Megawest Financial, Inc. (ALJ decision, June 19, 1995)

Plain-English summary

Megawest Financial, Inc. managed a large Florida apartment complex whose office staff experienced repeated tenant threats and several physical attacks. Employees requested daytime security, and another tenant attacked an assistant manager while an OSHA compliance officer was investigating the complaint. Administrative Law Judge Nancy J. Spies held that the staff's required confrontations with residents, lack of conflict training, absence of sanctions, and limited preventive measures made a future serious assault neither freakish nor implausible, so a workplace hazard existed. She also held that the general duty clause could potentially address workplace violence even without a specific OSHA standard. The citation nevertheless failed because the Secretary did not meet the high burden of proving that Megawest or the apartment-management industry recognized this specific third-party violence hazard. The judge vacated the general duty clause item without reaching seriousness or feasible abatement.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1), the general duty clause.
• Outcome: Vacated. The Secretary proved a workplace hazard but not employer or industry recognition.
• Key point: For intentional criminal acts by nonemployees, employee fear and prior attacks alone were not enough on this record to prove the recognized-hazard element of a general duty clause violation.

Full text (OSHRC public release)

UNITED STAfEs Of AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette
Centfe
11202OthStmt,N.W.-9thmoor
Washington, DC 200364419

SECRETARY OF LABOR
Complaimin~
v. OSISRC DOCKET
NO. 93-2879
MEGAWEST FINANCLAL, INC.
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRKW LAW JUDGE’S DECISION
The AdministrativeLawJudge’s Report in the above referencedcase was docketed with the Commission on May 1?,1995. The decision of the Judge will become a final order of the Commisuonon June 19, 1995 unlessa Commissionmember directs review of the decision on or before that date. ANY PARTY DESIRING RE%IEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST F’ILEA PETKiON FOR DISCRETIONARY REVIEW. Any such petition shouldbe received by the Executive Secre on or before June 8, 1995 in order to permitsufficientime for its review.7 ee CommissionRule 91,29 C.F.R. 2200.91. All further pleadingsor codcations regardingthis ae shallbe addressedto:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W.,Suite 980
WashirgtoqD.C. 20036-3419
Petitioning parties shallalso maila copy to:
Daniel J. Mic& Esq.
Counselfor Regional Trial Liti ation office of the Solicitor, U.S. DO%
Room S4004
200 Constitution Avenue,N.W.
Washington, DC 20210 .
If a Direction for Review is issued by the Co-ion, then the Counselfor Regional Trial Litigationwill represent the Departmentof Labor. Any party hiivmgquestionsabout reviewnghtSmay contact the Cmnmission’sExecutive Secretaryor call (202) 606-5400.

.

Date: May 19, 1995
DOCKET NO. 93-2879
NOTICE IS GIVEN TO THE FOLLOWING:

Jaylnn K Fortney
Re *onal Solicitor
O&e of the Solicitor U.S. DOL
1371 Peachtree St., NIE.
Room 339
Atlanta, GA 30367

Stephen Alan Clark Esquire
7440 Southwest Fourteen Street
Ft. Lauderdale, FL 33317 4906

Peter D. AIIZO
Megawest FinanciaI, Inc.
Suite A-200
3111 Paces Mill Road
Atianta, GA 30339

Nanv J. Spies
Achnistrative Law Jud e
Occupational Safety an d HeaIth
Review Commission
1365 Peachtree St., N. E.
Suite 240
Atlanta, GA 30309 3119

00109685750:04
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 1365 Peachtree Street, N-E., Suite 240
Atha, Georgia 30309-3119

Phone: (4M) 3474197
Fax: (404) 347-0113

..
SECRETARYOF LABOR,
..
Complainant,
..
0
.
v. .. OSHRC Docket No.: 93-2879
..
MEGAWEST FINANCIAL, INC.,
..
Respondent.
..
..

