Or. Occupational Safety & Health Div. v. CBI Servs., Inc.

• Decision Date: 09 January 2013
• Docket Number: 0900126SH; A147558.
• Citation: 295 P.3d 660,254 Or.App. 466
• Court: Oregon Court of Appeals
• Parties: OREGON OCCUPATIONAL SAFETY & HEALTH DIVISION, Respondent Cross–Petitioner, v. CBI SERVICES, INC., Petitioner, Cross–Respondent.

254 Or.App. 466

295 P.3d 660

OREGON OCCUPATIONAL SAFETY & HEALTH DIVISION, Respondent Cross–Petitioner,

v.CBI SERVICES, INC., Petitioner, Cross–Respondent.

0900126SH; A147558.

Court of Appeals of Oregon.

Argued and Submitted Jan. 11, 2012.

Decided Jan. 9, 2013.

Carl B. Carruth, South Carolina, argued the cause for petitioner-cross-respondent. With him on the briefs were McNair Law Firm, P.A., and Joel S. DeVore and Luvaas Cobb.

Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent-cross-petitioner. With her on the briefs were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before ORTEGA, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

SERCOMBE, J.

In connection with the construction of a water tower at the Creswell water treatment plant, the Oregon Occupational Safety and Health Division (OR–OSHA) issued a citation to CBI Services, Inc. (employer) pursuant to the Oregon Safe Employment Act (OSEA).¹ The citation alleged that employer had committed two “serious” safety violations involving deficient fall-protection measures.² In item one of the citation, employer was charged with a serious violation of OAR 437–003–0073³ because a worker had not attached the lanyard on his safety harness to the “boom supported elevating work platform[ ]” (lift) on which he was working. In item two, employer was charged with a serious violation of OAR 437–003–1501⁴ because a worker welding near the top of the then-incomplete water tank had stepped up and out of the safety-compliant scaffolding surrounding him without wearing a safety harness and lanyard, thereby putting himself at risk of falling 32 feet from the top of the tank's outer wall to the ground. Following a hearing, an administrative law judge (ALJ) vacated item one and affirmed item two.

Employer seeks judicial review of the ALJ's order affirming item two, arguing that the ALJ erred as a matter of law by erroneously interpreting and applying the knowledge element of OR–OSHA's prima facie case in finding that employer had constructive knowledge of the violation. OR–OSHA cross-petitions, arguing that the ALJ erred as a matter of law in vacating item one of the citation by misinterpreting OAR 437–003–0073 as incorporating a height requirement for fall protection on lifts. We review the ALJ's order ⁵ for legal error, ORS 183.482(8), and, for the reasons set forth below, reverse and remand for reconsideration on employer's petition regarding item two and reverse and remand for reconsideration on OR–OSHA's cross-petition regarding item one.

The relevant facts are largely undisputed. On February 2, 2009, OR–OSHA Safety Compliance Officer Brink noticed someone working on the top of a large water tower at the Creswell water treatment plant, drove closer, and stopped to investigate. Upon arrival, Brink saw that the worker, Crawford, was not utilizing fall-protection equipment despite the fact that he was welding approximately 32 feet above the ground and appeared to be “sitting on the top edge working.” Although safety-compliant scaffolding had been erected to protect workers from falls toward the inside of the water tank, Brink observed and photographed Crawford with his “feet up on the painter's railing while * * * hunched over welding on the top of the tank” such that he was exposed to a risk of falling toward the outside of the tank.⁶ Brink took several pictures and then approached the work crew's supervisor, Vorhof, who was occupied rigging anchor cables at ground level inside the entrance to the tank. Brink walked up to Vorhof inside the large, open entrance to the tank such that Crawford was approximately 65 feet away and visible from where they stood. After Brink alerted Vorhof to Crawford's potential violation, Vorhof “yelled at [Crawford] to get down on the staging.” Vorhof later testified that he had not seen Crawford climb onto the painter's rail and that, from his vantage point, he could not tell whether or not Crawford was up on the edge of the tank.⁷ Crawford was not wearing a safety harness and lanyard because he was initially working within a fully enclosed area protected by safety-compliant scaffolding. He stated that he only stepped up onto the painter's rail because, while welding, he “kept on getting hot sparks down [his] shirt” and therefore “needed to elevate [himself].” There is no evidence in the record, beyond the fact that Brink had time to “observe [ ] Crawford at the top of the tank while driving down the road and continued to observe him while approaching the work site[,]” establishing the duration of Crawford's violation.

