Borg-Warner Protective Services Corporation, d/b/a Burns International Security Services

Read the official release (oshrc.gov)

Plain-English summary

Burns security guards at a manufacturing plant treated minor cuts and burns, transported injured workers, and were expected to provide CPR when needed. The judge found that these duties created occupational exposure under the bloodborne-pathogens standard even though actual blood contact was minimal and no exposure incident was proved. Six items involving the exposure-control program, protective measures, vaccination, training, and medical records were affirmed. Three other items were vacated because OSHA did not establish the required conditions or an exposure incident. The violations were serious rather than willful because corporate management had pursued compliance and OSHA did not prove that district personnel intentionally disregarded the standard or were plainly indifferent. A total penalty of $2,500 was assessed.

Decision snapshot

• Cited standard(s): Nine provisions of 29 C.F.R. § 1910.1030 governing exposure-control plans, protective equipment, housekeeping, vaccination, post-exposure evaluation, training, and medical records.
• Outcome: Six items were affirmed as serious, three were vacated, and the grouped penalty was reduced to $2,500.
• Key point: First-aid duties can create occupational exposure even without a documented exposure incident, but willfulness requires proof of the responsible managers' state of mind.

Full text (OSHRC public release)

                   UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR
Complainant

         v.                              Docket Nr. 96-0253

BORG-WARNER PROTECTIVE SERVICES
CORPORATION, d/b/a BURNS
INTERNATIONAL SECURITY
SERVICES,
Respondent

APPEARANCES

For Complainant For Respondent
J. Davitt McAteer, Esq. Bradd N. Siegel, Esq.
Acting Solicitor Porter, Wright, Morris & Arthur
Columbus, Ohio
Deborah Pierce-Shields, Esq.
Regional Solicitor

 Maureen A. Russo, Esq.
 Attorney
    U.S. Department of Labor
    Philadelphia, Pennsylvania

BEFORE

JOHN H FRYE, III
Judge, OSHRC

                       DECISION AND ORDER

I. INTRODUCTION

    Respondent, Burns International Security Services ("Burns"),

provided security on a contract basis at a manufacturing plant

owned by Frick Company ("Frick") and located at 100 CV Avenue,

Waynesboro, Pennsylvania. Approximately ten of Respondent's forty-

thousand employees worked at that site. (JX-1; Tr. 5). This case

arises out of an inspection of those security guards by OSHA
compliance officer Ralph Stoehr, II, on September 6, 1995. (Tr.

139). As a result of the inspection, the Secretary issued one

Citation, which grouped together nine alleged violations of OSHA's

bloodborne pathogen standard, 29 CFR 1910.1030. (Gov't Ex. 8).

The Citation was classified as willful, and a penalty of $50,000

was proposed.

  Following a timely notice of contest, the Secretary filed a

complaint1 which Burns answered. Trial of this matter took place

in Harrisburg, Pennsylvania, on September 24-25, 1996. Respondent

is subject to the jurisdiction of the Occupational Safety and

Health Act of 1970, 29 U.S.C. § 651 et seq. ("Act"). (Ex. J-1, Tr. 5.)

  When this decision was substantially completed, Respondent's

counsel filed a motion for leave to file a document entitled

“Respondent's Corrections to the Secretary's Mischaracterizations

of Fact and Law.” On December 19, the Secretary's counsel

responded in a letter that states: “Please accept this letter

brief in lieu of a more formal brief in response to Respondent's

reply brief.” In her letter, counsel denies ever having “...

blatantly or intentionally misled a Court of Law...,” and makes two

substantive points.

  It is evident from this decision that I am in agreement with

Respondent's counsel with regard to the facts established at trial

and the interpretation of the law as reflected in his

“Corrections.” I believe that counsel’s factual

1
On August 13, 1996, counsel for the Secretary moved to amend the complaint
to reflect the correct name of Respondent: Borg-Warner Protective Services
Corporation, d/b/a Burns International Security Services. No opposition to
the motion was filed and it is granted.

                             2

mischaracterizations and legal misinterpretations must have

resulted from an excess of zeal on behalf of her client and too

much haste rather than any intent to mislead. In this regard, I

point out that counsel for the govenment not only has a duty to

zealously represent her client, but also to see to it that justice

is done. Too much of the former can sometimes result in too little

of the latter.

II THE BLOODBORNE PATHOGENS STANDARD

 In 1992, the Occupational Safety and Health Administration

(OSHA) announced its bloodborne pathogens standard, a comprehensive

set of protective rules to stem the spread in the workplace of HIV,

Hepatitis B and other bloodborne diseases. The standard, codified

at 29 CFR 1910.1030, requires employers to take various protective

measures for employees with occupational exposure. Occupational

exposure is defined as

 reasonably anticipated skin, eye, mucous membrane, or
 parenteral contact with blood or other potentially infectious
 materials that may result from the performance of an
 employee's duties.

29 CFR § 1910.1030(b). Most of the regulations address preventing

an exposure incident, which is defined as

 a specific eye, mouth, other mucous membrane, non-intact skin,
 or parenteral contact with blood or other potentially
 infectious materials that results from the performance of an
 employee's duties.

29 CFR § 1910.1030(b). It is only through such contact that there

is a risk of transmission.

                          3

III THE DUTIES OF BURNS’ GUARDS

  During opening conference, Mr. Noll, site supervisor for

respondent, informed CSHO Stoehr that Frick required the guards to

render first aid and transport injured employees to the hospital.

