Comm'r of Labor & Ind. v. Whiting-Turner

Commissioner of Labor and Industry v. The Whiting-Turner Contracting Company, No. 30, September Term 2018. Opinion by Hotten, J. LABOR AND EMPLOYMENT – RECOGNIZED HAZARDS – SUBSTANTIAL EVIDENCE – The Court of Appeals held that there was substantial evidence before the Commissioner of Labor and Employment to conclude that the Whiting-Turner Contracting Company’s failure to install gooser braces and use of an undersized spacer beam during construction constituted recognized hazards in violation of Maryland Code, Labor and Employment Article, § 5-104(a). Circuit Court for Baltimore County Case No. 03-C-16-005006 Argued: November 29, 2018 IN THE COURT OF APPEALS OF MARYLAND No. 30 September Term, 2018 __________________________________ COMMISSIONER OF LABOR AND INDUSTRY v. THE WHITING-TURNER CONTRACTING COMPANY __________________________________ Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty, Adkins, Sally D., (Senior Judge, Specially Assigned) JJ. __________________________________ Opinion by Hotten, J. Watts, J., joins in judgment only. Getty and Adkins, JJ., dissent. __________________________________ Filed: January 23, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-05-21 12:56-04:00 Suzanne C. Johnson, Clerk Petitioner, the Commissioner of Labor and Industry (the “Commissioner”), seeks review of a decision by the Court of Special Appeals, which reversed the Commissioner’s determination that Respondent, the Whiting-Turner Contracting Company (“Whiting- Turner”) violated Maryland Code, Labor and Employment Article, § 5-104(a), the General Duty Clause, by failing to “furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees[.]” On appeal, the Commissioner asks this Court to consider the following questions: 1.

Did Petitioner correctly determine that Respondent’s failure to follow the shoring-tower manufacturer’s instructions to use gooser braces in assembling a shoring tower supporting a concrete slab, which resulted in serious injury and death, constituted a recognized hazard within the meaning of § 5-104(a) of the Labor & Employment Article [(Lab. & Empl.)]? 2. Did Petitioner correctly determine that Respondent’s use of an undersized spacer beam in the upper support system of a shoring tower constituted a recognized hazard within the meaning of [Lab. & Empl.] § 5-104(a)? For the reasons articulated below, we answer both questions in the affirmative and shall reverse the judgment of the Court of Special Appeals. FACTUAL AND PROCEDURAL BACKGROUND The Incident and Investigation On May 23, 2013, Whiting-Turner was involved in a construction project to increase the size of the parking garage at the Westfield Montgomery Mall in Bethesda, Maryland.

Part of this construction involved removing and relocating portions of the parking deck, known as double-tees,1 in order to make room for a crane tower that would be used to construct new floors on top of the existing garage structure. Because Whiting-Turner intended on reusing the double-tees, a Whiting-Turner engineer developed a system whereby workers would raise the double-tees using a hydraulic jack.2 In order for the process to be conducted safely, the engineer required the placement of four shoring/safety towers,3 one under each corner of the double-tee. As the hydraulic jack lifted the double- 1 Each double-tee involved in this construction project weighed approximately 42,800 pounds and was made out of pre-stressed concrete. Pre-stressed concrete is concrete that contains steel cables or rods that are placed inside of the concrete once it is poured in order to reinforce it. 2 A hydraulic jack is a mechanism that uses force to lift the heavy load on top of it. 3 Shoring towers generally consist of metal frames stacked on top of one another, similar to scaffolding. 2 tee in small increments, the workers would adjust the shoring/safety towers using the screw jacks4 to follow the height that the double-tee had been raised to.

Once the double-tees were lifted to a certain height, rail assemblies were to be installed beneath it so that the double-tee could slide onto the adjacent parking deck. This created an opening in the parking deck for the crane tower while still preserving the double-tees for future use. Whiting-Turner assembled the shoring towers using materials from Safway Services, a commercial construction company whom Whiting-Turner had worked with previously. Safway provided Whiting-Turner with a manual for the assembly of the shoring towers.

