Oregon Occupational Safety & Health Division v. CBI Services, Inc. , 356 Or. 577 ( 2014 )

No. 73 December 26, 2014 577
IN THE SUPREME COURT OF THE
STATE OF OREGON
OREGON OCCUPATIONAL SAFETY
& HEALTH DIVISION,
Petitioner on Review,
v.
CBI SERVICES, INC.,
Respondent on Review.
(WCB 0900126SH; CA A147558; SC S061183)
En Banc
On review from the Court of Appeals.*
Argued and submitted November 4, 2013.
Rebecca M. Auten, Assistant Attorney General, argued
the cause and filed the brief for petitioner on review. With
her on the brief were Ellen F. Rosenblum, Attorney General,
and Anna M. Joyce, Solicitor General.
Carl B. Carruth, McNair Law Firm, Columbia, South
Carolina, argued the cause for respondent on review. Joel S.
DeVore, Luvaas Cobb, Eugene, filed the brief for respondent
on review.
LANDAU, J.
The decision of the Court of Appeals is affirmed on other
grounds. The case is remanded to the Workers’ Compensation
Board for further proceedings.
______________
*  Judicial review from Workers’ Compensation Board. 254 Or App 466, 295
P3d 660 (2013).
578 OR-OSHA v. CBI Services, Inc.
The Oregon Occupational Safety and Health Division (OR-OSHA) cited
employer with two serious safety violations, after an OR-OSHA safety inspector
saw two employees working without required fall protection. An administrative
law judge (ALJ) vacated one of the charges but affirmed the other, concluding
that employer could have known of the violation had it been reasonably diligent.
The Court of Appeals found that the ALJ erred in vacating the first charged
item, but reversed the ALJ’s ruling on the second, on the ground that OR-OSHA
had failed to meet its burden to prove that employer knew, or, with the exercise
of reasonable diligence, should have known, of the employees’ violations. Held:
ORS 654.086(2), which provides that employer is not liable for a serious violation
if (1) it exercised “reasonable diligence” but (2) still “could not * * * know” of the
violation, refers to what an employer was capable of knowing under the circum-
stances (and not what the employer “should” know), but, respecting reasonable
diligence, the court will defer to OR-OSHA’s determination under the circum-
stances of each case as long as the agency’s determination is within the limits of
its discretion under the policy of the statute. In this case, the Court of Appeals
erroneously faulted the ALJ for failing to consider what employer “should” have
known in the circumstances, rather than what the employer “could” have known,
as the statute requires, but the Supreme Court is unable to review the ALJ’s
conclusion that employer could have known of the violations if it had exercised
reasonable diligence, because the ALJ’s order lacks any explanation supporting a
determination as to employer’s reasonable diligence.
The decision of the Court of Appeals is affirmed, on other grounds. The case
is remanded to the Workers’ Compensation Board for further proceedings.
Cite as 356 Or 577 (2014) 579
LANDAU, J.
ORS 654.086(2) provides that an employer is not lia-
ble for a “serious” violation of the Oregon Safe Employment
Act (OSEA) if “the employer did not, and could not with the
exercise of reasonable diligence, know of the presence of the
violation.” At issue in this case is what the statute means
when it says that an employer “could not with the exercise
of reasonable diligence know” of a violation. The Court of
Appeals held that the statutory phrase refers not to whether
an employer “could” know—in the sense of being capable
of knowing—of the violation; rather, the phrase refers to
whether, taking into account a number of specified factors,
an employer “should” know of the violation. OR-OSHA v. CBI
Services, Inc., 254 Or App 466, 295 P3d 660 (2013). For the
reasons that follow, we conclude that the Court of Appeals
erred in its construction of ORS 654.086(2), but we affirm
on other grounds.
I. BACKGROUND
The relevant facts are not in dispute. Employer CBI
Services, Inc., a contractor, performed work on a water treat-
ment tank that was under construction. At that time, the
tank consisted of a 32-foot-high wall that created a circular
enclosure about 130 feet in diameter. It did not yet have a
roof. Around the inside of the tank, there was a carpenter’s
scaffold, about four feet below the tank’s top edge. The scaf-
fold would prevent falls to the inside of the tank. There was,
however, no such scaffolding on the outside of the tank.
An Oregon Occupational Safety and Health Division
(OR-OSHA) safety compliance officer, Brink, conducted a
safety inspection of the construction site. As he approached
the water tank, he saw a worker sitting on its top rim. The
worker, later identified as Crawford, was welding and did
not appear to be using fall protection. Brink took several
pictures. He then approached the site supervisor, Vorhof,
who was working at ground level, inside the entrance to the
tank, rigging anchor cables. Brink and Vorhof were about
65 feet from Crawford, who was visible from where they
stood. Brink told Vorhof what he had seen. Vorhof looked
up at Crawford, who was still sitting on the rim of the tank.
580 OR-OSHA v. CBI Services, Inc.
Crawford was not wearing a safety harness and lanyard.
Vorhof told Crawford to get down.
While Brink was talking to Vorhof, he noticed a
second worker, Bryan, also working without required fall
protection. Bryan was operating a lift, several feet from
the ground. He was wearing a harness with a lanyard, but
he had not attached the lanyard to the lift. Bryan also was
about 65 feet from where Vorhof was working. Brink pointed
to Bryan and said to Vorhof, “Hey, that man is not tied off.”
Vorhof then asked Bryan whether he was tied off, at which
point Bryan noticed that he had not secured the lanyard to
the lift and quickly did so. Bryan had been on the lift with-
out fall protection for about 10 minutes.
