Commissioner of Labor v. Gary Steel Products Corp., No. 49A02-9309-CV-474

Docket NºNo. 49A02-9309-CV-474
Citation643 N.E.2d 407
Case DateNovember 30, 1994
CourtCourt of Appeals of Indiana

Page 407

643 N.E.2d 407
COMMISSIONER OF LABOR and the Board of Safety Review,
Appellants-Respondents,
v.
GARY STEEL PRODUCTS CORPORATION, Appellee-Petitioner.
No. 49A02-9309-CV-474.
Court of Appeals of Indiana,
Second District.
Nov. 30, 1994.

Page 409

Pamela Carter, Atty. Gen., Richard E. Shevitz, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellants.

Douglas J. Heckler, Barnes & Thornburg, Indianapolis, for appellee.

OPINION

HOFFMAN, Judge.

Appellants-respondents, the Commissioner of Labor (Commissioner) and the Board of Safety Review (Review Board) (collectively "IOSHA"), appeal from a judgment reversing their Final Order and decision finding appellee-petitioner Gary Steel Products Corporation (Gary Steel) to have committed a series of safety violations. The facts pertinent to this appeal are summarized below.

Gary Steel is a manufacturer of furnace ductwork with its plant located in Gary, Indiana. The company has three main manufacturing lines. The flex duct manufacturing line, made up of approximately eight employees, is located in the basement of the plant. In early October 1989, insulation material from pipes hanging from the ceiling began to break off and accumulate on the basement floor, equipment, and product.

In mid-September 1989, Theodore Primich, Gary Steel's president, arranged to have a local construction excavator, Percell McQueen, remove the insulation. At the time, the issue of whether the insulation material might contain asbestos was discussed. The work performed the weekend of October 1, 1989, proved to be unsatisfactory. Although most of the insulation had been removed before the flex duct production employees (production employees) arrived at work on Monday, October 2, 1989, the basement was littered with a thick layer of insulation debris on the floor, equipment, and product. When the production employees refused to work in the basement, Gary Steel recruited several of its maintenance employees to clean up the mess.

Cleanup began on October 2, 1989, and ended on October 3, 1989. The maintenance employees used brooms, a sweeping compound called "floor sweep," heavy duty white garbage bags, gloves and dust masks, on an optional basis, to clean the basement. At the end of the day, between thirty and fifty bags containing the insulation material were filled. Before the maintenance employees went home, Gary Steel gave them new work clothes and ordered them to throw their old work clothes away.

The next day, Tyvac suits were provided to the employees and cleanup occurred in a similar manner as the day before. By the time they completed their work, ten additional

Page 410

bags of debris had been filled. Although cleanup was completed, additional dust and debris remained, so the production employees continued in their refusal to return to work.

On October 4, 1989, a licensed asbestos abatement contractor was hired by Gary Steel to inspect the plant and to finish removing the insulation. The contractor informed Primich that the insulation should have not been removed but instead sealed. While the contractor was working to remove the remaining asbestos the following weekend, the Commissioner of Labor, by Compliance Officer Wayne Glotfelty, inspected the plant. After the insulation was completely removed and in the presence of Glotfelty, the asbestos contractor conducted an air sample and bulk sample test which confirmed the existence of asbestos in the insulation.

Later, the debris was transferred from the white garbage bags supplied by Gary Steel, into proper six-millimeter, impermeable plastic bags normally used for asbestos removal. During a subsequent closing conference, discussions occurred between Gary Steel and Glotfelty regarding Gary Steel's use of respirators. Gary Steel provided Glotfelty with a copy of the company's written instructions on respirator use.

In December 1989, the Commissioner of Labor issued a safety order and notice of penalty charging Gary Steel with a series of serious violations and recommended a fine of $21,000.00. In April 1990, nine of the violations were upgraded in classification from "serious" to "knowing" pursuant to IND.CODE § 22-8-1.1-27.1 (1988 Ed.).

In December 1990, the case was heard by an Administrative Law Judge (ALJ), who prepared recommended findings of fact and conclusions of law. Applying 29 C.F.R. § 1926.58, et seq. in conjunction with IND.CODE § 22-8-1.1-27.1, the ALJ found Gary Steel had knowingly committed eight of nine 1 alleged safety violations. Consequently, he recommended the Review Board impose penalties of $10,000.00 per each violation, for a fine totalling $80,000.00. On May 28, 1992, the Review Board adopted the ALJ's findings as its own and entered a Final Order.

Gary Steel sought judicial review of the Final Order in June 1992. After reviewing the evidence, the trial court reversed the Final Order in its entirety. This appeal ensued.

On appeal, IOSHA raises two issues which we consolidate into one: whether the trial court properly reversed each of the eight violations found to exist by IOSHA.

The trial court reversed the Final Order finding, inter alia, IOSHA misconstrued IND.CODE § 22-8-1.1-27.1, Gary Steel's due process rights were violated by IOSHA's actions, IOSHA engaged in administrative rulemaking without resorting to proper procedure, Gary Steel was cited under the wrong standard, and as to the last violation, IOSHA's finding was unsupported by facts in the record.

