Commissioner of Labor and Industry v. Bethlehem Steel Corp.

• Decision Date: 01 September 1995
• Docket Number: No. 131,131
• Citation: 344 Md. 17,684 A.2d 845
• Parties: , 17 O.S.H. Cas. (BNA) 1836, 1997 O.S.H.D. (CCH) P 31,235 COMMISSIONER OF LABOR AND INDUSTRY v. BETHLEHEM STEEL CORPORATION. ,
• Court: Maryland Court of Appeals

Page 17

344 Md. 17

684 A.2d 845, 17 O.S.H. Cas. (BNA) 1836,

1997 O.S.H.D. (CCH) P 31,235

COMMISSIONER OF LABOR AND INDUSTRY v. BETHLEHEM STEEL CORPORATION.

No. 131, Sept. Term, 1995.

Court of Appeals of Maryland.

Nov. 14, 1996.

Jonathan R. Krasnoff, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Petitioner.

Eric Hemmendinger (Earle K. Shawe, Shawe & Rosenthal, on brief), Baltimore, for Respondent.

Argued before MURPHY, ^* C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

KARWACKI, Judge.

I.

The issue presented in this case is whether the Respondent, Bethlehem Steel Corporation (hereinafter "Bethlehem"), by permitting a deteriorating toaster oven to exist and remain in an employee lunch room, committed both a serious and a repeated violation of Maryland's Occupational Safety and Health Act of 1973, Maryland Code (1957, 1985 Repl.Vol., 1990 Cum.Supp.), ¹ Article 89 §§ 28-49B and, specifically, COMAR 09.12.31.U-1(1) to (2) and 29 C.F.R. § 1910.303(b)(1). ²

II.

The facts are generally undisputed. On August 17, 1990, Bethlehem employee Raymond Pritts, along with three other co-workers, left their work stations to cool down in the Tundish Lunch Room located in Bethlehem's Sparrows Point plant. The room contained an ice machine next to a floor-mounted air conditioner on top of which was a Hamilton Beach toaster oven. Bethlehem employees supplied the oven several years earlier for their own use.

Pritts, who fellow employees described as "perspiring heavily," sat down on a wooden bench next to the air conditioning unit and rested his arm on the toaster oven. According to witnesses, he then stood straight up, began shaking, and quickly collapsed to the floor. Responding paramedics found Pritts in full cardiac arrest and immediately began CPR. After approximately thirty minutes, Pritts was transported to the Francis Scott Key Medical Center where he was later pronounced dead. The cause of death was cardiac arrest induced by electrocution. ³

Maryland Occupational Safety and Health Administration (hereinafter "MOSHA") inspector James Barry conducted an investigation that same day. Subsequently, both Barry and Craig Lowry, Chief of MOSHA Services, concluded that due to the toaster oven's condition, its exterior was capable of carrying a lethal electric charge.

Based upon its investigation, MOSHA issued four citations, ⁴ including one for an alleged violation of 29 C.F.R. § 1910.303(b)(1), which provides in pertinent part:

"Examinations, installation, and use of equipment--(1) Examination. Electrical equipment shall be free from recognized hazards that are likely to cause death or serious physical harm to employees...."

MOSHA concluded that the citation was a serious and a repeated violation under § 40(a) & (b), which provide:

"(a) Willful or repeated violations.--Any employer who willfully or repeatedly violates any provision of this subtitle or any rule, regulation, standard, or order promulgated pursuant to this subtitle may be assessed a civil penalty not to exceed $10,000.00 for each violation.

(b) Serious violations.--Any employer who has received a citation for a serious violation of any provision of this subtitle, or of any rule, regulation, standard, or order promulgated pursuant to this subtitle shall be assessed a civil penalty not to exceed $1,000.00 for each such violation.

For purposes of this subsection, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists or from one or more practices, means, methods, operations, or processes which have been adopted or are in use in such place of employment unless the employer did not and could not with the exercise of reasonable diligence, know of the presence of the violation."

MOSHA accordingly assessed a penalty of $3,460.00. Bethlehem contested the citations, and the Commissioner appointed a hearing examiner to conduct a hearing on the charges. ⁵ The hearing examiner recommended that three of the citations, including the one for an alleged violation of 29 C.F.R. § 1910.303(b)(1), be dismissed. Rejecting that recommendation, the Commissioner held that the hearing examiner erroneously limited the application of § 1910.303(b)(1) to the installation of electrical equipment and concluded that "the most logical reading of the standard is that an employer keep equipment free from recognized hazards throughout its life in the plant and not merely at the moment it is installed." The Commissioner also noted that the toaster oven's condition would have alerted a reasonably prudent employer to the presence of an electric shock hazard, necessitating repair or replacement of the device.