Frick imposed this requirement by means of so-called security

regulations, which stated that the guards were to treat minor cuts

and burns, transport injured Frick employees to the hospital,

provide CPR when required, and call 911 if the injury is major.

(GX-3, Safety Regulations, Duties, No. 6). Further, Mr. Noll

indicated that the guards did not have a written Exposure Control

Plan as defined in 29 C.F.R. § 1910.1030(c)(1)(i). (GX-3; Tr. 15,

18, 51-56, 149.)

                          4

A. The Applicability of the Standard to the Guards at Frick

 While the guards' actual exposure to blood appears to have

been minimal, it was extensive enough to meet the definition of

occupational exposure. The Security Regulations provided that

 Dispensary Service is available at the King St. Guard House to
 Employees Daily when the plant is in operation. Minor Cuts
 and Burns are to be treated by the Security Guards. All other
 Injuries should be treated at the Emergency Room of the
 Waynesboro Hospital.

(Security Regulations, & 11. 2.) Under “DUTIES, SECURITY

PERSONNEL,” item 6. provided

 Provide FIRST AID and C.P.R. when required. Transport all
 Injured personnel to the Hospital, if Mobile (sic). Call
 Rescue Service (911) for transport if injury is of a Major
 Nature.

Typically, according to Mr. Noll, Burns’ site commander, the guards

 ... would assess the wound. If [they] thought it was too bad
 that it might need stitches, [they] would just put a dressing
 on it and transport him to the hospital.

 Otherwise, [they] would clean it up, peroxide and use a sink
 in the restroom, clean it up and put an antiseptic on it and a
 bandaid.

(Tr. 54.) Mr. Noll testified that, so far as he knew, no Frick

employee had left blood or gauze in the truck, and no guard had

rendered any sort of medical assistance or treatment during the

rides. (Tr. 66, 88). Further, it is undisputed that there was no

instance in which the guards performed CPR. (Tr. 29-30).

 On two occasions, Mr. Noll treated workers who were bleeding

profusely (Tr. 54-56, 161-162) without using a mask, eye, or other

protection. (Tr. 58-59, 162.) Additionally, Mr. Stoehr testified

                            5

that the Employer Report of Occupational Injury or Disease, the

emergency room reports, and the OSHA 200 logs “for ... two or three

years” depict numerous lacerations, some requiring sutures. These

workers were treated by respondent's employees and when necessary

respondent's employees transported the workers to the hospital.

(Tr. 162-164.) A review of the Frick OSHA 200 log for the period

March through September, 1995, reveals a total of 44 entries, 14 of

which were lacerations (including one puncture). Two of the 14

involved days missed from work and two involved restricted work

duties.

  Given the nature of the duties actually performed by the

guards, the surgical gloves, which were routinely used when

treating the Frick employees, evidently were sufficient to prevent

any exposure incident from taking place,2 and no such incident was

shown to have occurred over the six-year period preceding the

Citation.3 (Tr. 85). Mr. Noll testified that he wore these gloves

during the only two occasions when he cleaned up blood (Tr. 65,

85), and that it was standard practice for minor cuts to have the

injured Frick employee wash off any excess blood before any

bandaids or salves were applied. (Tr. 89). The scope of the

guards’ first aid duties is such that it is reasonable to

2
The Secretary's expert witness, Dr. Presson, indicated that a person
treating minor cuts and burns is protected by using surgical gloves. (Tr.
253).
3
The Secretary was able to find only two instances where there was bleeding
such that any additional protection, beyond the rubber gloves, conceivably
would have had some utility. These were an instance when an employee with
what apparently was a puncture wound spurted blood on Mr. Noll’s pantleg
(Tr. 54-55) and an instance of an employee with a severe nosebleed (Tr.
55). Both occurred in 1993. In neither of these cases did the employee's
blood come into contact with the eyes, mouth, mucous membrane or non-intact
skin of a guard. (Tr. 87).

                             6

anticipate “skin, eye, mucous membrane, or parenteral contact with

blood.” The Secretary established that the guards were

occupationally exposed and that the standard applies to them.

    B.    Burns’ Knowledge Regarding the Guards’ Duties

    Mr. Washington,4 as   District Operations Manager for the

Harrisburg district, had responsibility for the guards at the Frick

site from June 1995 through the date of the inspection in September

1995. (Tr. 404). Mr. Washington was, by virtue of his training

and experience, aware of the risks posed by bloodborne pathogens

and the importance of following appropriate procedures when such

exposure could be anticipated. However, he testified that he was

unaware that the guards were expected to render first aid. (Tr.

433-34). Ronald Swope, Frick's Manager of Operations,5 testified

that the security regulations were not a part of the contract

between Burns and Frick.6 (Tr. 13). The contract between Frick

4
Mr. Washington, a retired colonel in the United States Army, has a
master's degree in hospital administration, and a doctorate degree in
education. (Tr. 404-05). He took tours of duty in the Army as a health
care administrator and combat medic in Vietnam; spent four years in
medical research and development at Fort Detrick; and commanded a combat
support hospital -- later turned into a MASH unit -- at Fort Bragg. (Tr.
405-06). He served as a Medical Service Corps Officer with the Surgeon
General's Office, where he drafted procedures for, among other things,
infectious materials control. (Tr. 407). Further, he was the Executive
Officer at Walter Reed Hospital, where he worked in infection control.
(Tr. 408).
5
At all relevant times, Ronald Swope was employed by Frick Company, a
division of York International, as manager of Support Operations. (Tr. 8-
9.)
6
It is uncontroverted that these security regulations were unilaterally
promulgated by Frick (Tr. 27); were never sent to Burns' Corporate Office
or its Harrisburg District Office (Tr. 365); were signed by Frick, not
Burns, management (Tr. 27-29); and were never reviewed by Burns' legal
department. (Tr. 343-44). It is also undisputed that neither Barbara
Britt, Respondent's human resources manager, nor Mr. Washington was aware
of the security regulations -- or the provisions therein relating to first
aid and CPR -- until the Secretary produced them during discovery. (Tr.