Appearances:

Stephen Alan Clark, Esquire
Peter D. Anm
(Jaylynn K Fortney, Regional Solicitor)
Megawest Facial, Inc
Office of the Solicitor
Atlanta,Georgia
U. S. Department of Labor
For Respodent
Atlanta, Georgia
For Complainant

DECISION AAD ORDER

MegawestFinancial, Inc. (Megawest) owns, operates,and “fee manages”apartments in the South and Midwest. From its corporate office in Atlanta, Georgia, its president, vice-president and district manager oversee the staff of the variousapartmentcommunities
. underMegawest’scontrol (Tr. 52).
One of those apartmentcommunities,The Villas
Apartments
(Villah),is a 405~unit,
20-acre site, located in Lauderbill,Fhida. Lauuderhill is a partof greatermetropolitanFt. Lauderdale,Floridaur. 95). The Villas is owned by the
partnershipof REV Joint Venture (REV).
For three years during 1990 through 1993
Megawestfee managedthe Villasfor REV (Tr. 488,527).
..
This case resultedfkom a July 9,1993, cchplaint to the OccupationalSafety and m HealthAdministration(OSHA) Born Megawest’sLaude&ill staff at the Villas. The complaintpresent& OSHA withthe difficultissueof the proprietyof protectingemployees against violence in the workplace under the Occupational Safety and Health Act of 1970 (Act). Following an investigation by OSHA compliance officer Michael Illes on October 12, 1993, OSHA cited Megawest for violating 5 5(a)(l) of the Act by failing to furnish a workplace free Tom the serious recognized hazard of violence:
in that security measures were not taken to minimize or eliminate employee exposure to assault and battery by tenants of the apartment complex.

13te Act’s Enforcement Scheme.
When Congress addressed the need for
comprehensive safety and health legislation in 1970, it was in large part motivated by a desire to reduce the high numbers of workplace deaths and injuries occurring as a result of industrial accidents and exposures. ’ Congress created OSHA to implement the Act’s preventative purpose through enforcement. During the decade of the 198Os,homicide became the third leading cause of death in the workplace? OSHA understandably seeks an enforcement role in decreasing these grim statistics.
Under the Act’s enforcement scheme, 8 6 permitted the Secretary to adopt then-existing Federal and national consensus standards or, following rulemaking, to promulgate new or emergency standards. Alternatively, if no specific standard applied to a perceived violation, the Secretary could enforce the general duty clause, 9 5(a)(l), if an employer failed to render its workplace tiee Tom serious recognized hazards.
OSHA’s specific standards address many identified hazards. There are no standards requiring employers to protect their employees against the crimjnal acts of violent persons. In some instances in the role of a good citizen, as well as in self-interest, an employer may be expected to utilize practical means to reduce the exposureto violence, although no law requiresthe action. When police fti to effectively control criminalconduct aimed at employees,andwhenthe conductappears to beconie more frequentandunpredictable,the burden on the employer becomes greater to assess methods of preventingviolence to workers even without a mandatory requirement. The Secretary asserts that in other

1 S. 2193, S. Rep. No. 91.1282,9lst -IS& 2d Sess. at 1-S (Ott 5,197O).

2 National Institute for Oaxpational safetyand Health (NIOSH),AW published byCenterfir D&ease
Control (CDC), Sep~ 1993 (Bho C18).

2 instances, in order to provide a work environment free from a recognized hazard ofviolence, an employer must share with the police the responsibility for protecting employees. The issue here is whether Megawest was required to afford its office staff a feasrble means to eliminate or materially reduce the threat of violent physical injury under the mandate of the Act.
In the debate surrounding OSHA’s function in reducing violence in the workplace, certain facts must be accepted. First, nowhere in the legislative history pertaining to the Act or in the scope of the then-existing standards was there any implication that OSHA should police social behavior. Second, a potential for violence against employees working in the service sector exists for an extremely broad spectrum of employers.
Undeniably,
enforcement in this arena could place extraordinary burdens on an employer requiring it to anticipate the possibility of civic disorder. Third, enforcement in a sphere so distinct from that covered by OSHA’s regulations would most surely tax OSHA’s limited resources in ways difficult to control.