Brink later issued employer a citation and notifica-
tion of penalty for two “items,” that is, two serious safety
violations. Item one cited employer for failing to ensure that
Bryan used required personal fall protection while work-
ing on the lift, while item two cited employer for failing to
ensure that Crawford used fall protection when working
while exposed to a 32-foot fall hazard. Employer disciplined
Crawford, Bryan, and Vorhof as a result of the citation.
At the time, employer had in place safety rules,
precautions, and training mechanisms—including fall-pro-
tection training and mandatory worksite safety meetings.
Employer’s fall-protection rules required, among other
things, the use of either protective scaffolding or a lanyard
attached to a body harness whenever a worker was exposed
to a fall hazard of six feet or more.
Employer requested a hearing before an adminis-
trative law judge (ALJ) with the Hearings Division of the
Workers’ Compensation Board. At the beginning of the hear-
ing, employer moved to dismiss the citation on the ground
that OR-OSHA had failed to carry its burden of proving, as
part of its prima facie case, that employer knew of the alleged
violations. Employer did not dispute that, under applicable
rules, a supervisor’s knowledge is imputed to an employer. It
argued instead that OR-OSHA had failed to establish that
its supervisor, Vorhof, had not been reasonably diligent in
monitoring employees and enforcing safety rules. According
to employer, OR-OSHA had mistakenly assumed that
Cite as 356 Or 577 (2014) 581
Vorhof was under the obligation to keep constant watch over
his workers. OR-OSHA responded that Vorhof was within
65 feet of the violations and had reasonable time to observe
them.
The ALJ denied the motions to dismiss, explaining:
“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 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 citation.”
At the hearing itself, employer contested Brink’s
observation that Crawford was sitting atop the water tank.
It also argued that, in any event, it was excused from lia-
bility because any violations were a result of “unprevent-
able employee misconduct.” OR-OSHA responded that
Brink’s testimony and the photographs that he took sup-
ported his report that Crawford was sitting on the tank. As
for employer’s affirmative defense, OR-OSHA argued that
employer failed to meet its burden of establishing that it
took reasonable steps to discover the violation.
The ALJ vacated item one of the citation and
affirmed item two. Beginning with item one, pertaining to
Bryan’s use of the lift without adequate fall protection, the
ALJ concluded that applicable rules did not require the use
of fall protection at heights of less than six feet and that
OR-OSHA had failed to prove how high the lift was at the
time of the alleged violation. As for item two, pertaining to
Crawford’s failure to use fall protection when working atop
the 32-foot tank wall, the ALJ found that, as Brink had tes-
tified, Crawford in fact was sitting on top of the water tank
at the time of the violation. The ALJ further concluded that
Vorhof could have known of the violation with the exercise
of reasonable diligence, based on his proximity to Crawford
and the duration of the violation. The ALJ further concluded
that employer had failed to establish the affirmative defense
of unpreventable employee misconduct, an element of which
is that employer took reasonable steps to discover the viola-
tion. Apparently referring to his prior ruling on the motion
to dismiss, the ALJ explained that he had “previously
582 OR-OSHA v. CBI Services, Inc.
determined [the] element of employer knowledge, the deter-
mination that [employer] did not exercise reasonable dili-
gence to detect the violation and established constructive
knowledge of the violation.”
Employer sought judicial review in the Court of
Appeals of the part of the ALJ’s order affirming citation item
two. Employer argued that the ALJ had used an incorrect
legal standard to determine whether OR-OSHA had met its
prima facie burden to prove employer knowledge and that
the ALJ misinterpreted and misapplied the elements of the
unpreventable employee misconduct affirmative defense.
OR-OSHA cross-petitioned for judicial review, challenging
the part of the ALJ’s order vacating citation item one.
The Court of Appeals agreed with both parties and
reversed and remanded on both the petition and the cross-
petition for review.
On the petition, the Court of Appeals began its
analysis by stating that, under ORS 654.086(2), OR-OSHA
bore the burden of proving that employer knew or, with
the exercise of reasonable diligence, could have known of
Crawford’s violation. CBI Services, Inc., 254 Or App at 473-
74. The court noted the dearth of Oregon appellate court
case law addressing the question of what ORS 654.086(2)
requires, but observed that this court “has intimated that,
in deciding cases under the OSEA, we may look to fed-
eral case law for guidance.” Id. at 474. Cited as authority
for that observation was this court’s opinion in OR-OSHA
v. Don Whitaker Logging, Inc., 329 Or 256, 263, 985 P2d
1272 (1999), which the Court of Appeals read to stand for
the proposition that federal law may serve as such guidance
whenever state law has a counterpart in federal statute. 254
Or at 474. With that principle in hand, the court concluded
that, because the operative wording of ORS 654.086(2) finds
an identical counterpart in the federal Occupational Safety
and Health Act (OSHA), 29 USC § 666(k),1 it was appropri-
1
29 USC § 666(k) provides,
“For purposes of this section, a serious violation exists in a place of employ-
ment if there is a substantial probability that death or serious physical harm
could result from a condition which exists, or from one or more practices,
means, methods, operations, or processes which have been adopted or are in
Cite as 356 Or 577 (2014) 583
ate to turn to federal case law to determine what OR-OSHA
was required to prove to make out a prima facie case of
Vorhof’s knowledge of Crawford’s violation. Id. at 474-75.
The court noted that the body of federal case law that
has developed in connection with the federal OSHA has iden-
tified a number of factors for assessing whether an employer
knew or, with the exercise of reasonable diligence, could know
of a violation. Id. at 477. Those factors include the foreseeabil-
ity of the violations, the general circumstances and level of
danger inherent in the work, the potential need for continuous
supervision, the nature and extent of the supervisor’s other
duties, the supervised workers’ training and experience, and
the extent and efficacy of the employer’s safety programs and
precautions. Id. at 477-78, 481. The Court of Appeals reported
that “most federal courts have determined—applying the
same statutory language defining a serious violation set forth
in ORS 654.086(2)—that the relevant inquiry in proving a
serious violation is whether ‘an employer knew or should
have known of a hazardous condition.’ ” Id. at 478-79 (quoting
American Wrecking Corp v. Secretary of Labor, 351 F3d 1254,
1264 (DC Cir 2003) (emphasis added by Court of Appeals).