                              7

and Burns did not provide for the guards to render any first aid,

but did require that the security guards be trained in first aid

and CPR.7 Frick’s purchase order to Burns specifically required

this and further required that at least one guard with the

necessary training be on duty on each shift.8 (GX-3, purchase

order dated 2/27/89).

   Mr. Washington did not believe that the guards at Frick faced

occupational exposure as defined in the standard.9 Mr. Washington

testified:

   [I]n my knowledge of what occupational exposure is and
   what I know the duties for the guards to be, they were
   exposed as we are right now [in this hearing] to the
   bloodborne pathogen [risk].

(Tr. 414).

   It appears that sometime in 1993, Mr. Swope provided Mr. Noll

with information regarding bloodborne pathogens protection as

defined in 29 C.F.R. Section 1030 et seq. in 1993. (GX 2, Tr. 10,

49.) Mr. Swope testified that he became aware of the need for

respondent's employees to be provided with this protection after

365, 410). Thus, at least from June 1995 on, no manager at the Harrisburg
District office was aware that the guards at the Frick site were expected
by Frick to be rendering first aid or CPR as a regular part of their job
duties.
7
Mr. Washington indicated that Burns used the training as a sales tool, to
make Burns services more attractive to clients. Mr. Washington was aware
of only one site in the Harrisburg District, Bethlehem Steel, where Burns
employees were required by contract to provide emergency first aid services
as part of their duties. (Tr. 424-25).
8
Mr. Washington’s characterization of the guards’ qualification in first
aid and CPR as a sales tool only is inconsistent with the fact that Frick
saw fit to include it in the purchase order and to add the requirement that
at least one certified guard be present at all times.
9
Similarly Barbara Britt, Human Resources Manager for the Harrisburg
District Office, testified that even after reviewing the bloodborne
pathogens training video, she was not concerned because she understood the
guards' duties to be to simply assess an injury and then call for
assistance, rather than render first aid such that they could be exposed to
blood. (Tr. 377-78).

                             8

attending the Governor's Safety Conference and participating in the

local fire department's training course. (Tr. 10.)

    Mr. Noll immediately contacted Mr. Patrick Schell,10 then

Burns’ Operations Manager and his supervisor, to inquire about the

need for bloodborne pathogens protection. (Tr. 49-50.) According

to Mr. Noll, Mr. Schell never responded to this inquiry.11 (Tr. 50.)

Mr. Schell testified that he was aware that the security guards at

the worksite were performing first-aid and transporting injured

workers to the hospital (Tr. 101-103), but he was not aware of any

requirement for an Exposure Control Plan and had never heard of the

term bloodborne pathogens before OSHA contacted him in August of

1996. (Tr. 103-108.) Moreover, it appears that Mr. Noll did not

inform any managers at Burns, either in writing or orally, about

the only two incidents since 1990 in which there was any

significant bleeding.12 (Tr. 97).

    Although Frick’s purchase order put Burns on notice concerning

the requirement that the guards render first aid and Mr. Schell was

aware of it, Frick's managers did not alert the managers at Burns'

Harrisburg District about the security regulations or about the

fact that the guards at the Frick site were treating minor cuts and

10
Mr. Schell had held various supervisory positions for respondent from
1987 until June of 1995 including Operation's Manager for the district. He
was the Client Service Supervisor at the time respondent contracted with
the Frick Company.
11
Mr. Schell did not recall being contacted by Mr. Noll about bloodborne
pathogens. (Tr. 112). Schell further testified that if he had received
a question about bloodborne pathogens, he would have immediately referred
it to Barbara Britt, the District Personnel Manager, but, in fact he made
no such call to Ms. Britt. (Tr. 116).
12
Both of these incidents happened in 1993, over two years before the
issuance of the citation. The first occurred when blood spurted onto Mr.
Noll's pantleg, and the second when a Frick employee had a profuse
nosebleed. (Tr. 54-55, 61).

                             9

burns. While Mr. Swope spoke with Ralph Noll about the bloodborne

pathogens regulation, he never raised the issue with any of Noll's

superiors at Burns after he became responsible for supervising the

security at Frick. (Tr. 33-34). Moreover, although Frick provided

first aid supplies and the protective rubber gloves for the use of

the guards, Mr. Swope never alerted Burns management that the

guards might require additional protective equipment or training.

(Tr. 34). Finally, Frick managers directed that injuries be

documented on specific forms and maintained by the guards at the

Frick site, but did not share that information with anyone at

Burns. (Tr. 96-97). I find that, at the time of the inspection,

Burns’ managers in Harrisburg did not know that the guards at Frick

were rendering first aid. I also find that Frick’s purchase order

was sufficient notice to those managers that these guards would be

required to render first aid. Further, Mr. Schell’s knowledge may

be imputed to Burns. Thus Burns had constructive notice of the

guards’ duties.

 C.     Burns’ Section 9(c) Defense

 Section 9(c) of the Act provides that “[n]o citation may be

issued ... after the expiration of six months following the

occurrence of any violation.” Burns correctly points out that the

Secretary did not establish that an exposure incident occurred

within six months of the issuance of the citation. Consequently,

Burns maintains that many of the items here at issue are barred by

this provision.