#
Factual Background

The Vim and ks Managing Stafl The Villas is made up of apartment units, a

. a car wash, swimming pool, tennis courts anda lake separate office and clubhouse building,
(Tr. 44,95,588). The apartment units are “garden apartments,” and the X)-acre site has several entrances and exits. Each unit has a separate address (Tr. 69).
Megawest employed four office persons to manage the Villas: the property manager, the assistant property manager, and two leasing agents. The property manager (and the assistant property manager under her direction) was responsliblefor cokcting rents, approvingrentalapplications,posting notices, walking thecompleq andoverseeingtheoffice and maintenancestaff&. The leasingagentsshowed model apartments,met with, and reviewed the qualificationsof potentialresidents. Also employed at the complexwere a I maintenancesupervisor,one or two assistants,a house@eper, a porter and painters (Tr. 100401, 571). These latter employeesdid not work’out of the office or havemuch direct interaction with the office staff (Tr. 140-141). A night security office? patrolled during the nighttime hours after the office was closed (Tr. 123).
The office was staffed during 9:00 a.m. to 690 p.m (830 a.m. to 530 p.m. in the winter) on Monday through Friday. Only leasing agents worked on Saturdays and Sundays. Work by the office staff after regularly scheduled hours was discouraged as dangerous (Tr. 101,108,509). Several law enforcement officers were given rent consideration for living in the apartments. For example, Scott Shapiro, a law enforcement officer who lived at the Villas for a two-year period ending in May of 1993, was given free rent for the visibility of having his marked car on the premises in the evenings and for certain other minor duties (Tr. 77-78, 80). Except for a short period, however, no security personnel were employed.. during daytime office hours.
Resiiierz~’ conduct. Walter Stanwick of the Broward County Sheriffs Office considered the one-square-mile area which encompassed the Villas as containing “probably one of the highest [crime areas] in Lauderhill” (Tr. 18). Although the SherifE’sOffice was only 500 to 1,000 yards from the Villas, the police needed an average of twenty minutes to respond after receiving an emergency “911” call from the Villas (Exh. C-11; Tr. 36,41). In Stanwick’sopinion, police response was delayed because of the volume of calls they received for this area (Tr. 36-37). A computer list of police contacts made for January 1991 through August 19934 demonstrated that the police responded to a significant number of incidents at the Villas during this period (Exh. C-l; Tr. 20). Included among the requests for police assistance were those made by the Villas’ office staff. Staff members testified that they were often subjected to threats or belligerent conduct and, on a few occasions, to physical attack (EA. C-l; Tr. 108).

3 The residentialapartment industry uses the term “courtesyoffim” rather than “sea&y guard or semi9 officer”fi>rliabilitypuqxms to avoid %npwtig] SCZU@ to m for any season” m. l%-157).

4 The citationwas issued on October 12,1993,and was basedupon conditionsexistingamund August 9,19%. Thus, the otxurrence of incidents in 1991 and 1992 is obviously not within the time Bame of the aIleg@i violation. Howem, these earlier incidentsare relevantto the issues of hazardrecognitionand the seriousness oftheM

.
4
On September 11, 1991, Luanna Thompson, who was scheduled to move into the Villas that day, changed her mind and sought a refund of her security deposit. The property manager and assistant property manager were unavailable, and Thompson wvas a&&d to

return in the morning. Thompson refused to leave, the police were called, and they e&ted Thompson out of the office. The next morning property manager Paula Powers and assistant property manager Stacy Curie1 refused to refund Thompson’s security deposit in accordance with Megawest’s policy. Thompson left but immediately returned and sprayed mace into the eyes of Powers and Curiel. Powers and Curie1 were hospitalized with damage to their eyes and remained out of work for two weeks (Exh. C-3; Tr. 110-114, 284). Thompson was never apprehended or prosecuted, although the police investigated the incident and charges were filed (Tr. 125).
After that incident, at the specific request of the office staff, Megawest employed a
daytime security guard who was stationed in the office. At the end of five weeks, Powers was directed to “let [the daytime security officer] go because we could not afford them.” There had been no violent conduct directed against the staff d&g those five we&s (Tr. 117418, 286). A few months later Powers was transferred to another Megawest