In other words, the OSEA essentially requires OR-OSHA to
establish that an employer was “negligent” in failing to know
of the violation. Id.
The court concluded that, “to the extent that federal
case law dictates” such an approach to the issue of employer
knowledge, “the ALJ’s inquiry in this case was critically
shortsighted.” Id. at 479. In particular, the ALJ failed to
consider that Crawford’s violation “was entirely unforesee-
able.” Id. Moreover, the court added, “the ALJ failed to take
into account employer’s extensive safety protocols, including
worksite-specific fall-protection planning,” as well as “the
evidence indicating that Vorhof had no reason to believe
that Crawford was exposed to a potential fall hazard at all.”
Id. at 480.
Turning to the cross-petition, concerning the dis-
missal of item one based on OR-OSHA’s failure to establish
use, in such place of employment unless the employer did not, and could not
with the exercise of reasonable diligence, know of the presence of the violation.”
(Emphasis added.)
584 OR-OSHA v. CBI Services, Inc.
that Bryan was working at a height covered by the fall-
protection rules, the Court of Appeals concluded that the
ALJ had erred. Id. at 485. In the court’s view, the ALJ erro-
neously interpreted the applicable rules to include a height
requirement. Id.
II. ANALYSIS
OR-OSHA petitioned for review in this court,
arguing that the Court of Appeals erred when it held that,
under ORS 654.086(2), the agency must prove that an
employer knew or should have known, after considering a
list of required factors, of a violation, rather than that the
employer knew or could have known of the violation, based
on whatever factors the agency considers relevant—in this
case, time and proximity. Employer, for its part, asserts that
OR-OSHA seeks an “unprecedented strict liability rule”
that a prima facie case of employer knowledge may be made
merely by establishing that a supervisor was on the job site
during the occurrence of a serious violation that the supervi-
sor could have seen if he had looked in the right direction at
the right time. Employer argues that, under Oregon law and
federal OSHA cases interpreting ORS 654.086(2)’s identi-
cal federal counterpart, the ALJ must consider the several
factors that the Court of Appeals identified, besides mere
proximity and time, in determining whether an employer
knew or should have known of a serious violation. Employer
does not challenge the portion of the Court of Appeals’ deci-
sion reversing on the cross-petition. The sole issue before us,
then, is whether the Court of Appeals correctly interpreted
ORS 654.086(2) to require OR-OSHA to establish that
employer knew or should have known of the violation, tak-
ing into account various factors identified in federal court
case law.
A.  Controlling principles
The parties’ arguments about that issue present an
issue of statutory construction, which we resolve by applying
familiar principles set out in PGE v. Bureau of Labor and
Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), and
State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). We
attempt to discern the meaning of the statute most likely
intended by the legislature that enacted it, examining the
Cite as 356 Or 577 (2014) 585
text in context, any relevant legislative history, and perti-
nent rules of interpretation. Id.
Determining the intended meaning of a statute
ultimately is a question of law. Bergerson v. Salem-Keizer
School District, 341 Or 401, 411, 144 P3d 918 (2006). But,
depending on the nature of the statutory term at issue, an
administrative agency’s construction of a statute neverthe-
less may be entitled to a measure of deference. See generally
Springfield Education Assn v. School Dist., 290 Or 217,223,
621 P2d 547 (1980). Whether the agency’s construction is
entitled to such deference depends on whether the disputed
term is exact, inexact, or delegative. Id.
Exact terms “impart relatively precise meanings,”
and “[t]heir applicability in any particular case depends
upon agency factfinding.” Id. at 223-24. Appellate courts
review an agency’s application of exact terms for substan-
tial evidence. Coast Security Mortgage Corp. v. Real Estate
Agency, 331 Or 348, 354, 15 P3d 29 (2000). Inexact terms
“express a complete legislative meaning but with less pre-
cision.” Bergerson, 341 Or at 411. In such cases, the courts
examine the meaning of the statute without deference to the
agency’s construction. Blachana, LLC v. Bureau of Labor
and Industries, 354 Or 676, 687, 318 P3d 735 (2014) (agen-
cy’s interpretation of nondelegative term “is not entitled to
deference on review”); Schleiss v. SAIF, 354 Or 637, 642, 317
P3d 244 (2013) (“[T]he Director’s construction of the [inex-
act] statutory term in his rule is not entitled to deference
on review.”). Delegative terms “express incomplete legisla-
tive meaning that the agency is authorized to complete.”
Coast Security Mortgage Corp., 331 Or at 354. Examples
include such terms as “good cause,” “fair,” “undue,” “unrea-
sonable,” and “public convenience and necessity.” Springfield
Education Assn, 290 Or at 228. Appellate courts review an
agency’s interpretation of delegative terms to ensure that
the interpretation is “within the range of discretion allowed
by the more general policy of the statute.” Id. at 229.
We begin our analysis of the statute with a brief
bit of background to provide context. The Oregon legisla-
ture enacted the Oregon Safe Employment Act in 1973. Or
Laws 1973, ch 833; see generally Keith Skelton, Workmen’s
586 OR-OSHA v. CBI Services, Inc.
Compensation in Oregon: Ten Years After, 12 Willamette LJ
1, 6-7 (1975) (summarizing legislative history of OSEA). The
Act was patterned after the federal OSHA, which the United
States Congress enacted in 1970. Pub L 91-596 (1970). The
purpose of the OSEA is “to assure as far as possible safe
and healthful working conditions for every working man
and woman in Oregon.” ORS 654.003. To effectuate that
purpose, the Act imposes on every employer the burden of
“furnish[ing] employment and a place of employment which
are safe and healthful for employees therein.” ORS 654.010.