While speaking with Vorhof, Brink saw a second worker, Bryan, situated in a mechanical lift while wearing a safety harness with a lanyard that was not secured to the lift. Although Bryan was working only five to six feet above the ground, he later testified that it was standard practice to attach the lanyard in such a situation but that he had been repositioning himself prior to Brink's arrival and had simply forgotten to reattach the lanyard. Brink's field notes, referenced by the ALJ's order, indicate that Bryan was in the lift without fall protection for approximately 10 minutes. As noted, prior to Brink's arrival, Vorhof was occupied rigging anchor cables just inside the ground-level entrance to the tank and, as with Crawford, was within approximately 65 feet of Bryan. When he walked into the tank to approach Vorhof, Brink pointed to Bryan and stated, “Hey, that man is not tied off.” Vorhof then asked Bryan whether he was tied off, at which point Bryan noticed his omission and quickly attached the lanyard.

At the time of the alleged violations, employer had extensive safety rules, precautions, and training mechanisms in place—including fall-protection training, mandatory worksite safety meetings, and worksite-specific safety and fall-protection plans. Employer's specific fall-protection rules required the use of either protective scaffolding or a lanyard attached to a full-body harness whenever a worker was exposed to a fall hazard of six feet or more. Employer's area safety manager, Hynek, testified that copies of the fall-protection rules were “available on the jobsite for the employees” and noted that supervisors conducted morning meetings regarding safety and then monitored employees more informally throughout the day. He explained that supervisors like Vorhof were required to complete weekly safety checklists and that worksites were visited by upper management on a regular basis to ensure compliance. Vorhof additionally testified, having spent 35 years working in construction, that the crew at the Creswell worksite—including Crawford and Bryan, each of whom Vorhof had known “for at least ten years”—was particularly safety-conscious and had an excellent safety record.

Ultimately, on February 18, 2009, Brink issued employer a citation and notification of penalty for serious violations of OAR 437–003–0073(2) (item one, directed at Bryan's failure to reattach his lanyard while working on the lift) and OAR 437–003–1501 (item two, directed at Crawford's lack of fall-protection equipment upon stepping up onto the painter's rail). Crawford, Bryan, and Vorhof—each of whom was a long-term employee with an excellent safety record—were disciplined by employer as a result of the citation.

Employer requested a hearing, which was held before the ALJ on June 10, 2010. At the beginning of the hearing, and again after the conclusion of OR–OSHA's case-in-chief, employer moved to dismiss the citation in its entirety on the ground that OR–OSHA had not carried its burden of proving employer's knowledge of the alleged violations. The ALJ denied the motions, stating:

“Employer argues that continuous observation of employees is neither required [n]or possible and that the conditions existed in such a short window of time such that Vorhof did use reasonable diligence in supervising his crew. However, * * * I find that there was sufficient time for Vorhof to observe either or both of the workers subject to the citations and that constructive knowledge was established by OR–OSHA.”

Following the hearing, the ALJ issued an opinion and order vacating item one of the citation and affirming item two. With respect to item two, the subject of employer's petition, the ALJ concluded that Vorhof had constructive knowledge of Crawford's violation imputable to employer. With respect to item one, the subject of OR–OSHA's cross-petition, the ALJ construed OAR 437–003–0073(2) as incorporating a predicate height requirement of at least six feet and vacated item one on the basis of his finding that OR–OSHA failed to prove that Bryan was exposed to a fall hazard of six feet or more.

On judicial review, employer reprises its contention that OR–OSHA failed to prove employer knowledge, arguing that the ALJ erred as a matter of law by incorrectly applying the standard for constructive knowledge in affirming item two. Specifically, employer argues that the ALJ improperly found that Vorhof had constructive knowledge imputable to employer solely on the basis of Vorhof's presence at the time of the violation and a generalized finding that “the violative condition existed for a ‘sufficient time for Vorhof to observe’ ” it.⁸ Relying on the language in ORS 654.086(2) providing that a serious violation may be assessed “unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation[,]” employer contends that “reasonable diligence does not require continuous supervision by the employer” and that the ALJ's finding implicitly required continuous supervision by Vorhof such that employer was subjected to a strict-liability approach to constructive knowledge contrary to both the purpose of the OSEA and established law construing the standard for “reasonable diligence.” ⁹ OR–OSHA responds that the reasonable diligence inquiry focuses on whether ...