property in favor of having a male property manager at the Villas (Tr. 279).
Male property manager Larry Melvinwas also subjected to violent incidents. During 1992, a resident injured Melvin’s fingei by striking his hand with a telephone with such force that the telephone broke. A resident also came into the office to threaten Meivin with a 2-by-4 board. Later, a resident approached CurieI, who was also assistant manager under Melvin, in a threatening manner but she was able to duck under his arm, lock herself in the office, and call thepolice (T’r. 119012ro;
288). After Melvinlefk,Powers was offered a $4,500 raise to return to the Villas as propertymanager,whichshe did (Tr. 289).
Powers descrii events occuning duringthe summer of 1993 as precipitating complaints to both Megawest’s Atlanta management and to OSHA Powers received“a largeamount”af threatsfrom residentsduringthisperiod (Tr. 289). Examples includeda resident who came into the office to threaten the staff that if they knocked on her door for rent again, “people had been shot for less” Q’r. 290491). Later, resident AIlen Lopez stated that Ynnocentpeople in the office were going to get hurt if his carpet was not replaced” as Melvin had earlier promised him. The police had to be called to force Lopez to leave the office. (Tr. 290). Shortly after that incident, an individual who had his car towed came into the office and threatened to kill the night security officer. That resident also had to be escorted out of the office by police. One of the office staff, Kathy Kissel, decided to quit her job because of her fear of the threats. Powers asked Kissel to stay while Powers sought authority Tom the Atlanta management to hire daytime security. On June 16,1993, a letter signed by the entire Villas office staff requested that Megawest “supplb] us with a security guard during operating hours” to avoid “life threatening situations.“5 A list of guard services and their fees was attached to the request (Exh. C-4; Tr. 292-293). Megawest did not respond to the letter, although the request for a’ security guard was repeated in several telephone conversations. A few weeks later, after Powers telephonically advised Lopez that action on his newest maintenance request might be delayed, Lopez kickedopen the office door “yelling and screaming” and again refused to leave until after the police arrived. The office staff then filed a formal complaint with OSHA, (Exh. C-5; Tr. 108,283, 290-296).
On August 9,1993, compliance officer I&s met with the office staff at the Villas to investigate the complaint. While llles was in the office building, resident Purlene Jefferson came to use the office telephone, which residents were not permitted to do. Jefferson had previously been advised that she should not use that telephone, but had done so anyway. On that earlier occasion, Jefferson remained on the telephone until forced to leave after the police had been called. On August 9, Jefferson again ignored the staff’s direction and began using the telephone. Assistant Manager Karen Alkow approached Jefferson and depressed the receiver button disconnecting the call. Jefferson slapped and scratchedAlkow on the face. Illes ieparatedthe two, and the police were called. Alkowretainsa smallscar from the attack(MI. C-6; Tr. 236). Shortly after that incidentMegawest’s Atlanta office called Powers and admonishedAlkowfor confrontingJefferson,statingthatJeffersonshould have been removedby the police, as had been done in the prior incident.The staffs request for

’ The Seaetary concedes that althou@ the employ6ss perceivedthe threat of violence from residents to be ‘life threatening/ homicide was not the probableresult of the residents’actions (Set Brief,p. 39). This judge agr~withtheSecre~s assemmt a daytime security guard was also denied during that conversation. Powers, however, was afforded and accepted the option of transferring to another complex “to protect [her] pregnancy” (Tr. 298).
.-
The Parties’ Positions

The Secretary contends that he has established each element of a general duty clause violation and urges that violence in the workplace should not be considered fundamentally different Tom those hazards traditionally covered under the Act’s 6 S(a)(l). In urging the violation, the Secretary finds it significant that the employees had been subjected to a physical attack prior to the one which occurred during the investigation; the employer had contractual relationships with the potential attackers; the attacks were of a serious nature; the employees made repeated requests for additional security; a member of its lower-level management was one of those requesting the additional security; certain precautions suggested as abatement were already in use by surrounding apartment complexes; and the suggested abatement, ie., assessing the layout, training employees to diffuse anger, and installing a see-through barrier required minimal accommodation or expense.
Megawest, on the other hand, argues that there can be no general duty violation because the physical attacks were unforeseeable; such incidents had not occurred in the

• residential apartment industry before; neither it nor its regional management had reasons
  to believe that the first physical attack would be repeated; the police could have adequately handled the second incident; and the abatement suggested by the Secretarycompromised its ability to lease apartments. Megawest also asserts that it is not a member of a high-risk industry and that it already takes many of the precautions suggested for reducing violence in high-risk workplaces, It further contendsthatrulemakingis necessary prior to a&iging
  B

a violation for unlaa violent conduct affbting empbyees.

                                          Discussion

     VwkmeintheWorkplace. Media accountsandstudiesof workplacetrendsdocument

thatcriminalconduct is more and more often directedat employees who are, in effect, in