At the same time, the Act requires that “[n]o employer shall
construct or cause to be constructed or maintained any place
of employment that is unsafe or detrimental to health.” ORS
654.015.
The OSEA vests the director of the Department of
Consumer and Business Services (DCBS) with the responsi-
bility for enforcing the terms of the OSEA. ORS 654.025(1).
It authorizes the director and the Workers’ Compensation
Board (which operates within the DCBS) to promulgate
workplace safety rules to carry out the purposes of the Act.
ORS 654.025(2); ORS 654.035. It also authorizes the direc-
tor to cite an employer for violations of those rules and to
impose civil penalties. ORS 654.031; ORS 654.086(1). The
amount of the fine that the director may impose depends
on whether the violation qualifies as “serious,” whether the
violation was willful or repeated, and whether the employer
made any false statements in connection with the enforce-
ment of the rules. ORS 654.086(1).
A “serious” violation occurs
“if there is a substantial probability that death or serious
physical harm could result from a condition which exists,
or from one or more practices, means, methods, operations,
or processes which have been adopted or are in use, in such
place of employment unless the employer did not, and could
not with the exercise of reasonable diligence, know of the
presence of the violation.”
ORS 654.086(2). The issue in this case is whether employer
committed a “serious” violation within the meaning of that
statute. There is no contention that Crawford’s and Bryan’s
failures to use proper fall protection were not conditions or
Cite as 356 Or 577 (2014) 587
practices with a substantial probability of resulting serious
physical harm. Rather, as noted, the issue in contention is
whether employer “did not, and could not within the exercise
of reasonable diligence, know” of those violations.
An employer’s supervisor’s knowledge of an employ-
ee’s violation is imputed to the employer itself. OR-OSHA
v. Don Whitaker Logging, Inc., 329 Or 256, 263, 985 P2d
1272 (1999); see also former OAR 437-001-0760(3)(c) (2009)
(supervisors are agents of their employers in the discharge
of their authorized duties); OAR 437-001-0015 (defining “[a]
gent of the employer” as “[a]ny supervisor or person in charge
or control of the work or place of employment including, but
not limited to, any manager, superintendent, foreperson, or
lead worker”). In this case, all parties agree that, if Vorhof
had sufficient knowledge of the violation, employer also had
the requisite knowledge.
OR-OSHA has the burden of proving a “denied vio-
lation” by a preponderance of the evidence. OAR 438-085-
0820(1), (3).2 As we have noted, the Court of Appeals stated
in this case that OR-OSHA must prove employer knowledge
as one of the elements of a denied violation. CBI Services,
Inc., 254 Or App at 474. OR-OSHA does not contest that
statement regarding its burden; and employer affirmatively
agrees with it. For the purposes of this opinion, we accept
that as a given, as we have in at least one other case. Don
Whitaker Logging, Inc., 329 Or at 260. In doing so, however,
we do not mean to suggest that we agree with the Court of
Appeals and the parties in that regard. We express no opin-
ion one way or the other on the matter.3
2
OAR 438-085-0820 provides:
“(1)  OR-OSHA has the burden of proving:
“(a)  A denied violation;
“* * * * *
“(3) The party having the burden of proving a fact must establish it by a
preponderance of the evidence.”
3
The statute does not say that OR-OSHA has to establish employer knowl-
edge; rather, it says that an employer is liable for certain dangerous conditions
“unless the employer did not, and could not with the exercise reasonable dili-
gence, know of the presence of the violation.” ORS 654.086(2) (emphasis added).
It could be argued that the phrasing that follows the word “unless”—ordinarily
a word of limitation—sets out an affirmative defense. The parties, however, have
not briefed that issue, and we do not address it in this opinion.
588 OR-OSHA v. CBI Services, Inc.
B.  Application: The meaning of ORS 654.086(2)
We turn then to the meaning of the phrase, “unless
the employer did not, and could not with the exercise of rea-
sonable diligence, know of the presence of the violation.” In
particular, we focus on the meaning of the disputed part of
that phrase—“could not with the exercise of reasonable dil-
igence, know” of the violation. In construing that phrase, we
pay careful attention to its wording. State v. Vasquez Rubio,
323 Or 275, 280, 917 P2d 494 (1996) (“To interpret a statute
properly, this court must focus on the exact wording of the
statute.”). We do so because only that wording received the
consideration and approval of a majority of the members of
the Legislative Assembly. As this court explained in State v.
Gaines, that formal adoption process produces “the best source
from which to discern the legislature’s intent, for it is not the
intent of individual legislators that governs, but the intent of
the legislature as formally enacted into law.” 346 Or at 171.
The wording of the disputed phrase in ORS
654.086(2), on its face, states that an employer is not liable
for a serious violation if the employer had exercised “rea-
sonable diligence” and still “could not * * * know” of the vio-
lation. Thus, there are two components of that phrase that
require parsing—one referring to an employer’s exercise of
“reasonable diligence” and the other referring to what an
employer exercising such reasonable diligence “could not
* * * know.”
