United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, D.C. 20036-3457
SECRETARY OF LABOR, |
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Complainant, |
|
v. |
OSHRC Docket No. 16-1628
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SCHAAD DETECTIVE AGENCY, INC., |
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Respondent. |
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Appearances: Nicholas C. Geale, Acting Solicitor of
Labor
Oscar L. Hampton III, Regional Solicitor
Michael P. Doyle, Regional Counsel
U.S. Department of Labor, Office of the Regional
Solicitor, Philadelphia, Pennsylvania
For the Secretary
L.C. Heim, Esq.
Katherman, Heim & Perry
York, Pennsylvania
For the Respondent
Before: Dennis L. Phillips
Administrative Law Judge
DECISION AND ORDER
This proceeding is before the
Occupational Safety and Health Review Commission (Commission) pursuant to
sections 2-33 of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§
651-678 (OSH Act). At about 7:00 a.m., March
20, 2016, an employee, first name [redacted],[1]
for Schaad Detective Agency (Schaad or Respondent) was shot and killed by an
armed robber, Clarence Leslie Briggs, during a robbery of one of Respondent’s
clients that occurred at the Fort Littleton Pennsylvania Turnpike Interchange,
near Mile Marker 180 of the Pennsylvania Turnpike (PA Turnpike). [redacted] was a contracted armed security guard
tasked with protecting a Pennsylvania Turnpike Commission (PTC) employee and
van driver (also referred to as a “teller”), [redacted], while he delivered and
collected money at PA Turnpike tollbooths.[2] Mr. Briggs was a retired 25-year state trooper
familiar with the money exchange detail on the PA Turnpike. (Tr. 153, 157; Ex. 9 at 1-4). [redacted] was not wearing a ballistic-resistant
vest, even though Respondent had provided and encouraged, but did not require,
him to wear one.[3] Mr. Briggs shot [redacted] at least twice in
the chest with a high-power rifle, and he died due to the bullet wounds to his
torso. (Tr. 153-55; Ex. 9 at 1-4, 9,
12).
The Occupational Safety and Health
Administration (OSHA) investigated Respondent as a result of this
incident. As a result of the
investigation, OSHA issued Respondent on September 20, 2016, a citation alleging
a serious violation of 29 C.F.R. § 1910.132(a)[4]
and proposing a $12,471 penalty.[5] Respondent filed a timely notice of contest,
bringing this matter before the Commission.
In its Answer to the Secretary’s
Complaint, Respondent admitted that it was an employer within the meaning of
section 3(5) of the OSH Act, 29 U.S.C. § 652(5) and admitted to “the time,
location, place, and circumstances of each alleged violation under contest [as]
set forth in the Citation and Notification of Penalty.” (Answer at ¶¶ 3-5). Respondent, however, denied that the proposed
penalty gave “due consideration to the gravity of the violations, the size of
Respondent’s business, Respondent’s good faith, and its history of previous
violations, as required by Section 17(j) of the Act, 29 U.S.C. 666(j).” (Answer at ¶ 6). Respondent further stated: “The penalties are unreasonable under
the circumstances in this case.” (Answer
at ¶ 6). Respondent then requested
“that the Commission either dismiss the Citations or reduce the penalties to a
minimal amount.” (Answer at 1).
The trial was held on October 24 and 25, 2017 in York, Pennsylvania.[6] Both parties filed post-trial briefs, and
Respondent filed a post-trial reply brief.
For the reasons set forth below, the Court vacates Citation 1, Item
1.
STIPULATIONS
The following statements were stipulated to by the parties before trial
and entered into the record at the request of the parties at trial:
1. Respondent is a corporation organized under Pennsylvania law.
2. Respondent has a website at www.schaad.com.
3. Respondent provides comprehensive security and private
investigation services throughout Pennsylvania, including armed security guard
services.
4. Russell Wantz, Jr. is, and at all relevant times was, owner and
sole shareholder of Respondent.
5. Timothy Lenahan is, and at all relevant times was, general manager
of Respondent.
6. Mr. Lenahan is responsible for day-to-day operations for
Respondent.
7. Mr. Lenahan reports directly to Mr. Wantz.
8. From 1997 through 2016, Respondent had a contract with the Pennsylvania
Turnpike Commission under which Respondent provided armed escorts to ride with
Turnpike tellers in Turnpike vans as the tellers collected money from toll stations.
9. In 2008 and 2009, Respondent purchased Level IIIA
ballistic-resistant vests for employees who served as armed security guards,
including those who performed armed escort duty under the Turnpike contract.
10. Respondent encouraged employees who had been provided
ballistic-resistant vests to wear the vests, but did
not require their use.
11. Respondent provided ballistic-resistant vests to armed guards, but
not to unarmed guards.
12. [redacted] was an employee of Respondent on March 20, 2016.
13. [redacted] was shot and killed on March 20, 2016, while serving as
an armed escort pursuant to the contract between Respondent and the
Pennsylvania Turnpike Commission.
14. [redacted] was shot during an attempted robbery at a tollbooth
interchange.
15. [redacted] was not wearing a ballistic-resistant vest at the time
he was shot on March 20, 2016.
16. Respondent knew before 5 p.m. on March 20, 2016, that [redacted]
had been killed earlier that day.
17. Respondent reported [redacted]’s death to OSHA on March 22, 2016.
18. [redacted]’s failure to wear a ballistic-resistant vest on March
20, 2016, was not a violation of any of Respondent’s rules or policies.
19. Prior to [redacted]’s death, in Respondent’s 45-year history of
providing armed and unarmed security services, and involving thousands of
employees, there was never a single incident of an employee being confronted by
deadly force.
20. At the time of [redacted]’s death, Respondent had no policy
requiring its employees who served as armed security guards to wear
ballistic-resistant vests while on duty.
21. After [redacted]’s death, Respondent drafted and implemented a
policy requiring all armed guards to wear ballistic-resistant vests during their
shifts while engaged in field activities.
22. OSHA’s August 6, 2013 opinion letter on ballistic-resistant vests
(from Thomas Galassi to Mrs. Diane Stein) was posted to OSHA’s public website
on April 16, 2014.
(Stipulations (Stip.), Joint
Pre-Hearing Statement (Jt. Pre-Hr’g St.)), at 6-8; Tr. 31-32).
During the trial, the parties also
stipulated that the bullet proof vests purchased by Schaad from 2009 through
March 2016 were Level III-A. (Tr. 84;
Ex. 6).
JURISDICTION
The record establishes that Respondent has
approximately 380 employees, most of which are security guards in either armed
or unarmed capacity. (Tr. 124). Additionally, Respondent filed a timely notice of contest
and admits that, as of the date of the alleged violations, it was an employer
engaged in business affecting commerce within the meaning of section 3(5) of
the OSH Act. (Answer at ¶¶ 3-5). Based upon the record, the Court finds that
at all relevant times Respondent was engaged in a business affecting commerce
and was an employer within the meaning of sections 3(3) and 3(5) of the OSH Act. The Court concludes that the Commission has
jurisdiction over the parties and subject matter in this case, and Respondent
is covered under the OSH Act.
OSHA CITATION
Citation 1, Item 1 alleges a serious
violation of 29 C.F.R. § 1910.132(a) and proposes a $12,471 penalty. The Secretary claims that Respondent violated
the cited standard because:
Protective equipment was not used when necessary
whenever hazards capable of causing injury and impairment were encountered:
(a) Turnpike Interchanges and Regional Offices throughout
the Entire Pennsylvania System – Employees worked as armed security officers
providing security for the Pennsylvania Turnpike Commission fare collection
operation, which involved the delivery and pick up of money. The employer did not require and ensure that
these armed security officers wore ballistic-resistant body armor vests,
exposing employees to ballistic injuries to the vital organs in the torso, on
or about March 20, 2016.
(Citation at 6). Section 1910.132(a) requires that PPE “shall be provided, used, and maintained …
wherever it is necessary by reason of hazards of processes or environment….” 29 C.F.R. § 1910.132(a).
BACKGROUND
Respondent’s Armed Security Guards
Respondent provides armed and unarmed
security for its clients throughout Pennsylvania. About 65% of Respondent’s employees are armed
security guards. (Tr. 124; Stip. 3). In 1997, Respondent contracted with the PTC
to provide armed security guards to protect PTC teller employees who delivered
and collected money at PA Turnpike tollbooths.
As part of their duties, Respondent’s
armed security guards accompany the PTC teller employee in an unmarked,
“standard civilian-issue cargo van (van), no windows on the sides or the back,”
and no signage to identify what it was.
(Tr. 79). The PTC teller employee
drove the unmarked van and Respondent’s armed security guard would sit “shotgun
seat with them.” (Tr. 95). The PA Turnpike detail generally started
around 7:00 a.m. when Respondent’s armed security guard met the PTC teller employee
at a PA Turnpike tollbooth, accompanied the PTC teller employee in the unmarked
van to about 6-8 Turnpike tollbooths, and then returned around noon. (Tr. 95-97).
The duties of Respondent’s armed security
guards while working the PA Turnpike detail focused on the security of the PTC teller
employee who was responsible for driving the van and exchanging money at the PA
Turnpike tollbooths. The armed security guards’
focus was not on the money being exchanged.
As a guard of the PTC teller/driver of the van, Respondent’s armed security
guard stood outside the van while the PTC teller entered tollbooths. The armed security officer guarded the PTC teller’s
back while the PTC teller took money inside the tollbooth. The armed security guard would stay outside
of the tollbooth, and then accompany the PTC teller back into the van and
leave. (Tr. 71-73, 87-89, 95-97).
At no time, including in the event of
a robbery, were Respondent’s armed security guards to handle the money. (Ex. 5 at 1-2). Rather, Respondent’s armed security guards
served as a “deterrent” to robberies.
(Ex. 5 at 1, section 2.0(C)). As
a “deterrent,” the armed security guards were to act in accordance with
Respondent’s Standard Operation Procedures while working the PA Turnpike
detail. (Ex. 5). In the event of a robbery, Respondent’s
policy for its armed security guards is “to be a deterrent only. The safety of the teller is the only
goal. If a robbery is
attempted/committed contact the PSP [Pennsylvania State Police]
immediately.” (Ex. 5 at 2; Tr. 143).
In this case, however, after being
told of an armed robbery in progress, [redacted] left the van and Teller [redacted]
sitting in it at a tollbooth and moved to a building looking for Mr. Briggs,
who shot and killed him. (Tr. 152-55:
Ex. 4, 12). After the incident,
Respondent no longer held the contract with the PTC for the PA Turnpike
detail. The PTC now contracts with an
armored truck company for that task.
(Tr. 125).
The Incident
At about 6:45 a.m., March 20, 2016, PA
Turnpike Tollbooth Collectors [redacted] and [redacted][7]
were in their tollbooth at the Fort Littleton Pennsylvania Turnpike
Interchange, near mile marker 180 of the PA Turnpike. Mr. Briggs approached their tollbooth on foot
wearing a camouflage mask and body armor.
He pointed a hand gun at [redacted] and ordered both her and [redacted]
into the breakroom of an adjacent building, where he ordered [redacted] to tie [redacted]’s
hands behind his back. She did so. While Mr. Briggs was tying [redacted]’s
hands, [redacted] got out of his restraints and took the hand gun away from Mr.
Briggs. [redacted] ran back to her tollbooth
and notified Pennsylvania State Trooper Highspire (presumably by telephone) that
an armed robbery was in progress.
As the PA Turnpike toll collection unmarked
red van driven by PTC Teller [redacted], with Respondent’s armed security guard
[redacted] (age 71) sitting in the passenger seat, arrived at lane 3 of the
toll area at about 7:00 a.m.,
[redacted] saw Tollbooth Collector [redacted] walking around a
building holding a gun and missing a shoe. He also saw and overheard [redacted] telling
Trooper Highspire that she and [redacted] had been
robbed at gun point. [redacted] knocked
on [redacted]’s passenger door and told [redacted] “they needed him because he
was armed and the robber just went around the
building.” [redacted] exited the van and
circled around the rear of the van towards the south side of the building. [redacted] went around the front of the van and also moved toward the building.
Mr. Briggs recovered a high-power assault
rifle he had pre-positioned outside the building before the start of the
robbery. Mr. Briggs fired three shots
from his rifle striking [redacted] twice in the chest and killing him at the
south side of the building. Mr. Briggs
also struck [redacted] with one shot from his rifle while [redacted] was at the
south side of the building. [redacted]
then walked to the west side of the building and collapsed falling to the
ground and died.
Pinned in the van because the tollbooth
was blocking him from opening the door of his van, [redacted] saw and/or heard
the shootings. [redacted] then saw Mr.
Briggs, wearing a mask, in front of his PA Turnpike red van. Mr. Briggs fired one shot into the van’s
windshield. [redacted] put the van in reverse
and while driving about 60 feet backwards, Mr. Briggs fired another shot into
the van’s windshield. Fearing for his
life, [redacted] put the van in park, exited the van and ran along the
guardrail. As he was running, he heard
Mr. Briggs fire two additional gun shots.
He crouched lower and fell because he pulled his hamstring. He got up and jumped over a concrete Jersey
barrier. He then saw Mr. Briggs get into
and steal the PA Turnpike’s red van that had been earlier driven by [redacted]. Mr. Briggs drove the red van through the lane
of the toll area heading towards SR 522.
Pennsylvania State Troopers [redacted]
and [redacted] then arrived at the scene.
[redacted] showed them his identification badge and told them that the
robber had just got into the PA Turnpike’s van and was driving away towards SR
522. The two troopers drove through the tollbooths
towards SR 522. Mr. Briggs fired
additional shots. Trooper Holdford
positioned his marked patrol vehicle facing towards the PA Turnpike
building. He heard two more shots coming
from the direction of the red van that he could see through pine trees that were
between himself and SR 522. Mr. Briggs
fired two additional shots coming from the direction of the red van. Using his personal patrol rifle, Trooper [redacted]
shot Mr. Briggs one time in the upper leg femur, hitting an artery. Mr. Briggs died at the scene “fairly quickly”
from loss of blood. (Tr. 153-56; Ex. 9,
at 1-4, 9, 12, 39).
