Maryland Commissioner of Labor & Industry v. Bethlehem Steel Corp.

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. ²⁵¹ 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 coworker. 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. ²⁵² 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. § 19Í0.303(b)(l). 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 evi ²⁵³ dence 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 RepLVol.) § 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 irrele ²⁵⁴ vant.

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, [njeither 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 Re ²⁵⁵ view Commission (OSHRC). OSHRC has consistently upheld sanctions against employers for hazards created by employee-owned devices. For example, the Commissioner directs us to Chicago and North Western Transportation Company, 5 O.S.H. Cas. (BNA) 1121 (R.C.1977), in which the OSHRC said: Respondent contends, however, that because the fan was privately owned by an employee who used it for his own comfort, responsibility for the presence of the unguarded fan cannot be placed upon the respondent.

We reject this argument. An employer is responsible for ensuring the safety of equipment it owns and provides to employees. An employer is equally responsible for ensuring the safety of equipment over which it has control, but no ownership, that is used by its employees. Id. at 1122-1123 .

Moreover, in Porter Plastics, Inc., 8 O.S.H. Cas. (BNA) 1933 (R.C.1980), the OSHRC recognized that their “precedent holds that an employer is responsible for ensuring the safety of equipment over which it has control but not necessarily ownership.” Id. We think it is clear that ownership is not, nor should it be, the determinative factor in cases involving appliances brought into the workplace by employees. To conclude otherwise would be in direct conflict with the intent of the general duty clause contained in Md.Code (1974, 1991 Repl.

Vol.) Title 5, Subtitle 1, § 5-104(a) of the Labor and Employment Article, which requires that “[e]ach employer shall provide each employee of the employer with employment and a place of employment that are: (1) safe and healthful.... ” We think that this makes it clear that the employer is generally responsible for the workplace, and not just for those items that are provided the employees by the employer. The place of employment is under the direct control of the employer. Moreover, as we have recognized, [a]n employer must take reasonable precautionary steps to protect its employees from reasonably foreseeable recognized dangers that are causing or are likely to cause death or serious physical injury. ²⁵⁶ Mardo Homes, Inc. v. Commissioner, 35 Md.App. 260, 267 , 370 A.2d 144 (1977). Therefore, we conclude that employers may be held responsible for hazardous appliances brought into the workplace, even though the employer neither owns nor brought them there.

Nevertheless, we must still determine under what circumstances a hazardous appliance may be deemed to be under the employer’s control, though not owned or provided by the employer. It is readily apparent in both North Western and Porter Plastics, Inc., that the hazardous equipment was not owned or provided by the employer, but it was in the workplace and any of the employees could come into contact with it. For example, in North Western, the employer was cited for violating 29 C.F.R. § 1910.212 (a)(5), which in pertinent part provides: When the periphery of the blades of a fan is less than seven (7) feet above the floor or working level, the blades shall be guarded. The guard shall have openings no larger than one-half Qí¿) inch.

An investigation revealed that a portable electric fan owned personally by an employee had unguarded blades and was positioned less than seven feet above the floor, where an employee could come into contact with its blades. In Porter Plastics, the employer was cited for violating 29 C.F.R. 1910.215, which in pertinent part provides: Abrasive wheels shall be used only on machines provided with safety guards as defined in the following paragraphs of this section. An employee had brought a portable grinder personally owned by him to his place of employment. Though the employee had placed a “Do Not Use” tag on the grinder, it was used by other employees without affixing a guarding device to it.

We recognize that it is common for employees to bring to the workplace a great variety of personal items for their use or for the adornment of the workstation, some of which may be mechanical or electrical. It would be an undue burden to make the employer responsible for all of those ²⁵⁷ personal items. But we do not agree with Bethlehem Steel’s assertion that the employer is responsible for none of them. Some of those items that are readily available to and used by other employees become part of the workplace environment and can affect the safety of that environment. - We think a practical standard would be that the employer would not be responsible under the Maryland OSHA for personal items brought to the workplace by an employee for the exclusive personal use by that employee if the employer has no actual or constructive knowledge that the item is being used by or is available for or used by other employees.

Falling within that exception would be such things as desk lamps, desk clocks, radios, and other common workplace accessories that other employees would ordinarily recognize as being for the personal use and under the owner’s personal control and not for the common use or operation by other employees. In the present case, although Bethlehem Steel did not own the toaster oven, it is responsible for the safety of the workplace and the appliances and tools used by the employees. Through its supervisory personnel, Bethlehem Steel was, or should have been, aware that the toaster oven was an electrical appliance, that it was in an area of the workplace, and that it was thus available for use and was likely used by a number of employees. We therefore conclude that the MOSHA regulations are here applicable.

In addition, Subpart S of 29 C.F.R. addresses “electrical safety requirements that are necessary for the practical safeguarding of employees in their workplaces.” 29 C.F.R. § 1910.301 . Section 1910.302(b)(1) makes it clear that “[t]he requirements contained in the sections listed below shall apply to all electrical installations and utilization equipment, regardless of when they were designed or installed.” Unlike the penalty provision discussed below, the regulation discussed here is entitled to be