OREGON OCCUPATIONAL SAFETY & HEALTH v. TOM O'BRIEN CONSTRUCTION CO., INC.
| Decision Date | 16 September 1999 |
| Court | Oregon Supreme Court |
| Parties | OREGON OCCUPATIONAL SAFETY & HEALTH DIVISION, Petitioner on Review, v. TOM O'BRIEN CONSTRUCTION CO., INC., Respondent on Review. |
Jas. J. Adams, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor 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
Petitioner, Oregon Occupational Safety and Health Division (OR-OSHA), challenges a Court of Appeals decision reversing and remanding an order of an administrative law judge (ALJ) dismissing a citation charging respondent, Tom O'Brien Construction Company (employer), with violating a safety standard. OR-OSHA v. Tom O'Brien Construction Co. Inc., 148 Or.App. 453, 941 P.2d 550 (1997). The ALJ concluded that OR-OSHA had failed to establish that employer knew, or with reasonable diligence could have known, of the violation. Id. at 458, 941 P.2d 550.
On judicial review, the Court of Appeals reversed the ALJ's dismissal, concluding that the ALJ had erred in sustaining employer's objection to certain evidence offered by OR-OSHA concerning employer's response to a previous citation that had been issued to employer for an alleged violation of the safety standard. The court agreed with OR-OSHA that the evidence was relevant to whether employer had reason to know of the present violation and that OR-OSHA substantially was prejudiced by the erroneous ruling. Because the court concluded that the evidentiary issue was dispositive, it did not rule on OR-OSHA's second assignment of error, which involved the propriety of what is known in cases decided under the federal Occupational Safety and Health Act, 29 USC §§ 651-678 (OSHA), as the "rogue supervisor" defense.2
OR-OSHA petitioned this court for review, seeking a determination whether the rogue supervisor defense properly applies to proceedings under Oregon's counterpart to OSHA, the Oregon Safe Employment Act, ORS 654.001 to 654.295, 654.750 to 654.780, and 654.991. We decline to address the argument that OR-OSHA advances on review.3 The court's decision in the companion case to this one, OR-OSHA v. Don Whitaker Logging, Inc., 329 Or. 256, 985 P.2d 1272 (1999), addresses an argument...
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