Respondent’s Uniform and Policies for Armed Security Guards
While on duty, Respondent’s armed security
guards wear a uniform which includes black boots, navy blue pants, a black
belt, navy blue uniform shirt, and a gold badge denoting the guard’s rank
within Respondent’s hierarchical structure.
(Tr. 75-76). Each armed security guard
supplies his own weapon. For example, Matthew
Titus testified that he wore his Glock Model 22.4 caliber handgun while on
duty. (Tr. 76).
In accordance with Respondent’s
continuum of force policy, Respondent’s armed security guards were, in all
instances, trained to use deadly force, and in some instances, allowed to use
deadly force. (Ex. 4). The following is the relevant portion from
Respondent’s use of deadly force continuum document:
(Ex. 4 at 1). All of
Respondent’s armed security guards are required to complete “Act 235 training.”[8] (Tr. 128).
Respondent also provides a Level IIIA
ballistic resistant vest to its armed security guards. (Tr. 84, 147, 256-57; Exs. I (photograph of
Level III-A), II (photograph of Level II-A; Jt. Pre-Hr’g St. at ¶ 9). The parties stipulated that the chart below
represents “the protection level of the various levels of ballistic-resistant
vests, and what they stop and what they are meant to stop.” (Tr. 120).
Level
IIA Density 3.5 Thickness 4mm
Protection
from: .22mms/.9mm/.45mm/.380mm/.38mm
Level
II Density 4.2 Thickness 5mm
Protection
from: .22mms/.9mm/.45mm/.380mm/.38mm/.22mml
Level IIIA Density 5.9 Thickness 6mm
Protection from: .22mms/.9mm/.45mm/.380mm/.38mm/.22mml/.44mag
Level
III Density 25.9 Thickness 15mm
Protection
from: Same as Level IIIA and .30carb/5.56mm/7.62mm/.30-06
Level
IV Density 32.5 Thickness 20mm
Protection
from: Same as Level III and .30armor Piercing
Ex. II (Level IIIA emphasis added in bold).
Respondent actively encourages its
armed security guards to wear the vest but does not require them to wear
it. (Jt. Pre-Hr’g St. at ¶ 10). The record shows that reasons Respondent’s armed
security guards wore the vest include: feeling like a target in the uniform, wearing
a firearm, and working with money. (Tr.
53, 76-78, 99). The record shows that
reasons Respondent’s armed security guards did not wear the vest include: it can get too hot, and it can also be uncomfortable
while driving. (Tr. 53, 150). Mr. Lenahan, one of Respondent’s supervisors,
also told OSHA Compliance Officer (CO) Annette Ritner that the “older element
didn’t prefer to wear them because of comfort.”
(Tr. 46).
Secretary’s Case
The Secretary’s witnesses included CO
Ritner and OSHA Assistant Area Director (AAD) David Olah, who were responsible
for the investigation of and citation issued to Respondent for the alleged OSHA
violation. The Secretary also called
four of Respondent’s armed security guards as witnesses, all of whom either
were or are supervisors for Respondent’s armed security guards (Matthew M.
Titus, John Spadafora, Ann Allman and Timothy Lenahan). The Secretary further introduced testimony
from one expert witness, Dr. Daniel J. Benny.
The Secretary also introduced an OSHA Letter of Interpretation (LOI),
issued in 2013, regarding bulletproof vests and the standard that was cited in
this case. The following is the relevant
excerpt from the letter:
Question: Does
the Personal Protective Equipment (POE) standard, specifically 29 CF[R] 191
0.132(a) apply to body armor (such as, but not limited to, bullet or stab
resistant vests)?
Reply: If an employer chooses bullet
proof vests and body armor to protect its employees on the job from gunshot
wounds and knife stab wounds, the employer must select equipment that is
adequate to protect against these hazards and must provide it at no cost to its
employees. OSHA considers equipment or clothing
such as body armor, a bullet proof vest or a stab-resistant vest, to be
personal protective equipment that may be required by 1910.132(a) fn 1 and
would not be ordinary clothing or everyday clothing for purposes of the
exceptions for payment at 1910.132(h)(4)(ii) fn 2 or (iii) fn 3.” [sic]
Fn
1: Protective equipment, including
personal protective equipment for eyes, face, head, and extremities, protective
clothing, respiratory devices, and protective shields and barriers, shall be
provided, used, and maintained in a sanitary and reliable condition wherever it
is necessary by reason of hazards of processes or environment, chemical
hazards, radiological hazards, or mechanical irritants encountered in a manner
capable of causing injury or impairment in the function of any part of the body
through absorption, inhalation or physical contact[.]
Fn
2: Everyday clothing, such as
long-sleeve shirts, long pants, street shoes, and normal work boots[.]
Fn
3: Ordinary clothing, skin creams, or
other items, used solely for protection from weather, such as winter coats, jackets, gloves, parkas,
rubber boats, hats, raincoats, ordinary sunglasses, and sunscreen.
(Ex. 10 at 1-2).
Respondent’s Case
In its defense, Respondent used two
expert witnesses, Edward Sorrells and M. Rebecca Downing, to rebut the
Secretary’s case. Respondent also
introduced testimony from an armed security guard, John Derryman. Mr. Derryman is not Respondent’s employee, but
a contracted employee of the private security firm that provides armed security
for a United States District Courthouse.
HIGHLIGHTED FINDINGS OF FACT
The following findings of fact drawn
out during the trial are the most influential to the conclusions of law for
this case:
1) OSHA considers the hazard in this case to be exposure
to a “typical holdup” involving a “lower-caliber handgun” based on the everyday
money transfer over the course of Respondent’s armed security guards’ duties;
not the sensational series-of-events that occurred on March 20, 2016. (Tr. 114).
2) It is undisputed that Respondent’s armed security guards
face a hazard of being shot on the job.
What is in dispute is the level of risk (composed of severity of harm
and likelihood of occurrence) associated with this hazard at Respondent’s
worksites. Wal-Mart Distribution Ctr. # 6016, 25 BNA OSHC 1396, 1400-01 (No.
08-1292, 2015) (“[t]o establish the applicability of a PPE standard that, by
its terms, applies only where a hazard is present,” Secretary must demonstrate
that “there is a significant risk of harm and that the employer had actual
knowledge of a need for protective equipment, or that a reasonable person
familiar with the circumstances surrounding the hazardous condition, including
any facts unique to the particular industry, would recognize a hazard requiring
the use of PPE”), aff’d in part and
vacated in part on other grounds, 819 F.3d 200 (5th Cir. 2016); Weirton Steel Corp., 20 BNA OSHC 1255,
1259 (No. 98-0701, 2003) (“Whether there exists a significant risk depends on
both the severity of the potential harm and the likelihood of its occurrence .
. . .”).
3) It is undisputed that the severity of being shot while
not wearing PPE is high, potentially leading to death.
4) It is undisputed that a bulletproof vest would reduce
the harm to an employee if the employee were shot in the torso. (Tr. 130).
5) The Secretary’s expert opined that any guard is in a
“high-risk position” when they are armed, handling money, and wearing a uniform,
because they are a target for a robber.
(Tr. 175-76). The Secretary’s
expert did not specifically testify regarding the unmarked van in this case and
Respondent’s 45-year assault-free history.
6) In contrast, Respondent’s expert testified that the specific
factors surrounding the PA Turnpike detail “at a minimum give rise to the
conclusion that this is not a high level of risk[.]” (Tr. 207). In making this risk assessment, Respondent’s
expert specifically considered the act of money transfer, the unmarked van
which masked the money transfer operation, and the zero instances of physical
assault that had occurred in the previous 45 years. (Tr. 206-07, 214). Respondent’s expert testified that this was
not an “armored car” situation leading up to and on March 20, 2016. (Tr. 214).
7)
All expert witnesses,
including the Secretary’s expert witness, agreed that Respondent’s industry
does not require, and has never required, bulletproof vests. Voegele Co. v. Occupational Safety & Health Review
Comm’n, 625 F.2d 1075, 1080 (3d Cir. 1980)
(“‘The question is whether a precaution is recognized by safety experts as
feasible, not whether the precaution's use has become customary.’ However, it would be error totally to ignore
or fail to consider prevailing industry standards.”). (citation omitted).
8)
It is
undisputed that Respondent went beyond the industry norm to purchase and
provide bulletproof vests to its armed security guards. Respondent spent $30,000 in 2008 to purchase
tailored-fit ballistic vests, which took 8-9 weeks to manufacture. Respondent subsequently spent $18,000 in 2016
for more ballistic vests. (Tr. 130-35).
RELEVANT TESTIMONY
CO Annette Ritner
CO Ritner testified regarding her inspection
of Respondent’s workplace.[9] AAD Olah called her on Tuesday, March 22,
2016 to give her the assignment.[10] She went first to the main office of Schaad
in York. She presented her credentials and
met with Messrs. Wantz and Lenahan. Mr. Wantz
told her he had called OSHA that morning, but CO Ritner did not know that at
the time of the inspection. She conducted
an opening conference. Messrs. Wantz and
Lenahan described the event to CO Ritner together. CO Ritner asked Mr. Wantz about Respondent’s
training and PPE requirements. She
learned that Respondent provided bullet proof vests to its employees, but that [redacted]
was not wearing one on the day of the incident.
Mr. Lenahan told CO Ritner that “the older element didn’t prefer to wear
them because of comfort.” (Tr. 43-46).
According to CO Ritner, Respondent
had the PA Turnpike contract with the PTC since 1997. All of Respondent’s security officers have
“been law enforcement – had to provide documentation to prove that they were
previous law enforcement officers.” CO
Ritner thought to ask about ballistic-resistant vests because [redacted] was
shot in the torso and “that would protect against bullet wounds to the torso.” CO Ritner had seen bulletproof vests that go
under and over clothing. Messrs. Wantz
and Lenahan said the vests that “their people wore” were “level 3A.” CO Ritner viewed a security officer wearing a
bulletproof vest during their meeting, and, even though the vest was worn
underneath the security officer’s shirt, CO Ritner “could see that she had it
on, because it was bulky.” (Tr. 46-48;
Stip. 8).
CO Ritner researched the following
during her investigation: the OSHA directive
regarding workplace violence, National Institute of Occupational Safety and
Health (NIOSH) publications on the security and protective industry, Bureau of
Labor Statistics information on that industry, and the OSHA citation database
for previous similar instances (where employees are “shot on the job”). During the investigation, CO Ritner subpoenaed
the following documents: the state police
investigative report, the contract between Pennsylvania and Respondent to see the
description of the work detail or the scope of work, Respondent’s safety and
health programs and PPE requirements, a list of Respondent’s current employees,
and information on the vans that were used on the PA Turnpike detail.[11] (Tr. 48-50).
CO Ritner interviewed two employees
over the phone: Robert Burford told her
that he had worked for Respondent about 10-14 days per month, including during
the previous six months of the OSHA investigation. He had taken lethal weapons training and was
a retired Pennsylvania State police officer.
He had to provide his own weapon, and he had his own bulletproof vest. Mr. Burford told CO Ritner that he always
wore his vest and wore a uniform that Respondent required him to wear. He told her that “he did not feel afraid, but
the fact that they handled money, there was always a threat.” (Tr. 54-55).
CO Ritner also interviewed Jeffrey
Aster, who was a “very part-time” but current employee of Respondent. For example, he had worked for Respondent
only one time since the incident six months prior to their interview. Mr. Aster carried his own weapon on the job,
he had lethal weapons training, and was previously a police officer. Mr. Aster told CO Ritner that he was issued a
bullet-proof vest, and wore it “mostly,” but not when it was hot, “like if it
was 95 degrees or more.” Mr. Aster worked
the northeast extension of the PA Turnpike, his hours being 5:00 a.m.-12:00 noon.[12] Mr. Aster told CO Ritner that he had to wear
a uniform – but did not like it because he thought it drew attention to the
operation that involved money. (Tr. 50-54).
CO Ritner wrote the citation. (Tr. 56-57; Ex. 1 at 8). She proposed an alleged section 1910.132(a)
violation based on her research. CO
Ritner considered the combination of money and firearms contributed to a “struck-by
hazard from bullets,” and testified that “a bulletproof vest is designed to
protect against that.” She also
considered the OSHA National Office’s LOI, where OSHA stated that it considers
bulletproof vests as personal protective equipment. (Tr. 58; Ex. 10). She relied on this letter to make a
recommendation to issue the citation here.
She testified that OSHA letters of interpretation “provides us guidance
on – one how to – how standards apply and how to address hazards.” (Tr. 56-58).
On cross-examination, CO Ritner
testified that the alleged violation was based upon the wording of section
1910.132(a)[13] and the
LOI. (Tr. 59; Ex. 10). She agreed that the LOI did not include
mandatory language that said if an employer supplies bullet proof vests to its
employees, they must wear the them. (Tr.
59-60). She further agreed the LOI said
OSHA considers bullet proof vests to be PPE that “may be required by
1910.132(a).” She also agreed that the
LOI did not say bullet proof vests are required. The CO agreed that, even though there are four
or five levels of bulletproof vests, the regulation does not specify which
level would satisfy the regulation requirements. In her opinion, the requirement for an
employer to provide a bulletproof vest and require its wear was triggered by the
fact that Schaad’s employees “carried firearms” and “were involved in an
operation with the protection of money and valuables, so they had an exposure
to a struck-by hazard of bullets.” CO Ritner said that [redacted] “died of multiple bullet wounds
to the torso, and a bullet-resistant vest would protect against that.” She said that [redacted]’s exposure “to a
struck-by hazard from bullets” required Schaad to provide bullet proof vests to
its employees and mandate their wear.
The CO said that the “armed robber” caused the hazard by firing bullets
at [redacted]. (Tr. 60-64).
She also agreed that Mr. Wantz told
her that Respondent had never had an employee killed before. In addition, CO Ritner testified that Respondent
had no other previous incidents of being confronted with deadly force. She testified that “studies” indicate that
security officers have “a higher instance of fatalities” and that a “risk
factor” in the occupation “was protecting valuables and money.” She said that a study stated that “in 75
percent of the time security officers die because of being shot.” CO Ritner agreed that these studies are not
in the regulation itself. She agreed
that each citation “comes down to the evaluation of the individual investigator
… because I propose the citation.” (Tr. 60-67).
