COMMISIONER OF LABOR v. Cole
| Decision Date | 30 May 2001 |
| Docket Number | No. 2025,2025 |
| Parties | MARYLAND COMMISSIONER OF LABOR AND INDUSTRY v. COLE ROOFING COMPANY, INC. |
| Court | Court of Special Appeals of Maryland |
Gaston J. Sigur, III, Asst. Atty. Gen. , Baltimore, for appellant.
Randi Klein Hyatt (Frank L. Kollman, Sara A. Waranch and Kollman & Sheehan, P.A. on the brief), Baltimore, for appellee.
Argued before HOLLANDER, JAMES R. EYLER and ROBERT L. KARWACKI (Retired, specially assigned), JJ. ROBERT L. KARWACKI, Judge, Retired, specially assigned.
In this case we are required to review an application of Maryland's Occupational Safety and Health Act of 1973, Maryland Code (1999), Title 5 of the Labor and Employment Article ("the Act"), by the Maryland Occupational and Safety Health Unit, Division of Labor, Licensing and Regulation ("MOSH"). The several issues presented arose under the following circumstances.
On July 29, 1997, a MOSH inspector conducted an inspection at a construction site where the appellee and cross-appellant, Cole Roofing Company, Inc. ("Cole"), was installing a flat roof at Chesapeake High School in Anne Arundel County. The inspector observed at least five Cole employees, one of whom was the foreman, Joseph Baldwin, working on the roof near where roofing supplies had been placed. The MOSH inspector determined that none of the persons were protected by fall protection as mandated by regulations adopted by the Commissioner of Labor, Licensing and Regulation ("the Commissioner"), the appellant and cross-appellee. Based upon these observations, MOSH issued two citations:
11' to 12' without protection from falling.
(a) Date of Violation: 7/29/97
Condition: Gasoline was stored in a 5 gallon metal container that did not have a flash arrester or self closing lid."
MOSH assessed Cole a $3000 penalty for Citation 1 and a $262 penalty for Citation
2.
Cole contested both citations, and a hearing was held before a hearing examiner whom MOSH designated pursuant to § 5-214(a),(e) of the Md. Lab. & Empl. Code (1999).1 Following that hearing, the hearing examiner recommended that both citations against Cole be sustained.
Cole requested the Commissioner to review the recommendation of the hearing examiner, and the Commissioner designated his deputy to hold that hearing. After the hearing was held, the Deputy Commissioner adopted the proposal of the hearing examiner.
Cole sought judicial review of the final decision of the Commissioner by the Circuit Court for Anne Arundel County. It argued with regard to Citation 1, alleging a violation of 29 C.F.R. 1926.501(b)(10), that the Deputy Commissioner erred in placing the burden of proving unforeseeable employee misconduct upon Cole, as the employer, rather than requiring MOSH to bear the burden of proving that preventable employee misconduct was the cause of the violation. Cole also asserted that the Deputy Commissioner erred in characterizing Citation 1 as a repeat violation and in concluding that Citation 2, alleging the use of an unapproved container for storage and handling of flammable liquids, had been proven by MOSH.
After a hearing, the circuit court reversed the Deputy Commissioner on the burden of proof issue as to Citation 1, and remanded the case to the Commissioner for further hearing on that Citation. The court, however, affirmed the Deputy Commissioner's ruling that the nature of the violation alleged in Citation 1, if established at the remand hearing, would be a repeat violation. The court also agreed with the Deputy Commissioner that MOSH had proven the container violation alleged in Citation 2. This appeal by the Commissioner and cross-appeal by Cole ensued.
The Commissioner presents two questions in his appeal. Cole raises two additional issues in its cross-appeal. We have rephrased them as follows:2
1. Who bears the burden of proof on the issue of whether the violation charged in Citation 1 was caused by foreseeable or unforeseeable conduct by Cole's employees?
2. Was the Commissioner's decision as to Citation 1 supported by substantial evidence?
3. Was the violation charged in Citation 1 a repeat violation under the Act?
4. Was there substantial evidence to support the Commissioner's decision as to Citation 2?
Maryland's Occupational and Safety Health Act.