                              10

The Secretary urges that he need only show occupational

exposure, as that term is defined in the standard, in order to meet

the Respondent’s argument. He points out that the treating of

bleeding workers, the transporting of these workers to hospitals,

and the cleaning up of their spilt blood, unquestionably

constitutes occupational exposure. Thus there is ample evidence

that Burn’s guards could “reasonably anticipate[] skin, eye, mucous

membrane, or parenteral contact with blood or other potentially

infectious materials” in the course of their duties. (Tr. GX- 10,

GX-11.)

 That is true.     But the fact that these guards were

occupationally exposed does not serve to make all violations of the

standard continuing in nature. For example, the continuing fact of

occupational exposure does not transform the failure to clean and

decontaminate, in conformance with ' 1910.1030(d)(4)(ii), a

specific working surface on which blood had been spilled continuing

in nature.

 The decisions on which the Secretary relies on do not support

this position. Secretary v. Yelvington Welding Service, 6 BNA OSHC

2013, (Rev. Com. 1978); Secretary v. Sun Ship, Inc., 12 BNA OSHC

1185 (Rev. Com. 1985); and Secretary v. Johnson Controls, Inc., 15

BNA OSHC 2132, 2136 (Rev. Com. 1993) all involved recordkeeping or

reporting standards. Consequently, they are distinguishable.

 The Secretary also relies on Secretary v. Kaspar

Electroplating Corp., 16 BNA OSHC 1518 (Rev. Com. 1993), a case

more akin to this one. Kaspar involved machine guarding violations

                            11

on machines that were not being used at the time of the inspection.

The evidence indicated that these unguarded machines had been used

last two months before the inspection began, at least eight months

before the citations issued. However, the Commission clearly

rested its holding in Kaspar that the citations were not time-

barred on the fact that the machines were available for use by

employees. Thus, employee exposure within the six-month period,

and consequently a violation, was shown.

 Insofar as the subsections of the standard which the Secretary

alleges Burns violated refer to requirements imposed in specific

situations, Burns is correct.

 D.      Burns’ Corporate Compliance Efforts

 Despite Burns failure to take any action to comply with the

standard at the Frick worksite, it was not unaware of the

standard’s applicability and took the following steps to comply on

a corporate-wide basis.

February 1992
Burns’ corporate counsel directed each District
Office to identify all employees who, as a regular
part of their job duties, could come in contact
with bloodborne pathogens. (Tr. 306.)

               Burns’ Loss Control Manager distributed to all
               business unit safety managers and business unit
               presidents copies of OSHA's standard and a summary
               of its requirements; along with copies of the CDC's
               guidelines for health care and public safety
               workers. (Tr. 299, Resp. Ex. 2).

June 1992
Burns held a training seminar for district managers
and district personnel managers, and disseminated
extensive written materials regarding the
bloodborne pathogens standard. (Tr. 358, Resp. Ex.
4).
June 1994

                            12

A uniform Corporate Exposure Program was fully
effective and remains in effect. (Tr. 312, 314;
Gov't Ex. 11, memorandum of June 3, 1994).
June 1995
Burns' Harrisburg District began training all new
employees in bloodborne pathogens exposure control,
regardless of their job duties. (Tr. 369).

III. THE ALLEGED VIOLATIONS

 Item 1(a).   In Item 1(a), the Secretary alleges a

violation of §1910.1030(c)(1)(i) This provision states:

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


 The employer having employee(s) occupational exposure did not
 established (sic) a written Exposure Control Plan designed to
 eliminate or minimize employee exposure:

 (a) Burns International Security Services - Employee(s)
 providing first aid to employees of Frick Company on a
 contract basis were not provided with a bloodborne exposure
 control plan.
 From the above discussion, it is clear that Burns’ guards at

the Frick worksite were occupationally exposed and Burns was on

notice of that fact. It is also clear that, while Burns had a

corporate-wide written exposure control plan that was fully

effective at the time of the inspection, this plan was not

available to the guards at the Frick worksite. Thus the Secretary

established a violation of ' 1910.1030(c)(1)(iii), which requires

employers to make exposure control plans available to employees,

rather than ' 1910.1030(c)(1)(i), which requires the preparation of

such plans. Consequently, the question whether the complaint

should be amended to conform with the evidence is presented.

                          13

Here, although it charged a violation of an inapplicable

subsection of the standard, the item put Burns on notice that the

Secretary was alleging that it had not provided an exposure control

plan to the guards at the Frick worksite. An amendment to charge a

violation of ' 1910.1030(c) (1)(iii) would not alter the factual

allegations of the citation. Secretary v. Safeway Store No. 914, 16

OSHC 1504, 1516-17 (Rev. Com. 1993). Consequently, I amend the

complaint to charge a violation of ' 1910.1030(c) (1)(iii). I find

that Burns was in violation of that provision.

 Items 1(b), (c), and (d).    The Secretary alleges violations of

29 C.F.R. Section 1910.1030(d)(3)(i), (d)(3)(x), and (d)(3)(xi).

These require that:

 (i) Provision. When there is occupational exposure, the
 employer shall provide, at no cost to the employee,
 appropriate personal protective equipment such as, but not
 limited to, gloves, gowns, laboratory coats, face shields or
 masks and eye protection, and mouthpieces, resuscitation bags,
 pocket masks, or other ventilation devices. Personal
 protective equipment will be considered "appropriate" only if
 it does not permit blood or other potentially infectious
 materials to pass through to or reach the employee's work
 clothes, street clothes, undergarments, skin, eyes, mouth, or
 other mucous membranes under normal conditions of use and for
 the duration of time which the protective equipment will be
 used.