Matthew McGarvey Titus
Mr.
Titus is a Legal Assistant II for the Pennsylvania State Police in the PICS
Unit, where he runs background checks for firearm purchases. He also works as a part-time security officer
for Respondent. Mr. Titus was first
hired by Respondent in January 2007 as a lieutenant and testified that he was
issued a Level II vest around 2010 or 2011.[14] Mr. Titus became a supervisor for Respondent
in 2014. Her served for six months as a
supervisor for Respondent until February 2015, when he left for his current
position for the Pennsylvania State Police.
Before being hired by Respondent in 2007, Mr. Titus had also previously
served as a police officer for the Southwest Regional Police Department in York
County for about a year. (Tr. 70-72,
80-81).
Mr. Titus has worked the “east/west” PA
Turnpike detail for Respondent, where he “provided escort to the money vans
that went up and down the turnpike.” He
worked the detail “once or twice” before the incident, and he worked as a
fill-in officer for a few weeks “shortly after the incident.” His primary job duty on the PA Turnpike detail
was to escort the individuals transporting money; their safety was his primary
concern, he was “not the keeper of the money.”
He said that the security officers “did not touch money at all.” They were there as a deterrent. Mr. Titus explained that he “stayed with the
driver and the change maker.” (Tr. 71-73,
75, 78).
The duties of the driver, also known
as a “teller,” included driving “from turnpike station to turnpike station,” and
picking “up bags to be placed into the back of the van, which were then
transported back to headquarters.” Sometimes
another “teller” would sit in the back of the van preparing a bag of ones,
fives and tens for the PA Turnpike tollbooth to make change. Mr. Titus testified that he did know the exact
amount of money that the tellers handled, but it “struck him” as a large amount
of money because of the “five-foot by two-foot trays, arranged in denominations”
of money, and anywhere between 10 and 50 bags of money that the van kept
“locked” in the back. The tellers exited
the van at every PA Turnpike tollbooth (also known as a turnpike station) they
stopped at to go in and make change, pick up bags and bring the bags back to
the van. Mr. Titus estimated that they
stopped at about 8-9 stations per route.
(Tr. 71-75).
While performing this job, Mr. Titus wore
the “Schaad uniform,” which included black boots, navy blue pants, black belt,
navy blue uniform shirt, gold badge and a bulletproof vest. Mr. Titus estimated that the vest weighed
about 5 to 6 pounds. His gold badge said
Lieutenant “because that was the rank” he held when he was last issued a
badge. According to Mr. Titus, other
Schaad rankings were officer and captain.
(Tr. 75-76, 82).
Mr. Titus was also armed with his own
“Glock Model 22.4 caliber handgun” during the detail. He wore a Level III ballistic-resistant vest
issued to him by Schaad.[15] He testified that Respondent did “not
necessarily” require him to wear the vest, “[t]hey just said this is the vest
that we’re issuing.” As a manager, Mr.
Titus himself never enforced any such a requirement for the guards he
supervised. He, however, wore the vest when
he worked the detail because:
Any time I am around a large amount of money when I
work as a security officer, I feel much more comfortable having the vest
on. It may not be visible to anyone
else, what we were carrying, but I knew, and that made me more comfortable, to
wear the vest [in case] someone tried to rob the van [because] he’s a pessimist
by nature.
(Tr. 76-78).
On cross-examination, Mr. Titus
testified that he never handled the money and that he was there as a “deterrent.”
The van was a “standard, civilian-issue
cargo van, no windows on the sides or the back,” with no signage. He was not a supervisor on the PA Turnpike
detail, just a “fill-in officer.” He would
sit in the passenger front of the van, referred to by others as the “shotgun”
seat, which had a window. (Tr. 78-79).
John Daniel Spadafora, Sr.
As a supervisor for Schaad, Mr.
Spadafora answers alarms and checks on the guards, to see if they are following
rules and regulations. He has worked at
Schaad for 8 years. He was a regular
guard until he got his “235,” which allowed him “to carry a gun as a guard,
around 2010.” Previously, Mr. Spadafora had
served 27 years in law enforcement (full and part-time) in West Manchester
township, York township, and Jackson township as a detective for ten years, Anaheim
City in California, and Biglerville police departments. (Tr. 86-87).
Mr. Spadafora has worked the PA Turnpike
detail three times: “once
or twice before the incident” he worked the northeast extension for five days
when someone was on vacation, and once he worked the Harrisburg extension for
two or three days, and then he worked [redacted]’s schedule for a couple days
after the incident. Mr. Spadafora described
the PA Turnpike detail as follows: as a guard
of the driver of the van, the guard stood outside the van while the driver
entered the tollbooth and guarded the driver’s back while the driver took the
money inside. The guard would stay
outside of the tollbooth building, and then accompany the driver back in the van
and leave. Mr. Spadafora estimated that
they stopped at about 6 or 7 tollbooths along the line from 5:00 a.m. to 10:30 or
10:45 a.m. He testified that he was never
told how much money was in the van. (Tr.
87-89).
Mr. Spadafora testified that he wore
a uniform. Schaad gave him a vest, but
never said he had to wear it. He sometimes
wore “my vest” and sometimes “I didn’t.”
Before the incident, he wore the vest when it was not “real hot” because
in the summertime he would have to “change my t-shirt twice on an eight-hour
shift.” He testified that, “I didn’t feel
secure or that nothing would happen to me because I had a vest.” Mr. Spadafora testified that he wore vests that
were supplied to him when he served on police forces, starting in 1972 with
York Township, and the Anaheim, Jackson and York Township police forces mandated
that he wear them. (Tr. 89-91). After the incident, he said he was required
to wear his vest. (Tr. 89).
Ann Marie Allman
Ms. Allman is a supervisory agent
with Schaad. She supervises 15 armed and
unarmed guards, three armed at the most.
Ms. Allman rose up the ranks at Schaad, starting as a courier in 2011,
becoming a supervisor in 2014, and then she was promoted to lieutenant. Ms. Allman has a law enforcement
background. She started at the dispatch
center with the county, and then she worked for the York County Sheriff’s
Department, and then for the Baltimore City Police Department as a sworn
officer.[16] (Tr. 93-94).
Ms. Allman was a fill-in guard for
the PA Turnpike detail from 2014 to the “current date.” Ms. Allman testified that Schaad no longer
has that account. (Tr. 94-95). Her tasks on the PA Turnpike detail included:
meeting with the driver, loading up everything,
riding “shotgun seat” with them, stopping at each turnpike interchange tollbooth
where they handled their “money situation,” and then continuing
on to the next interchange station.
While the driver was out of the van and taking the money, Ms. Allman
“stood by the van, that was where we were supposed to be.” She got out of the van because “that’s where
I could see the driver.” Ms. Allman did
not know how much money the driver handled.
She testified that there were several bags. The purpose of bringing the money to tollbooths
was to do the “money exchange,” for example, sometimes “they needed quarters,
or whatever would make their change.” Ms.
Allman estimated the they did 8 stops during the run. They would start the actual run around 7:00
a.m. and would finish by noon. (Tr. 95-97).
Ms. Allman testified that while she
was on the detail she was armed with a Glock 9-millimeter
gun. She received Act 235 training, schooling
that is run by the state police in the classroom as well as field
training. According to Ms. Allman, to
qualify as Act 235 trained, the student must achieve a certain “score” with the
weapon. Ms. Allman testified that only
armed Schaad guards go through the Act 235 training. (Tr. 97-98).
Ms. Allman testified that she always
wore a ballistic-resistant vest while serving on the PA Turnpike detail. Schaad provided her the vest with the uniform
but did not provide instructions with it.
Schaad never mandated that she wear the vest. But, Ms. Allman testified, “if I had a
firearm on, I had a vest on,” explaining: “growing up in a law enforcement
family, I was used to seeing that as part of the uniform and it just was
instilled in me.” Now, according to Ms.
Allman, after the incident, armed Schaad officers must wear a vest. Ms. Allman testified that, as a supervisor, “the
ones on my shift get checked [to verify they are wearing a vest].” (Tr. 98-99).
Ms. Allman testified that the
decision to wear the vest was a “personal choice.” She received a Level III vest in January of
2011, when she started at Schaad. Ms. Allman
came to Schaad qualified under Act 235 training as an armed person, so when Schaad
issued her the uniform, Schaad also issued her the vest. (Tr. 100-01).
Ms. Allman was issued a newer vest, a Level II, after the incident. (Tr.
101-02). According to Ms. Allman,
she testified that the vest protects against a .38 caliber bullet and .40
caliber bullet, but Ms. Allman does not know “exactly all of them.” (Tr. 100-02).
David Olah
David Olah is the OSHA Area Director (AD)
for the Harrisburg Area OSHA office. (Tr.
103). He was the AAD at the time the
citation was issued and was promoted to AD in October 2016. As AAD, Mr. Olah supervised five to six COs,
including CO Ritner. AAD Olah reviewed inspection
case files and approved or made further recommendations to the AD based on
facts. He was responsible for verifying
legal sufficiency of OSHA citations. (Tr.
103-05).
AD Olah described how OSHA developed
the proposed penalty for this OSHA citation.
He testified regarding the maximum statutory penalty limit for a serious
violation. “At the time that this
citation was issued, [$12,471] was the maximum penalty for a serious
violation.”[17] He also testified to the criteria OSHA uses
to propose a penalty: severity, probability,
company history, good faith, and size of the company. He testified that he participated in the
development of the proposed penalty, which he testified to as follows:
1) No discount for good faith because
the citation “carried a gravity-based penalty of a high gravity greater
probability,”
2) No size discount because the company
had greater than 251 employees at the time of the inspection,
3) High severity because “the result of
a struck-by hazard from a bullet to the torso could result in death,”
4) Higher probability because the
employee was at a greater probability of being robbed due to “the assets that
were being handled.”
(Tr. 105-11; Ex. 1 at 8).
AD Olah testified that due to these factors, “there was no increase nor
decrease to the actual history.” He then
testified that his “recommendation to the area director was not changed by the
[acting] area director at the time. So he [Acting AD at the time] did not exercise any
discretion in this case.” (Tr. 111).
On cross-examination, AD Olah
testified that the valuable assets and the multiple daily interactions affected
the probability determination. He agreed
that of the multiple daily interactions over the years that factored into the
probability determination, none of them involved any interaction. (Tr. 115-16).
AD Olah also understood that PA Turnpike tollbooth collector [redacted]
“engaged in an altercation with the perpetrator and actually wrestled [a] handgun
away from him,” and the second weapon, a rifle, was used by the robber to kill [redacted]. (Tr. 115-16, 118). Regarding the specifics of the gun, the
bullet, and where [redacted] was shot, AD Olah deferred to the police incident
report. (Tr. 115-17).
He testified that the actual death in
this case was not a factor into the probability calculation. He further testified that the fact that a
protective vest may not have made any difference against the high caliber of
bullet used in this case also did not affect “the ultimate outcome.” (Tr. 112-13).
He stated, “Ms. Ritner’s investigation showed that typical holdups,
typical robberies would involve a lower-caliber handgun,” and that while “PPE
doesn’t prevent injuries, [] it reduces the likelihood of an injury; in this
case, struck by a bullet.” (Tr. 114). AD
Olah said he did not know of any incidents involving the shooting of an armed
guard that occurred throughout the years Schaad completed its daily trips to
the PA Turnpike tollbooths prior to March 20, 2016. (Tr. 114-15).
Timothy Patrick Lenahan
Mr. Lenahan has been the General
Manager of Schaad since March 2007. Mr.
Lenahan began at Schaad in May 1999 as a “fill-in” (or area supervisor),
trained for 90 days, became certified that July in Act 235, and was responsible
for 2700 man-hours of security service for armed and unarmed security guards until
August 2005, when he went back as a military contractor. Mr. Lenahan came back to Schaad in March 2007
as general manager. He served in the military,
where he worked as an electronic technician, he was responsible for security at
a nuclear facility overseas, and worked in various staff positions, as a recruiter,
and in intelligence. He retired
honorably from the military after completing 21 years of service. (Tr. 122-24).
Mr. Lenahan’s day-to-day obligations
at Schaad included overall operation, training supervisors, management,
marketing, and recruiting. Mr. Lenahan answers
to Mr. Wantz, the president of Schaad.
Schaad presently has 380 employees, mostly security guards,
approximately 65% of which are armed. Based
on the incident in this case, Schaad no longer holds the PA Turnpike detail contract
with the PTC. Mr. Lenahan understands
that the PTC no longer allows its own employees to do “money runs,” PTC now contracts
with an armored car service that does it all. Schaad had held the contract with PTC since
before Mr. Lenahan started at Schaad. (Tr.
123-25).
Mr. Lenahan authored Respondent’s “Use
of Lethal Force/Use of Force Continuum” document, undated, which memorializes
Respondent’s policy regarding armed security guards and the use of their
weapon. (Tr. 126-27; Ex. 4). Mr. Lenahan explained:
It’s conveying to our officers that
there is a use of force continuum.
Basically, our presence as a security officer, and honestly whether it’s
armed or unarmed, could be level or the first step in the use of force. The use of force goes up and down. We defined this document to further guide our
armed employees in what they – they understand that equal to or less force is
what we apply. In other words, if
someone comes at me with a whiffle ball bat, I’m not going to draw my weapon
and shouldn’t have. I’m going to retreat because my life is not threatened. I’m
not in fear of my life at that point. And we want to explain through training
that they understand that.
(Tr. 126-27; Ex. 4). Mr.
Lenahan testified that this document is only given to the armed security guards
“because they are carrying a weapon.” (Tr.
127). It is not given to the unarmed
guards “because our unarmed guards don’t have deadly force, or the capability
of using deadly force. They are unarmed
guards.” (Tr. 127; Stip. 11). He stated that the use of deadly force is not
taken lightly, and this policy was true in March 2016. (Tr. 127).
