Oregon Occupational Safety & Health Division v. CBI Services, Inc.

Under ORS 654.086(2), “could not . . . know” is an inexact term given its ordinary meaning of what an employer is capable of knowing under the circumstances, and the interpretation of “reasonable diligence” is delegated to the agency to be determined considering the circumstances of each case and within the range discretion allowed by statute.

Respondent and employer CBI Services, Inc. (CBI) was cited for two serious safety violations by petitioner Oregon Occupational Safety & Health Division (OR-OSHA). The violations involved CBI’s failure to ensure two workers properly utilized fall protection while working for CBI on a construction site. CBI requested an administrative hearing; motions to dismiss were denied, but the ALJ vacated one citation item and concluded CBI (through an on-site supervisor) “should” have known of the other violation with the exercise of reasonable diligence based on the supervisor’s proximity to the employee in violation and the duration of the violation. CBI appealed the ALJ’s order affirming the second citation item and OR-OSHA cross-petitioned, challenging the ALJ’s decision to vacate the first citation item. The Court of Appeals reversed and remanded on both the petition and cross-petition. OR-OSHA petitioned for review, arguing that the Court of Appeals erred when it held that the agency must prove that CBI “should” have known of a violation based on a consideration of factors the agency considers relevant, rather than “could” have known, as ORS 654.086(2) provides. The Court found whether CBI “could not . . . know” of a violation is inexact and ordinarily refers to what CBI was capable of knowing under the circumstances, and that it would defer to OR-OSHA’s determination of “reasonable diligence” under the circumstances of each case as long as it falls within the range of discretion statutorily allowed because “reasonable diligence” is delegative. The Court held that the ALJ correctly construed “could not . . . know” but did not explain how he arrived at his determination of CBI’s “reasonable diligence” considering the delegative nature of this statutory standard. Affirmed on other grounds and remanded to the Workers’ Compensation Board for further proceedings.