OREGON OCCUPATIONAL SAFETY & HEALTH v. Don Whitaker Logging, Inc.

• Decision Date: 05 August 1999
• Citation: OREGON OCCUPATIONAL SAFETY & HEALTH v. Don Whitaker Logging, Inc., 985 P.2d 1272, 329 Or. 256 (Or. 1999)
• Parties: OREGON OCCUPATIONAL SAFETY & HEALTH DIVISION, Petitioner on Review, v. DON WHITAKER LOGGING, INC., Respondent on Review.
• Court: Oregon Supreme Court

985 P.2d 1272

329 Or. 256

OREGON OCCUPATIONAL SAFETY & HEALTH DIVISION, Petitioner on Review, v.DON WHITAKER LOGGING, INC., Respondent on Review.

(SH-91058; CA A90413; SC S44586)

Supreme Court of Oregon.

Argued and Submitted September 14, 1998.

Decided August 5, 1999.

Jas. J. Adams, Assistant Attorney General, Salem, argued the cause for petitioner on review.Erika L. Hadlock, Assistant Attorney General, filed the briefs for petitioner on review.With her on the petition for review were Hardy Myers, Attorney General, Virginia L. Linder, Solicitor General.With her on the brief on the merits were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Jas. J. Adams, Assistant Attorney General.

Elliott C. Cummins, of Cummins, Goodman, Fish & Platt, P.C., McMinnville, argued the cause and filed the briefs for respondent on review.

Before, CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, and DURHAM, Justices.¹

VAN HOOMISSEN, J.

Petitioner, Oregon Occupational Safety and Health Division(OR-OSHA), seeks judicial review of a Court of Appeals' decision affirming an order of an administrative law judge (ALJ) that dismissed a citation charging respondent, Don Whitaker Logging Company(employer), with violations of several safety rules under the Oregon Safe Employment Act (OSEA).²OR-OSHA v. Don Whitaker Logging, Inc.,148 Or.App. 464, 941 P.2d 1025(1997).The issue is whether, under the OSEA and its implementing regulations, proof that a supervisor, acting in the discharge of the supervisor's authorized employment duties, personally committed a safety violation and knew or reasonably could have known about the presence of the violation establishes employer "knowledge" of that violation.We hold that it does.Accordingly, we reverse the decision of the Court of Appeals.

The essential facts are not disputed.This case arose from a logging accident that occurred when the supervisor of a rigging crew signaled that it was safe to move logs while the supervisor and two other employees were standing in the logs' path.One log struck all three employees, each of whom suffered serious injuries.

OR-OSHA's Safety Compliance Officer, Hoffman, conducted an investigation after the accident.Thereafter, Hoffman issued a citation to employer charging serious violations of several safety standards.At issue on review are five of those alleged violations.Items1-2A, 1-2C, 1-3, and 1-4 stem from the accident itself and respectively, allege violations of formerOAR 437-80-330(7), formerOAR 437-80-330(10), formerOAR 437-80-160(3), and formerOAR 437-80-330(9).³Item 1-6 alleged that no monthly safety meeting had been conducted for two months before the accident, in violation of former OAR 437-80-015(3).

Employer appealed the citation and requested a hearing before an ALJ.At the close of OR-OSHA's case-in-chief, employer moved to dismiss items 1-2A, 1-2C, 1-3, and 1-4 on the ground that OR-OSHA had failed to show that employer had either actual or constructive knowledge of the alleged violations.The ALJ agreed and dismissed the violations.The ALJ reasoned that because the supervisor "had no real knowledge that he was about to do [an]`unknowing and unthinking act,'" no knowledge could be imputed to the employer.The ALJ also dismissed item 1-6, on the ground that employer's evidence conclusively established that employer had held the required safety meetings.OR-OSHA petitioned for judicial review.⁴

In the Court of Appeals, OR-OSHAcited formerOAR 437-01-760(3)(c),⁵ which provided:

"Any supervisors or persons in charge of work are held to be the agents of the employer in the discharge of their authorized duties, and are at all times responsible for:

"(A) The execution in a safe manner of the work under their supervision; and

"(B) The safe conduct of their crew while under their supervision;

"(C) The safety of all workers under their supervision."

OR-OSHA argued that OAR 437-01-760(3)(c) requires that a supervisor's knowledge of a violation will be imputed to the employer in most circumstances and that, with regard to the dismissal of items 1-2A, 1-2C, 1-3, and 1-4 here, the ALJ had erred in failing to impute the supervisor's knowledge of the violations to employer.