Among their instructions, the assembly manual provided that “[t]he positioning of the gooser braces start when the extension frame is put at a [two foot] or 4 Screw jacks are small pieces of equipment placed atop each shoring tower that are used to raise or lower the double-tee on top of the towers by small increments, generally fractions of an inch at a time. 3 more extension. As the extension frames are extended, the diagonal gooser braces are connected to the various horizontals of the base frame and the extension frame.” Gooser braces are bars that connect the legs of scaffolding and are used to ensure the stability and structural integrity of the scaffolding/shoring tower.5 Despite the assembly manual’s instructions, the gooser braces provided by Safway were never installed or utilized in the construction of the shoring towers. On May 21, 2013, the construction crew successfully raised and relocated one of the double-tees using the process detailed above. On May 23, 2013, the construction crew began to remove a second double-tee, using the same process.

Partially through the removal process on May 23, the workers took a break for lunch. After the workers had returned from lunch and continued raising the double-tee, one of the employees observed that a steel support beam under a steel spacer beam6 had bent and twisted at the southeast corner of the shoring tower. The site foreman determined that the beam needed to be replaced before proceeding. To replace the support beam, the employees were instructed to jack up the southeast corner of the double-tee in order for the beam to be detached from the shoring tower and replaced.

Before the support beam could be replaced, the double- tee and shoring towers collapsed, resulting in the death of one employee and the pinning and severe injury of another. 5 Footnote 3 depicts a scaffolding/shoring tower with a properly installed gooser brace, labeled as a “horizontal diagonal gooser.” 6 The spacer beams were used to shim the shoring tower as it was raised. 4 The Maryland Occupational Safety and Health Unit (“MOSH”), with assistance from Dr. J. Scott Jin, a civil engineer in the Federal Occupational Safety and Health Administration (“OSHA”) initiated an investigation into the accident. Whiting-Turner also employed the services of KCE Structural Engineers, P.C. (“KCE”) to determine the cause of the accident and design an “emergency make-safe operation” plan to stabilize the garage. Reports from both Dr. Jin and KCE concluded that Whiting-Turner should have installed gooser braces in the shoring towers and that their failure to do so contributed to the accident.

Dr. Jin also concluded that Whiting-Turner’s use of an eight-inch high spacer beam between the double-tee stem and the upper beam weakened the stability of the system and rendered the shoring tower unable to support the actual load of the double-tee. MOSH ultimately issued two citations to Whiting-Turner. First, Whiting-Turner was charged with violating 29 C.F.R. § 1926.305 (d)(1)(i),7 due to their failure to secure the double-tee after it was raised by the hydraulic jack. Second, Whiting-Turner was charged with violating Maryland Code, Lab. & Empl.

Article, § 5-104(a), also known as the General Duty Clause,8 due to their failure to “furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious 7 29 C.F.R. § 1926.305 (d)(1)(i) states that “[a]fter a load has been raised, it shall be cribbed, blocked, or otherwise secured at once.” 8 The General Duty Clause provides: (a) Each employer shall provide each employee of the employer with employment and a place of employment that are: (1) safe and healthful; and (2) free from each recognized hazard that is causing or likely to cause death or serious physical harm to the employee. 5 physical harm to employees[.]” MOSH based this second violation on three factors: 1) Whiting-Turner’s failure to install gooser braces on the shoring towers; 2) Whiting- Turner’s use of an undersized spacer beam, an eight-inch high spacer beam, between the double-tee stem and the upper beam; and 3) the single jacking of the southeast shoring tower. MOSH assessed Whiting-Turner a total fine of $11,125: $5,325 for violating 29 C.F.R. § 1926.305 (d)(1)(i) and $5,800 for violating the General Duty Clause. Whiting- Turner filed a notice of intent to contest the citation and subsequent penalties on December 6, 2013 and the case was referred to the Office of Administrative Hearings on August 7, 2014. Procedural History An Administrative Law Judge (ALJ) held a three-day hearing in December 2014.

The ALJ heard testimony from Dr. Jin, David Latham, a compliance specialist with MOSH, Patrick Bruns, an ironworker employed by Whiting-Turner, and two other employees, both project managers for Whiting-Turner. The ALJ also considered numerous exhibits, including reports from KCE and OSHA, Dr. Jin’s written investigation report, and a number of photograph exhibits of the construction site prior to and after the collapse of the towers. The ALJ issued a proposed decision on March 23, 2015. With regard to violating 29 C.F.R. § 1926.305 (d)(1)(i), the ALJ concluded that Whiting-Turner failed “to crib, 6 block, or otherwise secure a load at once after the load was raised[,]” and recommended that the penalty of $5,325 be affirmed.

