LABOR COMMISSIONER v. Cole Roofing Co.

Citation368 Md. 459,796 A.2d 63
Decision Date09 April 2002
Docket NumberNo. 70,70
PartiesMARYLAND COMMISSIONER OF LABOR AND INDUSTRY, v. COLE ROOFING CO., INC.
CourtCourt of Appeals of Maryland

Andrew H. Baida, Solicitor General (J. Joseph Curran, Jr., Atty. Gen. of Maryland, and Gaston J. Sigur, III, and Jonathan R. Krasnoff, Asst. Attorneys Gen., on brief), Baltimore, for petitioner.

Frank L. Kollman (Bruce M. Luchansky of Kollman & Saucier, P.A., on brief), Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.

WILNER, Judge.

This appeal arises from a final order of the Commissioner of Labor and Industry entered under the Maryland Occupational Safety and Health Act (Maryland Code, §§ 5-101 through 5-901 of the Labor and Employment Article) (MOSHA). It presents two issues:

(1) When an employer is charged with a MOSHA violation and claims that the violation was due to unforeseeable or unpreventable employee misconduct, who has the burden of proof on that issue: must the Commissioner prove that the employee misconduct was foreseeable or preventable, or must the employer prove that it was not; and
(2) In order to establish a "repeated" violation under MOSHA, must the Commissioner show that the earlier violation involved precisely the same regulation or conduct or will it suffice to show that the earlier violation was of a similar regulation addressing a similar hazard or condition?

The Court of Special Appeals concluded, with respect to the first issue, that the Commissioner bears the burden of proof, and, as to the second, that the two violations must be of the same regulation. Commissioner of Labor v. Cole, 138 Md. App. 526, 772 A.2d 1252 (2001). We agree with the second conclusion, but not the first.

BACKGROUND

The Labor and Employment Article (LE) § 5-104(a) requires employers to provide workplaces that are safe, healthful, and free from recognized hazards that are causing or are likely to cause death or serious physical harm to their employees. That is known as the general duty requirement. Section 5-104(b) requires that both employers and employees comply with applicable regulations adopted under the Act. That is the special duty requirement. MOSHA places overall responsibility for enforcement of the Act with the Commissioner of Labor and Industry and, among other things, empowers the Commissioner, (1) to adopt regulations to prevent conditions in workplaces that are detrimental to safety and health, (2) to conduct inspections of workplaces, (3) to issue and enforce citations, (4) to provide a hearing if the employer contests a citation, and (5) to make final agency decisions and assess penalties upon the finding of violations.

MOSHA is modeled on the Federal Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C.A. §§ 651-678 (2001), and tracks the Federal law in most respects. Com'r of Labor v. Bethlehem Steel, 344 Md. 17, 30, 684 A.2d 845, 851 (1996).1 Pursuant to the authority set forth in LE §§ 5-309 to 5-312, the Commissioner has adopted, by incorporation, the Federal construction standards approved under OSHA by the U.S. Secretary of Labor. 29 C.F.R. pt.1926 (2001). MD.REGS.CODE (COMAR) 09.12.31 (2001); J.I. Hass Co. v. Dep't of Lic. and Reg., 275 Md. 321, 328, 340 A.2d 255, 259 (1975). Among the Federal construction standards adopted by the Commissioner are those codified in 29 C.F.R. § 1926.501, which requires employers to provide fall protection systems for their employees, and those in § 1926.152, dealing with the storage of flammable and combustible liquids.

The fall protection requirements set forth in § 1926.501 address a wide variety of situations, including employees constructing leading edges, working in hoist areas, near holes, on the face of formwork or reinforcing steel, on ramps or other walkways, at the edge of excavation sites, or near dangerous equipment, doing roofing work on low-slope roofs, being present on steep roofs, erecting precast concrete members, engaged in residential construction, or working near wall openings or on "walking/working" surfaces. Each of these situations is addressed in a separate paragraph of that regulation.

The fall protection standard at issue here is that dealing with working on low slope roofs, defined in 29 C.F.R. § 1926.500(b) as a roof having a slope less than 4 in 12 (vertical to horizontal). Section 1926.501(b)(10) requires, in relevant part, that:

"each employee engaged in roofing activities on low-slope roofs with unprotected sides and edges 6 feet (1.8 m) or more above lower levels shall be protected from falling by guardrail systems, safety net systems, personal fall arrest systems, or a combination of warning line system and guardrail system, warning line system and safety net system, or warning line system and personal fall arrest system, or warning line system and safety monitoring system."

