Oregon Occupational Safety & Health Division v. Don Whitaker Logging, Inc.

862 P.2d 526, 124 Or. App. 246, 1994 CCH OSHD 30,353, 1993 Ore. App. LEXIS 1873

Opinions

ROSSMAN, P. J.

The Oregon Occupational Safety and Health Division (OR-OSHA) seeks review of an order of a Workers’ Compensation Board referee holding that a citation issued by OR-OSHA is invalid.

This is a case of first impression in which we are called upon to decide OR-OSHA’s obligations with respect to notifying an employer of an investigation. Employer contends that it is entitled to notification and a presentation of the investigator’s credentials before any investigation may begin. OR-OSHA contends that it may begin an off-premises investigation of an accident without first notifying the employer or presenting credentials.

The referee found that, on August 23, 1991, an OR-OSHA safety compliance officer (SCO) began an investigation of the circumstances of a logging accident that had occurred earlier that day on property being logged by employer. At the hospital, not on employer’s premises, the SCO contacted and interviewed one or more of the employees involved in the accident. The referee found, further, that employer was not contacted by the SCO “for the purpose of presenting credentials” until the next day.

A citation was issued to employer as a result of the investigation. The referee held that, because the SCO had failed to show his credentials to employer before beginning his investigation, the investigation was commenced in violation of ORS 654.067¹ and, hence, the investigation and resulting citation were invalid.

OR-OSHA contends that ORS 654.067 applies only-in the context of an on-site inspection and investigation and does not require a showing of credentials before an off-premises investigation. Employer contends that ORS 654.067(1) defines the scope and extent of OR-OSHA’s power to enter, inspect and investigate the place of employment, and to question an employer or its employees, and requires that the questioning of an employee be conducted only upon presentation of credentials to the owner, employer or agent in charge.

We are persuaded that ORS 654.067 addresses only that aspect of the inspection or investigation that is made on the employer’s premises. Subsection (1) discusses the director’s right to enter, inspect and investigate the premises and question employees. Contrary to employer’s suggestion, the reference in paragraph (l)(b) to questioning the “owner, employer, agents and employees, ’ ’ read in context, is intended to regulate questioning that takes place on the employer’s premises, and does not restrict the SCO’s authority to investigate off the premises.

Although there are administrative rules suggesting that a showing of credentials is a prerequisite to the inspection of a job site, OAR 437-01-055(2); OAR 437-01-075(4); OAR 437-01-080; there is no analogous rule or statute with respect to off-site investigations. Further, under ORS 654.062, the director has broad power to “make such inquiries, inspections and investigations as the director considers reasonable and appropriate.” We will not impose limitations on the director’s power to carry out its responsibilities under that statute beyond those imposed by the legislature. The evidence here supports only the finding that the SCO began his investigation on August 23 by interviewing employees off the job site, and that before inspecting the premises the next day he met with employer and presented his credentials. The Board erred in dismissing the citation.

Reversed and remanded.

1 ORS 654.067 provides, in part:

“(1) In order to carry out the purposes of [the Oregon Safe Employment Act], the director, upon presenting appropriate credentials to the owner, employer or agent in charge, is authorized:

“(a) to enter without delay and at reasonable times any place of employment; and

“(b) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein and to question privately the owner, employer, agents or employees.

“(2) No person shall give an owner, employer, agent or employee advance notice of any inspection to be conducted under [the Oregon Safe Employment Act] of any place of employment without authority from the director.

“(3) Except in the case of an emergency, or of a place of employment open to the public, if the director is denied access to any place of employment for the purpose of an inspection and investigation, such inspection or investigation shall not be conducted without an inspection warrant obtained pursuant to ORS 654.202 to 654.216, or without such other authority as a court may grant in an appropriate civil proceeding. Nothing contained herein, however, is intended to affect the validity of a constitutionally authorized inspection conducted without an inspection warrant.

“(4) A representative of the employer and a representative authorized by the employees of the employer shall be given an opportunity to accompany the director during inspection of any place of employment for the purpose of aiding such inspection.”