As earlier noted, in determining the meaning of
each of those components, we must ascertain whether it is
exact, inexact, or delegative in nature, so that we may apply
the appropriate standard of review. Whether legislation is
exact, inexact, or delegative is itself a question of statutory
construction, requiring us to examine the text of the stat-
ute in its context. J. R. Simplot Co. v. Dept. of Agriculture,
340 Or 188, 197-98, 131 P3d 162 (2006). In engaging in that
analysis, however, it is important to remember that a sin-
gle statutory phrase may contain terms of more than one
type. See generally Salem Firefighters Local 314 v. PERB,
300 Or 663, 668, 717 P2d 128 (1986) (rejecting argument
that treated an entire statute as delegative without distin-
guishing its distinct components).
Cite as 356 Or 577 (2014) 589
We begin with the phrase “could not * * * know,” as
it is used in ORS 654.086(2), starting with a determination
whether the phrase is exact, inexact, or delegative. In this
case, we readily conclude that the phrase is inexact. It is
not so precise as to require only factfinding. Nor is it an
open-ended phrase that necessitates further administrative
agency policy making. Accordingly, our task is to determine
the intended meaning of the phrase, applying the ordinary
tools of statutory construction.
As used in this context, the word “could” is the past
tense of the word “can” and, as used in its auxiliary func-
tion, expresses the “past conditional.” Webster’s Third New
International Dictionary 517 (unabridged ed 2002). The
word “can,” in turn, is defined as “to be able to do, make,
or accomplish.” Id. at 323. See also The American Heritage
Dictionary of the English Language 416 (5th ed 2011) (defin-
ing “could” as “the past tense of can * * * used to indicate
ability or permission in the past”). In ordinary usage, it con-
notes capability, as opposed to obligation. The same is true
in legal usage. See Bryan A. Garner, A Dictionary of Modern
Legal Usage 98 (1987) (“Generally can expresses physical
ability .”) (emphasis in original).
In the absence of evidence to the contrary, we
assume that the legislature intended words of common usage
to be given their ordinary meanings. Ogle v. Nooth, 355 Or
570, 578, 330 P3d 572 (2014). Nothing in the context of ORS
654.086(2) indicates that the legislature intended that the
disputed phrase have a meaning different from what the
ordinary meaning of its terms suggests. Nor are we aware of
anything in the legislative history of the statute to the con-
trary. We therefore conclude that ORS 654.086(2) requires
evidence about whether an employer knew of a violation or,
with the exercise of reasonable diligence, could know—in
the sense of being capable of knowing—of the violation.
We turn, then, to the phrase “reasonable diligence.”
It is not an exact term; it lacks a meaning so precise as
to require only factfinding. The more difficult question is
whether it is inexact or delegative. This court’s prior cases
have described delegative terms as those that “express incom-
plete legislative meaning that the agency is authorized to
590 OR-OSHA v. CBI Services, Inc.
complete,” Coast Security Mortgage Corp., 331 Or at 354. In
evaluating whether a given statutory term expresses such
incomplete legislative meaning, the court has taken several
considerations into account.
First, the court often has compared a disputed term
to those the court already has concluded are delegative in
nature. See, e.g., Bergerson, 341 Or at 413 (concluding that
“unreasonable” is a delegative term because, among other
things, it “is among the examples of delegative terms this
court has noted previously”); V. L. Y. v. Board of Parole, 338
Or 44, 53, 106 P3d 145 (2005) (concluding that a disputed
term was “not like the terms that we have identified as dele-
gative in the past”). Second, the court has asked whether the
disputed term is defined by statute or instead is readily sus-
ceptible to multiple interpretations. See, e.g., Bergerson, 341
Or at 412-13 (concluding that “unreasonable” and “clearly
* * * excessive remedy” are delegative because the relevant
statute “defines neither term, and both are open to multi-
ple interpretations” (citing Coast Security Mortgage Corp.,
331 Or at 354)). Third, the court has inquired whether the
term in contention requires the agency to engage in pol-
icy determination or make value judgments, as opposed to
interpreting the meaning of the statute. See, e.g., McPherson
v. Employment Division, 285 Or 541, 549-50, 591 P2d 1381
(1979) (concluding that “good cause” is a delegative term
because it “calls for completing a value judgment that the
legislature itself has only indicated”). Fourth and finally,
the court has looked to the larger context of the statute in
dispute, to determine whether other provisions suggest that
the legislature did or did not intend a term to be regarded
as delegative. See, e.g., J. R. Simplot Co., 340 Or at 197 (con-
cluding that “reasonably necessary” is not delegative given
additional, qualifying statutory wording).
With those considerations in mind, we turn to the
phrase “reasonable diligence” as it is used in ORS 654.086(2).
On its face, the term is very similar to the sort of terms
that the court has regarded as delegative in prior cases. In
fact, the term “unreasonable” was one that the court listed
as an example of delegative terms in Springfield Education
Assn. 290 Or at 228. The term is not defined elsewhere in
the OSEA, and, as the parties’ arguments demonstrate, it is
Cite as 356 Or 577 (2014) 591
readily susceptible to multiple interpretations. “Reasonable
diligence” does not just call for OR-OSHA to engage in inter-
pretation; rather, it calls for the agency to engage in value
judgment about what is “reasonable” and what is “diligence”
under the circumstances of each case. Finally, there is noth-
ing in the larger of context of the statute that suggests that
the legislature intended the term to be regarded as some-
thing other than delegative in nature.
To recap, then: ORS 654.086(2) provides that an
employer is liable for a serious violation of the OSEA and its
implementing rules unless the employer “did not, and could
not with the exercise of reasonable diligence, know of the
presence of the violation.” That means that an employer is
not liable for a serious violation if the employer had exercised
“reasonable diligence” and still “could not * * * know” of the
violation. In reviewing an agency’s decision about whether
an employer is excused from liability under ORS 654.086(2),
there are two components, each of which triggers a different
standard of review. First, as a matter of law, the reference
in the statute to whether an employer “could not * * * know”
of a violation refers to what an employer was capable of
knowing under the circumstances. Second, we will defer to
OR-OSHA’s determination about what constitutes “reason-
able diligence” under the circumstances of each case as long
as the agency’s determination “remains within the range
of discretion allowed by the general policy of the statute.”
