Maryland Com'r of Labor and Industry v. Bethlehem Steel Corp.

• Decision Date: 01 September 1994
• Docket Number: No. 1800,1800
• Citation: 106 Md.App. 243,664 A.2d 411
• Parties: , 17 O.S.H. Cas. (BNA) 1377, 1995 O.S.H.D. (CCH) P 30,903 MARYLAND COMMISSIONER OF LABOR AND INDUSTRY v. BETHLEHEM STEEL CORPORATION. ,
• Court: Court of Special Appeals of Maryland

Page 243

106 Md.App. 243

664 A.2d 411, 17 O.S.H. Cas. (BNA) 1377,

1995 O.S.H.D. (CCH) P 30,903

MARYLAND COMMISSIONER OF LABOR AND INDUSTRY v. BETHLEHEM STEEL CORPORATION.

No. 1800, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Sept. 5, 1995.

Jonathan R. Krasnoff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellant

Eric Hemmendinger (Earle K. Shawe and Shawe & Rosenthal, on the brief), Baltimore, for appellee.

Argued before WILNER, C.J., and WENNER and DAVIS, JJ.

WENNER, Judge.

Appellant, Commissioner of Labor and Industry (Commissioner), appeals the judgment of the Circuit Court for Baltimore County reversing the Commissioner's decision that appellee, Bethlehem Steel, was guilty of a repeated, serious violation of the Maryland Occupational Safety and Health Act (MOSHA). On appeal, the Commissioner asks:

Did the Circuit Court err in reversing the Commissioner's finding that Bethlehem Steel engaged in a violation of 29 C.F.R. § 1910.303(b)(1) that was both serious and repeated?

Responding in the affirmative, we shall vacate the judgment of the circuit court and remand the case to that court with instructions to remand it to the Commissioner for further proceedings consistent with this opinion.

FACTS

We begin by noting that the facts are undisputed. On 17 August 1990, an employee was electrocuted. The accident occurred in a room provided by Bethlehem Steel for its employees to take a break and cool off from the intense heat in which they had been working. While there, the decedent sat next to a portable cooling unit and rested his arm on a toaster oven that was sitting on the cooling unit. At some point, the decedent's leg came into contact with the metal casing of the cooling unit, creating a circuit for the shock that electrocuted him.

The toaster oven was later determined to be the cause of the accident. The oven was in extremely poor condition, having duct tape wound around it to keep it together. It was later discovered that one of the oven's heating elements was touching the oven's metal casing, which allowed electricity to surge through the oven's exterior skin. When the decedent came into contact with both the oven and the cooling unit, electricity from the oven surged through and killed him.

An unknown employee had brought the toaster oven into the break room some three years prior to the accident. Over the course of time, as the oven continued to deteriorate, the employees took stop gap measures, such as wrapping it in duct tape, to keep it working. The employees were the only ones who used the oven and were principally the only ones who used this particular break room. Supervisors regularly entered the room to post work related notices on the bulletin board but did not otherwise use the facility. Apparently, the toaster oven had been shocking employees for several weeks prior to the fatal accident; however, none of the incidents were reported to the supervisors, nor were any measures taken by the employees to repair or replace the oven. Instead, they continued to use it until it electrocuted their co-worker.

Soon after the accident, a MOSHA inspector investigated the incident and determined that the toaster oven was capable of providing the electrical surge that killed the employee. The inspector found that the heating element inside of the oven had become dislodged, so that it was in contact with the oven's outer metal casing. Apparently, to no avail, someone had previously attempted to insulate the displaced element. When asked why the inspector had issued citation No. 1 charging Bethlehem Steel with having violated 29 C.F.R. § 1910.303(b)(1), ¹ the inspector responded that

anybody that was looking at it [the oven] could have observed that it needed to be attended to, and I say this because there was tape wrapped around the outside of it. It appeared to be in high volume use. Even though we don't know whether the high volume use was over a short period of time or a long period of time, it still was suggested that it needed some attention and presented possibly recognized hazards.

The inspector further qualified the violation as a repeat violation because Bethlehem Steel had been previously cited under the same general safety standard for electrical equipment. On cross-examination, the inspector admitted that the oven's dislodged heating element could not have been observed from the exterior of the oven.

The matter was heard before an Administrative Law Judge (ALJ) who rescinded citation No. 1, concluding:

As correctly pointed out in the EMPLOYER's Brief, the EMPLOYER is charged with a violation of a Standard 29 C.F.R. § 1910.303(b)(1) which addresses electrical safety requirements as they pertain to the installation of electrical equipment and does not deal with the subsequent maintenance or inspection of electrical equipment.