The Court of Appeals disagreed, holding that a supervisor who violates the employer's policy by breaking a safety rule is not acting as the employer's agent:

"OR-OSHA argues that, because [OAR 437-01-760(3)(c) ] provides that supervisors are the agents of the employer `at all times,' a supervisor's knowledge of a violation, whether actual or constructive, must be imputed to the employer.However, OAR 437-01-760(3)(c), upon which OR-OSHA relies, also provides that supervisors are agents of employers `in the discharge of their authorized duties.'That being so, a supervisor is not the employer's agent when that supervisor commits a violation, contrary to the employer's policy.That is because, under those circumstances, committing the violation does not fall within the discharge of the supervisor's authorized duties.* * * We do not construe OAR 437-01-760(3)(c) to require that a supervisor's knowledge of his own violation be imputed to an employer in all circumstances."

Don Whitaker,148 Or.App. at 468, 941 P.2d 1025(emphasis in original).The court held:

"We hold only that, when a supervisor commits a violation, OAR 437-01-760(3)(c) does not require that the supervisor's knowledge of that violation be imputed to the employer."

Id. at 469, 941 P.2d 1025(emphasis in original).⁶We allowed OR-OSHA's petition for review.On review, OR-OSHA contends that the Court of Appeals erred in interpreting OAR 437-01-760(3)(c), arguing that the court's interpretation is contrary to the protective purposes of the OSEA and the rule's text, and that it misapplies principles of agency law.OR-OSHA concedes that it must prove that employer knew or, with the exercise of reasonable diligence, could have known of the presence of the violation.Focusing on its evidence that employer's supervisor personally had committed the violation while he was supervising his crew, and relying on OAR 437-01-760(3)(c), OR-OSHA argues that the supervisor's status as a supervisor is sufficient to establish employer "knowledge" of the violations.

OR-OSHA further argues that the Court of Appeals misinterpreted the phrase "in the discharge of their authorized duties."Don Whitaker,148 Or.App. at 468-69, 941 P.2d 1025.OR-OSHA posits that a safety violation is an act and that when employer's supervisor committed the act of violating the safety rules, he was carrying out an authorized duty, i.e., signaling his crew to move the logs.Thus, OR-OSHA asserts, the proper inquiry is not whether the safety violation is authorized but, rather, whether the violation occurred while the supervisor was carrying out his authorized duties within the scope of his employment.OR-OSHA reasons that, although committing a safety violation may not be an authorized act, it does not follow logically from the commission of a violation that the supervisor's duties of directing his crew were not authorized.Additionally, OR-OSHA argues that the Court of Appeals incorrectly relied on non-binding federal case law interpreting the federal Occupational Safety and Health Act (OSHA) because 29 USC § 651 et seq. includes no regulation analogous to OAR 437-01-760(3)(c).

Employer responds that this court should adopt the "reasonable foreseeability" test used in some federal courts to measure employer "knowledge" under the federal OSHA.⁷Applying that test, employer argues that it reasonably could not have foreseen its supervisor's alleged violations and, therefore, it did not have actual or constructive "knowledge" of the alleged violations.Employer also argues that OR-OSHA's interpretation of the rule is counterproductive, in that it does not tend to promote workplace safety.

This case requires the court to interpret OAR 437-01-760(3)(c).In determining the meaning of an administrative rule, this court's role is the same as its role in determining the meaning of a statute, viz., to determine the meaning of the words used, giving effect to the intent of the enacting body, here, the Director.Abu-Adas v. Employment Dept.,325 Or. 480, 485, 940 P.2d 1219(1997);see alsoPGE v. Bureau of Labor and Industries,317 Or. 606, 610-11, 859 P.2d 1143(1993)(court's task in determining legislative intent first is to examine text of statute, including context in which statute is found and, if intent is clear, to proceed no further with analysis).⁸

The legislature delegated broad rule making authority to the Director of the Department of Business and Consumer Services(Director) to enforce the OSEA.ORS 654.003; 654.025; 654.035.Under that grant of authority, the Director promulgated OAR 437-01-760(3)(c), which sets out the circumstances under which the state will hold employers responsible for the acts of their supervisors.We conclude, however, that the text of OAR 437-01-760(3)(c) itself does not provide a definitive answer to the question presented in this case.At the same time, we are not persuaded by the Court of Appeals' analysis in interpreting the phrase "in the discharge of their authorized duties."The Court of Appeals summarily concluded that a supervisor's safety violation could not be imputed to the employer "because, under those circumstances, committing the violation does not fall within the discharge of the supervisor's authorized duties."Don Whitaker,148 Or. App. at 468,941 P.2d 1025.The court then supported its conclusion with citations to non-binding cases interpreting the federal OSHA, without responding to OR-OSHA's argument that, because the federal Act contains no rule analogous to OAR 437-01-760(3)(c), those cases are inapposite here.

More troubling, perhaps, is the fact that, under the court's interpretation of the rule, it is difficult for us to imagine when a supervisor's...