 (x) Masks, Eye Protection, and Face Shields. Masks in
 combination with eye protection devices, such as goggles or
 glasses with solid side shields, or chin-length face shields,
 shall be worn whenever splashes, spray, spatter, or droplets
 of blood or other potentially infectious materials may be
 generated and eye, nose, or mouth contamination can be
 reasonably anticipated.

 (xi) Gowns, Aprons, and Other Protective Body Clothing.
 Appropriate protective clothing such as, but not limited to,
 gowns, aprons, lab coats, clinic jackets, or similar outer
 garments shall be worn in occupational exposure situations.

                         14

The type and characteristics will depend upon the task and
degree of exposure anticipated.

 Both Item 1b and Item 1c charge that

 Employee(s) providing first aid to the employees of Frick
 Company on a contract basis were not wearing the proper eye or
 face and body protection necessary to prevent exposure.

 Item 1d charges that

 Employee(s) providing first aid to the employees of Frick
 Company on a contract basis were not provided with clothing
 necessary to protect against possible exposure.

 There is no dispute between the parties that respondent did

not provide its employees at the worksite with any personal

protective equipment. The equipment which was available to the

guards was furnished by Frick. It consisted of a supply of latex

surgical gloves.13 (Tr. 34, 39; GX-3, attachment entitled “First Aid

Kits”.)

 Burns defends of the ground that the Secretary's expert

indicated that, if properly utilized, the gloves were adequate to

protect the guards while treating minor lacerations. (Tr. 253.)

Burns argues that the Secretary did not show a single instance in

over six years where there was an actual exposure incident, nor a

single instance in the six months before the Citation where blood

contacted a guard's clothes, skin, eyes, mouth or mucous membranes.

Consequently, Burns believes that the citation of subsection (i)

must be vacated.

13
Mr. Swope testified that a face mask was also provided, but this was not
confirmed by the list of contents of the first aid kits contained in GX-3,
or by Mr. Stoehr, or by the guards who testified. I find that no face mask
was provided.

                             15

Burns notes that the face masks, face shields, and goggles

referred to in subsection (x), are to be used when it is reasonably

anticipated that blood will contact an employee's eye, nose, or

mouth. It points out that the two incidents referred to above were

the only ones in six years (none in the last three years) where

there was significant bleeding, and not a single instance where

blood actually splashed the eyes, nose or mouth of a guard. Given

this history, Burns contends that the guards' duties were such that

contact of their eyes, noses, or mouths with blood was not to be

reasonably anticipated. Therefore, in Burns’ view, failure to

require the guards to wear goggles, glasses with side shields, or

face shields does not constitute a violation of

§1910.1030(d)(3)(x).

 Burns makes the same argument with respect to the alleged

violation of subsection (xi), pointing out that the guards' tasks

did not include such extensive first aid that gowns and aprons

would be necessary; rather, the guards tended to minor cuts and

burns. The anticipated degree of exposure to blood from such

limited medical duties is, in Burns’ view, de minimis. Thus, in

Burns’ view, the surgical gloves provided to the guards were

appropriate for these tasks and degree of exposure, and there is no

demonstrated need to require them to routinely don gowns, aprons,

and the like as well.

 In addition, Burns believes that Mr. Stoehr misunderstood the

condition precedent to finding a violation of subsection (xi).

Burns argues that while the standard requires that protective body

clothing shall be worn during high degrees of exposure, it was

                          16

cited because the guards were not provided with outer garments.

(Government Ex. 9 at 1(d)). Burns urges that a violation of the

standard cannot be based upon the failure to provide equipment when

the standard requires the wearing of equipment under certain

circumstances.

 Burns also urges that, in view of the lack of any proof of any

instance requiring the use of equipment referred to in subsections

(x) and (xi) occurring within six months before the issuance of the

citations, the citations are time-barred and should be vacated.

 Burns is correct in that, with the exception of the two

incidents when Mr. Noll treated workers who were bleeding

profusely, there was little evidence concerning the nature of the

injuries the guards were expected to treat. In at least one of

those incidents (the apparent puncture wound), it appears that

gloves alone might not have been adequate to prevent an exposure

incident.14 In addition, Mr. Stoehr testified that his review of

the records of injuries indicated that many of the lacerations

required sutures. While this evidence is sketchy at best, it

indicates that the guards reasonably might expect to be exposed to

situations where additional protective equipment would be

necessary.

 In adopting the standard here in question, the Secretary noted

that the requirement was “... set to assure adequate protection

14
There is no indication that this incident amounted to an “exposure
incident” as that term is defined in the standard. However, surgical
gloves could have proved inadequate to prevent such an incident. For
example, a gown and face shield could well be necessary.

                             17

during task performance.”15 The Secretary referred to NIOSH’s

position that “[a]ppropriate protective clothing and equipment

should ... be selected based on the specific work and exposure

conditions that will be encountered and the anticipated level of

risk,” and CDC’s position that “... [t]he type of protective

barrier(s) should be appropriate for the procedure being performed

and the type of exposure anticipated.”16 Here, there is substantial

evidence that indicates that more than surgical gloves were

required. Indeed, subsection (xi) of the standard requires that

suitable outer garments be furnished whenever there is an

occupational exposure. Consequently, I conclude that the Secretary

has established a violation of subsection (i).17

 I reach the same conclusion with respect to subsection (xi).

