United Steelworkers of America, AFL-CIO, Local 2610 v. Bethlehem Steel Corp.

• Decision Date: 05 January 1983
• Docket Number: LOCAL,AFL-CI,No. 20,20
• Citation: 454 A.2d 850,53 Md.App. 366
• Parties: , 1983 O.S.H.D. (CCH) P 26,380 UNITED STEELWORKERS OF AMERICA,2610 v. BETHLEHEM STEEL CORPORATION.
• Court: Court of Special Appeals of Maryland

Page 366

53 Md.App. 366

454 A.2d 850, 1983 O.S.H.D. (CCH) P 26,380

UNITED STEELWORKERS OF AMERICA, AFL-CIO, LOCAL 2610 v. BETHLEHEM STEEL CORPORATION.

No. 20.

Court of Special Appeals of Maryland.

Jan. 5, 1983.

Howard J. Schulman, Baltimore, with whom was Peter G. Angelos, Baltimore, on the brief, for appellant.

Stephen H. Sachs, Atty. Gen., and David Blum, Asst. Atty. Gen., for amicus curiae, Commissioner of Labor and Industry, Dept. of Licensing and Regulation of the State of Md.

Warren M. Davison, Baltimore, with whom were Earle K. Shawe, J. Michael McGuire and Shawe & Rosenthal, Baltimore, on the brief, for appellee.

Argued before GILBERT, C.J., and LISS and WILNER, JJ.

LISS, Judge:

This matter arose as the result of two incidents of heat stroke occurring on July 23, 1978, and a subsequent investigation conducted by the Maryland Occupational Safety and Health Administration, Maryland Department of Licensing and Regulation, Division of Labor and Industry (hereinafter referred to as "MOSHA"), at the Sparrows Point, Maryland facility of Bethlehem Steel Corporation (the appellee herein). As a result of that inspection MOSHA issued a citation and proposed penalty on October 11, 1978, alleging that the appellee violated the "General Duty" clause of the Maryland Occupational Safety and Health Statute, Maryland Code (1957, 1979 Repl.Vol., 1981 Cum.Supp.) Art. 89, § 32, in that the appellee:

failed to furnish to 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.

More specifically, the citation alleged that:

On July 23, 1978, 2 cases of heat stroke occurred resulting in the death of one employee and in serious permanent injury to the other employee. That in addition to the aforementioned cases on the same date there occurred 4 additional cases of heat stress; that during the week preceding July 23, 1978, namely July 16, 1978 and July 22, 1978, other heat stress cases occurred. That the employer, having specific knowledge regarding safety and health hazards in the steel industry, and with specific knowledge of aforesaid hazardous conditions pertaining to excessive heat, made no reasonable efforts by precautions in disregard for its statutory obligation to furnish its employees with a safe and healthful workplace.

The citation was further characterized as "serious and willful," with a proposed penalty of $7,000.

As a result of this citation, thirteen days of hearings were conducted before a hearing examiner in November and December, 1978, and January, 1979. Both the appellee and MOSHA were represented by counsel and participated fully at the hearings. The United Steelworkers of America, Local 2610 (appellant herein), chose not to elect party status and neither appeared at nor participated in the proceedings before the hearing examiner.

On November 7, 1979, the hearing examiner issued his findings of fact and conclusions of law, which read in pertinent part as follows:

It has not been shown by a preponderance of the evidence that the Steel Industry recognized heat as a hazard likely to cause serious injury, disability or death. Additionally, it has not been shown by a preponderance of the evidence that the "Employer" had or should have had actual knowledge that heat is likely to cause serious injury or serious disability under the conditions existing in the steel making process of the mill. It has also not been shown by a preponderance of the evidence that the steps taken by the "Employer", forgetting the aspect of knowledge, were not reasonable and feasible steps in regard to a heat hazard without the guidance of a heat standard. Accordingly, I find that the "Employer" was not in violation of Article 89, Section 32(a) of the Annotated Code of Maryland (1978 Supp.) as alleged.

On November 15, 1979, the Union (appellant), which was not a party to this litigation, filed a request for review with the Office of the Commissioner of Labor and Industry. Bethlehem Steel Corporation moved to dismiss the Union's appeal, arguing that the Union, having voluntarily waived its right to participate as a party at the hearing, could not now file exceptions to the hearing examiner's decision. A hearing was held on December 17, 1979, for purpose of oral argument on the issue of the Union's standing to appeal the decision. By letter dated January 8, 1980, the Commissioner denied the Company's motion to dismiss and invited written exceptions from the Union. Thereafter, the Union filed its exceptions to the findings of the hearing examiner and a memorandum in support thereof. The Company then filed its response to those exceptions.