On July 29, 1997, respondent, Cole Roofing Company, Inc. (Cole), was engaged in installing or repairing a flat roof at Chesapeake High School in Pasadena. As the roof was more than six feet above ground, § 1926.501(b)(10) was applicable. Just before 9:00 that morning, Amy Agro, an inspector from the Maryland Occupational Safety and Health Unit at the Division of Labor and Industry (MOSH), appeared at the job site for a planned inspection and saw at least five employees, including a foreman, Joseph Baldwin, working on the roof, which was at least eleven feet above a concrete area. Some of the employees were observed working in close proximity to the roof edge. Roofing materials that likely would be needed by the employees were also seen near the edge of the roof. Ms. Agro saw no fall protection system in place—no warning lines, no guardrail, no safety net, no personal fall arrest system, no safety monitors. Shortly after she arrived, a Cole Vice President, James Canoles, appeared, and she conferred with him and Mr. Baldwin. She learned that as many as fifteen employees had been working on the roof that morning.

The employees informed Ms. Agro that two safety monitors were on the site, but the persons they identified as the safety monitors did not qualify as such, at least for MOSHA purposes.2 Mr. Canoles and Mr. Baldwin told her that they were using a safety monitor system along with warning lines, but, apart from the lack of persons qualifying as safety monitors, she also saw no warning lines. They then asserted that the warning lines had been up the previous day and had been removed. While she was there, warning lines were installed on the roof and a safety monitor was designated and instructed as to his duties.

Because the employees were working eleven to twelve feet above concrete pads, Ms. Agro was concerned that, had any of them fallen, serious physical injury could have resulted. She therefore regarded the violation as a "serious" one. LE § 5-809(a)(1) states that a violation is considered to be a serious one "if there is a substantial probability that death or serious physical harm could result ... unless the employer did not and with the exercise of reasonable diligence could not know of the violation." Because she learned that, in July, 1995, Cole had been cited for a violation of § 1926.501(b)(11)—failure to have in place fall protection on a steep slope roof—she regarded the instant violation as a "repeated" one as well. The citation for the fall protection violation therefore charged a serious and repeated violation.

During her inspection, Ms. Agro also observed on the ground a five-gallon gasoline can that had no flash arresting mechanism or self-closing lid. Section 1926.152(a)(1) provides, in relevant part, that only approved "safety cans" or containers approved by the U.S. Department of Transportation may be used for storing and handling flammable and combustible liquids of five gallons or less. Section 1926.155(l) defines a "safety can" as an approved closed container having a flash arresting screen, spring closing lid and spout cover and so designed that it will safely relieve internal pressure when subjected to fire exposure. After concluding that the can did not meet those requirements and that the violation also was a serious one, she issued a second citation with respect to the can. Acting pursuant to LE § 5-809(a)(2), the Commissioner assessed a civil penalty of $3,000 for Citation 1 and a $262 penalty for Citation 2.

Cole filed a timely notice of contest, and a hearing was conducted before an Administrative Law Judge (ALJ). Although the substantive issues raised by Cole were whether there was sufficient evidence to support the two citations and whether the penalties were correctly calculated, Cole raised as well whether the violations were the product of unpreventable supervisor misconduct, and whether the 1995 violation sufficed to make the § 1926.501(b)(10) violation a repeated one. Both of those issues arose during the testimony of Ms. Agro, in the presentation of the Commissioner's case. When asked whether there were any facts indicating that Cole had knowledge of the condition, she responded that Canoles and Baldwin, who were both management officials, were on-site while the employees were exposed. Baldwin had been working on the roof. Canoles was not on the site when she arrived, but Agro was told that he had been there and was on his way back. The conditions that led to the two citations were not abated until after his arrival. Baldwin's actual involvement in the violation for lack of fall protection formed part of her contention that the employer had knowledge of the violation. With respect to the gasoline can, she said that another roof foreman, Dennis Johnson, was exposed to the condition and had done nothing to correct it.

At the conclusion of Ms. Agro's testimony, which constituted the Commissioner's case, Cole moved to dismiss the citations on the ground that it was the Commissioner's burden, in its case-in-chief, to prove the absence of unpreventable...

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