                                               7

harm’s way because they discharge the duties of their employment. Employees have become increasingly at risk from those they must serve.
Differing degrees of violence occur in the workplace. The conduct may range from
harsh uncivil language to threats or to serious physical attacks and homicides. Only mcidents giving rise to serious physical injuries or death are germane under 0 5(a)(l) of the Act. Most information relevant to the subject focuses on the occurrence of homicides in the workplace. As one study suggested, however, Yntentional injuries [resulting in nonfatal assaults] to workers occur much more frequently than occupational homicides. Efforts to prevent occupational homicide may also reduce the number of nonfatal assaults” (Al&, Exh. C-18, p. 2).
IV0 violation ofR~lemaA5zg Megawest’s argument concerning rulemaking will first
be briefly discussed. Megawestcites Kastalon, Inc. & Conap, Inc., 12 BNA OSHC 1928, 1986 CCH OSHD U 27,643 (Nos. 7903561& 7905543,1986) in support of its argument that the Secretary is barred from asserting a general dutyviolation covering conduct which is the subject of rulemaking.
Megawest’s reliance on Kastalon is misplaced. In K&ah, the Cmmission
consolidated two cases for the purposes of review: Bzsfah, decided by Administrative Law Judge Al&a, and Conap, Inc., decided by Administrative
Law Judge &bone. Kizstah and
Conap both dealt with 4,4’-Methylene (MOCA), a chemicalused in the manufacturing process of polyurethane products. MOCA has been shown to cause cancer in animals. In 1974, the Secretary issued a detailed standard regulating the use of MOCA in the work+ce, on the theory that MOCA acts as a carcinogen in humans.
The MOCA standardwasruledinvalidbecausetheSecrew hadnot conformedwith
the Act’s requirementsin its promulgation. In 1975, the secretaryproposed the same standardand helda hearingon the proposal. The secretarytook no furtheraction on the proposal.-Beginningin 1976,the Secretarybeganissuingcitationsto employersfor violations of thegeneral duty clause, alleging thatthe eniployerswerenot takingadequateprecautions againstexposureto MOCA.
The judges in Kartalon and Conap vacated the 0 5(a)(l) violationson the grounds
that the charges were attempts to enforce the invalid MOCA standard throughthe general duty clause. The Commission aBirmed the judges’ decisions, but expressly declined to rule on whether the Secretary had impermissrbly sidestepped the Act’s rulemaking requirkments (Kmtalon, 12 BNA OSHC at 1930):

    We need not, however, decide whether the Secretary exceeded the limits of
    his discretion here. Assuming arguendo that the general duty clause citations
    were properly issued, we conclude that the Secretary failed to prove that                         l

    Kastalon and Conap violated 0 5(a)(l), and we vacate the citations on that
    basis.

    The Commission did express its misgivings regarding the Secretary’s actions in          dicta,

stating (Id):

We are troubled, as were the judges, by the Secretary’s apparent attempt to enforce an invalidated standard through citations under the general duty clause . . . . Particularly in a situationlike this, wherea standard has been proposed and rulemaking proceedings have been conducted, the Secretary’s failure to complete the rulemaking, coupled with his issuance of citations under the general duty clause, do not promote the goals of “fairness and mature consideration of rules of general application” that the Act’s rulemaking provisions were designed to foster.

The present case is distinguishable fkom K&&a Here, the Secretary has not &sued a standard, valid or otherwise, addressing the preventionof workplaceviolence. There have been no proposals or hearings on proposals. The Secretary is not attemptingto cir~ent the rulemaking process, but rather is using the general duty clause for a situationin which no specificstandard exis& Megawest cites a “recently published article” in its brie&quoting Jose Sanchez, OSWs Area Directorfor SouthFlorida, as saying thatOSHA is “creatingreg&tions”
to

6 That is not to say that the Secn%ry should not address the hazani of workpbxz violence with spec%c rulemaking.~~modernadministrativelawembodiesthepolicythat~~~~sho~dmafregreaterrather than less useof notband wmment rulemaking authority.“~~~ v &Hw, Ik, 15 BNAOSHC 1851,1863,1991-1993CCH OSHD Q29,828, p. 40,676 (No. 8%1300,1992). The promulgation of a spezifk standardwWd prwvidea fkirwarningtoemplal~ofwhatwaf~ofthem.It~~dalso~their input into the creationof the standard. “p)hose who come withinthe scope of the interpretationshould be heard with respectto it” 15 OSHC at p. 1863.

9 deal with workplace violence (Brief of Megawest, p. 6). However, no evidencef7vas adduced at the hearing that supported the conclusion that the Secretary had actually promulgated any such regulation. Nor is the Secretary prohibited from alleging a 6 S(a)(l) violation merely because the possibility of some future rulemaking has been addressed. The Secretary is not precluded from asserting that workplace violence constitutes a general duty clause violation.
173teGeneral Duty Requirement of 8 S(a)(I). In order to prove a violation of 8 S(a)(l), the Secretary must show that: (1) a condition or activity in the employ&
workplace
l presented a hazard to employees; (2) the cited employer or the employer’s industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; and (4) feasible means existed to eliminate or materially reduce the hazard. WizIdonHealth Care Center, 16 OSHC 1052, 1993 CCH OSHD li 30,021 (Nos. 892804 and 89-3097, 1993) (consolidated); Kustalon,m-pm.