As noted, subsection (xi) requires suitable outer garments whenever

there is an occupational exposure. Burns’ position that this

subsection is inapplicable because the Secretary failed to

establish its condition precedent is not well taken. Unlike

subsection (x), which comes into play only when certain specific

events can be anticipated, subsection (xi) is applicable whenever

there is occupational exposure. The evidence that such exposure

existed at the Frick site is not open to question.18

15
See the Secretary's statement, “Personal Protective Equipment,”
accompanying the final rule, 56 Fed. Reg. at 64124 (December 6, 1991).
16
Id.
17
While Burns clearly had the obligation to furnish equipment pursuant to
subsection (xi), the fact that Frick furnished the necessary equipment
might tend to make the violation de minimis. Because the equipment
furnished by Frick was not sufficient to satisfy Burns’ obligation, it not
necessary to address this question.
18
Burns’ position that the Secretary incorrectly cited this provision
because the citation faults Burns for failing to provide appropriate outer
garments, while the standard speaks in terms of the wearing of such

                             18

Burns’ position that the citations of subsection (xi) is time-

barred is similarly not well taken. Subsection (xi) requires that

suitable outer garments be worn in occupational exposure

situations. I have found that occupational exposure existed during

the six-month period prior to the issuance of the citation.

 Subsection (x) is applicable only when “... splashes, spray,

splatter, or droplets of blood ... may be generated and eye, nose,

or mouth contamination can be reasonably anticipated.” Here, the

Secretary showed only one instance in which a spray of blood

occurred, and that was two years prior to the citation. Assuming

that this was such a situation, the fact that it occurred outside

the six-month period prior to the citation dictates the conclusion

that this item is time-barred.

 Item 1e.     In Citation 1, Item 1(e), the Secretary alleges a

violation of 29 C.F.R. Section 1910.1030(d)(4)(ii), which provides:

  All equipment and environmental and working surfaces shall be
  cleaned and decontaminated after contact with blood or other
  potentially infectious materials.
  Item 1e charges that



  Employee(s) providing first aid to the employees of Frick

  Company on a contract basis were cleaning up the spilled blood

  from the sink with paper towels and throwing them in the

  trash.    No decontamination process was done.

garments is not well taken. Here, it might be said that the guards did not
wear outer garments because none were provided. Burns may not avoid this
citation by hiding behind its failure to have complied with subsection (i).

                             19

The Secretary correctly points out that prior to the

inspection, respondent had not provided its employees at the

worksite with any training or any products for decontaminating

surfaces where a worker’s blood had spilt (Tr. 59, 63-64, 167),

and that Mr. Stoehr discovered that respondent’s employees had in

the past cleaned up blood and not decontaminating the surface.

(Tr. 56-57, 63-65, 167.)

 Respondent urges that this item should be vacated because it

was not cited within six months of an alleged violation. The only

record evidence of any occasion on which a guard cleaned blood from

a work surface occurred when Mr. Noll cleaned up after the

nosebleed and pantleg episodes. (Tr. 65). Both of these incidents

occurred in 1993, two years before the Citation was issued. Mr.

Stoehr indicated that he had not found evidence of any incident in

the six months preceding the Citation in which a guard had cleaned

blood from any work surface. (Tr. 276).

 The standard is directed to a specific situation rather than

protection in general. In order to show a violation of it, the

Secretary must show that blood was spilt and not cleaned and

decontaminated properly. The fact that, at the time of the

inspection, the guards may not have been trained to recognize an

exposure incident or to properly deal with spilt blood does not

make the 1993 violations continuing. Item 1(e) is vacated.

 Item 1f.   In Citation 1, Item 1f, the Secretary alleges a

violation of 29 C.F.R. Section 1910.1030(f)(1)(ii)(A), which

requires

                            20

(f) Hepatitis B Vaccination and Post-exposure Evaluation and
Follow-up.

    (1) General.

      (i) The employer shall make available the hepatitis B
 vaccine and vaccination series to all employees who have
 occupational exposure, and post-exposure evaluation and
 follow-up to all employees who have had an exposure incident.

      (ii) The employer shall ensure that all medical
 evaluations and procedures including the hepatitis B vaccine
 and vaccination series and post-exposure evaluation and
 follow-up, including prophylaxis, are:

              (A) Made available at no cost to the employee;

                                  * * *

 The citation charged that

 Employee(s) providing first aid to the employees of Frick
 Company on a contract basis for at least one year had exposure
 to blood and blood products and were not provided with a
 Hepatitis B vaccinations (sic), post exposure and followup.

 Mr. Stoehr learned through an interview with Mr. Noll that

respondent's employees at the worksite had not been offered a

hepatitis B vaccine and vaccination series nor were they informed

by respondent of their rights to post exposure evaluation and

follow-up should they have an exposure incident. (Tr. 67, 169.)

 This subsection of the standard addresses two distinct

requirements: first, hepatitis B vaccination; and second, post-

exposure medical evaluation and follow-up. The requirement for

hepatitis B vaccination is triggered by occupational exposure and

consequently it was Burns’ obligation to offer it to the guards.

Post-exposure medical evaluation and follow-up are triggered only

by an exposure incident, and the Secretary has not established any

such instances. Thus, Item 1f is affirmed insofar as it is based

                           21

on a failure to provide vaccinations, and vacated insofar as it is

based on the failure to provide post-exposure follow-up.

 Item 1g.   In Citation 1, Item 1g, the Secretary alleges a

violation of 29 C.F.R. Section 1910.1030(f)(3), which requires that

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

The elements provide for testing of the source individual’s blood

and for appropriate follow-up if the test is positive.

