FILED: March 10, 1999

IN THE COURT OF APPEALS OF THE STATE OF OREGON

OREGON OCCUPATIONAL SAFETY
AND HEALTH DIVISION,

Petitioner,

v.

B & G EXCAVATING,

Respondent.

(SH95176; CA A101912)

Judicial Review from Workers' Compensation Board.

Argued and submitted on February 5, 1999.

Jas. Jeffrey Adams, Assistant Attorney General, argued the cause for petitioner. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

No appearance for respondent.

Before Warren, Senior Judge pro tempore, and Edmonds and Armstrong, Judges.

PER CURIAM

Reversed and remanded for reconsideration.

PER CURIAM

The Oregon Occupational Safety and Health Division (OSHD) seeks remand of a decision by an administrative law judge (ALJ) in which she ruled, as a matter of law, that a supervisor's knowledge of a serious violation of a state occupational safety rule could not be imputed to the supervisor's employer for the purpose of the imposition of a penalty under ORS 654.086. The ALJ relied on our opinions in OR-OSHA v. Tom O'Brien Construction Co., Inc., 148 Or App 453, 941 P2d 550, rev allowed 326 Or 151 (1997), and OR-OSHA v. Don Whitaker Logging, Inc., 148 Or App 464, 941 P2d 1025, rev allowed 326 Or 151 (1997), for that proposition. Contrary to the ALJ's understanding, we held in those cases that, when a supervisor commits a violation, OAR 437-001-0760(3)(c) does not require that the supervisor's knowledge of that violation be imputed to the employer. Our holdings do not preclude the imputation of a supervisor's knowledge of a violation to an employer under every circumstance.

Reversed and remanded for reconsideration.


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