Bragunier Masonry Contractors, Inc. v. Maryland Com'r of Labor and Industry

• Decision Date: 01 September 1995
• Docket Number: No. 1793,1793
• Citation: Bragunier Masonry Contractors, Inc. v. Maryland Com'r of Labor and Industry, 684 A.2d 6, 111 Md.App. 698 (Md. App. 1995)
• Parties: , 1996 O.S.H.D. (CCH) P 31,178 BRAGUNIER MASONRY CONTRACTORS, INC. v. MARYLAND COMMISSIONER OF LABOR AND INDUSTRY. ,
• Court: Court of Special Appeals of Maryland

Page 698

111 Md.App. 698

684 A.2d 6, 1996 O.S.H.D. (CCH) P 31,178

BRAGUNIER MASONRY CONTRACTORS, INC. v. MARYLAND COMMISSIONER OF LABOR AND INDUSTRY.

No. 1793, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Oct. 31, 1996.

Richard Sampson (Sussan L. Mahallati, on the brief), Baltimore, for Appellant.

Gaston J. Sigur, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for Appellee.

Argued before WENNER and EYLER, JJ., and PAUL E. ALPERT, Judge (Retired), Specially Assigned.

EYLER, Judge.

Bragunier Masonry Contractors, Inc., appellant, was issued a citation by the Maryland Occupational Safety & Health Administration (MOSH) for violation of a work-place safety standard. Appellant asserts that the Commissioner of Labor & Industry, appellee, committed procedural legal error in reviewing a factual finding by the administrative law judge (ALJ) that had not been specified for review by either appellant or appellee and committed substantive legal error by erroneously interpreting the law applicable to the factual findings. Appellant appeals from a judgment entered by the Circuit Court for Washington County affirming appellee's ruling and presents two questions for our consideration.

I. Whether the Circuit Court erred in affirming the Commissioner's reopening and adjudication of a legal issue that was not raised by either of the parties or the Commissioner on appeal from the Administrative Law Judge's decision.

II. Whether the Circuit Court erred in affirming the Commissioner's misapplication of the Anning-Johnson/Grossman rule. ¹

Finding no error, we shall affirm the judgment.

I. Facts

Appellant was a masonry subcontractor working at a construction site in Hagerstown, Maryland. After the concrete floors were poured, sections of steel reinforcing bars (rebar) were left protruding twenty-two to twenty-five and one half inches out of the concrete at evenly spaced intervals, to be used in securing the interior walls to the floor. Because rebar exposed in this fashion presents a potential risk of causing injury, MOSH guidelines require the bars to be "capped" pursuant to 29 C.F.R. § 1926.701(b), a Federal OSHA standard enforced by MOSH, which states: "All protruding reinforcing steel, onto and into which employees could fall, shall be guarded to eliminate the hazard of impalement." By agreement, it was the responsibility of the general contractor at the construction site, Morgan Keller, Inc., to cap the rebar.

Appellant's supervisory employee testified that he complained to Morgan Keller, Inc. about the uncapped rebar and, additionally, he testified that he told appellant's employees to avoid the areas where there was uncapped rebar. As the job progressed during the course of several days, the rebar remained uncapped.

On November 4, 1992, a MOSH inspector arrived to inspect the site. The inspector testified that she found employees of appellant working on a scaffold above and around the uncapped rebar. As a result of that inspection, MOSH cited appellant and other subcontractors for allowing workers to be exposed to the hazard. Appellant contested the citation.

On July 22, 1993, a hearing was held before the ALJ. Appellant argued that it had not violated the MOSH regulation and, in the alternative, that the Anning-Johnson/Grossman affirmative defense applied. The affirmative defense consists of two prongs that, if met, enable an employer to avoid liability in a multi-employer environment. Stated briefly, an employer can escape liability for an occupational safety and health violation if it establishes that it was not ultimately responsible for creating or controlling a hazard, and that it engaged in reasonable efforts to protect its employees.

The ALJ issued a decision on September 27, 1993, in which she found that appellant's employees were exposed to a hazardous condition and that appellant failed to comply with the cited standard (29 C.F.R. § 1926.701(b)). With respect to the affirmative defense, the ALJ found that appellant neither created nor controlled the hazard, but that it failed to engage in reasonable efforts to protect its employees.

On October 14, 1993, appellant requested appellee to review the ALJ's findings on two issues. The first, not relevant here, concerned the factual existence of the uncapped rebar. The second issue, integral to this appeal, concerned the ALJ's interpretation and application of the Anning-Johnson/Grossman affirmative defense. Appellant requested appellee to review the ALJ's finding that appellant had not engaged in reasonable efforts to protect its employees but did not request review of the finding that it neither created nor controlled the hazard.