Springfield Education Assn., 290 Or at 229.
As we have noted, the Court of Appeals concluded
that federal case law construing the federal-law counterpart
of ORS 654.086(2) years after enactment of the state stat-
ute “dictates” a different reading of that law. Specifically,
the court concluded that, in accordance with those federal
cases, ORS 654.086(2) requires OR-OSHA, as a matter of
law, to consider a list of particular factors in determining
whether an employer “should” have known of a violation.
The court predicated its conclusion that those federal cases
are controlling on its reading of this court’s decision in Don
Whitaker Logging, Inc.
In Don Whitaker Logging, Inc., the issue was
whether, under an administrative rule adopted to implement
592 OR-OSHA v. CBI Services, Inc.
the OSEA, proof of a supervisor’s safety violation established
the employer’s knowledge of the violation. 329 Or at 258. In
resolving the question, the Court of Appeals had relied on
federal cases interpreting rules adopted pursuant to the fed-
eral OSHA. This court concluded that the Court of Appeals
erred in relying on those federal cases. Id. at 263. Among
other things, the court observed that the administrative
rule at issue was “unique to Oregon and ha[d] no counter-
part in the federal OSHA.” Id.
The Court of Appeals in this case read that obser-
vation as implicitly holding that, if an Oregon rule does
have a counterpart in federal law, later federal court cases
interpreting that law become authoritative. In so doing, the
court erred for at least two reasons. First, to draw that gen-
eral principle from the court’s observation is logically falla-
cious.4 Second, to the extent that the court’s statement in
Don Whitaker Logging, Inc., could be taken to suggest the
appropriateness of resorting to some federal case law when
an Oregon statute finds a federal counterpart, it does not go
so far as to support the notion that federal case law issued
after the enactment of the Oregon statute is authoritative.
In fact, the law is to the contrary.
Basic principles of Oregon statutory construction
require that we focus on the meaning of the statute most
likely intended by the legislature that adopted it. State v.
Perry, 336 Or 49, 52, 77 P3d 313 (2003) (proper focus of
Oregon statutory construction is the discernment of “the
intent of the legislature that passed [the] statute”). That
means that we attempt to determine what the legislature
actually intended at the time of enactment. As this court
explained in Holcomb v. Sunderland, 321 Or 99, 105, 894
P2d 457 (1995), “[t]he proper inquiry focuses on what the
legislature intended at the time of enactment and discounts
later events.”
4
To be precise, it suffers from the fallacy of the denying the antecedent. To
say, “if Oregon law has no federal counterpart, then federal law does not control”
(if not P, then not Q) does not necessarily mean that, “if Oregon law does have
a federal counterpart, then federal law does control” (if P, then Q). For example,
to say if it does not rain, then there will be no crop harvest, does not necessarily
mean that if it does rain, then there will be a crop harvest, because the existence
of a harvest could depend on any number of other factors than rain. Locusts,
perhaps.
Cite as 356 Or 577 (2014) 593
That, for example, is why this court looks to dic-
tionaries that are contemporaneous with the time of enact-
ment when determining the ordinary meaning of a statu-
tory word or phrase. See, e.g., State v. Glushko/Little, 351 Or
297, 312, 266 P3d 50 (2011) (rejecting use of modern dictio-
nary definitions to interpret statute enacted in 1864); Perry,
336 Or at 53 (“In interpreting the words of a statute enacted
many years ago, we may seek guidance from dictionaries
that were in use at that time.”).
The same reasoning applies to the use of case law.
Court decisions that existed at the time that the legislature
enacted a statute—and that, as a result, it could have been
aware of—may be consulted in determining what the legis-
lature intended in enacting the law as part of the context for
the legislature’s decision. See, e.g., Comcast of Oregon II, Inc.
v. City of Eugene, 346 Or 238, 254, 209 P3d 800 (2009) (“[W]e
must be mindful of * * * settled law as part of our analysis
of statutory context.”). That is so especially as to case law
interpreting the wording of a statute borrowed from another
jurisdiction. See, e.g., Lindell v. Kalugin, 353 Or 338, 355,
297 P3d 1266 (2013) (“As a general rule, when the Oregon
legislature borrows wording from a statute originating in
another jurisdiction, there is a presumption that the legisla-
ture borrowed controlling case law interpreting the statute
along with it.”); Jones v. General Motors Corp., 325 Or 404,
418, 939 P2d 608 (1997) (“If the Oregon legislature adopts
a statute or rule from another jurisdiction’s legislation, we
assume that the Oregon legislature also intended to adopt
the construction of the legislation that the highest court of
the other jurisdiction had rendered before adoption of the
legislation in Oregon.”).
Case law published after enactment—of which the
legislature could not have been aware—is another matter.
That is not to say that later-decided federal cases cannot
be persuasive. Decisions from other jurisdictions may carry
weight, based on the force of the reasoning and analysis that
supports them. See, e.g., State v. Walker, 356 Or 4, 24, 333
P3d 316 (2014) (post-enactment cases from other jurisdic-
tions “still may be consulted for their persuasive value”).
But the fact that they involve similarly worded statutes, by
itself, does not make those decisions controlling.
594 OR-OSHA v. CBI Services, Inc.
At issue in this case is the meaning of statutory
wording that the Oregon legislature borrowed from federal
law. The United States Congress enacted the federal OSHA
in 1970. Pub L 91-596, § 17, 84 Stat 1590 (1970). Included
in that legislation was, as we have described, what is now
codified at 29 USC § 666(k). In 1973, the Oregon legisla-
ture adopted the OSEA, one section of which—now codified
at ORS 654.086(2)—was patterned after the federal law.