Not only is this interpretation apparent from the cited standard itself, but it was admitted to in his testimony by MOSHA Inspector Barry. His testimony also confirmed that OSHA standards, pertaining to electrical equipment maintenance, have not yet been issued and therefore are not presently enforced.

Thus, the ALJ concluded that MOSHA had not met its burden.

The Commissioner reversed the ALJ's decision, determining that, as a matter of law, the ALJ had misinterpreted 29 C.F.R. § 1910.303(b)(1). The Commissioner went on to conclude that the oven presented a hazard, that Bethlehem Steel had constructive notice of the hazard, and that the consequent violation constituted a serious repeated violation. The Commissioner arrived at that conclusion because Bethlehem Steel had been previously cited for violating 29 C.F.R. § 1910.303(b)(1), though the circumstances of those incidents differed greatly from those presently under consideration.

Bethlehem Steel then noted an appeal to the Circuit Court for Baltimore County, arguing that the Commissioner erred by finding that the oven was "equipment" covered by the OSHA standard, and by concluding that the violation was a repeated serious violation. The circuit court concerned itself only with the latter contention and concluded that the evidence

before the Commissioner was not sufficient to support the Commissioner's decision that the charged violation was a repeated serious violation.

STANDARD OF REVIEW

The scope of judicial review of an agency's decision is set out in Md.Code (1974, 1991 Repl.Vol.) § 5-212(c) of the Labor and Employment article, which provides:

(c) Scope of review.--(1) The court shall determine whether an order that the Commissioner passes under this title or regulation that the Commissioner adopts to carry out this title is in accordance with law.

(2) If a finding of the Commissioner on a question of fact is supported by substantial evidence, the finding is conclusive.

(3) A regulation that the Commissioner adopts to carry out this title: (i) shall be deemed prima facie lawful and reasonable; and (ii) may not be held invalid because of a technical defect if there is substantial compliance with this title.

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion ... [and] review is limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached." Bulluck v. Pelham Wood Apts., 283 Md. 505, 513, 390 A.2d 1119 (1978). Moreover, our review of the Commissioner's factual findings is limited because those findings are presumed to be correct. Consequently, we may not substitute our judgment for that of the Commissioner. Id. at 514, 390 A.2d 1119. No such deference is accorded if the Commissioner's decision is not in accordance with the law.

DISCUSSION

I. Applicability of the Standard

We begin by addressing whether the MOSHA standards are applicable to the toaster oven here involved. We note that the specific ownership of the toaster oven is irrelevant. It is enough to recognize that the appliance was not supplied by the employer, it having been brought into the breakroom and owned by an employee and used or available for use by all of the employees using the breakroom. We must determine the extent of an employer's responsibility to provide its employees with a safe workplace. Although the trial court failed to address this issue, as it was raised below by Bethlehem Steel, we may address it on appeal. See Offutt v. Montgomery County Bd. of Educ., 285 Md. 557, 564, 404 A.2d 281 (1979).

The crux of Bethlehem Steel's argument is that

[i]t would come as a considerable surprise to Maryland employers to learn that they are responsible not only for their own equipment, but also for ensuring that all the various hot plates, immersion coils, radios, space heaters, lamps, fans, televisions, toaster ovens, microwave ovens, electric clocks, etc., that people bring to work comply with MOSHA standards relating to industrial equipment.

Therefore,

[n]either the standard, nor MOSHA's previous enforcement of it, provide the type of notice to which Bethlehem was entitled in this case, and to which all employers are entitled for future reference.

Of course, Bethlehem Steel is quite correct that notice is at the heart of the matter. MOSHA regulations were not intended to make employers strictly liable for any hazardous conditions existing at a particular work site. J.I. Hass Co., Inc. v. Dep't. of Lic. and Reg., 275 Md. 321, 340 A.2d 255 (1975). Rather, the purpose of the MOSHA is to ensure that employees are provided with a safe work place. Thus, the MOSHA regulations must provide an employer with adequate notice of the hazards and conditions that must be eliminated. Nevertheless, it would have been helpful had Bethlehem Steel presented us with an argument to this effect, rather than simply mentioning "notice" at the conclusion of its argument.

In reply, we are urged by the Commissioner to follow the decisions of the Federal Occupational Safety and Health...