Filed:  September 16, 1999


IN THE SUPREME COURT OF THE STATE OF OREGON
OREGON OCCUPATIONAL SAFETY & 

HEALTH DIVISION,

			Petitioner on Review,


	v.



TOM O'BRIEN CONSTRUCTION CO., INC.,


	Respondent on Review.


(SH-93278; CA A89391; SC S44585)
	Argued and submitted September 14, 1998.


	On review from the Court of Appeals.*


	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.**


	VAN HOOMISSEN, J.


	The decision of the Court of Appeals is affirmed.  The order
of the Workers' Compensation Board is reversed, and the case is
remanded to the Workers' Compensation Board for further
proceedings.


	*Judicial review from the Workers' Compensation Board.

	 148 Or App 453, 941 P2d 550 (1997).


	**Kulongoski, Leeson, and Riggs, JJ., did not participate in
the consideration or decision of this case.


	VAN HOOMISSEN, J.

	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 P2d 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.  

	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.(1)
	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.(2)  The court's decision in the
companion case to this one, OR-OSHA v. Don Whitaker Logging,
Inc., 329 Or 256, __ P2d __ (1999), addresses an argument
similar, if not identical, to OR-OSHA's argument in this case. 
The ALJ will have an opportunity to consider the import of that
decision on remand.

	The decision of the Court of Appeals is affirmed.  The
order of the Workers' Compensation Board is reversed, and the
case is remanded to the Workers' Compensation Board for further
proceedings.   



1. 	For a discussion of that defense, see Tom O'Brien
Construction, 148 Or App at 456.  See also Mountain States Tel. &
Tel. v. Occupational Safety, 623 F2d 155, 157 n 3 (10th Cir 1980)
(describing rationale underlying rogue supervisor defense).

Return to previous location.

2. 	Neither party has challenged the Court of Appeals'
disposition of the evidentiary issue concerning the previous
citation.

Return to previous location.
