despite the fact that the Judge’s decision in Patterson is not of precedential value
because it was never directed for review by the Commission, it is highly instructive and
warrants close reading. Judge Schwartz, in a closely reasoned and carefully analyzed opinion
held that the rendering of first aid by employees neither trained in first aid nor assigned as
members of a first aid team were the acts of “good samaritans” falling outside the coverage
of the cited standards. The holding in Pattetson is not inconsistent with conclusions reached
herein.
members that they may decline to render first aid’ it “requires that members of the First Aid
Crew respond when a call for first aid is made.” (Stip., 1 13) (Emphasis added.). Thus, while
one or more members of the first aid team which responds might decline to render aid’
Respondent “has an expectation that one or more members of the First Aid Crew will
respond in any first aid emergency and will participate in rendering first aid services.” (Stip.
115). Whether any member or members of the first aid team gathered in the vicinity of
a victim needing assistance will decline to render first aid at the scene of an accident is
purely serendipitous and unpredictable. The fact that Respondent anticipates that first aid
team members will respond when needed and at least one or more members of that team
will render first aid, renders it reasonably predictable that at least some first aid team
members may be exposed to infectious materials. Because Respondent cannot possrbly
anticipate which, if any first aid team members might respond to any given incident and
which, if any of the responding team members might decline to render first aid, its position
amounts to failing to provide protection to all employees who do respond and render first
aid. Finally, the “good samaritan” exception was designed to cover employees who perform
unanticipated first aid. 56 Fed. Reg. 64008, at 64102 (Dec. 6, 1991); Ex AU-l, (file: a-
fGdll.irs, p. 4; file: a-faidO5.irs, p. 5).
Based on the above, I conclude that training an employee in first aid, including in the
job description the duty of “carrying out assignments in performing first aid” and assigning
that employee to the first aid team is sufficient to raise the reasonable anticipation that such
an employee may come into contact withinfectious materials as part of his or her job duties.
Employees so designated must then be covered by the cited standards.
Pursuant to the stipulation between the parties, having found the standards
applicable, Respondent was in violation of the Act as alleged in items 6 and 8.
The parties saw fit to stipulate that if affirmed, each of the violations would be
properly classified to be other-than-serious and that a civil penalty of $1,000 would be
appropriate for each violation under 5 17(j) of the Act. While parties cannot bind the
Commission by stipulating as to conclusions of law (what penalty is “appropriate”), there is
nothing in this record which would indicate that any other penalty is more appropriate.
Moreover, the parties stipulation as to the classifications and penalty amounts is an integral
element in their effort to have this case decided without a possribIylengthy and expensive
hearing. Under these circumstances, I conclude that a penalty of $1,000 for each violation
is appropriate.

                                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 proposed findings of fact and conclusions of law
inconsistent with this decision are hereby denied.

                              CONCLUSIONS OF L%W


   1. Respondent was, at all times pertinent hereto, an employer within the meaning

of 0 3(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. 0 3 651 - 678
(1970).

   2 The Occupational Safety and Health Review Commission has jurisdiction over the

parties and the subject matter.

   3. Respondent was in serious violation of 5 5(a)(2) of the Act in that it ftied to

comply with the following OSHA standards; 29 C.F.R. 0 1910.1030(c)(l)(i) as alleged in
i&ml 6 ant329 C-F-R- 9 0 1~~0-1O~O(g)(2)(~)(A), (B), (q, (G), (q, (I), (K), (L) and (M>
as alleged in item 8,

       Each of the violations are other-than-serious.


       A civil penalty of $1,000 each is appropriate for items 6 and 8 of the citation.

1. Items 6 and 8 of the serious citation issued to Respondent on or about December
18 1992 are AFFIRMED.
2. A civil penalty of $1,000 for each of the items is assessed.

                                /
                                         MICHAEli H. SCHOENFELD
             510=               .        Judge, OSHRC

Dated:
Washington,D.C.
 UNITED STATES OF AMENCA
OCCUPATIONAL SAFETY AND HEALTH REVIEWCOMMISSION

                                                   .
                                                   .

SECRETARYOF LABOR ..
.
.
complainant, ..

            v.                                             Docka No. 93-0436
                                                   .
                                                   .

CENTIULOPERATINGCOMPANY- ..
PHILIP, SPORNPLANT, ..

     Respondent.
                                                   .
                                                   .
                                                   .




     As a result of a telephone conferenceof this date, and pursuantto Rule 90@)(3), 29 CF.R

0 2200.90@)(3),the followingerrors tising through oversight or inadvertencein the Decision and
Order dated Januy 20,1995 are hereby corrected.

     1. Conclusionof law number 3 is amendedto read as follows:

            3. Respondent was in violation of 8 S(a)(2) fo the Act in that it fkiled to comply with
            the followingOSHA standards; 29 C.F.R 0 1910.1030(c)(1)@)as alleged in item 6
            ami 29 C*F*R09 19~0*~03q@o(x~x~~, 0, ~~~ (G),rn~ 0, CQ t?J and 0
            as alleged in item 8.

     2. Paragraph 1 of the Order dated January 20,1995 is amended to read as follows:
            1. Items 6 and 8 of the citationissuedto Respondenton or about December l&1992,
            and as amended to allegeother than seriousviolationsofthe Act, are m         AS
            AMENDED.




                                          /        MichaelH. Schoeaeld
          “3AN2 4 I995

Dated: Judge, OSHRC
Washington,D.C.