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

RODOWSKY, Judge. This administrative appeal arises under the Maryland Occupational Safety and Health Act (MOSHA), Md.Code (1957, 1979 Repl.Vol.), Art. 89, §§ 28-49B. Under consideration is an order of the Commissioner of Labor and Industry (Commissioner) which determined that the respondent, Bethlehem Steel Corporation (Bethlehem), had violated MOSHA with respect to the hazard of heat stress at the Sparrows Point mill. Because the Commissioner’s decision does not inform us (or Bethlehem) of the act or omission which he found to have constituted the violation, we shall remand.

On July 23, 1978 two steelworkers suffered heat stroke while working in separate furnace areas at Sparrows Point. Heat stroke is the most severe form of heat illness. It is usually characterized by a body temperature in excess of 105 °F, by an absence of sweating and by central nervous system or brain dysfunction resulting in coma, stupor, confusion or delirium. Heat stress, as defined by one medical witness, is “an abnormal stress placed upon the human body in the form of heat, either heat from the environment or increased production of heat within the body[, which] may lead to heat illness.” ⁶⁶⁸ One of the stricken workers, Dunlap Johnson (Johnson), died within three days.

The other employee, Pleasant Sharpe (Sharpe), after having made excellent progress toward recovery and while still in the hospital, suffered cardiopulmonary arrest with paralysis resulting. He died sometime after the close of the administrative record. Investigation by the Commissioner’s occupational safety and health staff (MOSH) led to Bethlehem’s being cited for a serious and willful MOSHA violation. 1 The citation relied on § 32(a)(1) which provides that each employer shall 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 This provision is known as the general duty clause. It is to be distinguished from the statutory requirement that an employer comply with applicable standards promulgated under MOSHA.

See § 32(a)(2); cf. § 32(b). No standards for occupational exposures to hot environments have ever been promulgated by the Commissioner. Nor have any such standards been promulgated pursuant to the substantially similar federal act, 29 U.S.C. § 651 et seq. (OSHA). 2 ⁶⁶⁹ MOSHA § 36(a) in part requires that a citation “shall describe with particularity the nature of the violation .... ” Additionally, “the citation shall fix a reasonable time for the abatement and correction of the violation.” Id.

The October 11, 1978 citation in this case, after referring to the two July 23 cases of heat stroke and to other cases of heat stress that had occurred at the mill on July 16, 22 and 23, stated [t]hat 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 or other means to eliminate this hazardous condition in disregard for its statutory obligation to furnish its employees with a safe and healthful workplace. Bethlehem was given three days within which to correct the alleged violation. Following an extensive hearing, the Commissioner’s examiner vacated the citation on November 7, 1979. He concluded that MOSH had failed to prove that heat was recognized in the steel industry as a hazard likely to cause serious injury or death and that, in any event, MOSH had not met the burden of showing that the steps taken by Bethlehem “were not reasonable and feasible steps in regard to a heat hazard without the guidance of a heat standard.” Petitioner, United Steelworkers of America, AFL-CIO, Local 2610 (Steelworkers), filed exceptions to the hearing examiner’s determination, although Steelworkers had not participated in the hearing. 3 By order of May 21, 1980 the Commissioner reversed the examiner’s determination, and, after modifying from “willful” to “serious” the degree of violation cited, imposed a $1,000 penalty on Bethlehem.

The Commissioner found the relevant hazard to be heat stress. We shall return to the Commissioner’s decision for more specific analysis below. ⁶⁷⁰ Bethlehem’s administrative appeal to the Circuit Court for Baltimore County resulted in reversal on December 7, 1981 of the Commissioner’s order. The circuit court focused on the citation’s charge that Bethlehem had “made no reasonable efforts by precautions or other means to eliminate this hazardous condition” and concluded that the charge was not supported by substantial evidence. Steelworkers then appealed to the Court of Special Appeals, which affirmed.