Mr. Lenahan testified that all armed security
guards were required to attend Act 235 training and be Act 235 certified. He explained the following aspects of Act 235
training and certification:
Act 235 training for – it’s called
lethal weapons training. It is provided
by – I went to Harrisburg Area Community College. The curriculum is, I guess, controlled by the
State police. And it’s a 40-hour course,
20-hour administrative, 20-hours of range work or range shooting, and
qualification thereof. Upon completion
of that training, and prior to that training you have to
go through a psychological evaluation.
You have to go through a medical physical with
a doctor, and a fingerprint background investigation.
(Tr. 128).
Mr. Lenahan also testified to Respondent’s “Body Armor Policy and
Procedure,” dated “Revised September 29, 2016.”
(Tr. 128-29; Ex. 7). This policy
document was drafted by a third party.[18] Mr. Lenahan did not know if the policy was in
place before the March 20, 2016 incident.
Mr. Lenahan agreed that, “body armor provides a significant level of
protection.” (Tr. 129-30).
Mr. Lenahan testified to his
experience regarding Respondent’s purchase of ballistic vests for its employees. Mr. Lenahan first discussed the matter with Mr.
Wantz in 2008. Mr. Lenahan testified: “But we just
thought it was – let’s not do what the industry standard is and do nothing,
because it’s not mandated. We couldn’t
find anywhere where a statute, a law, local, state, federal, defined body armor
as a mandatory requirement for safety gear.
So we were proactive, we purchased it and we
tried to supply the best level of safety for our offices.”
(Tr. 130-31). Mr.
Lenahan thought Respondent paid $28,900.00 in about November 2008 for ballistic
vests for its employees.[19] (Tr. 132-34; Ex. 6). Respondent did not charge its employees for
the body armor. The vests were
personalized for fit. Employees names
were placed inside the vests when shipped from the manufacturer. Mr. Lenahan identified the names of thirteen
employees listed on First Choice Armor and Equipment invoices that worked on
the PA Turnpike detail. (Tr. 131-33; Ex.
6 at 2-8). Respondent bought Level III-A
vests based on the vendor’s recommendation of “best bang for our buck.” Respondent also ordered “extra pieces” in
“ordinary sizes.” (Tr. 138; Stip. 9).
Respondent also made a subsequent purchase
of $18,000 “in the last year.”[20] (Tr. 134).
For this purchase, Mr. Lenahan testified that Respondent used U.S. Armor.
U.S. Armor’s representative recommended
Level II body armor and told him that nearly every law enforcement agency in York
County were “coming to use a Level II vest.”
He also said U.S. Armor’s representative told him that all of its clients were law enforcement and that he [the
representative] did not know of any security company that U.S. Armor provided
body armor to in Respondent’s area. (Tr.
134-36).
Regarding the difference between
levels of vests, according to Mr. Lenahan, “[t]he difference is simply Level
III-A will stop a .44 caliber and a Level II won’t.” “Why are they doing Level II versus III-A? Comfort.
Same level of protection minus a .44 caliber.” (Tr. 136).
Mr. Lenahan explained: “It’s more comfortable. My officers agree today. Because if you don’t get somebody to want to
wear it, they’re not going to wear it.
We want them to wear it because we care about every life and every
officer that puts a gun on or body armor.”
(Tr. 136).
In 2009, Respondent “encouraged
everyone to wear” the bulletproof vest but did not require everyone to wear it.
(Tr. 136-37; Stip. 10). Mr. Lenahan testified:
Our law enforcement community walks
down the street today. I mean, it’s like
they are looking over their shoulder.
Well my armed officers look like cops in some respects. They’re wearing blue on blue with a badge and
a gun. And that person that’s out to do
harm, he doesn’t know the difference.
Because he didn’t see that patch that said Schaad, because he doesn’t
know what that is.
(Tr. 137).
Regarding other types of PPE, Mr.
Lenahan testified that he did not know how much Schaad paid, if at all, for
fall protection equipment, lanyards, or lifelines. He testified that officers brought their own
mesh gloves. Respondent provided 50% for
steel toed boots. Mr. Lenahan also
testified that Respondent provided specific PPE for the individual facilities
that they provided service for such as hairnets, safety glasses, and rubber
gloves. (Tr. 138-40).
Regarding Schaad’s armed security guard
duties, Mr. Lenahan testified that when he arrived at Schaad in 1999, the
duties were memorialized on a five by seven laminated placard, entitled
“Security Officers PA. Turnpike Standard Operations Procedures”. (Tr. 140-41; Ex. 5). Mr. Lenahan testified that, when he became a
supervisor, he took the placard and made an electronic copy of it. (Tr. 141; Ex. 5). Mr. Lenahan testified and agreed that the document
as written applied to Schaad’s armed security guards on the PA Turnpike detail,
including the “general scope” and “duties” sections. (Tr. 142-44; Ex. 5). The following is the relevant portion of the
document:
(Ex. 5 at 1-2).
Regarding the use of the word “deterrent” in section 2.0C, under
“Duties,” Mr. Lenahan testified the following:
People that want to perpetrate a
crime, they -- they want to take the path of least resistance. So if we have uniformed, armed officers and they're visible,
that's a deterrent. People generally
don't want to confront. It's like going to a grocery store and robbing it. If
there's a armed guard standing in the door, there's
four more down the street that don't have one.
(Tr. 143; Ex. 5).
Regarding the
bulletproof vests that Schaad issued to its armed security guards, Mr. Lenahan
testified that Schaad “[e]ncouraged everybody”,
including [redacted], to wear them.
So alls I can hope and pray is
these officers in the field, through the State of Pennsylvania, that were
issued a vest, that were stationed in Pittsburgh or Philadelphia, in the
Northeast Extension, would put that vest on and wear it.
(Tr. 145-46). He testified that he believed that Messrs.
Titus, Spadafora and Robert Stover and Ms. Allman always wore their bullet
proof vests.[21] Mr. Lenahan testified that Respondent issued
vests “to everybody that was armed and/or wanted one.” He testified that [redacted] had a vest that
was issued by Respondent; but chose not to wear a vest on the day of the
incident. (Tr. 145-46, 152).
Mr. Lenahan described the differences
between the Level II bulletproof vest and the Level III-A bulletproof
vest. (Tr. 147-51; Exs. I (Level III-A),
II (Level II)). The Level II vest can be
worn outside the uniform (or as an “outer carrier”) and is more comfortable in
terms of heat and when driving.
According to Mr. Lenahan, it also comes “in concealed fashion” where “it
could be worn under the duty uniform.”
It has a plate for added protection to cover the vital areas. According to Mr. Lenahan, it will stop a .357
magnum, but will not stop a .44 magnum.
(Tr. 150-51). In contrast, the
Level III-A vest will stop a .44 magnum.
(Tr. 150-51). The Level III-A is worn
under the uniform, is fitted for the individual guard, has Kevlar squares to provide
protection in the front, back and sides, and also has “soft
trauma plates,” which provide additional protection covering the vital
areas. According to Mr. Lenahan, however,
Schaad bought and provided the more comfortable Level II vests for its armed security
guards because “you want it more comfortable so that they want to wear it.” (Tr. 150).
On cross-examination, Mr. Lenahan
testified that he knows of no other security company in the area that provides bulletproof
vests for their employees. (Tr. 151). He said [redacted] had a law enforcement
background. (Tr. 151). Mr. Lenahan testified that he negotiated
Schaad’s contract with the PTC. He said
in the event of an armed robbery, it was PTC’s policy for its own employees to
“always listen to and do whatever the armed robber wants you to do.” (Tr. 152-53).
Based on his understanding of the “556-page [police] report,” Mr. Lenahan testified that [redacted], the deceased PTC tollbooth
collector, “absolutely” did not follow that policy. (Tr. 153, 156). He also testified based on his understanding
of the police report and who the armed robber was (a retired 25-year veteran
state trooper, “resident expert,” “trained professional,” who “knows
everything”), a bulletproof vest would not have made a difference in this case
because Mr. Briggs would have seen the vest and shot [redacted] in the head. (Tr. 154-55).
He noted that the police who responded to the scene shot Mr. Briggs, who
was wearing a camouflage mask and what looked like tactical “SWAT-type” body
armor, “in the upper leg femur, in an artery, and he bled out.” (Tr. 155-56; Ex. 9 at 4).
On re-direct examination, Mr. Lenahan
conceded his testimony is not based on witnessing any of the events that took
place on March 20, 2016, rather his testimony was based on his knowledge of who
the individual was, and his own 21 years of military service. He also testified that PTC gave training for
robberies to all of its employees, including tellers
and tollbooth collectors. The PTC tollbooth
collector, [redacted], who was also killed at the scene by Mr. Briggs, participated
in that 30 to 45 minutes of training on March 17, 2016. (Tr. 153-58).
Dr. Daniel J. Benny
Without objection, the Court found
Dr. Benny qualified to serve as an expert in security-related matters. Dr. Benny testified as an expert in security-related
matters for the Secretary. (Tr. 174). Dr. Benny is a sole proprietor licensed
private investigator, and a security consultant. (Tr. 160) He testified that he teaches “for
several universities online” courses that include criminal justice, security,
national security, intelligence, and aviation security. He is also a State-certified part-time lethal
weapons Act 235 instructor at the Harrisburg Area Community College. (Tr. 160-61).
Dr. Benny testified that he has a Ph.D. in criminal justice from Capella
University in 2010, a Master of Arts in Security Administration from Norwich
University, a Bachelor-in-Arts degree in Security Administration from Alvernia
College in 1982, and Associate degrees in Police Administration and Commercial
Security from Harrisburg Area Community College.[22] (Tr.
161-62, 167-68).
Dr. Benny has worked in law
enforcement since 1975 for various organizations. For example, Dr. Benny was the deputy
director of security, police chief for the Navy Ships Parts Control Center in Mechanicsburg,
Pennsylvania from 1984-1990. (Tr. 162,
171). He testified that he “was
responsible for an approximate 80-person DOD Navy Police Department and also
all of the physical security related to that position; intrusion detection,
access control, badges and things of that nature.” (Tr. 171).
He testified that it was an armed position, but he did not wear a
ballistic-resistant vest. (Tr. 171). He testified that the position was
supervisory in nature. (Tr. 172).
Dr. Benny also was the director of
public safety chief of police for Elizabethtown College in Elizabethtown,
Pennsylvania in the early 1990s. (Tr.
162-63). He testified that, in that
position, he “was able to mandate a policy for ballistic vests. And we bought vests for our officers, and
they were required to wear them.” (Tr.
162-63). But he testified “we were
unarmed” in that position, yet still wore vests. (Tr. 173).
He has never been personally employed to provide armed security
services. (Tr. 172-73).
Dr. Benny has authored “hundreds of
articles over the past 40 years for professional magazines, to include security
management.” He has also authored and
published four books related to the security industry. (Tr. 163).
Dr. Benny is a member of many professional organizations related to the
security industry, including ASIS International[23], which
he described as “the oldest and the most prestigious security organization
internationally.” (Tr. 164). Dr. Benny holds his highest security
certification, Certified Protection Professional (CPP), as well as his
Professional Certified Investigator (PCI) certification, through ASIS. He has been an ASIS member since 1975. (Tr. 164-65).
Dr. Benny testified that he has
participated as an expert in 20 cases involving security-related issues: all of them where he provided a written expert
opinion and three of them where he testified, including one where two security
officers chased an individual that led to their death. (Tr. 165).
Dr. Benny opined that armed guards
hired to protect persons who transport money and valuables face a hazard of
being shot because individuals that commit robberies focus on individuals
transporting money.[24] (Tr. 175-76).
Dr. Benny testified:
Well any time security involved with
protecting money, especially large sums of money, it’s a high-risk position
because robberies do occur. And
individuals that commit robberies focus on individuals transporting money. And most armed robberies, based on the
research and my years of experience, there are weapons involved, and oftentimes
security officers are shot. And – and
they – so that makes it a very high risk.
(Tr. 175-76; Ex. 8 at 5).
Dr. Benny referred to an article quantifying the rate of fatal work
injuries as more than double the rate for all workers: “In 2009, the rate of fatal work injuries
among security guards and related workers was 7.4 per 100,000 full-time
equivalent workers, more than double the 3.5 rate for all workers.”[25] (Tr. 179 quoting “On Guard Against Workplace
Hazards” by William J. Wiatrowski); see
also Ex. 8 at 5). Dr. Benny further
testified that wearing a uniform and being armed makes it “particularly
dangerous” because the armed guard is identified as a “[deadly force] threat to
a perpetrator who wants to commit a crime” and “shows a perpetrator that the
security officer can respond with deadly force.” (Tr. 176).
Dr. Benny testified that the security
industry recognizes the hazard of security guards being fatally shot and opined
that this hazard warrants using a ballistic-resistant vest because “if you were
wearing a bullet-resistant vest you can potentially stop the projectile and
prevent serious injury or death.” (Tr. 179-80;
Ex. 8 at 6-7). Regardless of the incident,
a ballistic-resistant vest materially reduces an armed escort’s risk of being
injured or killed in the event of an armed attack because “it would provide
protection from the projectile that would be fired” – bullet-resistant, not
bulletproof. (Tr. 181-82; Ex. 9 at 8). Dr. Benny relied on the following statement
from the article “The Effect of Body Armor on Saving Officers’ Lives”:
In this study we examined a
controlled association between wearing body armor and the likelihood of dying
from a shooting to the torso. While
controlling for range, potential founders, our results showed that body armor
quadruples the likelihood that a police officer will survive a shooting in the
torso.
(Tr. 182). He
testified that, while this article was written about police officers, it helped
formed his opinion for this case because he believes that it also applies to
armed security guards. (Tr. 182-83).
He testified that “bullets don’t discriminate between a police officer
and a security officer.” (Tr. 183). Dr. Benny therefore opined that he would
recommend requiring armed escorts to wear bullet-resistant vests as part of a
safety program for armed escorts providing security to PA Turnpike tellers.[26] (Tr. 183; Ex. 9 at 8).