Or Laws 1973, ch 833, § 21. The issue, then, is what the
Oregon legislature intended when it enacted that section at
that time, and any controlling federal case law that existed
at that time certainly would be relevant to making that
determination.
In this case, the Court of Appeals principally relied
on two unpublished federal cases, both of which were decided
in the last few years. CBI Services, Inc., 254 Or App at 477
(discussing Public Utilities Maintenance, Inc. v. Secretary of
Labor, 417 Fed Appx 58 (2d Cir 2011), and Kokosing Constr.
Co. v. Occupational Safety & Hazard Review Com’n, 232 Fed
Appx 510 (6th Cir 2007)). The court also cited a number of
other federal court cases, a few of which were decided in the
early 1980s. 254 Or App at 478-79 (citing cases). The court
cited one federal court case decided in 1975. Id. at 480 (cit-
ing Brennan v. Butler Lime And Cement Company, 520 F2d
1011 (7th Cir 1975)).
None of those cases was decided before the
Oregon legislature enacted what is now ORS 654.086(2).
Consequently, none of them sheds light on what the leg-
islature had in mind when it adopted that statute in
1973.
Still, the cases on which the Court of Appeals relied
could be persuasive, depending on the force of their own
reasoning. The Court of Appeals relied on post-enactment
federal cases for its conclusions that “reasonable diligence”
within the meaning of ORS 654.086(2) requires, as a mat-
ter of statutory interpretation, an evaluation of a number of
factors, particularly foreseeability, and that, as a result, the
statute essentially requires proof that an employer should
have known of the OSEA violation. CBI Services, Inc., 254
Or App at 476-79.
Cite as 356 Or 577 (2014) 595
As to the first point—whether “reasonable dili-
gence” requires consideration of specific factors—in each
of the cases on which the Court of Appeals relied, the fed-
eral courts reviewed factors that a federal agency had
adopted pursuant to the federal OSHA. See, e.g., Public
Utilities Maintenance, Inc., 417 Fed Appx at 63 (“OSHRC
[the Occupational Safety and Health Review Commission]
has previously indicated that ‘reasonable diligence’ for the
purposes of constructive knowledge involves” a number of
factors.); Kokosing Construction Co., 232 Fed Appx at 512
(“ ‘Reasonable diligence involves several factors * * *,’ ” quot-
ing agency order).
Under federal law, review of an agency’s interpre-
tation of a statute is subject to a deferential standard of
review. That is, the court does not determine what the stat-
ute means; rather, it determines whether the agency’s inter-
pretation of the statute is reasonable. See generally Chevron,
USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842-44, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). In this
case, however, the Court of Appeals did not review a state
agency’s interpretation for reasonableness. It concluded that
ORS 654.086(2), as a matter of law, requires OR-OSHA to
take into account the factors that the court listed. The cases
on which it relied do not stand for that proposition of law. At
most, they suggest that, if an agency considered such fac-
tors, that would be consistent with the controlling statute,
which is an entirely different matter.
As to the second point—whether the statutory ref-
erence to whether an employer “could” know of a violation
really means whether the employer “should” know—in each
of the cases on which the Court of Appeals relied, the fed-
eral court used that phrasing without any explanation or
analysis. In American Wrecking Corp. v. Secretary of Labor,
351 F3d 1254, 1264 (DC Cir 2003), for example, the court
stated that “[t]he Secretary must always demonstrate that
an employer knew or should have known of a hazardous
condition to prove both ‘serious’ and ‘willful’ violations.” The
court did not explain that phrasing. Interestingly, it followed
the statement with a citation to a published order of the
Occupational Safety and Health Review Commission, Conie
596 OR-OSHA v. CBI Services, Inc.
Constr., Inc., 16 BNA OSHC 1870, *1 (No. 92-0264, 1994),
which stated that the federal OSHA requires proof that the
employer “knew, or, with the exercise of reasonable diligence
could have known of the violative condition.” (Emphasis
added.) At best, such cases illustrate that there is a certain
looseness with which courts may use terms like “could” and
“should.” We conclude that the federal case law on which the
Court of Appeals relied does not justify departing from the
wording of ORS 654.086(2) by reading the statute to require
proof of what an employer “should” have known with the
exercise of reasonable diligence.
Employer insists that the Court of Appeals cor-
rectly construed ORS 654.086(2). In employer’s view, “fed-
eral OSHA law back to its inception” has treated the word
“could” in 29 USC 666(k) to mean “should” in light of vari-
ous factors and that nothing in the wording or the history
of ORS 654.086(2) suggests that the Oregon legislature
intended to depart from that understanding. The earliest
case that employer cites in support of that proposition, how-
ever, is Jerry Botchlet Masonry Constr. Co., 5 BNA OSHC
1506, 1507 (No 13-135, 1977) (evidence was insufficient to
support a finding that the foreman “should have known
of the [hazardous] condition”). That case was decided well
after the adoption of ORS 654.086(2).
Employer also claims support for its position from
Oregon tort cases in which this court held that, to prove
constructive knowledge of an undiscovered hazard, a plain-
tiff must show that the defendant should have discovered
it with the exercise of reasonable diligence. See, e.g., Diller
v. Safeway Stores, Inc., 274 Or 735, 738, 548 P2d 1304
(1976); Cowden v. Earley¸ 214 Or 384, 387, 327 P2d 1109
(1958). Even assuming that employer’s characterization
of this state’s case law is accurate, the fact remains that
the legislature, in adopting ORS 654.086(2), used phras-
ing different from this court’s decisions involving tort lia-
bility. Ordinarily, such differences in phrasing are taken to
signify differences in intended meaning. See, e.g., Dept. of
Transportation v. Stallcup, 341 Or 93, 101, 138 P3d 9 (2006)
(differences in statutory phrasing suggests differences in
meaning). Moreover, employer cites nothing in the legisla-
tive history that suggests that the legislature intended to
Cite as 356 Or 577 (2014) 597
adopt the standard for constructive liability in tort cases,
and we are aware of nothing, either.