First, IOSHA claims the trial court improperly found error in its decision to redefine the term "knowing," 2 for purposes of IND.CODE § 22-2-8-1.1-27.1(a). In reviewing a decision of an administrative agency, neither the trial court nor this Court on appeal may substitute its own judgment or opinion in place of the agency's in those matters within the scope of the agency's discretion and authority. Clarkson v. Department of Ins., etc. (1981), Ind.App., 425 N.E.2d 203, 207. Further, an administrative agency's reasonable interpretation of a silent or ambiguous statute, which it is charged with enforcing, will be allotted considerable deference. Indiana DNR v. Krantz Bros. Const. (1991), Ind.App., 581 N.E.2d 935, 939. Only if an agency misconstrues the statute may the trial court reverse the agency's action as being arbitrary and capricious. Peabody

Page 411

Coal Co. v. Dept. of Nat. Resources (1992), Ind.App., 606 N.E.2d 1306, 1308.

It is without dispute that IOSHA is charged with applying IND.CODE § 22-8-1.1-27.1. Likewise, neither party disputes the trial court's finding that the Occupational Safety and Health Act's ("OSHA") use of the term "willful" under 29 U.S.C. § 666 is synonymous with Indiana's use of the term "knowing" under IND.CODE § 22-8-1.1-27.1. Thus, we need only review whether this revised definition is a reasonable one.

Prior to this dispute, IOSHA defined the above term by following the Third Circuit's holding in Frank Irey, Jr. v. Occupational Safety and Health Review Commission (3rd Cir.1974), 519 F.2d 1200. Frank Irey interpreted "willful" under 29 U.S.C. § 666 as meaning "intentional disregard" or "plain indifference" to the requirements of OSHA. Id. at 1207. However, the Frank Irey court also injected a bad motive requirement into the word "willful" by...

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7 practice notes
  • CSX Transp., Inc. v. Smith, No. S11G0556.
    • United States
    • Supreme Court of Georgia
    • October 17, 2011
    ...“are binding upon employers engaged in businesses affecting commerce. [Cit.]” Commissioner of Labor v. Gary Steel Products Corp., 643 N.E.2d 407, 413 (Ind.App.1994). “In addition, the Secretary has presented various industry-specific standards” which may specifically preempt the general sta......
  • Rene ex rel. Rene v. Reed, No. 49A02-9907-CV-457.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 4, 2000
    ...is fulfilled if the representative plaintiff's claims "are neither in conflict with nor antagonistic to the class as a whole." Cole, 643 N.E.2d at 407. Here, the Students' claims are not in conflict nor antagonistic to the class as a whole, and thus, the disabled students properly represent......
  • Connerwood Healthcare, Inc. v. Estate of Herron, No. 82A01-9701-CV-34
    • United States
    • Indiana Court of Appeals of Indiana
    • July 31, 1997
    ...those of other class members. Subdivision (A)(3) does not require a showing that all plaintiffs' claims be identical. Edward D. Jones, 643 N.E.2d at 407. The element is satisfied if the representative plaintiffs' claims are neither in conflict with nor antagonistic to the class as a whole. ......
  • Sensient Flavors LLC v. Ind. Occupational Safety & Health Admin., No. 49A02–1109–MC–844.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 26, 2012
    ...the federal OHSA statutes closely resemble ours, federal case law is persuasive. See Comm'r of Labor v. Gary Steel Products Corp., 643 N.E.2d 407, 412 (Ind.Ct.App.1994); Comm'r of Labor v. Talbert Mfg. Co., 593 N.E.2d 1229, 1232 (Ind.Ct.App.1992). Similar to the OSH Act, the Indiana Occupat......
  • Request a trial to view additional results
7 cases
  • CSX Transp., Inc. v. Smith, No. S11G0556.
    • United States
    • Supreme Court of Georgia
    • October 17, 2011
    ...“are binding upon employers engaged in businesses affecting commerce. [Cit.]” Commissioner of Labor v. Gary Steel Products Corp., 643 N.E.2d 407, 413 (Ind.App.1994). “In addition, the Secretary has presented various industry-specific standards” which may specifically preempt the general sta......
  • Rene ex rel. Rene v. Reed, No. 49A02-9907-CV-457.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 4, 2000
    ...is fulfilled if the representative plaintiff's claims "are neither in conflict with nor antagonistic to the class as a whole." Cole, 643 N.E.2d at 407. Here, the Students' claims are not in conflict nor antagonistic to the class as a whole, and thus, the disabled students properly represent......
  • Connerwood Healthcare, Inc. v. Estate of Herron, No. 82A01-9701-CV-34
    • United States
    • Indiana Court of Appeals of Indiana
    • July 31, 1997
    ...those of other class members. Subdivision (A)(3) does not require a showing that all plaintiffs' claims be identical. Edward D. Jones, 643 N.E.2d at 407. The element is satisfied if the representative plaintiffs' claims are neither in conflict with nor antagonistic to the class as a whole. ......
  • Sensient Flavors LLC v. Ind. Occupational Safety & Health Admin., No. 49A02–1109–MC–844.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 26, 2012
    ...the federal OHSA statutes closely resemble ours, federal case law is persuasive. See Comm'r of Labor v. Gary Steel Products Corp., 643 N.E.2d 407, 412 (Ind.Ct.App.1994); Comm'r of Labor v. Talbert Mfg. Co., 593 N.E.2d 1229, 1232 (Ind.Ct.App.1992). Similar to the OSH Act, the Indiana Occupat......
  • Request a trial to view additional results

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