During cross-examination, Dr. Benny
testified that, for the lethal weapons course he teaches, the syllabus provided
by the Pennsylvania State Police does not mandate the wearing of
ballistic-resistant vests. Dr. Benny has
no personal experience with armed robbery. He also testified that armed security “can” be
a deterrent to robberies. (Tr. 185). Dr. Benny testified that the “2.33 rifle”
used by the assailant in this case was a high-power rifle with a .223 caliber
bullet, and that the Level III-A vest is not rated for that caliber. (Tr. 181, 185). Dr. Benny testified that the vest does not
protect anything but the body cavity.
However, Dr. Benny testified that:
[E]ven wearing a vest that is not
rated for the caliber of the weapon that is fired against an individual, that
it may have – it may have reduced the velocity of the bullet and not have
caused death [] even if it would have penetrated.
(Tr. 186). He then conceded that it “absolutely” may not
have either. (Tr. 186).
With regard to the article that he consulted that
quantified the rate of injury for armed security, Dr. Benny testified that the
article does not mention the cause of the fatalities.[27] (Tr. 187).
Regarding the second article about how body armor saves lives, Dr. Benny
conceded that the article was written specifically about police officers, who
face different hazards because police officers are supposed to engage in
altercations. (Tr. 187-88). Dr. Benny nevertheless opined that both
police officers and armed security officers are at “high risk,” “especially in
the case at hand.” (Tr. 188).
Dr. Benny testified that he is aware
of hundreds of private security agencies in Pennsylvania. (Tr. 188).
However, as of the time of his deposition in this matter, Dr. Benny did
not know of any security agencies that mandated use of bullet-proof vests, even
after his 45 years of experience. (Tr. 188-89). He also said he was not aware of any efforts
by ASIS or any other organization to develop standards about wearing ballistic-resistant
vests. (Tr. 190). Dr. Benny further testified that some
practitioners “on their own initiative do realize the threat [] and they go and
buy vests for their officers,” but this issue has been debated among
practitioners “over the years” and he does not know of any consensus standard
or anything being developed “at this point.”
(Tr. 190-91).
Edward Bennet Sorrells
Without objection, the Court found Mr.
Sorrells qualified to serve as an expert in security for Respondent. (Tr. 198).
Mr. Sorrells is the Chief Operating Officer and General Counsel for DSI
Security Services (Tr. 193; Ex. C at 1). DSI Security Services has been in private
security business since 1969, providing armed and unarmed uniformed security. Mr. Sorrells has been with organization since
1991. His company operates in 25 states
currently. (Tr. 210). DSI Security Services does not provide
ballistic-resistant vests to any of its armed guards and does not have a policy
that mandates vest wear. (Tr. 223).
Mr. Sorrells has a bachelor’s degree with
a major in English and a minor in criminal justice. In 2003, he was awarded a juris doctor from Jones
School of Law, Faulkner University in Montgomery, Alabama. Mr. Sorrells has been admitted to the Alabama
bar “since 2004 or 2005 through the present.”
(Tr. 194-95). Mr. Sorrells testified
that he has a CPP offered through ASIS International, which means he has demonstrated
proficiency and competency in security management. He also is a Physical Security Professional
through ASIS International, which he says denotes competency and expertise in
physical security systems, technology, security force management and offering
solutions to abate any kind of security concerns. (Tr. 195-96).
Mr. Sorrells is also a PCI through ASIS International, which denotes
competency in the area of investigations. (Tr. 196).
Mr. Sorrells has been employed in the
securities industry for over 26 years. He
has performed both unarmed and armed duties as a security officer in a variety
of environments. He has also served in positions pertaining to site
supervision, local branch management, area supervision, and regional management. (Tr. 196).
His current employer has 3,000 employees – 95% unformed security
officers, 10-15% of those are armed (about 300 armed guards). He is a frequent speaker and has published
one book in 2015 that “dealt primarily with preventing and defending premises
liability lawsuits.” He is a member of at
least four organizations involved with the contract security industry,
including ASIS international (20 years, serving as counsel vice-president), the
Security Services Council (member), National Association of Security Companies
(NASCO) (city board member), and the International Association of Security and
Investigative Regulators (IASIR). (Tr.
201-02).
Mr. Sorrells has served as an expert
witness frequently. He testified, “usually
my services are educating attorneys on the ins and outs of contract security
and some of the standards in our industry.” (Tr. 198).
He testified that he has specific expertise in the area of contract
security, such as what Respondent provided in this case. (Tr. 198).
In developing his opinions for this
case, Mr. Sorrells relied upon: the police
report, the discovery responses including post instructions for the PTC, the service
agreement between Schaad and the PTC, Schaad’s internal procedures concerning
body armor, and depositions. (Tr. 199). Mr. Sorrells testified that his own company
has no policy for their 300-armed guards to be required to wear a bulletproof vest
because, according to Mr. Sorrells, his company does not deem “the type of
armed work we participate in” as “high risk,” and neither does the security
industry. He also said that there is no
prevailing industry standard on whether employers need to supply armed security
guards with ballistic-resistant vests and mandate their use when armed. (Tr. 202-03).
With regard to risk assessment, Mr. Sorrells takes
issue with the argument that an armed security guard “is working in a high-risk
environment, just by virtue of the fact that he or she is armed [] because
that’s not taking into a variety of other factors.” (Tr. 204).
He believes that factors that should be taken into
account when assessing risk include environment, foreseeability, whether
incidents have occurred in the past, type of duties, location of duties
(geographically, crime rate), and the internal policies of the customer. (Tr. 205-206).
Mr. Sorrells differentiates between high risk, medium risk and low risk.[28] (Tr. 206).
Mr. Sorrells opined that, in this case, he considers the absence of any
kind of prior history involving incidents as a significant factor. (Tr. 206). Based upon the absence of any kind of prior
history involving incidents over a long period of time, he opined that there
would be a future probability of a lower risk of something happening. (Tr. 206).
He also opined that the incident in this case was not necessarily
foreseeable under the circumstances because of the lack of previous incidents in
many, many years and the use of the unmarked van, which helped mask the
transfer of money.[29] (Tr. 206-07, 210-11, 214). He testified that these factors “at a minimum
give rise to the conclusion that this is not a high level of risk[.]” (Tr. 207). He further opined that the PA Turnpike’s
policy to not engage with any robber is a “very sound policy,” consistent with
his years of conducting training sessions for armed security officers in cash
handling environments. (Tr. 207). He opined that the policy “certainly at
minimum lessens the likelihood of violence, and in most situations causes no
violence to occur.” (Tr. 207). He testified that “in most cases if they [robbers]
secure that property and can leave, they are going to do so.” (Tr. 208).
Mr. Sorrells testified that no
company other than Schaad provides body armor as a proactive measure. (Tr. 209).
He testified that he knows of no other company similar
to his that has a mandatory policy of all armed officers wearing bulletproof
vests. (Tr. 204). Mr. Sorrells opined that Respondent was proactive
to unilaterally provide body armor based on his 26 years of experience, and that
Respondent went “above and beyond” what other security companies are doing. (Tr. 209).
He said that bulletproof vests are “not a standard piece of PPE” in the
industry, in that employers typically do not require them. (Tr. 203-04).
He also testified that his company does not mandate armor, so his company
has no experience with officers that complain about wearing it. (Tr. 209-10).
On cross-examination, Mr. Sorrells
testified that he did not factor in the exact amount of money into his risk
analysis, although the actual transfer of money was part of his risk analysis. (Tr. 216-18).
He testified that the organizations he participates in do not have
consensus-type standards on safety-related issues.
In our industry what we typically do,
we will assume the safety posture, so to speak, of our customers. Ninety-nine percent of the service we perform
is not on our property, so we will make sure that we’re complying with what the
instructions and mandates are in the customer.
So from an industry standpoint, you won’t see a
lot of activity promulgating or issuing any type of standards when it comes to
the typical safety measures.
(Tr. 218). He
testified that the industry’s focus is related to training or gaining a license
in the activity. (Tr. 218-19). He explained that “… the current state in the
industry is this is not really contemplated when it comes to the offering of
unarmed or armed security services, and certainly not an industry norm to
provide bullet-resistant vests to all officers.” (Tr. 219).
Even post-accident, he testified that he believes that, while tragic,
the incident does not:
always mean that policies or
standards change in the future. So it’s not an automatic blanket policy that things have to
be mandated afterwards. I believe that
you still have to take a common-sense approach and do
what you need [to do], as much as you can, to prevent future occurrences.
(Tr. 220). He then
testified that he believes that Respondent had already been extraordinary in
offering vests prior to the incident.
Mr. Sorrells would not even recommend offering or mandating the use of vests
even after the incident because “it’s not something that is normally
contemplated in the industry currently.”
(Tr. 212, 217-21).
Mr. Sorrells testified that he was not
prepared to offer a statement of financial impact on his own company should
bullet-resistant vests become mandatory. (Tr. 222-23).
His company has never provided vests to its employees. “If the government was to place that kind of
a restriction on the company, we would probably get out of the armed guard
business.” (Tr. 224). He testified, however, that the potential impact
on his company would be “very, very minimal, if at all,” because armed guard
services is a small portion of what they do (300 armed guards out of 3,000
unarmed guards). (Tr. 225). Mr. Sorrells does not agree that this
potential conflict of interest affects his credibility. He testified, “I firmly believe that Schaad
was not on notice of any kind [of] the requirement to provide these vests. And as I just testified, the impact on me
personally and our company would be very, very minimal, if at all.” (Tr. 224-25).
John Derryman
John Derryman testified for
Respondent.[30] Mr. Derryman works for Akal Security, a
company that contracts with the U.S. Marshals Service to provide security for
the Federal Courts and the Federal Judges.
(Tr. 228). Mr. Derryman has been
employed by Akal Security as an armed security guard for eight years. He provides security at a Federal District
Courthouse. (Tr. 229-32). Prior to joining Akal Security, Mr. Derry was
a county detective in York County and ran the Drug Task Force. (Tr. 228-29).
Prior to that, Mr. Derryman was a York City police officer for 29 years
as a detective in charge of the drug unit. (Tr. 229). Regarding his experience with bulletproof
vests, Mr. Derryman testified that some officers bought their own vests in the 1970’s;
years later, the City provided vests and it was a “personal choice” whether to
wear the vests, throughout his tenure there.
(Tr. 229, 232). He further
testified that “I had never seen anybody [that he was on duty with] wear a vest
prior to October 1, [2017].” After
October 1, 2017, he testified that he is required to wear body armor. (Tr. 232).
M. Rebecca Downing
Without objection, the Court found
Ms. Downing qualified to serve as an expert in security for Respondent. (Tr. 247-48; Ex. B). Ms. Downing is a security consultant. (Tr. 234).
Ms. Downing started her career as a York City police officer in 1974 and
served for 27 years. She was the Chief
of County Detectives and retired in 2004.
Presently, Ms. Downing teaches at Pennsylvania State University, Justice
and Safety Institute, and has since 1990.
Ms. Downing teaches 12 different courses. Ms. Downing also teaches at Harrisburg Area
Community College, since 1982, as an adjunct instructor. She has opened “every police academy” that
has taken place there since that time.
“I am brought back from Florida, especially to instill the basic ethics,
use of force, community policing and certain other skills that any university
may jump in there, but always those.” (Tr.
235-36). Ms. Downing taught the lethal
weapons course, same as Dr. Benny, until 2007. She testified that body armor was not even
mentioned at all during the course. (Tr.
244).
With regard to her educational
background, Ms. Downing began at Westchester University, but finished with an Associate’s degree in Criminal Justice at York College. She received her Bachelor’s-degree in Law Enforcement
at York College, and a Master’s degree in Criminal Justice
from Villanova University. (Tr. 236).
Regarding her private sector work,
Ms. Downing testified, “I started out as a young officer that needed a second
job to put food on the table.” (Tr. 236). She worked in security at a company in York
that is no longer present. She “rode
around in a van and helped transport money to banks.” She also worked private investigations for
Ruppert Detective Agency. Ms. Downing worked
for Schaad for a limited time in 1974-1975 as security protection for a union
head that was physically threatened during a labor dispute. She provided training for Schaad in 1995 and 1996.
(Tr. 237).
Regarding her experience with
bullet-resistant vests, as a police officer in 1990 she was in
charge of ordering equipment. She
looked into providing vests, became educated in levels
of vests, ballistics “that is supposedly guarded against,” and was participated
in the decision-making process. She
testified that vests were not mandatory throughout her tenure as a York City
police officer. Ms. Downing is extremely
familiar with other police departments in this area because she teaches in a
five-county area in central Pennsylvania.
She testified that vests are not mandatory in those areas either,
stating, “make it this way, I have heard there are some mandatory polices, but
absolutely nothing happens when the officers are caught not wearing them.” (Tr. 238).
Ms. Downing also has experience in
testing vests. She was a firearms
instructor for York City Police Department in 1976 – at the time, 4 out of 104
officers had a vest from 1974 to 1978.
Vests had a five-year shelf life.
They would test the discarded vests.
Ms. Downing testified, “we would shoot every kind of different
ammunition in there that we could get our hands on.” (Tr. 240).
She tested Level II and Level III vests, but not Level IV vests.
Ms. Downing testified that Joint
Exhibit II accurately sets forth the levels of bullet-resistant vests. (Tr. 239; Ex. II). She testified that there is a Level V vest
that is “only available to sworn military personnel in the United States
service.” She also testified that there
is no uniformity in police departments with respect to which level vest to use
in the tri-county area. (Tr. 239).
Ms. Downing reviewed the following to
prepare for Court: Schaad’s use of force
policy, Pennsylvania State Police report on the incident, and the “verdict”
between PA Turnpike and Schaad. She
noted that [redacted] was shot by a .253 caliber full metal jacketed bullet, which
she described as “a pretty kick-ass bullet” from a “high-power rifle.” She testified that nothing under a Level IV vest
is meant to protect against something like that. Ms. Downing described what happens to bullets
depending on characteristics of vests. (Tr.
241-42). She testified that bullet-resistant
vests cut down the chance of serious problems.