1. Existence of Hazard
I
Not every condition affecting the employment relationship is cognizable as a hazard under 8 5(a)(l). In American C);lanamidCu., 9 BNA OSHC 1596, 1981 CCH OSHD V 25,338 (1981), afld, 741 F-2d 444 (DC. Cir. 1984), a 8 S(a)(l) case in which female employees underwent surgical sterilization to work in the lead pigments department,
the
Commission vacated the citation, finding that the surgical sterilization was not a “hazard” underthe Act since“congress conceived of occupationalhazardsin texms of processes and materials which cause injury or disease by operating directly upon employees as they engage in work or work-related activities.” Id, 1981 CCH OSHD at p. 31,431. In contrasthere, the potential hazard arises Tom the critical element of the staffs job, ic, personal interaction with the residents. The dutiesof the office sta& withthe pos&le excegjtionof the leasingagents,’resultedin direct confrontationsbetweenthe staff and the residents.
The office staffpredictablyfound thattenantsbecame upsetaboutreceiptof a “three&y notice” before eviction;car towing seven-daynoncompliancenotices;refisals to return

7 The leasing agents showed apartments and contacted the residents while residentsw seeking approval to live in or remain in the apartments. Normally,the residents’ behavior dnringthis period was not hostile and there were no threats or attacks (Tr. 172,303,571). \ 10
security deposits; and, on occasion, maintenance disputes (Tr. 290-291, 303). During Megawest’s management of the property, the office staff attempted to reduce the high rate of monthly rent delinquencies, which also contributed to resident confrontations (Tr. 333-334). Tenants so often became angry with the office staff that Peter Anzo, Megawest’s president and its representative in this case, considered responding to tenant. threats to be a normal part of the staE’s job (Tr. 504).
When residents threatened the staff, those residents seldom, if ever, suffered any consequences for their actions. Not only did the police fail to apprehend or prosecute the perpetrators of the physical attacks, but Megawest did not enforce. the lease agreement which could have provided sanctions for a resident’s threats and violent confrontations with the staff.8 As Paula Powers explained (Tr. 332):

Q. Ms. Jefferson, when she came in and had to be escorted off by the police, is that the type of thing that would indicate that some .type of eviction should be started on her?

A. See, normally, and on any other property, I would have to say yes. But even going back to Michael Griffin, when he threatened to pour boiling hot water on us’, we tried to get him evicted. He even owed us, I think it was, two months rent at the time. The owners [REV] stepped in and they would not let us evict him for the threat.

The Villas staff was denied the protection anticipated by the contractual relationship as a response to violent threats or other inappropriate conduct. Further, although the office staff was expected to confront irate residents, they were not trained to ciiflkse anger or to lessen the impact of potential incidents until the police could arrive (Tr. 301). Nor did

8 Although it may be argued that f&lure to sanction tenants’ threateningwnfkontations may have lessened tenants’ anger, it left the staff without appropriate tools to protect themseW dram potentially daqxous tenants or to demonstratethat violence towards the staff had reperassions.

g This incident occurredafter Powers became mabger in March1991 and before the mating incident in September 1991 (Tr.n7,282).

11
Megawest take active preventative measures,suchas ensuringthe availability of properly functioning two-way radios, alarm buttons, lo or similar devices (Tr. 118, 121422,317).
Megawest argues that in spite of the anticipated verbal abuse, therewasno significant riskresidents would physically attack the staff. Thus, it argues the physical injuri& were unforeseeable. Under the direction of wbldon Health Care, the argumentis rejected. As the Commission reasoned in finding a 0 S(a)(l) hazard in the potential transmission of the virus HBV, (Wakion HeaZth Care, 16 BNA OSHC at 1059):
mhere is no requirement that there be a ‘significant risk’ of the hazard comingto fruition, only that, if the hazardouseventoccurs,it wouldcreatea ‘significantrisk’ to employees. [citation omitted]. There is no mathematical test to determine whether employees are exposed to a hazard under the general duty clause. Rather, the existence of a hazard is established if the hazardous incident can occur under other than a tieakish or utterly implausrble concurrence of circumstances. Natimal Realry & Comtz Co. v. OSHRC, 489 F.2d 1257, 1265 n. 33.

Because the responsibilities of the office staff led to adversarial relationships with the tenants, the staff was not trained to diEuse anger, the residents often directed intimidating threats or conduct towards the sta& that conduct was not sanctioned, and because there were no positive measures in effect to discourage attacks, a future violent incidentleading to serious physical harm was neither freakish nor implausrble. The Secretary has established . the first element of the 5 5(a)(l) violation.

