Oregon Occupational Safety & Health Division v. CBI Services, Inc.
341 P.3d 701
| Or. | 2014Background
- OR-OSHA cited CBI Services for two serious fall-protection violations at a water-treatment tank construction site.
- Crawford welded atop a 32-foot tank wall without fall protection; Bryan operated a lift without proper tying of his lanyard for about 10 minutes.
- Vorhof, a site supervisor, was within 65 feet and observed the workers but was not sure whether a violation occurred.
- An ALJ vacated one item and affirmed the other, ruling Vorhof could have known with reasonable diligence.
- The Court of Appeals reversed and remanded, holding OR-OSHA must prove employer knowledge or knowledge with the factors from federal cases.
- The Oregon Supreme Court ultimately addressed the statutory meaning of ORS 654.086(2) and the proper deference to agency determinations of reasonable diligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of could not know with reasonable diligence | CBI must show knowledge or could know (not should). | Should have known, considering factors and proximity. | Statute requires knowledge or could know (not should). |
| Role and definition of reasonable diligence | Reasonable diligence is a delegative term, within agency discretion. | Court should apply a fixed factor test consistent with federal cases. | Reasonable diligence is delegative; agency deference applies within statutory policy. |
| Reliance on federal case law for ORS 654.086(2) | Court of Appeals properly looked to federal OSHA for guidance. | Federal cases cannot control Oregon statute post-enactment. | Federal post-enactment cases do not control; interpret statute in light of its text and history. |
Key Cases Cited
- OR-OSHA v. CBI Services, Inc., 356 Or 577 (2014) (major OR Supreme Court decision interpreting ORS 654.086(2))
- Don Whitaker Logging, Inc., 329 Or 256 (1999) (supervisor knowledge imputed to employer; federal guidance limited)
- American Wrecking Corp v. Secretary of Labor, 351 F.3d 1254 (D.C. Cir. 2003) (interpretation of knowledge/should have known under OSHA)
- Public Utilities Maintenance, Inc. v. Secretary of Labor, 417 F. App’x 58 (2d Cir. 2011) (federal factors for reasonable diligence under federal OSHA)
- Kokosing Construction Co., 232 Fed. Appx. 510 (6th Cir. 2007) (reasonableness/diligence considerations under federal framework)
- Brennan v. Butler Lime And Cement Company, 520 F.2d 1011 (7th Cir. 1975) (early discussion of knowledge/violation construct)