With respect to violating the General Duty Clause, the ALJ noted the following: • Whiting-Turner claimed that gooser braces were not needed on the shoring tower. • The extension frames were raised to the level that called for the gooser braces to be used, two feet or higher, and that a failure to use them “created a hazardous condition[.]” • Whiting-Turner “was on notice from the Safway material that gooser braces should have been used[]” and failure to use them was therefore a recognized hazard. • Whiting-Turner’s use of an undersized spacer beam contributed to the collapse of the double-tee and Whiting-Turner had actual knowledge of the hazard that this posed. • The single jacking of the southeast corner was a recognized hazard that contributed to the collapse of the double-tee. • Whiting-Turner could have jacked all of the corners of the double-tee to ensure uniform distribution of weight. Accordingly, the ALJ recommended that the proposed penalty of $5,800 against Whiting- Turner be affirmed. Whiting-Turner filed for a review of the ALJ’s proposed findings and decision before the Commissioner of Labor and Industry. The Commissioner held a hearing regarding the ALJ’s proposed decision on November 18, 2015.

On April 14, 2016, the Commissioner issued a Final Decision and Order, affirming the violation and citation under the General Duty Clause, but vacating the violation and citation under 29 C.F.R. § 1926.305 (d)(1)(i). The Commissioner concluded that while MOSH failed to prove that the third factor, jacking only the southeast corner of the double-tee, constituted a recognized 7 hazard, the first two factors, the failure to install gooser braces and the use of an undersized spacer beam, were recognized hazards and therefore constituted a violation of the General Duty Clause. The Commissioner noted that the failure to use gooser braces when the extension frame is extended two feet or higher causes the tower to become “more flexible and less stable[.]” This hazard is “one recognized by the construction industry, specifically the manufacturer . . . [and Whiting-Turner’s] employees were familiar with Safway’s system and knew that Safway had provided gooser braces . . . .” Because the assembly manual clearly provided installation instructions for the gooser braces, Whiting-Turner “knew or should have known that failure to use the gooser braces was a hazard that was likely to cause death or serious injury to an employee.” With regard to the spacer beam, the Commissioner observed that the spacer beam used was not “sufficiently sized to support the actual load” and that this “weakened the rigidity of the upper support system on top of the shoring towers thereby creating a hazardous condition.” Whiting-Turner had previously used “sound engineering practices” in the removal of the double-tees, yet failed to offer any explanation as to why it neglected to employ similarly sound principles in the use of a properly sized spacer beam. Therefore, the use of the eight-inch high spacer beam, which the Commissioner concluded to be undersized, was a recognized hazard.

Whiting-Turner petitioned for judicial review and the Circuit Court for Baltimore County affirmed the Commissioner’s decision, concluding that it was legally correct and 8 supported by substantial evidence in the record. On appeal, the Court of Special Appeals reversed the Commissioner’s decision on the ground that the decision lacked substantial evidence to support the conclusion that the hazards were “recognized.” Whiting-Turner Contracting Company v. Commissioner of Labor and Industry, 237 Md. App. 24 , 183 A.3d 799 (2018). With regard to the gooser braces, the court noted that the assembly manual gave “merely an explanation of how to set up the shoring system[]” and that there was no “suggestion that the gooser frames were a safety requirement or that the failure to use the gooser braces could cause injury.” Id. at 57 , 183 A.3d at 818-19 . Regarding the spacer beams, the court concluded that the testimony from Dr. Jin, concerning sound engineering principles necessitating the use of a different beam, was not enough to establish that Whiting-Turner had actual knowledge of the hazard.

Id. at 59 , 183 A.3d at 820 . STANDARD OF REVIEW “We review an administrative agency’s decision under the same statutory standards as the [c]ircuit [c]ourt. Therefore, we reevaluate the decision of the agency, not the decision of the lower court.” Gigeous v. E. Corr. Inst., 363 Md. 481, 495-96 , 769 A.2d 912, 921 (2001) (footnote omitted).