By order dated May 21, 1980, the Commissioner reversed the hearing examiner's decision to vacate the citation. Instead, the Commissioner modified the citation and affirmed a finding of a "serious" violation of the "general duty" clause of § 32(a) of Article 89. The Commissioner imposed a civil penalty of $1,000, the maximum permitted by the statute.

On June 18, 1980, the Company filed a petition for review with the Circuit Court for Baltimore County, requesting review of the Commissioner's order and urging that the Commissioner's order be vacated on the ground that the Commissioner's findings and conclusions were unsupported by competent, material and substantial evidence as developed during the thirteen days of hearings. The Company specifically urged that reversal of the Commissioner's order was appropriate in that:

(a) the Commissioner had misconstrued a "recognized hazard" within the meaning of the general duty clause; and (b) that the Commissioner's finding that the Company had not taken "adequate precautionary measures" or instituted a reasonable or feasible safety program to combat the hazard of heat, was unsupported by the competent, material and substantial evidence of record.

On July 28, 1981, a hearing was held in the Circuit Court for Baltimore County. Counsel for the Union, the Company, and MOSHA all participated.

On December 7, 1981, the trial judge issued an order wherein he reversed the judgment of the Commissioner and agreed with the hearing examiner's finding that based on extensive testimony and evidence of record there was no evidence to support affirmance of the MOSHA citation. Specifically, the trial judge pinpointed the essential language of the citation which charged that the Company "made no reasonable efforts by precautions or other means to furnish a safe workplace." The court stated that after reviewing the testimony and evidence, the Commissioner's determination that the Company "made no reasonable efforts" was not supported by substantial evidence of record. The Union then noted this appeal, asking us to consider whether the trial court erred by applying an improper and unconstitutional standard of review to the action of an administrative agency so as to substitute its judgment for that of the Commissioner of Labor and Industry, who held that the appellee violated the general duty clause of Article 89, § 32 of the Maryland Code.

The Commissioner of Labor and Industry (hereinafter the "Commissioner"), is charged with the administration of that State Division. See Maryland Code (1957, 1979 Repl.Vol.) Art. 89, § 1. He is also charged with the prevention of occupational injuries and illnesses in the workplace with the purpose that every working man and woman may be assured safe and healthful working conditions. Maryland Code, Art. 89, § 28(c); see also J.I. Haas Co., Inc. v. Department of Licensing and Regulation, Division of Labor and Industry for Md., 275 Md. 321, 340 A.2d 255 (1975). The Commissioner is required to apply the specialized knowledge and expertise of his agency.

A court's review of the factual findings of an administrative agency and the application of the law to the facts are constitutionally circumscribed because such agencies are considered "arms of the legislature." Mayor and Alderman of City of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 396 A.2d 1080 (1979). The Legislature has provided specifically for judicial review of any rule, standard or order of the Commissioner. See Maryland Code, Art. 89, § 38. Section 38(a) provides in pertinent part as follows:

The findings of the Commissioner with respect to questions of fact, supported by substantial evidence, shall be conclusive. The Court shall determine whether the ... order is in accordance with law.

"Substantial evidence" has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Snowden v. City of Baltimore, 224 Md. 443, 168 A.2d 390 (1961). The scope of review implicit therein is restricted to whether a reasonable mind could have reached the factual conclusion the agency reached. Dickinson-Tidewater, Inc. v. Supervisor of Assessments of Anne Arundel County, 273 Md. 245, 329 A.2d 18 (1974).

In applying the substantial evidence test, the reviewing court may not substitute its judgment for the expertise of the administrative agency from which the appeal is taken. Bernstein v. Real Estate Commissioner of Md., 221 Md. 221, 156 A.2d 657 (1959), appeal dismissed, 363 U.S. 419, 80 S.Ct. 1257, 4 L.Ed.2d 1515, rehearing denied, 364 U.S. 855, 81 S.Ct. 35, 5 L.Ed. 79 (1960). The court must review the agency's decision in the light most favorable to the agency as decisions of administrative agencies are prima facie correct, Hoyt v. Police Commissioner of Baltimore City, 279 Md. 74, 367 A.2d 924 (1977), and carry with them the presumption of validity. Dickinson-Tidewater, Inc. v. Supervisor of Assessments of Anne Arundel County, supra. Maryland Code, Art. 89, § 32(a) is a general duty provision which supplements other promulgated safety standards. Section 32(a) states:

(a) Each employer shall (1) furnish to each of his employees employment and a place of employment...