Oregon Occupational Safety & Health Division v. B & G Excavating

976 P.2d 574, 159 Or. App. 28, 1999 CCH OSHD 31,775, 1999 Ore. App. LEXIS 299

Opinion

PER CURIAM

The Oregon Occupational Safety and Health Division (OSHD) seeks remand of a decision by an administrative law judge (ALJ) in which she ruled, as a matter of law, that a supervisor’s knowledge of a serious violation of a state occupational safety rule could not be imputed to the supervisor’s employer for the purpose of the imposition of a penalty under ORS 654.086. The ALJ relied on our opinions in OR-OSHA v. Tom O’Brien Construction Co., Inc., 148 Or App 453, 941 P2d 550, rev allowed 326 Or 151 (1997), and OR-OSHA v. Don Whitaker Logging, Inc., 148 Or App 464, 941 P2d 1025, rev allowed 326 Or 151 (1997), for that proposition. Contrary to the ALJ’s understanding, we held in those cases that, when a supervisor commits a violation, OAR 437-001-0760(3)(c) does not require that the supervisor’s knowledge of that violation be imputed to the employer. Our holdings do not preclude the imputation of a supervisor’s knowledge of a violation to an employer under every circumstance.

Reversed and remanded for reconsideration.