United Steelworkers, Local 2610 v. Bethlehem Steel Corp., 53 Md.App. 366 , 454 A.2d 850 (1983). Because the Commissioner never specified that which Bethlehem had failed to do, but which he believed the general duty clause required Bethlehem to have done, the intermediate appellate court adopted the following approach in its substantial evidence analysis. It set forth what it found to be “[ijmplicit in the Commissioner’s determination,” and it described various “suggestions” which it gleaned from the testimony of the chief witness for the agency. Id. at 375 , 454 A.2d at 854r-55.

The court concluded: The evidence shows that [Bethlehem] furnished cool-off rooms, water fountains, salt tablets and issued forceful and regular reminders of the hazards of heat exposure. In light of the evidence that these precautions were well within the limits of those adopted by other companies in the industry, we conclude that the standards proposed under the general duty clause, amounted to an afterthought. In the absence of the adoption of any regulation or rule, we find that the exaction of these standards under the circumstances would be arbitrary and unreasonable. [Id at 377-78, 454 A.2d at 856 .] Steelworkers petitioned for certiorari, raising six questions which are readily reducible to two: (1) Is the scope of the general duty clause limited to industry custom and practice; and (2) Was there substantial evidence to support the Commissioner’s determination? ⁶⁷¹ (1) Steelworkers read the opinion of the Court of Special Appeals in this case as having adopted a rule of law under which the type of protective measure which the Commissioner can order in implementing the general duty clause is limited to a precaution recognized by custom and practice in the industry. We do not necessarily concur in Steelworkers’ interpretation of the opinion.

Bethlehem does not even argue that such an interpretation is or should be Maryland law. However, some basis for Steelworkers’ reading may be inferred from that court’s favorable citation to, and quotation of, S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir.1981) and B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (5th Cir.1978). The rule in the Fifth Circuit is that at least in the absence of a clear articulation by the [agency] of the circumstances in which industry practice is not controlling, due process requires a showing that the employer either failed to provide personal protective equipment customarily required in its industry or had actual knowledge that personal protective equipment was required under the circumstances of the case. [S & H Riggers, supra, 659 F.2d at 1275 (footnote omitted).] We do not believe that industry custom and practice is a per se limitation under MOSHA’s general duty clause on the types of precautions required of an employer. In order to meet the kind of due process concerns that underlie the Fifth Circuit position, the standard of a reasonable person who is familiar with the practices of the subject industry is utilized by an apparent majority of the federal appellate circuits in reviewing agency action taken under certain OSHA standards which are phrased in general terms, as is the general duty clause.

These courts ask whether the precaution specified by OSHA is one which such a reasonable person would take. See L.R. Willson & Sons, Inc. v. OSHRC; 698 F.2d 507 , 513 (D.C.Cir.1983); Tri-State Roofing & Sheet Metal, Inc. v. OSHRC, 685 F.2d 878, 880 (4th Cir.1982) (per curiam); Pratt & Whitney Aircraft v. Secre ⁶⁷² tary of Labor, 649 F.2d 96 ,106 (2d Cir.1981); Voegele Co. v. OSHRC, 625 F.2d 1075 , 1077-79 (3d Cir.1980); Bristol Steel & Iron Works v. OSHRC, 601 F.2d 717 , 722-23 (4th Cir. 1979); National Industrial Contractors, Inc. v. OSHRC, 583 F.2d 1048 , 1054 (8th Cir.1978); American Airlines, Inc. v. Secretary of Labor, 578 F.2d 38, 41 (2d Cir.1978); Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27 , 30 (7th Cir.1976); Brennan v. Smoke-Craft, Inc., 530 F.2d 843, 845 (9th Cir.1976); Cape & Vineyard Div. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir.1975). And, as to the general duty clause of OSHA, see Donovan v. Royal Logging Co., 645 F.2d 822, 831 (9th Cir.1981) (“[A] reasonably prudent employer in the industry would have known that the proposed method of abatement was required under the job conditions where the citation was issued.”); General Dynamics Corp. v. OSHRC, 599 F.2d 453 , 464 (1st Cir.1979). But the test of a reasonable person familiar with the practices of the industry cannot be limited to the custom and practice itself. “[T]he inquiry must be broad enough to prevent an industry, which fails to take sufficient precautionary measures against hazardous conditions, from subverting the underlying purposes of [OSHA].” Bristol Steel & Iron Works, supra, 601 F.2d at 723.