Appellee heard oral argument on January 6, 1994, and issued a final decision and order on September 9, 1994. Appellee did not, however, limit his review to the one specific finding that was the subject of appellant's request. Appellee reversed the ALJ as to the first prong of the Anning-Johnson/Grossman defense and found that appellant did indeed control the hazard. Appellee adopted the other portions of the ALJ's decision, including the ALJ's ruling as to the second prong of the defense, and ruled against appellant.

On October 7, 1994, appellant filed a petition for judicial review in the Circuit Court for Washington County. On September 18, 1995, the circuit court affirmed the decision of appellee. Appellant timely noted an appeal to this Court.

II. Discussion

A.

Appellant first raises a fundamental issue regarding appellee's review of the ALJ's decision. Specifically, appellant asserts that appellee acted outside his authority by reviewing a finding by the ALJ not questioned in the petition for review. We address this argument in two parts: (1) what appellee is empowered to do by statute, and (2) what appellant is entitled to by due process of law.

Appellee's Scope of Review

The relationship between the ALJ and appellee requires some comment. Two procedural statutes are in operation during a MOSH administrative hearing and review. They are Title 5 (MOSH) of the Labor and Employment article (LE), Md.Code Ann. (1991 Repl.Vol. & Supp.1995) and the Administrative Procedure Act (APA), State Government article (SG), §§ 10-201 et seq., Md.Code Ann. (Repl.Vol.1995).

The model administrative procedure act was developed to encourage a more uniform procedural process for administrative agencies. Maryland adopted the 1961 version of the model with some changes. See SG §§ 10-201 et seq. The APA applies to all state administrative agencies not specifically exempted and provides a standard framework of fair and appropriate procedures for agencies that are responsible for both administration and adjudication of their respective statutes.

For present purposes, the relevant section of the APA is SG § 10-205:

Delegation of hearing authority.

(a) To whom delegated.--

(1) A board, commission, or agency head authorized to conduct a contested case hearing shall:

(i) conduct the hearing; or

(ii) delegate the authority to conduct the contested case hearing to:

1. the Office; or

2. with the prior written approval of the Chief Administrative Law Judge, a person not employed by the Office.

(2) With the written approval of the Chief Administrative Law Judge, a class of contested case hearings may be delegated as provided in paragraph (1)(ii) 2 of this subsection.

(3) This subsection is not intended to restrict the right of an individual, expressly authorized by a statute in effect on October 1, 1993, to conduct a contested case hearing.

(b) Scope of authority delegated.-- An agency may delegate to the Office the authority to issue:

(1) proposed or final findings of fact;

(2) proposed or final conclusions of law;

(3) proposed or final findings of fact and conclusions of law;

(4) proposed or final orders or orders under Article 49B of the Code; or

(5) the final administrative decision of an agency in a contested case.

Under SG § 10-205(a), a state agency may delegate all or some of its reviewing responsibility to an ALJ. The section is broad enough to allow the agency to determine the extent of the adjudicative responsibility given. See § 10-205(b). This allows the various agencies enough flexibility to carry out their diverse functions in a logical manner.

MOSH is one of the many Maryland agencies governed by the APA; therefore, any discussion of the statutes pursuant to which MOSH operates must occur with the APA in mind. This is true in the case before us, in which the relationship between the ALJ, a creation of the APA, and appellee, fulfilling his responsibilities under the MOSH statutes, is a central issue.

Appellee has the authority to delegate the responsibility of a MOSH hearing to an ALJ pursuant to LE § 5-214. The relevant subsections state:

Hearings.

(a) Required.-- The Commissioner shall grant a hearing, if practicable, within 30 days after receipt of a notice that an employer or employee or representative of an employee submits under § 5-213 of this subtitle.

(b) Parties.-- An employee whom a hearing under this section affects or a representative of the employee may participate as a party in a hearing under this section.

(c) Application of contested case provisions.-- The Commissioner shall give notice and hold a hearing under

this subtitle in accordance withTitle 10, Subtitle 2 of the State Government Article.

. . . . .

(e) Hearing examiner.--

(1) When the Commissioner appoints a hearing examiner to hold a hearing under this section, the examiner shall prepare a record that includes testimony.

(2) A report that a hearing examiner submits shall become a final order of the Commissioner unless, within 15 work days after submission of the report:

(i) the Commissioner orders a review of the proceeding; or

(ii) an employee, representative of an employee, or employer whom the report affects submits to the Commissioner a written request for a review of...