We, however, “may always determine whether the administrative agency made an error of law. Therefore, ordinarily, the court reviewing a final decision of an administrative agency shall determine (1) the legality of the decision and (2) whether there was substantial evidence from the record as a whole to support the decision.” Baltimore Lutheran High Sch., v. Employment Sec. Admin., 302 Md. 649, 662 , 490 A.2d 701, 708 (1985). Substantial evidence is defined as “such relevant evidence as a 9 reasonable mind might accept as adequate to support a conclusion[.]” Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512 , 390 A.2d 1119, 1123 (1978). Additionally, purely legal questions are reviewed de novo with considerable “weight [afforded] to an agency’s experience in interpretation of a statute that it administers[.]” Schwartz v. Md. Dep’t of Nat.

Res., 385 Md. 534, 554 , 870 A.2d 168, 180 (2005). DISCUSSION The General Duty Clause of the Maryland Occupational Safety and Health Act (“MOSHA”), set forth in § 5-104(a) of the Labor and Employment Article, provides: “Each employer shall provide each employee of the employer with employment and a place of employment that are: (1) safe and healthful; and (2) free from each recognized hazard that is causing or likely to cause death or serious physical harm to the employee.” Because MOSHA is modeled after the Federal Occupational Safety and Health Act, Maryland courts frequently turn to Federal decisions for guidance in interpreting MOSHA. Md. Comm’r of Labor & Indus. v. Cole Roofing Co., 368 Md. 459, 470 , 796 A.2d 63, 69 (2002); Bethlehem Steel Corp. v. Comm ’r of Labor & Industry, 339 Md. 323, 328 , 662 A.2d 256, 258 (1995). In order to establish a violation of the General Duty Clause, MOSH must prove: 1) some condition or activity in the workplace presented a hazard; 2) the hazard was “recognized”; 3) the hazard was likely to cause death or serious physical harm; and 4) 10 “feasible means to eliminate or materially reduce the hazard existed.”9 Sea World of Florida, LLC v. Perez, 748 F.3d 1202, 1207 (D.C. Cir. 2014) (quoting Fabi Constr.

Co. v. Sec’y of Labor, 508 F.3d 1077 , 1081 (D.C. Cir. 2007)). A failure to prove at least one of the above elements results in a lack of substantial evidence to support a violation of MOSHA. “Establishing that a hazard was recognized requires proof that the employer had actual knowledge that the condition was hazardous or proof that the condition is generally known to be hazardous in the industry.” Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 321 (5th Cir. 1984). In Comm’r of Labor & Indus. v. Bethlehem Steel Corp., this Court considered whether the presence of a deteriorating toaster oven for use in an employee lunch room, which resulted in the electrocution of an employee, constituted a recognized hazard in violation of 29 C.F.R. § 1910.303 (b)(1). 344 Md. 17, 20-21 , 684 A.2d 845, 846-47 (1996). In concluding that such action was a recognized hazard, we explained that “either actual or constructive [knowledge] is the gravamen of employer responsibility under the Act[.]” Id. at 25 , 684 A.2d at 849 .

This interpretation instructs this Court to conclude that a hazard is “recognized” under Lab. & Empl. § 5-104(a) when the employer has actual or constructive knowledge of the hazard. 9 This appeal does not concern the last two elements of a General Duty Clause violation – that the hazard was likely to cause death or serious physical harm and that feasible means to eliminate or materially reduce the hazard existed, as those issues were not raised on appeal. Accordingly, our opinion only discusses whether Whiting-Turner’s failure to use gooser braces and use of an undersized spacer beam presented hazards, and whether those hazards were “recognized.” 11 Because this case focuses on the presence of substantial evidence to support the Commissioner’s findings, we conclude that there was substantial evidence to prove that Whiting-Turner’s failure to use gooser braces and use of an undersized spacer beam both constitute recognized hazards in violation of the General Duty Clause. Whiting-Turner’s Failure to Use Gooser Braces Constituted a Recognized Hazard The materials for the shoring towers from Safway included a manual with instructions for how to properly assemble the towers. Included in the assembly instructions was the following information: The diagonal gooser braces, which attach to the horizontal member of the frames, have spring actuated slides. *** The extension frames are individually braced.

The positioning of the diagonal gooser braces start when the extension frame is put at a 2’ or more extension . . . . As the extension frames are extended, the diagonal gooser braces are connected to various horizontals of the base frame and