2. Recognition of the Hazard

Having established that the conditions as they existed at the Villas constituteda hazardto the office sta& the pivotal issueremainswhetherthe hazardwasone whichwas recognized. “A hazardis ‘recognized’withinthe meaningof the generalduty clauseif the hazardis knowneither by the employeror its industry.” FViuhn HeaM Cizre 16 BNA OSHC at 1061. Were this the typicalcase, the focus of the discussionwould begin with

lo Megawest’samtention that its night securityequipmentshould be ~nsidercxl the equivalentof a panic button alarmiswithout merit. Employeeswere unaware of theaiam system’spanicbut&n function(‘lk 134, 259,300).

12
Paula Powers’ (a supervisory employee’s) perceived exposure to attacks. This, however, is not the typical case.
The hazards that the Act has traditionally dealt with have been hazards that arise from some condition inherent in the environment or the processes of the employer’s workplace. Thus, the Act addresses the hazards of falling, of electrocution, of amputation, of suffocation, of overexposure to lead, and to noise. Standards have been fashioned to regulate the heights of guardrails, the depths of trenches, and the distances between the rungs of ladders. Regulations have been promulgated which aim to reduce employees’ exposure to asbestos, bloodbome pathogens, and silica. The general duty clause has been effectively used to “fill those interstices necessarily remaining after the promulgation of specific safety standards.” Bristol Steel & Iron Works v. OSAHRC, 601 F.2d 717, 721 (4th Cir. 1979).
These hazards are ones that the employer can anticipate and reduce or eliminate.
“To respect Congress’ intent, hazards must be defined in a way that apprises the employer of its obligations, and identifies conditions or practices over which the employer can reasonably be expected to exercise control.” Pelron Corporation,12 BNA OSHC 1833,1835, 1986 CCH OSHD 1 27,605, p. 35,872 (No. 82-388, 1986). The element of an employer’s control is a crucial one when determinin g the employer’s duty under the Act. The Commission has “consistently held that employers are not to be held to a standard of strict liability, and are responsible only for the existence of conditions they can reasonably be expected to prevent.” Greene Combuctibn Co. & M-n Constmction Co., 4 BNA OSHC 1808, 19764977 CCH OSHD I 21,235 (No. 5356,1976).
For example, the Commission and the courts of appeal repeatedly have made allowancesfor employerswho violatethe Act becauseof unpreventiblemisconduct . on the part of their employees. The D.C Circuitaptlyformulatedthe reasoning UnderIyingthis principle’inits oft--citedNational Ret&y v. OSHRC 489F.2d 1257,1266 (DC Cir. 1973):

A demented, suicid&l,or willMly reckless employee may on occasion circumvent the best conceived and most rigorouslyenfoed safetyregime.
This seemingdilemmais, however,solublewithintheliteralstructureof the general duty clause. Congress intended to require elinkation only of preventablehazards. It follows, we think, that Congressdid not intend

13 unpreventable hazards to be considered “recognized” under the clause . . . l

Hazardous conduct is not preventable if it is so idiosyncratic and implausible in motive or means that conscientious experts, familiar with the industry, would not take it into account in prescribing a safety program.

Generally, when an employer addresses safety hazards in the workplace, he ddealing with inanimate objects or processes over which he can exercise a certain degree of control. A difference regarding employees is that the employer now must deal with people, capable of volitional, deliierate acts. Humans introduce a wild card into the scenario. Employers have less control over employees than they do over conditions because employees have a will, an intention, and an intellect that drives their behavior, and they are not always amenable to control. The court in National Redty recognized that the human factor in the workplace may thwart an othenvise safe working environment and preclude the violation. This is despite the fact that the employer has an array of methods for controlling its employees. The employer may discipline its employees through the use of reprimands, suspensions, and layoffs. The employer has even less control over the behavior of third parties not in its employ.‘l The Secretary now asks employers to anticipate and prevent criminal behavior on the part of non-employees. Such behavior, while certainly hazardous to its victims, is completely different from any other hazards addressed by the Act. The hazard of physical assault in the present case arises not from the processes or materials of the workplace, but from the anger and frustration of people. The anger and frustrationmay be fueled by drugs, alcohol, or mental health problems. But the assaults are intentional acts, deliberately committed by reasoning (though, perhaps, irrational) beings.
.
an alltoo commonoccurrence nowadays. It impacts upon Violenceis,unfortunately, all sements of societvandis bv no meanslimitedto the workplace. While the threatof
w 4 d a

workplace violenceis omnipresent,an employermay legitimatelyfail to recognize that the potential for a specificviolentincidentexists. It mayreasonablybelieve hat the institution

l1 The e&ten= of the lease agreement provides for punishment bar inappropxiate, conduct but does confer a signiEcanUygreaterability upon the employerto prevent the conduct in the &St instaneb