The purpose of the Act is to "assure as far as possible every working man and woman in the State of Maryland safe and healthful working conditions and to preserve our human resources[.]" § 5-102(b). In that regard, an employer is under a general duty to furnish each of his employees employment and a place of employment which are safe and healthful as well as free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees, § 5-102(b), and is under a specific duty to comply with the rules, regulations, and orders promulgated under the Act. Id. In the instant case, Cole was charged with violation of two specific safety standards which were adopted by the Commissioner by reference to federal standards that had been promulgated by the Secretary of Labor as authorized by the federal Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ("OSHA"). See § 513 of the Act and COMAR 09.12, 20A.
The Maryland Act is modeled after the federal OSHA, and consequently, Maryland courts rely for guidance in construing the Act on federal cases interpreting the federal OSHA. Comm. of Labor v. Bethlehem Steel, 344 Md. 17, 30, 684 A.2d 845 (1996) (Bethlehem II); Bethlehem Steel v. Comm. Of Labor, 339 Md. 323, 328, 662 A.2d 256 (1995) (Bethlehem 1); J.I. Hass Co. v. Dept. Of Licensing & Regulation, 275 Md. 321, 330, 340 A.2d 255 (1975). The Act does not impose strict liability upon an employer nor require an employer to act as an insurer. J.I. Hass Co., Inc. v. Dept. Of Licensing & Regulation, 275 Md. at 331-33, 340 A.2d 255. Instead, the Act is intended to eliminate only preventable hazards so that the effort made by the employer to prevent hazards is the focal point of any inquiry into a violation by an employer of the general duty clause or a specific standard adopted by the Commissioner, not the happening of the violation. J.I. Hass Co., Inc. v. Dept. Of Licensing & Regulation, Id.; Kettler Bros. v. Dept. Of Licensing & Regulation, 39 Md.App. 597, 605-06, 387 A.2d 1145.
The Act sets forth the scope of judicial review of the Commissioner's order. Section 5-215(c)(1) provides that the order must be upheld if it is not legally erroneous and reasonably is based upon substantial evidence. Bethlehem II, 344 Md. at 24, 684 A.2d 845.
Cole offered substantial evidence that it had established a detailed and effective safety program that required strict adherence to MOSH regulations. This safety program was enforced by it, and to that end, frequent inspections were made to uncover violations. The site that was involved on the date of the inspection which resulted in the issuance of the citations at issue in the instant case had been inspected by Cole's management on several occasions prior to July 27, 1997, and no violations of MOSH standards were observed. Evidence was also offered that Cole provides its new employees safety training for working at elevated sites and that this training continues throughout the person's employment. The president of Cole testified that he oversees every aspect of its business, including the enforcement of its safety rules. He stated that in accordance with his company's safety handbook, it was the responsibility of Mr. Baldwin, the foreman in charge of the work being done on July 27, 1997, to see that in accordance with Cole's safety program warning lines for fall protection were set up on the roof. He also testified that Mr. Baldwin had an excellent safety record and that he was disciplined for his conduct which resulted in Citation 1 being issued by MOSH.
Based upon this evidence, Cole argued before the hearing examiner and later before the Deputy Commissioner, that this was a classic case of unforeseeable supervisory misconduct for which Cole should not be responsible. MOSH offered no additional evidence on this issue but argued that Cole had offered an affirmative defense to Citation 1 and that its evidence was insufficient to meet its burden of persuasion. The hearing examiner agreed with MOSH, and her proposed decision was adopted by the Deputy Commissioner.
The appellate courts of this State have not heretofore addressed the issue of who bears the burden of proving whether the offending conduct of the employee, for which the employer has been cited, was preventable or unpreventable by the employer. Most of the U.S. Circuit Courts, however, have done so. Unfortunately, there is a difference of opinion among the various circuits.
The Fourth Circuit has taken the view that where opposing evidence has been offered before the Occupational Safety and Health Review Commission ("OSHRC") by the...
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