Upon judicial review, the Circuit Court for Baltimore County reversed the Commissioner's ruling that Bethlehem committed a serious and a repeated violation of 29 C.F.R. § 1910.303(b)(1) and remanded the case to allow the Commissioner to prove whether Bethlehem committed a "non-serious" violation.

The Court of Special Appeals reversed that judgment, opining that the circuit court "supplant[ed] its conclusion for that of the Commissioner," but remanded the case so that MOSHA would have the opportunity to prove whether Bethlehem "knew or should have known of the hazard through reasonable diligence." The court further held that "a finding of substantial similarity between the violations is necessary before enhanced penalties may be sanctioned for a 'repeated' violation." We issued a writ of certiorari to address the important evidentiary questions raised in this case.

III.

The purpose of Maryland's Occupational Safety 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[.]" § 28(c). In that regard, employers are required to "(1) 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, and (2) comply with the rules, regulations, standards and orders promulgated under this subtitle." § 32(a).

Consonant with these objectives, the Commissioner of Labor and Industry is empowered to, among other things, "prescribe such rules and regulations as he may deem necessary to carry out his responsibilities." § 30(a). In addition, the Commissioner, or his authorized representative, has the authority to issue citations to non-complying employers, § 36(a), and if necessary, assess civil penalties against those employers to enforce compliance. § 37(a)-(b).

An employer cited under the Act is entitled to contest the citation before the Commissioner or a Commissioner-appointed hearing examiner. § 37(c). Following a request from the employer, or upon the Commissioner's own initiative, the hearing examiner's report is subject to further review by the Commissioner himself. ⁶ § 37(d). As with most administrative decisions, the Commissioner's decision is subject to "substantial evidence" review. § 38(a). Therefore, an order of the Commissioner of Labor and Industry must be upheld on judicial review if it is not legally erroneous and reasonably based upon substantial evidence. See Younkers v. Prince George's County, 333 Md. 14, 18-19, 633 A.2d 861, 863 (1993) (and cases cited therein). In short, reviewing courts must not substitute their fact-finding for that of the Commissioner when the latter's conclusions are substantially supported by the evidentiary record. With these principles in mind, we shall now address the Commissioner's conclusion that Bethlehem engaged in both a serious and a repeated violation of 29 C.F.R. § 1910.303(b)(1).

Serious Violation

A.

Although an issue earlier raised, at this juncture neither party seriously disputes the applicability of 29 C.F.R. § 1910.303(b)(1) to the facts of the instant case. We nonetheless feel compelled to address the regulation's general applicability for the reason that substantial evidence review is unnecessary if the agency failed to apply the correct statutory or regulatory standard to the facts before it. Cf. Younkers, supra, 333 Md. at 19, 633 A.2d at 863 (reviewing court is under no constraint to reverse an administrative decision which is premised solely on an erroneous conclusion of law). While we hold that the Commissioner's reliance upon 29 C.F.R. § 1910.303(b)(1) in the case sub judice was proper, an explanation will serve future cases well.

The Commissioner posits that all electrical equipment present and in use in the employer's workplace falls within the ambit of the regulation, while Bethlehem would draw a distinction between "industrial" and "non-industrial" equipment, such as, in this case, employee-owned personal appliances.

Rejecting Bethlehem's position, the Court of Special Appeals reasoned:

"[w]e think it is clear that ownership is not, nor should it be, the determinative factor in cases involving appliances brought into the workplace by employees. To conclude otherwise would be in direct conflict with the intent of the general duty clause contained in Md.Code (1974, 1991 Repl.Vol.) Title 5, Subtitle 1, § 5-104(a) of the Labor and Employment Article, ⁷ which requires that 'each employer shall provide each employee of the employer with employment and a place of employment that are: (1) safe and healthful[.]' "

Commissioner of Labor & Indus. v. Bethlehem Steel Corp., 106 Md.App. 243, 255, 664 A.2d 411, 417 (1995). We agree. 29 C.F.R. § 1910.303(b)(1) fails to draw any distinction between electrical hazards created by employers versus those created by employees. It simply commands that "[e]lectrical equipment shall be free from recognized hazards that are likely to cause death or serious physical harm to employees." If an employer fails to abate an...