14 to which society has traditionally relegated control of violent criminal conduct, Le., the police, can appropriately handle the conduct. To validly assess an employer’s actual or constructive knowledge of workplace violence, it must be acknowledged that violence occurs when an intellect actively seeks to cause it, that violence exists in society and may occur unpredictably, and that society empowers the police to control the conduct. For these reasons, a high standard of proof must be met to show that the employer itself recognized the hazard of workplace violence. It is not enough that an employee may fear that he or she is subject to violent attacks, even if that fear is communicated to the employer, and even if the employee is one whose knowledge can be imputed to the employer. Nor is it sufficient that there has been a previous injury from a violent incident. Since these constituted the Secretary’s primary proof on the issue, it cannot be found that Megawest recognizedthe hazard.
In addition, Megawest successfully rebutted the argument that the hazard of assault
on office staff was a recognized hazard within the apartment management industry. Publicized studies, enactment of legislation, industry publications, or similarly disseminated information known to an applicable industry are all relevant to industry recognition. One month before Megawest was cited, and two monthsafter OSHA’s inspection, the CDC published the NIOSH Alert (Exh. C-18) warning employers of the high incidence of
. _ homicides in the workplace and seeking assistance in preventing these deaths. The publication advised employers of risk factors and recommended specific action in response (Exh. C-18, p. 3). The workplaces identified as having the highest rates of o=upational homicide were (EA. C-18, p. 3):
taxicab establishments, liquorstores, gasStatiOIlq detective/protective services, justice/publicorder establishments(including courts, police protection establishments,-legal counsel and prosecution establishments,correctional institutioq and fire protectionestablishments), l grocay stores,
. jewelrystores,

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. hotels/motels, and

. eating/drinking places.

Identified risk factors were (Exh. C-18, p. 4):

. exchange of money with the public, . working alone or in small numbers,
. working late night or early morning hours, . working in high-crime areas,
. guarding valuable property or possessions, and . working in community settings (e.g., taxicab drivers and police).

As preventive measures, NIOSH suggested (ML C-18, pp. 4-5):

. Make high-risk areas visible to more people.

. Install good external lighting.
. Use drop safes to minimize cash on hand.
. Post [the fact].
. Install silent alarms.
. Install surveillance cameras.

. Increase the number of staff on duty.
. Provide training in conflict resolution and nonviolent response.
. Avoid resistance during a robbery.
. Provide bullet-proof barriers or enclosures.
. Have police check on workers routinely.
. Closeestablishments during high-riskhours(late at nightand earlyin themorning).

Similarly, the Stateof Floridaand the Cityof Lauderhillmandatethatemployerswho operate convenience stores utilize these same basic types of protective measures to safeguardtheiremployees from the generalpublic (B&s. C-7, C-8; Tr. 37).

. This is not to implythat mere inclusionwithina “high-risk”industrygroup would cotier recognition thatthe hazardof workplaceviolence existsfor a particularemployer.
In the present case, however,the apartmentmanagementindustry,althougha setice

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industry, is not identified as a high-risk employer. The fact that the Villas are located in a high crime area is of lesser significance since the potential perpetrators are residents, rather than members of the general public. Megawest knew the identities of the residents and had screened-them before allowing them to move onto the property. Also, because of the hours the office was opened, its location, and the way in which the staff operated, Megawest complied with many of the recommended preventative measures listed in the NIOSHAZet, even if compliance was coincidental.
Megawest’s witnesses testSied, without contradiction, that over an extended period
of time there were no physical injuries Tom attacks upon other office staffs by residents throughout the national and local residential apartment industry, except for the two at the Villas (Tr. 151,207, 486,564). Further, use of some security measures by other employers is not sufficient to establish that the industry recognized that a hazard existed for their management stafk
The hazard was not recognized by Megawest or by its industry within the meaning of 5 5(a)(l). Accordingly, the issues of whether the hazard could be expected to result in serious injury or whether the Secretary’s suggested means of abatement would eliminate or materially reduce the hazard need not be addressed. The violation is vacated.

FINDINGS OF FACT AND CONCLUSIONS
OF LAW

The foregoing decision constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a).

ORDER

Based upon the foregoing decision, it is ORDERED that the alleged violation of 9 5(a)(l) is vacated.
.

NANCY J. SPIES
Date: May 8, 1995
Judge

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