 The citation charged that

 Employee(s) providing first aid to employees of Frick Company
 on a contract basis were not provided with a confidential
 medical evaluation.

 The Secretary argues

 that no one knows, not even the many employees who passed
 through this worksite from 1992 until 1995, whether they have
 had an exposure incident and are currently infected because of
 it. These employees merely treated these bleeding workers,
 and transported them to emergency rooms, and cleaned up their
 spilt blood in blissful ignorance. While some people may
 state ignorance is bliss, it is not if it is deadly.

      It is unseemly that respondent would wilfully allow
 these employees to remain ignorant to this potential danger
 and then attempt to hide behind the very ignorance they
 embraced. (Brief, pp. 41-42.)

 Thus the Secretary would rewrite this citation to charge a

violation of the standard requiring training. That subject is

raised in Item 1h. Because there is no evidence that an exposure

incident occurred, Item 1g is vacated.

      Item 1h.   In Citation 1, Item 1h, the Secretary charges

a violation of 29 C.F.R. Section 1910.1030(g)(2)(i), which requires

                          22

(2) Information and Training. (i) Employers shall ensure that
all employees with occupational exposure participate in a
training program which must be provided at no cost to the
employee and during working hours.

  The citation charged that

  Employee(s) providing first aid to employees of Frick Company
  on a contract basis were not provided with training in
  bloodborne exposure.

  This subsection of the standard is clearly applicable to the

guards at the Frick worksite and is affirmed.

         Item 1i.   In Citation 1, Item 1i, the Secretary alleges

a violation of 29 C.F.R. Section 1910.1030(h)(1)(i), which requires

  (h) Recordkeeping.

  (1) Medical Records. (i) The employer shall establish and
  maintain an accurate record for each employee with
  occupational exposure, in accordance with 29 CFR 1910.1020.

  The citation charged that

  Employee(s) were providing first aid to employees of Frick
  Company on a contract basis. The employer did not establish
  accurate medical records for the employees (sic) exposures, in
  fact, there were no records maintained of any exposure.

  The Secretary notes that Mr. Stoehr ascertained that the

employer had not established nor maintained any medical records for

respondent's employees working at the worksite. (Tr. 174.)

Because the guards were occupationally exposed, Item 1i is

affirmed.

IV. THE WILLFUL CHARACTERIZATION

  The Secretary points out that Burns only defense to the

citation is ignorance to the work duties of its employees at the

worksite, and asserts that Burns did nothing to inform itself after

                             23

being informed that these employees were covered by the standard.

Apparently, in making this assertion the Secretary has reference to

Mr. Swope’s conversation with Mr. Noll concerning the standard.

The Secretary believes that these facts alone prove willful

disregard for the standard. But he also points to other factors as

illustrative of Burns’ total disregard for employee safety. These

are summarized in Section II D, above.

 The Secretary makes much of the fact that, despite corporate

guidance, the Harrisburg District Office apparently took no action

to determine whether the guards at the Frick worksite were

occupationally exposed. He also seeks to pin this failing on the

Human Resources Manager for that office, Barbara Britt. However,

Ms. Britt testified that responsibility for the identification of

sites within the District that are occupationally exposed lay with

the District Manager. (Tr. 385.) The District Manager did not

testify.

 The Secretary states that

 It seems incongruous for respondent to plead ignorance
 regarding the occupational exposure of the security officers
 at the worksite, when time and time again it was instructed to
 determine whether these employees could be "occupationally
 exposed." At the very least, management for the district
 where the Frick Company was located voluntarily disregarded
 the standard.

Brief, p. 31. The Secretary points out that Mr. Stoehr was able to

determine that Burns’ employees were occupationally exposed by

simply asking Frick about their duties, and verifying this

information with Burns’ Site Supervisor. Moreover, the Secretary

points to Burns’ heightened awareness of the standard by reason of

having been cited for violating ' 1910.1030(c)(1)(ii)(c) and

                            24

(f)(2)(i) at another site, located in Connecticut, in May 1993.

(Ex. J-1, GX-8, Tr. 6.) Indeed, Burns corporate efforts at

compliance seem to reflect this.

 The Secretary's arguments that Burns’ violations were willful

establish no more than that Burns was on notice that the guards at

the Frick worksite were occupationally exposed and that Burns took

no action to comply with the standard at that site. That is

insufficient to establish willfulness:

      The elements of a willful violation are well established
 under Review Commission precedent:

      A willful violation is one committed with
      intentional, knowing, or voluntary disregard for
      the Act's requirements, or with plain indifference
      to employee safety. To uphold a willful violation,
      the Secretary must show that the employer was aware
      of the particular duty at issue in the case, if not
      the particular standard embodying the duty.
      Willful conduct by an employee in a supervisory
      capacity constitutes a prima facie case of
      willfulness against his or her employer unless the
      supervisory employee's conduct was unpreventable.

 V.I.P. Structures, Inc., 16 BNA OSHC 1873, 1875 (No. 91-1167,
 1994) (citations omitted).

Secretary's brief, pp. 22-23.

 Taking the Secretary's position in the most favorable light,

the facts do not support a conclusion that Burns’ conduct amounted

to an intentional, knowing, or voluntary disregard of the standard,

or plain indifference to safety. There is no showing that Burns’

intentionally disregarded the standard, or that knowing of its

requirements, ignored it or was plainly indifferent to it. On a

corporate level, Burns actively sought to comply with the standard.