She has known two police officers that were shot in the vest and
suffered severe injuries. (Tr. 242).
Ms. Downing testified that she is unaware
of any private security provider that requires the use of bullet-resistant vests.[31] She based this opinion on her knowledge, as
well as researching “15-20 hours on the internet” and not finding anything. (Tr. 242-43; Ex. B at 2-3). Ms. Downing also testified that she asked her
students the same question in her teaching assignments. Ms. Downing testified that very few of her
students who worked in the private security field know of any private providers
that even offered bullet-resistant vests. (Tr. 243-44).
On cross-examination, Ms. Downing
admitted to having no medical training, but then testified that “no one on this
earth does” to say whether [redacted] would have survived that shooting. She testified that she doubted [redacted]
would have survived being struck by a .322 caliber bullet while wearing a Level
III-A vest. She also testified that when
she did the transporting money work, early in her career, she could not afford
a “bulletproof vest,” and until her second year, she had no protection at all. (Tr. 245-46; Ex. B at 3). She agreed that vests are
capable of providing material and significant protection to a shooting
victim. Once she bought a vest, though, Ms.
Downing testified that “there were very few days in police work in the next 31
years that I didn’t wear one” because “it provided that extra security, that
extra possibility of allowing me to escape with less injury in
the event that something like that would occur.” (Tr. 246-47).
She agreed that she would rather have a vest on than not have a vest on
in the event of an armed attack. (Tr.
247).
DISCUSSION
To prove a violation of an OSHA
standard, the Secretary must establish that: (1) the cited standard applies, (2)
there was a failure to comply with the cited standard, (3) employees had access
to the violative condition, and (4) the employer knew or could have known of
the condition with the exercise of reasonable diligence. Astra Pharma. Prods., 9 BNA OSHC 2126,
2129 (No. 78-6247, 1981) aff’d in
relevant part, 681 F.2d 691 (D.C. Cir. 1980).
While
the incident that precipitated this case draws intense interest and scrutiny, the Commission has long held that “it is the hazard, not the
specific incident that resulted in injury or might have resulted in injury,
that is the relevant consideration in determining the existence of a recognized
hazard.” Associated Underwater Servs., 24 BNA OSHC, 1248, 1250-1251 (No.
07-1851, 2012) (citations omitted). As
the Secretary notes, judges do not leave their common sense at the courthouse
door. (Sec’y Br. at 19 citing Brock v. City Oil Well Serv. Co., 795
F.2d 507, 510 (5th Cir. 1986) and Thomas
Indus. Coatings, Inc., 21 BNA OSHC 2283, 2288 (No. 97-1073, 2007)). Despite the
sensational series of events that occurred on March 20, 2016, OSHA maintains
that the hazard in this case is exposure to a “typical holdup” involving a
lower-caliber handgun, not the kind of robbery that ultimately occurred with
the high-power rifle and the high caliber bullets, along with a hand gun at the
start, that were used in this case. (Tr.
113-14). The Court analyzes this case
accordingly.
The Secretary argues that the cited standard required Respondent
not only to provide bullet-proof vests to its armed security guards, but also
to require its armed security guards to wear those bullet-proof vests. Because Respondent did not require its armed security
guards to wear bullet-proof vests, the Secretary claims that Respondent
violated section 1910.132(a). Peavey Co., 16 BNA OSHC 2022 (No.
89-2836, 1994) (finding employer failed to comply with section 1910.132(a) by
not requiring its employees to wear PPE for fall protection).
Respondent, in turn, argues that “[t]he Secretary failed to meet his burden
of proving that: (1) the Regulation
applies to the specific facts of this case; (2) that Respondent failed to
comply with the Regulation; or, (3) that Respondent either knew or could have
known with the exercise of reasonable diligence, that its conduct was in
violation of the Regulation.” (Resp’t
Br. at 14-15). Respondent also argues
that “Respondent did not have ‘actual notice’ of the hazard.” (Resp’t Reply Br. at 1).
Applicability
There are two options to establishing
applicability for this case. “To
establish the applicability of a PPE standard that, by its terms, applies only
where a hazard is present,” the Secretary must demonstrate that: (1) “there is a significant risk of harm and
that the employer had actual knowledge of a need for protective equipment, or [(2)]
that a reasonable person familiar with the circumstances surrounding the
hazardous condition, including any facts unique to the particular industry,
would recognize a hazard requiring the use of PPE.” Wal-Mart
Distribution Ctr. # 6016, 25 BNA OSHC at 1400-01 citing Gen. Motors Corp., GM Parts Div., 11 BNA OSHC 2062, 2065 (No. 78–1443, 1984) (consolidated),
aff'd, 764 F.2d 32 (1st Cir.1985). The Court will address each option in turn.
Significant Risk and Actual Knowledge
According
to Commission precedent, Option 1 for the Secretary to establish applicability
of a general PPE standard is to prove both that “there is a significant risk of harm and that
the employer had actual knowledge of a need for protective equipment.” Wal-Mart
Distribution Ctr. # 6016, 25 BNA OSHC at 1400-01 (emphasis added). Regarding the
first prong of Option 1, whether there is a significant
risk is “[a] question [that] is one part
empirical and one part policy-based.” Pratt
& Whitney Aircraft, Div. of United Techs. Corp. v. Donovan, 715 F.2d
57, 64 (2d Cir. 1983).
Whether there exists a significant risk
depends on both the severity of the potential harm and the likelihood of its
occurrence, but there is an inverse relationship between these two elements. As
the severity of the potential harm increases in a particular
situation, its apparent likelihood of occurrence need not be as great.
Weirton Steel Corp., 20 BNA OSHC at 1259 (citations omitted).
Here, the Secretary bears the burden of
establishing that both the severity of being shot in the torso on the job, and that
the likelihood of its occurrence, together warranted the use of
ballistic-resistant vests on Respondent’s worksite. Seward
Ship’s Drydock, Inc., 26 BNA OSHC 2303, 2308 (No. 09-1901, 2018).
The second prong of
Option 1, actual knowledge of whether protective equipment was necessary, includes
actual knowledge of the significant risk (composed of severity and likelihood) of
harm. Envision Waste Serv., LLC, 27 BNA OSHC 1001, 1003-04 (No. 12-1600,
2018) (discussing how to
establish actual knowledge of alleged eye hazard requiring protective eyewear
in lieu of prescriptive eyewear). This burden
also rests with the Secretary. Id. at *5 citing Wal-Mart Distribution
Ctr. # 6016, 25 BNA OSHC at 1400-01.[32]
The Secretary claims that
he has established Option 1 for this case because “Respondent had actual notice
of a need for protective equipment based upon its awareness that armed escorts
face the hazard of being shot during the course of an attempted robbery.” (Sec’y Br. at 14-17). The Secretary points to the following to
support his claim: that Respondent
actually provided bullet-proof vests (“Companies do not spend such sums [of
money] to protect against unforeseen hazards; Respondent did not, for example,
spend money over the same course of time for fall protection equipment”), the PA
Turnpike contract called for “armed guards,” Respondent’s Standard Operating
Procedures includes duties to “ensure the safety of [PA Turnpike tellers] and
includes a section “entitled ‘Attempted Robberies’,” and the very purpose of
Respondent’s armed security guards was to “deter” potential robberies. (Sec’y Br. at 15-17).
Respondent claims that the hazard was not
obvious and argues
that the “general language of the [cited regulation] and the ‘one size fits all
approach,’ may work in an industrial setting for low-cost items such as hard
hats, safety glasses, gloves and steel toed shoes, however, it does not work in
this instance for the security industry whose services and work sites are so
varied.” (Resp’t Br. at 2-3, Resp’t
Reply Br. at 1-2). Respondent has also argued
the following:
The Secretary also claims the Respondent had actual knowledge of
the hazard, without citing specifically that actual knowledge. To the contrary
in Respondent’s 45-year history of providing armed and unarmed security
services, and involving thousands of employees, there was never a single
incident of an employee being confronted by deadly force. We all face hazards
every time we leave home in the morning. The real question is what it the
probability of that risk. Given the Respondent's long history that was totally
devoid of such an incident, what happened on March 20, 2016 was not
foreseeable.
(Opposition to Motion for Summary Judgment
at 4).
Here, the Secretary must
establish both severity and likelihood of the alleged hazard. As an initial matter, the evidence regarding
severity of the harm is undisputed and undeniable: being shot in the torso could
lead to an employee’s death. The Court
finds that the severity related to this hazard is high. The Court is therefore mindful that the
evidence regarding the apparent likelihood of the occurrence of this hazard
need not be as great. Weirton Steel Corp., 20 BNA OSHC at 1259.
The Commission has
previously evaluated various levels of likelihood, together with a sufficient showing of severity, that warranted the
applicability of an OSHA performance standard.
See, e.g., Seward Ship’s Drydock,
Inc., 26 BNA OSHC at 2308-11 (cited provision inapplicable where Secretary
failed to show that the risk of encountering either carbon monoxide or iron
oxides at levels above the PEL made respirators necessary.); Snyder Well
Serv., Inc., 10 BNA OSHC 1371 (No. 77-1334, 1982); Gulf Oil Corp.,
11 BNA OSHC 1476 (No. 76-5014, 1983); Weirton Steel Corp., 20 BNA OSHC
at 1260. The Commission described
sufficient levels of likelihood as: “a distinctive possibility,” and “more
than a speculative possibility.” Snyder
Well Serv., Inc., 10 BNA OSHC at 1375-76; Weirton Steel Corp., 20
BNA OSHC at 1260. Together, these sufficient levels of severity and likelihood constituted
“significant risk.” Wal-Mart Distribution Ctr. # 6016, 25 BNA at 1400-02 & n10, citing to Gen.
Motors Corp., GM Parts Div., 11 BNA OSHC at 2065. Conversely, the
Commission has previously
evaluated levels of likelihood that did not warrant the applicability of the
OSHA performance standard. The
Commission described these insufficient levels of likelihood as: “a vague risk,” “no
evidence of possible emergency situation,” and “a speculative possibility.” Seward
Ship’s Drydock, Inc., 26 BNA OSHC at 2309-10; Gulf Oil Corp., 11 BNA OSHC at 1480-81;
Weirton Steel Corp., 20 BNA OSHC at 1260; see also Pratt & Whitney
Aircraft, Div. of United Techs. Corp. v. Sec’y of Labor, 649 F.2d 96, 104
(2d Cir. 1981) (must be more than a “mere possibility” or “freakish event”). Together, these insufficient levels of
severity and likelihood in those cases constituted no significant risk to
warrant the applicability of an OSHA performance standard.[33]
The Secretary bears the
burden of establishing this aspect of risk: likelihood of occurrence. It is this aspect of risk that the parties
dispute. The evidence in the record must
weigh in favor of the Secretary if the Secretary is going to establish
applicability. Here, the Secretary has
failed to overcome Respondent’s rebuttal.
The record contains
multiple pieces of evidence regarding the likelihood of occurrence of being
shot. As the Secretary points out, and
the record supports, Respondent’s employees were guarding someone who was
transferring money. Respondent’s
employees wore a uniform that looked like a police officer’s uniform and carried
a gun. Per its contractual obligation,
Respondent’s employees were tasked to deter potential robbery. The Court finds that the uniform and gun were
visually apparent with the intent to identify Respondent’s employee to a
potential robber as an obstacle to the valuables being transferred, i.e., rendering Respondent’s employee a
target.
It is undisputed among the
witnesses that Respondent’s employees faced a hazard of a
potential
robbery. The Secretary’s expert “in
security-related matters,” Dr. Benny, testified that “any time security
involved with protecting money, especially large sums of money, it’s a
high-risk position because robberies do occur.”
(Tr. 174-75). Dr. Benny then testified,
“[a]nd most armed robberies, based on the research and my years of experience,
there are weapons involved, and oftentimes security officers are shot. And – and they – so that makes it a very high
risk.” (Tr. 176). As the Secretary notes, Respondent even
purchased bullet-proof vests for its armed security guards, and no company
would invest in such a purchase for an “unforeseen” hazard. (Sec’y Br. at 15). To support his opinion, Dr. Benny referred to an article quantifying the rate
of fatal work injuries as more than double the rate for all workers: “In 2009, the rate
of fatal work injuries among security guards and related workers was 7.4 per
100,000 full-time equivalent workers, more than double the 3.5 rate for all
workers.” (Tr. 176-79 quoting “On Guard
Against Workplace Hazards” by William J. Wiatrowski; Ex. 8 at 5). Dr. Benny, though, did not explain how a
“rate of fatal work injuries,” as described in this article, specifically
related to the “likelihood of occurrence” of being shot on Respondent’s
worksite.
It is also undisputed,
however, that Respondent’s purchase of the bullet-proof vests was not standard
for its industry. Respondent introduced
testimony by Mr. Sorrels, an expert in security, regarding the likelihood of
occurrence of robbery on the PA Turnpike detail. (Tr. 198).
He testified that, before March 20, 2016, Respondent had not experienced
any armed robberies or violent assaults during the preceding 45 years, including
nearly 20 years of transfers of large sums of money performing the PA Turnpike
detail, and the use of an unmarked van (rather than an armored car) on the PA Turnpike
detail, “at a minimum gives rise to the conclusion that this is not a high
level of risk[.]”[34]
(Tr. 207, 214).
Respondent, with
testimony specific to its own worksite, has rebutted the Secretary’s claim,
based on generalities of the security industry, that the PA Turnpike detail was
“high-risk.” Respondent has rebutted the
Secretary’s evidence regarding the likelihood of occurrence of robbery on the PA
Turnpike detail. The Secretary seems to
concede this by stating the following in his brief: “Getting shot in the torso is obviously
as high on the severity scale as a potential harm can get. Thus, whether or not
the likelihood of an occurrence was low, the life-threatening hazard to be
guarded against was enough to necessitate the use of vests[.]” (Sec’y Br. at 23).