Employer further contends that the Court of
Appeals’ decision is supported by the “black-letter principle”
that both the federal OSHA and the OSEA are fault-based.
In employer’s view, permitting liability to rest on the mere
capability of an employer to be aware of serious violations
implicitly requires employers to “provide one-on-one con-
stant supervision of each and every employee to assure that
some fleeting violation which ‘could’ be discovered, if the
supervisor happened to be looking at that precise time [,]
was discovered.”
Employer again is accurate enough in describing
the federal OSHA and the OSEA as “fault-based.” This court
recognized that much in Don Whitaker Logging, Inc., 329 Or
at 263 (“OSHA is a fault-based system.”). Employer’s con-
clusion, however, does not follow from that premise. Under
our construction of ORS 654.086(2), the statute remains
fault-based. Employers are not liable based solely on the fact
of a violation. If they did not know of the violation, and if
they could not have known of that violation with the exer-
cise of reasonable diligence, they are excused from liability.
Moreover, an employer remains free to offer relevant evi-
dence that, in the particular circumstances, it should not
be held responsible for the employees’ safety violations, such
as, for example, that the employer took reasonable steps to
discover the violations, or that the employee misconduct was
unpreventable.
C.  Application: The ALJ’s order
It remains for us to apply our understanding of
ORS 654.086(2) to the final order at issue in this case. The
ALJ determined that “there was sufficient time for Vorhof
to observe either or both the workers subject to the cita-
tions and that constructive knowledge was established.” In
reaching that conclusion, the ALJ correctly quoted from the
statute and appears to have correctly construed whether
employer “could not * * * know” to refer to what employer
was capable of knowing or discovering. What is not clear
is how the ALJ interpreted or applied the “reasonable dili-
gence” element.
598 OR-OSHA v. CBI Services, Inc.
As earlier noted, the term “reasonable diligence” in
ORS 654.086(2) is delegative in nature. That means that
we ordinarily review an agency’s interpretation and appli-
cation of the term to determine whether they comport with
the range of discretion afforded the agency under the law.
Springfield Education Assn., 290 Or at 229. That may be
accomplished by administrative rule or by adequate expla-
nation in a final agency order following adjudication. See
Salem Firefighters Local 314, 300 Or at 667-68 (Although
“[d]elegated policy most obviously occurs when the terms
of a statute * * * authorize and direct the adoption of reg-
ulations, * * * statutory terms often leave important value
judgments for direct application without prior specification
by rules.”). In this case, however, neither has occurred. The
term has not been fleshed out by administrative rule. Nor
does the ALJ’s order explain how he arrived at the conclu-
sion that employer could have known of Crawford’s violation
had it exercised reasonable diligence.
In that regard, this case parallels what happened
in McPherson. In that case, an Employment Division referee
denied unemployment compensation benefits on the ground
that the petitioner had left work without “good cause.”
McPherson, 285 Or at 543. The referee based that determi-
nation on a Court of Appeals opinion that this court con-
cluded was erroneous, because it failed to take into account
the delegative nature of the good-cause standard. Id. at 555.
Because the referee had failed to consider the issue of good
cause in the proper light of the delegation provided by the
legislature, the court explained, it could not tell what crite-
ria might be developed in the absence of that misconception.
Id.
In this case, somewhat similarly, the ALJ appears
to have made his decision unaware of the delegative nature
of the statutory standard of “reasonable diligence.” As we
have noted, the ALJ simply observed that “there was suffi-
cient time for Vorhof to observe either or both of the work-
ers subject to the citations and that constructive knowledge
was established.” The ALJ thus appears to have assumed
that, given the Vorhof’s physical proximity to the violations,
it was possible for him to have observed them, and that that
is enough to establish constructive knowledge under ORS
Cite as 356 Or 577 (2014) 599
654.086(2). That it was possible for Vorhof to have viewed
the violations, however, is only half of the statutory equation.
ORS 654.086(2) provides that the possibility of discovering
the violation must be evaluated in the context of “reasonable
diligence.” The ALJ’s order in this case lacks any explana-
tion supporting a determination as to employer’s reasonable
diligence.
For us to review an agency’s decision for consistency
with the discretion delegated to the agency by law, it must
be evident that the agency exercised that discretion in the
first place. Cf., State v. Mayfield, 302 Or 631, 645, 733 P2d
438 (1987) (failure to make a record that reflects an exer-
cise of discretion held reversible error). In exercising that
discretion under ORS 654.086(2), any or all of the factors
that the Court of Appeals mentioned—the foreseeability of
the violations, the general circumstances and level of dan-
ger inherent in the work, the potential need for continuous
supervision, the nature and extent of the supervisor’s other
duties, the supervised workers’ training and experience, and
the extent and efficacy of the employer’s safety programs
and precautions—may well aid in explaining how “reason-
able diligence” factors into a determination of an employer’s
constructive knowledge. But the question of which, if any,
of those factors matters is one that the legislature has dele-
gated in the first instance to the agency. At all events, there
must be some sort of explanation that enables a reviewing
court to evaluate whether a decision comports with the
authority granted under the law.
The decision of the Court of Appeals is affirmed
on other grounds. The case is remanded to the Workers’
Compensation Board for further proceedings.