The failure of the Harrisburg District Office to comply with those

corporate directions was a serious violation of the standard, but

                          25

there was no showing that this violation was committed with a state

of mind justifying the willful characterization.19

 Unlike V.I.P. Structures, supra, where a supervisor made a

conscious decision to proceed with work requiring safety nets in

spite of the fact that, because of the muddy condition of the site,

it was not possible to move the nets already on site into position,

there is no indication in this case that the District Office chose

to ignore the standard with actual knowledge that the guards were

occupationally exposed. Similarly, unlike Secretary v.

Caterpillar, 17 OSHC 1731 (Rev. Com. 1996) where a willful

characterization was upheld because corporate knowledge of a

particular hazard was withheld from those responsible for carrying

out a procedure subject to the hazard, there is no showing that

corporate knowledge of the hazard and the need to respond to it was

withheld from those responsible for compliance. To the contrary,

the Secretary makes much of corporate efforts to achieve compliance

and the failure of the District Office to heed them. The

Secretary's case fails because he has not shown that those in the

District Office acted with an intentional, knowing, or voluntary

disregard of the standard, the corporate efforts, or the fact that

the guards were occupationally exposed. Simply put, the Secretary

offered no evidence bearing on their state of mind. Thus there is

no basis for his argument that the violations were willful.

19
The Secretary's attempt to impute an intentional disregard of the
standard’s requirements to the District Office through Ms. Britt’s failure
to identify sites which were occupationally exposed following a seminar on
the standard’s requirements, not having been predicated upon a showing that
such was her responsibility, is mischievous.

                             26

V. APPROPRIATE PENALTY

 In calculating the penalty for Citation 1, Mr. Stoehr

considered the violation to be high severity and greater

probability (Tr. 156), which, in accordance with the Field

Inspection Reference Manual20 (FIRM) results in a penalty of $5,000.

Mr. Stoehr gave Burns no reduction for size, good faith or history.

(Tr. 157.) Burns maintains that Mr. Stoehr miscalculated the

proposed base penalty and that it should be $2,500.

  The procedure to be used for calculating the base penalties is

set forth in the FIRM, Chapter IV. (Resp. Ex. 1). It provides:

  To determine the gravity of a violation the following two
  assessments shall be made:

  (1) The severity of the injury of illness which could
  result from the alleged violation.

  (2) The probability that an injury or illness could
  occur as a result of the alleged violation. (Id. at
  C.2.d.).
                            * * *

  Probability shall be categorized either as greater or as
  lesser probability.

  (a) Greater probability results when the likelihood that an
  injury or illness will occur is judged to be relatively high.

  (b) Lesser probability results when the likelihood that an
  injury or illness will occur is judged to be relatively low.
  (Id. at C.2.f.1).
  In the case at issue, Mr. Stoehr acknowledged that, rather

than assessing the probability of whether, after exposure,

20
At the time of Stoehr's calculation of the base penalty, the Field
Operations Manual, rather than the Field Inspection Reference Manual, was
in effect, but compliance officers were in the process of switching over to
the FIRM, which is in effect today. (Tr. 271). Despite this change,
however, Stoehr acknowledged that the provisions in the FIRM regarding base
penalty calculations were identical to those in the FOM. (Tr. 273).

                             27

employees will develop an illness, he assessed the probability of

whether there would be blood-to-blood contact. He rated this as

greater. (Tr. 270-75, 279). Thus Mr. Stoehr ignored the clear

instructions of the FIRM.

    The Secretary's expert, Dr. Presson, indicated that the risk

of contracting the disease from a direct stick from an HIV infected

needle is only 0.5 percent (Tr. 247). The risk of contracting

Hepatitis B under the same circumstances is 6 to 30 percent. (Tr.

245). The risk associated with less direct contact obviously must

be less. Based on this testimony, the probability of any of Burns'

employees at the Frick site actually contracting an illness as a

result of performing his duties must be assessed as lesser rather

than greater. A lesser probability, greater severity illness

results in a penalty of $2500. (Tr. 273-74.)

VI. CONCLUSIONS OF LAW

    Respondent, Borg-Warner Protective Services Corporation, d/b/a

Burns International Security Services, is an employer engaged in a

business affecting commerce within the meaning of section 3(5) of

the Occupational Safety and Health Act of 1970, as amended, 29

U.S.C. § 652(5) (the Act).

    Jurisdiction of this proceeding is conferred upon the

Occupational Safety and Health Review Commission by section 10(c)

of the Act, 29 U.S.C. § 659(c).

    Respondent, Borg-Warner Protective Services Corporation, d/b/a

Burns International Security Services, was in serious violation of

the standards set out at 29 CFR '' 1910.1030(c)(1)(iii),

                             28

1910.1030(d)(3)(i), 1910.1030(d)(3)(xi), 1910.1030(f)(1)(ii)(A),

1910.1030(g)(2)(i), and 1910.1030(h)(1)(i). Respondent, Borg-

Warner Protective Services Corporation, d/b/a Burns International

Security Services, was not in willful violation of these standards.

A penalty of $2500 is appropriate.

  Respondent, Borg-Warner Protective Services Corporation, d/b/a

Burns International Security Services, was not in violation of 29

CFR '' 1910.1030(d)(3)(x), 1910.1030(d)(4)(ii), and

1910.1030(f)(3).

VI. Order

  Citation 1, items 1a, 1b, 1d, 1f, 1h, and 1i are affirmed as a

serious violations of the Act.

  A total civil penalty of $2500 is assessed.

  It is so ORDERED.




                                       JOHN H FRYE, III
                                       Judge, OSHRC

Dated:
Washington, D.C.

                             29