It is the Secretary’s
burden, however, to establish that the likelihood of occurrence of an armed
robbery on the PA Turnpike detail was “a distinctive possibility,” or “more
than a speculative possibility.” Snyder
Well Serv., Inc., 10 BNA OSHC at 1375-76; Weirton Steel Corp., 20
BNA OSHC at 1260. It is not here, not in
this record. Given Respondent’s evidence
regarding the unmarked van that masked the money transfer process, and the
previous 45 years of no incidents at all (including during the near 20 years of
providing armed guard security to the PTC), Respondent has rebutted the
Secretary’s arguments regarding likelihood of occurrence. The Court is not prepared enough, based on
the preponderance of the evidence, to find that the Secretary established
likelihood in this case regarding this Respondent; thus, the Court cannot find
that the Secretary showed a significant risk of the hazard.
Regarding actual
knowledge of the alleged significant risk of the hazard, [a] safety policy
alone cannot be used to establish the employer’s knowledge of an alleged
hazard. Owens-Corning Fiberglass Corp. v. Donovan, 659 F.2d 1285, 1288 (5th
Cir. 1981) (“Knowledge that personal protective equipment is required may not
be implied from voluntary safety efforts standing alone.”); Envision Waste Serv., LLC, 27 BNA OSHC
at 1106; see also Gen. Motors Corp., GM Parts Div., 11 BNA
OSHC at 2066 (“If employers are not to be dissuaded from taking precautions
beyond the minimum regulatory requirements, they must be able to do so free
from concern that their efforts will be relied on to establish their knowledge
of an alleged hazard.”).
Here, the Secretary claims
that Respondent actually knew about the hazard. As noted above, while the record is replete
with undisputed evidence regarding actual knowledge of the severity of the
hazard, regarding actual knowledge of the likelihood of its occurrence, however,
the Secretary’s evidence stands rebutted by Respondent. Envision
Waste Serv., LLC, 27 BNA OSHC at 1005-06 (Secretary failed to establish employer
had actual knowledge of a hazard requiring use of eye protection where
Secretary established there was only one recorded eye injury in the sorting
rooms between 2009 and 2012 and the record did not show how many employees
worked in the sorting room during this period.).
Under these
circumstances, the Court cannot find that the Secretary has established significant
risk and actual knowledge of the hazard.
Reasonable Person Test
Option 2, according to Commission precedent, for
the Secretary to establish applicability of a general PPE standard is to prove
“that a reasonable
person familiar with the circumstances surrounding the hazardous condition,
including any facts unique to the particular industry, would recognize a hazard
requiring the use of PPE.” Wal-Mart Distribution Ctr. # 6016, 25
BNA OSHC at 1400-01; see also Gen. Motors Corp., GM Parts Div., 11 BNA OSHC at 2065-66 (discussing whether general PPE
standard covers safety shoes at Respondent’s workplace). This concept was further reinforced by the
First Circuit; Cape & Vineyard Div.
of New Bedford Gas v. Occupational Safety & Health Review Comm’n, 512
F.2d 1148, 1152 (1st Cir. 1975) (“OSHA had to establish here that a prudent man
familiar with linework would have understood that more protective equipment was
‘necessary’ in the situation at issue.”).
Section 1910.132(a) is a general standard, broadly worded to
encompass many hazardous conditions or circumstances. If the duty to comply with the standard is not
defined, it could run the risk of being almost indefinitely applicable. To
avoid that result, and in order to carry her burden of proof as to
applicability, [] the Secretary
must establish that a reasonably prudent employer, concerned about the safety
of employees in the circumstances involved in a particular
case, would recognize the existence of a hazardous condition and provide
protection as required by the Secretary's citation. Evidence that other
employers in the industry actually provide the
particular personal protective equipment satisfies this test. Also allowed for consideration is evidence of
accidents, evidence of industrial safety standards or recommendations, or
opinion testimony from persons experienced in performing the work or familiar
with the working conditions.
Trinity Indus., Inc., 15 BNA OSHC 1481, 1484-85 (No. 88-2691, 1992)
(citations omitted).
The Third Circuit, to which this case could be
appealed, has held that
with regard to the “reasonable person test,” while industry custom and practice
are relevant, the ultimate inquiry is whether a reasonable person familiar with
the factual circumstances surrounding the allegedly hazardous condition,
including any facts unique to a particular industry, would recognize a hazard
warranting the use of personal protective equipment. Voegele
Co. v. Occupational Safety & Health Review Comm’n.,
625 F.2d 1075, 1078 (3rd Cir. 1980) (finding “quite compelling” other courts refusing to limit the
reasonable person test to the custom and practice of the industry because “(s)uch a standard would allow an
entire industry to avoid liability by maintaining inadequate safety”)
(citations omitted); see also Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067
(No. 96-1719, 2000) (Commission generally applies law
of the circuit where it is probable a
case will be appealed).
There are actually three
factors to evaluate under this standard: recognition of a hazard, feasibility
of alternatives, and whether the alternatives would create a greater hazard.
The burden of proof rests with the Secretary to prove all elements of a
violation of a general safety standard.
Voegele Co. v. Occupational Safety & Health Review Comm’n., 625 F.2d at 1079. Once the Secretary establishes the hazard,
It is the
Secretary's burden to demonstrate and describe feasibility and the likely
utility of particular measures that the employer could
have used. The appropriate weight to be
accorded to industry practice of whether these suggested methods were feasible
and a reasonable person would have utilized them in the context of the hazard
presented, is best summarized as follows: ‘This is not to say that safety
precaution must find general usage in (the) industry . . . . The question is
whether a precaution is recognized by safety experts as feasible, not whether
the precaution's use has become customary.’
However, it would be error totally to ignore or fail to consider
prevailing industry standards.
Id. at 1080. (citations
and footnotes omitted) (emphasis added).
As noted above, a safety
policy alone cannot be used to establish the employer's knowledge of an alleged
hazard. Envision Waste Serv., LLC, 27 BNA OSHC at 1006.
However,
[a]n employer's voluntary safety efforts
may properly be considered in conjunction
with other evidence demonstrating that the employer or its industry
recognized the hazard in question…Evidence concerning equipment used by other
employers is relevant to hazard recognition because the evidence demonstrates a
broad perception, throughout an industry, that protection was necessary in the
circumstances.
Trinity Indus., Inc., 15 BNA OSHC at 1485 n.8 (emphasis added) (citations
omitted).
Here, it is undisputed that
Respondent went “above and beyond the industry norm,” when it provided
bullet-proof vests, at no charge, to its armed security guards. (Tr. 151, 188, 191, 204, 209, 232, 243). The evidence
regarding incidents on the PA Turnpike detail reveals that there have been zero
instances over nearly 20 years involving thousands of PA Turnpike trips. (Jt.
Pre-Hr’g St. at ¶ 19). Against
this, the Secretary has
cited a litany of outside caselaw and a congressional hearing record, outside
of this record, to establish that the hazard here was “readily apparent.” (Sec’y Br. at 19). The Secretary then states that “judges ‘do not
check [their] common sense at the courthouse door.’” (Sec’y Br. at 19). The Secretary,
however, has failed to connect the cited cases and congressional hearing record
to the particular worksite in this case.
The Secretary introduces testimony
regarding Respondent’s armed security guards preferring to wear the bulletproof
vests that Respondent provided. When
asked whether they wore their issued vests whenever they wore Respondent’s
uniform, Respondent’s armed security guards Titus and Allman testified
“always.” (Tr. 78, 99). Respondent’s armed security guards Spadafora and
Aster did not wear their vests when it was hot.
(Tr. 50-54, 90). As the Secretary
notes, other armed security guards told CO Ritner that they wore their bulletproof
vest. (Sec’y Br. at 24-25 citing Tr. 53,
55). Lenahan testified that one of his
armed security guards, Stover, wore his vest “religiously.” (Tr. 145).
The record also shows that [redacted] did not wear his vest on March 20,
2016, even though he had one that Respondent provided to him. When asked why, Mr. Lenahan told CO Ritner
that “the older element didn’t prefer to wear them because of comfort.” (Tr. 46).
As noted above, the
severity of gun violence at the worksite is not in dispute. It is also not disputed that companies like
Respondent in the security industry do not provide bulletproof vests. Indeed, counsel for the Secretary stated at trial: “I don’t
think we’re denying that the industry itself doesn’t have any mandates.” (Tr. 231).
The Secretary has not overcome this evidence
with contrasting evidence specific to Respondent and the PA Turnpike
detail. Because of this, the only
evidence that the Secretary has, specific to Respondent’s workplace, is
Respondent’s choice to provide its armed security guards with bulletproof vests
and that some of its armed security guards prefer to wear them. (Sec’y Br. at 14-15 citing Owens-Corning
Fiberglas Corp., 7 BNA OSHC 1291, 1295-96 (No. 76-4990, 1976), aff’d, 659 F.2d 1285 (5th
Cir. 1981)). As this is the only
evidence that the Secretary has specific to Respondent’s workplace, the Court
cannot find that the Secretary carried his burden showing that a reasonably
prudent employer recognized the existence of the hazardous violative condition
alleged in the citation.
This is not a situation where other
employers in Respondent’s industry provide the subject PPE. Trinity Indus., Inc.,
15 BNA OSHC at 1485 n.8; Voegele Co. v.
Occupational Safety & Health Review Comm’n, 625 F.2d at 1080 (“However,
it would be error totally to ignore or fail to consider prevailing industry
standards.”). Indeed, a ruling in favor
of the Secretary on this issue, based on these facts, would affect more
companies than just Respondent in the security industry. Similarly, this is also not a situation where
the company knew for decades that “many, if not most,” of its employees were
actually physically affected by the hazard as the Fifth Circuit noted on appeal
in Owens-Corning Fiberglass Corp. v.
Donovan, 659 F.2d at 1288-89 (citations omitted) (relying in part on
showing of “fiberglass itch” developed by “many, if not most” employees when
not using gloves). Here, Respondent has
had zero instances of armed robberies and violent assaults for 45 years,
despite daily details from 7:00 a.m. to 12:00 p.m. on the PA Turnpike for the
past near 20 years. As noted above, all
of Respondent’s security officers had documented law enforcement officer
experience as a prerequisite to being hired as an armed security guard for
Respondent. (Tr. 47). The Court has also found that the use of an unmarked
van on the PA Turnpike detail, along with Respondent’s 45-year assault free
history, affected the likelihood assessment of the risk of the hazard its armed
guards faced. Based on these factors,
the Court finds that Respondent “could reasonably believe that, either because
of other safety precautions or because of the skill of its employees, the risk
of injury was insufficient to require the mandatory use of personal protective
equipment.” Id. at 1289.
The Court finds that the
Secretary has not established that a reasonable person familiar with the circumstances
surrounding Respondent’s worksite, including any facts unique to the particular industry, would recognize a hazard requiring the
use of bulletproof vests. Wal-Mart Distribution Ctr. # 6016, 25
BNA OSHC at 1400-01.
The Court concludes that the
Secretary has not established that the cited standard applies to the facts of
this case.
Notice
Even if the
Secretary had established applicability of the cited standard here, the Court
finds that the Secretary provided insufficient notice of the requirements of
the standard such that Respondent would be deprived of due process if held
accountable under the standard. As noted
above, Respondent
has had a 45-year armed robbery and violent assault free history.
An employer cannot be
held in violation of the Act if it fails to receive prior notice of what is
required. Thomas Indus. Coatings, Inc., 21 BNA OSHC at 2287.
While “(t)he goal of the Act is to prevent
the first accident,” and “the Act does not establish as a sine qua non any
specific number of accidents or any injury rate,” a very low injury rate has a
definite bearing on the question whether an employer has notice that personal
protective equipment is necessary under a general regulation such as [section] 1910.132(a). An employer may be
aware of a possible hazard, yet still lack notice that mandatory personal
protective equipment is necessary, if the hazard has never given rise to an
injury.
Owens-Corning Fiberglass
Corp. v. Donovan, 659 F.2d at 1290 (emphasis added). The Third Circuit has determined that
“‘ascertainable certainty’ [i]s the applicable standard for fair notice.” Sec’y
of Labor v. Beverly Healthcare-Hillview, 541 F.3d 193, 202 (3d Cir. 2008)
(finding fair notice when the Secretary “has not given ‘conflicting
interpretations’ of [the standard at issue] and has provided ‘a sufficient,
publicly accessible statement of [his] interpretation’ prior to the issuance of
[the citations] in question”) (citations omitted).
The
Secretary claims that Respondent’s obligations were “abundantly clear” based on
the language of the cited standard, a 2013 OSHA LOI, and previous citations in
2014 and 2015 to other employers, all allegedly showing that OSHA interprets
the cited standard to include bullet-proof vests as a form of PPE. (Sec’y Br. at 28-30). The Secretary further states that, “in any
event,” these documents provided “fair and reasonable warning to Respondent,”
such that it “could have made an inquiry to OSHA.” (Sec’y Br. at 30). The failure to make such an inquiry in this
instance, according to the Secretary, undermines Respondent’s fair notice
argument. (Id.).
Respondent
argues that “[t]he Regulation does not clearly invoke a legal obligation to
provide ballistic-resistant vests and now enforcing such an interpretation in
hindsight is a violation of Respondent's due process right of fair notice.” (Resp’t Br. at 14). Respondent claims that the 2013 LOI and
previous OSHA citations contained in Exhibits 11 through 15 fail to provide
adequate notice. (Resp’t Br. at 2-3, Resp’t
Reply Br.at 2-3).
The Court
agrees with Respondent. The Secretary
has provided insufficient notice to Respondent that bullet-proof vests were
required to be worn by its armed security guards at the PA Turnpike
worksite. The Secretary’s arguments
regarding whether bullet-proof vests are considered PPE are not persuasive. Yes, just as being shot is undisputedly a
severe hazard, a bullet-proof vest is a form of PPE. The question, however, is whether Respondent
had notice that they were required to be worn by its armed security guards at
its worksite on March 20, 2016.