And see Voegele Co., supra, 625 F.2d at 1078; Cape & Vineyard Div., supra, 512 F.2d at 1152 . As the instant case comes to us, Bethlehem does not dispute the finding that heat stress is a recognized hazard in the furnace areas of the Sparrows Point mill. The real issue is whether there are additional, feasible precautions, which the general duty clause obligates Bethlehem to take. In this respect L.R. Willson & Sons, Inc., supra, 698 F.2d at 514, furnishes a good statement of the interrelationship between agency proof of a violation and industry custom and practice.

This ... record simply does not provide sufficient evidentiary support for the Commission’s conclusion that the Secretary had met his burden of proving a violation of section 1926.28(a) by Willson. We are particularly troubled by the total lack of evidence as to the normal practice ⁶⁷³ with respect to the use of safety belts in the structural steel erection industry. Although we do not hold that such industry evidence would in all cases establish what was “reasonable” in the specific circumstances or that such evidence must be introduced in every case in order to find a violation of section 1926.28(a), we suggest that evidence of industry use or non-use of safety devices is highly probative of the feasibility and safety of such devices. In the absence of such evidence, the Secretary must provide alternative, probative evidence of the feasibility and safety of protective devices in order to meet his burden of proof that a reasonably prudent employer would have so provided for the protection of his employees. [Footnote omitted.] (2) In this case, however, we are unable to decide whether the burden of proof has been met because of the way in which the Commissioner rendered his final decision.

The heart of the Commissioner’s opinion reads: I further find that the Employer failed to render its workplace free of hazards. The Employer contended that protective measures had been instituted that would prevent the likelihood of harm to its employees. Another Employer contention was that a program had been initiated to eliminate the hazard of exposure to heat stress. I do not agree that the Employer’s program has reduced the likelihood of death or serious physical harm as indicated by the death of one employee and serious physical harm to another.

I find that the program of the Employer relative to heat stress failed to provide adequate precautionary measures to protect the employees from the hazard of heat stress. I further find deficiency in the application of the program as developed. The testimony of the Employer’s witnesses discloses no studies of heat stress areas since 1974-1975 by the Employer; no heat measurements since 1975; and, that, although a booklet prepared by Bethlehem Steel Corporation covering heat stress and a program ⁶⁷⁴ to control the same was published by it in 1972, the Employer made no effective use of its contents. This is a. reference to Bethlehem’s Supervisory Safety Manual Ch. 5, Control of Environmental Hazards, which in part recommends taking certain measurements “to determine the effective temperature which, in turn, can be relat-. ed to permissible exposure times for different work rates.” From these determinations, “the best control methods are developed.” Of the heat control methods recommended in the manual, the record reflects that most, if not all, were implemented in some way in the subject furnace areas at Sparrows Point.

The Commissioner’s decision then finds: There was ample evidence offered by MOSH concerning achievable measures that were readily available to the Employer which would have and should have been utilized by a reasonably prudent employer to eliminate or substantially reduce the hazard of heat stress. I find the Employer to have been in violation of its general duty obligation to assure its employees a safe and healthful workplace as far as possible as a result of the failure to take demonstrably feasible measures which could have materially reduced the likelihood of hazardous conditions, and thereby protecting its employees from hazards. When the Commissioner’s findings of ultimate facts are compared to the record, it is apparent that he did not resolve conflicts of underlying fact. Further, in this case MOSH, with varying degrees of specificity, advanced multiple theories of violation, but we have no way of telling from the Commissioner’s opinion which, if any, of these theories he adopted.

Indeed, we do not even know whether our reading of the record has distilled a MOSH theory in the same way as the Commissioner might