Even the
2013 OSHA LOI states the same thing: OSHA considers bullet-proof vests a form of
PPE and states that they must be adequate if employers provide them. It does not state employers must, and when, provide
them. This LOI itself leaves discretion
to the employer, unlike the letter constituting sufficient notice in Sec’y of Labor v. Beverly Healthcare-Hillview, 541 F.3d 193, 202 (stating
that “[transportation cost[s] must be covered by the employer” and that
“employees must be considered ‘on-duty’” when receiving post-exposure treatment.”). Here, as Respondent states, the 2013 OSHA LOI
“does not withstand grammatical analysis,” with regard to
adequately conveying whether Respondent was required to provide vests in the
first place to its armed security guards and mandate their wear at the worksite. (Resp’t Br. at 13-14.)
The LOI, moreover, is entirely consistent with the undisputed
testimony in the record: that companies like Respondent do not believe that
they are under a mandate to provide bullet-proof vests to their armed security
guards and mandate their wear. Therefore,
the Court finds that the Secretary has not provided a clear “sufficient,
publicly accessible statement of [his] interpretation’ prior to the issuance of
[the citations] in question.” Sec’y of Labor v. Beverly
Healthcare-Hillview, 541 F.3d at 202.
Under these circumstances, the Court does not find that Respondent was
under any obligation to contact OSHA to see if it was required to provide
bullet-proof vests to its armed security guards and mandate their wear at the PA
Turnpike worksite.[35]
The Court also agrees with Respondent regarding Exhibits 11-15,
the previous OSHA citations issued to other employers, not Respondent, for
allegedly violating the cited standard at issue here by not providing
bullet-proof vests. (Resp’t Reply Br. at
2; Exs. 11-15). Those facts are not
before this Court, and the citations themselves contain an insufficient set of
facts from which to compare the facts that are at issue here. Owens-Corning Fiberglass Corp. v. Donovan,
659 F.2d at 1288 (“Due process requires that employers be given reasonably
clear advance notice of what is required of them [under generally worded
standards].”).
Accordingly, the Court concludes that the Secretary has not
established a violation of 29 C.F.R. § 1910.132(a) and has not provided adequate advanced notice
to Respondent that it was in violation of 29 C.F.R. § 1910.132(a) in this
case.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
All findings of fact and conclusions of law
relevant and necessary to a determination of the contested issues have been
made above. See Fed. R. Civ. P.
52(a). All proposed findings of fact and
conclusions of law inconsistent with this decision are denied.
ORDER
Based on these findings of fact and
conclusions of law, it is ORDERED
that:
1) Citation 1, Item 1, alleging a serious violation of 29
C.F.R. § 1910.132(a), is VACATED.
SO ORDERED.
/s/___________________________
The Honorable Dennis L. Phillips
U.S. OSHRC Judge
Date: November 13, 2018
Washington, D.C.
[1] For privacy reasons and in view of his death as a result of the incident, only [redacted]’s first name is used in this decision.
[2] Mr. Briggs also shot and killed a PTC tollbooth collector employee during the robbery. (Tr. 45; Ex. 9 at 1-4, 12).
[3] In this case, the vests at issue have been referred to throughout the record as “ballistic vests,” “ballistic-resistant vests,” “bullet-proof vests,” “bulletproof vests,” “bullet-resistant vests,” and “body armor,” interchangeably. For the purposes of this decision, the Court also uses the terms interchangeably, even though the terms may have different definitions in another context outside of this case. The Court recognizes that the vests at issue here are commonly referred to as “bulletproof vests,” but in this case, the exact capability of the vest (whether it be completely bulletproof or just resistant, and whether it protects against all ballistics, or just bullets) was not squarely placed in front of the Court. The issue, rather, was whether any vest, qualifying as personal protective equipment, required by OSHA. Here, the Court finds that the Secretary has not established that Personal Protective Equipment (PPE) vests were required at all.
[4] Section 1910.132(a) states:
Application. Protective equipment, including personal
protective equipment for eyes, face, head, and extremities, protective
clothing, respiratory devices, and protective shields and barriers, shall be
provided, used, and maintained in a sanitary and reliable condition wherever it
is necessary by reason of hazards of processes or environment, chemical
hazards, radiological hazards, or mechanical irritants encountered in a manner
capable of causing injury or impairment in the function of any part of the body
through absorption, inhalation or physical contact.
29 C.F.R. § 1910.132(a).
[5] Along with Citation 1, Item 1, OSHA also issued another citation item, Citation 2 Item 1, alleging one other-than-serious violation of 29 C.F.R. § 1904.39(a) and proposed an $8,908 penalty. The parties settled this Citation 2, Item 1 (an alleged reporting violation) on October 19, 2017. (Tr. 12-13). Only Citation 1, Item 1 (the alleged PPE violation) remains to be adjudicated. (Tr. 15).
[6] The Secretary had filed a Motion for Summary Judgment on September 25, 2017, and Respondent filed its Opposition on October 10, 2017. The Secretary’s Motion for Summary Judgment remained pending at the time of the trial. (Tr. 34). On November 1, 2017, the Secretary’s Motion for Summary Judgment was denied without prejudice to raising the arguments contained in his Motion and presenting evidence in support thereof at the trial on the merits, and/or in his post-trial briefs. See Order Denying Secretary’s Motion for Summary Judgment Without Prejudice (Nov. 1, 2017).
[7] For privacy reasons and in view of his death as a result of the incident, only [redacted]’s first name is used in this decision.
[8] Act 235 training was described by many witnesses at the trial, but no legal citation to Act 235 is in the record. See, e.g., Tr. 97-98 (Ann Allman), 128 (Timothy Lenahan), 160-61 (Dr. Daniel Benny). Respondent’s memorandum regarding use of lethal force by its armed security guards suggests that it requires training in accordance with Act 235. See Ex. 4 at 1 (“All Schaad Armed Officers receive their certification and initial training from Harrisburg Area Community College. The curriculum is approved by the Pennsylvania State Police.”) Based on this record evidence regarding the relevance of Act 235, which is undisputed, the Court finds that Act 235 is a Pennsylvania firearm training requirement for Respondent’s armed employees.
[9] At the time of the trial, CO Ritner had been an OSHA
CO for 20 years. She has a Bachelor of
Science degree in business administration, and also
Bachelor of Science and Master of Science degrees in safety sciences from
Indiana University of Pennsylvania. CO
Ritner has performed 20-30 fatality investigations over 20 years involving
various industries including construction, demolition, and manufacturing, like
metal fabrication shops, machine shops, boundaries, warehouses, and food
processing. She has inspected cases
resulting in OSHA citations for improper or lack of PPE such as head
protection, hand protection, foot protection, clothing, and fire-resistant
clothing. (Tr. 41-43).
[10] CO Ritner also testified that the incident had been reported in the media, so she was already aware of the matter when it was assigned to her. (Tr. 43-44).
[11] CO Ritner did not receive a copy of the police report prior to issuing the citation because the police were not finished with the investigation yet. (Tr. 50).
[12] The northeast extension of the PA Turnpike runs north to south in the Lehigh valley; the PA Turnpike runs east to west. (Tr. 54).
[13] CO Ritner testified “that it [section 1910.132(a)] requires an employer to provide personal protective equipment where there are hazards that necessitate the use and the environment that employees work in.” (Tr. 60). She also said, “the standard says that if there is a hazard that necessitates the use of personal protective equipment then it’s required.” (Tr. 61).
[14] Mr. Titus testified that he believed the vest was Level II, but he did not know for certain. (Tr. 77). He also did not know who manufactured his vest. (Tr. 83). Based upon the parties’ stipulation and Invoice # 33862, dated January 9, 2009, the Court finds that Mr. Titus was actually issued a Level III-A bullet proof vest that was manufactured by First Choice Armor and Equipment. (Tr. 84; Ex. 6 at 3).
[15] See n14.
[16] Ms. Allman testified that a “sworn officer” was like
a standard police officer on the street but did not have the power of
arrest. (Tr. 93-94).
[17] AD Olah referred to the summer 2016 adjustment to OSHA penalties (from $7,000 to $12,471) legislated by Congress the prior fall. (Tr. 106). The Court notes that OSHA’s statutory maximum penalties were increased pursuant to the Inflation Adjustment Act of 2015, Pub. Law 114-74 § 701, 129 Stat. 559-602 (2015). OSHA established new penalties for violations that occurred after November 2, 2015. 81 Fed. Reg. 43430 (July 1, 2016). The violation in the instant case occurred after November 2, 2015, and was assessed between August 1, 2016 and January 13, 2017, thus the statutory maximum of $12,471applies.
[18] The Body Armor Policy and Procedure stated, in part:
PROCEDURES: All employees assigned to identified duty assignments that places them in a position of where there is a possibility of criminal activity which exposes an employee to the threat of lethal force being used against them in the performance of their assigned duties and responsibilities shall be issued agency-approved body armor.
(Ex. 7 at 1).
[19] The body armor was purchased from First Choice Armor and Equipment. See: a) Invoice # 33862, dated December 23, 2008, for $23,030.00, b) Invoice # 34090, dated January 19, 2009 for $770, c) Invoice # 35189, dated March 13, 2009 for $5,326.56, and d) Invoice # 39846, dated November 10, 2009 for $1,163.48. (Tr. 132-34; Ex. 6). Together these four invoices total $30,290.04.
[20] Mr. Lenahan testified that Respondent also purchased a handful of vests in the interim period between 2010 and 2016. (Tr. 138).
[21] But, as noted earlier, Mr. Spadafora testified that sometimes he did not wear his vest. (Tr. 89-91).
[22] He testified that he obtained both his Ph. D. and Masters’ degrees as a non-resident student from online or correspondence programs for accredited schools. (Tr. 167).
[23] Dr. Benny testified that ASIS International used to stand for “the American Society for Industrial Security, but since they went international they just stayed with ASIS.” (Tr. 164-65).
[24] He testified that it was his understanding that about $58,000 was in the van driven by [redacted] that was stopped at the tollbooth at the time of the incident. (Tr. 175; Ex. 8 at 5).
[25] Dr. Benny testified that the quantified rate in this article was consistent with Dr. Benny’s 45 years of experience in security management and supports his professional opinion. (Tr. 179-80).
[26] During cross examination, Dr. Benny stated his opinion was not the result of any legal requirement to do so. (Tr. 188).
[27] Later, on re-direct examination, Dr. Benny quoted the following excerpt from the same article: “among security guards, nearly 2/3 of fatal work injuries were the result of assaults or other violent acts, while transportation incidents were a distant second.” (Tr. 190).
[28] Mr. Sorrells opined that “you need to go through a pretty thorough analysis, to look at every situation individually before you can say something is high risk, medium risk or low risk. (Tr. 206).
[29] Mr. Sorrells stated that when speaking about foreseeability it was “related to whether or not this occurrence was going to take place.” (Tr. 211).
[30] The Secretary objected to the use of some of Mr. Derryman’s testimony due to relevance. Respondent persuasively argued that Mr. Derryman’s testimony with regard to the use of bulletproof vests in the private armed guard security industry is relevant to the issue of notice in this case. (Tr. 229-31).
[31] Ms. Downing’s expert report further states:
I have never been made aware of any agency that is compelled to provide body armor to its officers, unless it has been mandated in language negotiated with the political entity and the agency bargaining unit. Even then, it has been my experience, that agency officers may refuse to accept the provision of the vest, which allows them to opt out of mandatory wearing. Such is especially the case with civilian security agencies. Despite research, I have located absolutely no documentation that would obligate civilian agencies to provide bullet resistant vests to its employees.
I also could not find no legal mandate to require officers or security guards in the Commonwealth of Pennsylvania to be provided employees with said vests.
(Ex. B at 2-3).
[32] The Court notes that the majority in Wal-Mart did not analyze whether the
Secretary established “significant risk,” holding instead based on the
Secretary’s failure to establish notice.
Wal-Mart
Distribution Ctr. # 6016, 25 BNA OSHC at
1401 n10. The Court analyzes notice in
the Notice section below.
[33] Recently, the D.C. Circuit analyzed “significant risk” in the context of evaluating a challenge to OSHA’s silica standard in N. Am.’s Bldg. Trades Unions v. Occupational Safety & Health Admin., 878 F.3d 271 (D.C. Cir. 2017). In that case, the D.C. Circuit evaluated “significant risk” from the empirical evidence OSHA provided to support its promulgation of its regulation of silica exposure. Id. at 282–83 (citing to the Supreme Court’s “guidepost that OSHA follows: a one-in-a-thousand risk that exposure to the regulated substance will be fatal can reasonably be considered significant but a one-in-a-billion risk is likely not significant”) (citations omitted). Under a substantial evidence test, which is a lower standard of proof than the preponderance of the evidence test applied by the Commission, the D.C. Circuit upheld OSHA’s evaluation of “significant risk” by using the “more likely than not” test in deciding whether exposure to silica levels would cause worker disease. Id. The Commission did not address the silica case in Seward’s, which was issued shortly after the D.C. Circuit case was issued. Neither have the parties. Accordingly, this Court relies on Seward’s for evaluating likelihood with regard to “significant risk.”
[34] Respondent also points to AD Olah’s testimony
regarding probability, building on Olah’s understanding of the 45 years of zero
previous incidents. (Resp’t Br. at 5-7
citing to Tr. 107-14.) This testimony,
however, related to one of the factors of assessing penalty (probability of
harm) when assessing the penalty, after the citation has been affirmed. (Tr. 109-10.)
When assessing a penalty under section
17(j) of the OSH Act, 29 U.S.C.
§ 666(j), the Commission must give ‘due
consideration to the appropriateness of the penalty with respect to the size of
the business of the employer being charged, the gravity of the violation, the
good faith of the employer, and the history of the previous violations.’ The principal factor in a penalty
determination is gravity, which ‘is based on the number of employees exposed,
duration of exposure, likelihood of injury, and precautions taken
against injury.’
Associated Underwater Servs., 24 BNA OSHC at 1253 (citations omitted) (emphasis added). The issue of penalty is separate and apart, and analyzed through a different prism, from the issue of the likelihood of occurrence, the element of applicability of a general performance standard that is at issue here.
[35]See also Owens-Corning Fiberglass Corp. v. Donovan, 659 F.2d at 1288 (“The 29 C.F.R. § 1910.132(a) standard is a general federal admonition providing “little guidance to employers concerning the circumstances in which personal protective equipment is required[.]”).