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A court ruling in a case concerning a rogue supervisor’s actions may affect how the Oregon construction industry is regulated.

The Oregon Occupational Safety and Health Division is looking into the possibility of establishing a new 鈥淓mployer Knowledge鈥� rule to ensure that contractors and other employers are liable for actions taken by project supervisors.

The proposed rule, which will be discussed at a public forum hosted by OSHA this morning, is in reaction to a recent Oregon Court of Appeals ruling. In OR-OSHA v. CC & L Roofing, the court found that a rogue supervisor was acting on his own when he broke a state safety regulation last year.

The supervisor, an employee of Portland-based , was working with another employee on ropes 34 feet in the air without fall equipment.

The decision shocked Oregon OSHA, administrator Michael Wood said.

鈥淓mployers are generally accountable for the actions of the people they put in charge of other people,鈥� he said. 鈥�(The new rule would be) to ensure that employers aren’t able to evade their legitimate responsibility for the actions of the people that they put in charge.鈥�

No existing state rule says employers are liable for the actions of project supervisors. However, OSHA believed this could be assumed because of a 1999 Oregon Supreme Court ruling.

In OR-OSHA v. Don Whitaker Logging, the judge said that if OSHA can prove that a supervisor broke the rules and was acting within the scope of his or her authorized duties, then 鈥渇acts that the supervisor knew or reasonably could have known are attributable to (the) employer.鈥�

That statement and a long-standing OSHA rule saying that project managers are responsible for the safety of their employees led OSHA to believe that CC & L Roofing was guilty.

鈥淎t the time, it seemed pretty straightforward to us,鈥� Woods said.

But he acknowledged that during the Don Whitaker Logging case, the judge stated that the employer 鈥渕ay offer relevant evidence that, in particular circumstances, it should not be held responsible.鈥�

That allows for uncertainty, Woods said.

鈥淲hat there hasn’t been is really any regulatory guidance that gets to that one-liner,鈥� he said. 鈥淚t illustrates how undefined this is. Leaving it to be determined on a case-by-case basis doesn’t serve our interests, doesn’t serve workers’ interests and ultimately doesn’t serve employers’ interests.鈥�

At this point, OSHA is not sure what form the new rule would take. However, the agency wants the rule to address certain issues, such as employer accountability, the definition of a supervisor and what should happen if only the supervisor is on-site.

Multiple meetings are planned to generate feedback. Originally, these meetings were going to involve only a committee appointed by OSHA. However, as word about the meetings got out, reactions by the industry forced OSHA to open them to the public, Woods said.

For the most part, the reaction has derived from suspicion, said Eliot Lapidus, safety and loss control manager of .

鈥淚 don’t know if they’re trying to pull a fast one or they’re truly trying to look out for the public’s benefit,鈥� he said. 鈥淚’m not sure what adjustments they are really trying to make.鈥�

Lapidus said that AGC won’t have a stance on the proposed rule until it hears more about what it would entail; however, the outcry from local contractors has been strong, he said.

鈥淭here is a groundswell of opinion on this,鈥� he said. 鈥淲hen OSHA does something like this, it is not atypical for the public to get excited before they understand what (OSHA) is trying to do, and I’m not sure what they’re trying to do.鈥�

For Dan Cornwell, president of CC and L Roofing, the proposal brings back bad memories. There is no need for a new rule, he said.

鈥淚ndividuals should be accountable for their individual actions,鈥� he said. 鈥淢y theory is (OSHA is) trying to accomplish by administrative ruling what they can’t get based on state rules, and that scares me.鈥�

The rules in place effectively regulate the system, said Cornwell, who added that there is no way to control actions taken by rogue supervisors.

Nevertheless, OSHA has concerns.

鈥淭he nightmare scenario,鈥� Woods said, 鈥渋s that we run into a case where the supervisor on a trenching job, for example, tells an employee, 鈥楺uit worrying about the stupid trench box and get down in that hole. The train caves in, the employee dies, and we’re forced with a situation where we conclude there is no violation because the employer had a policy that the supervisor is not violating.鈥�

Today’s meeting will take place at the Portland State Office Building, conference room 1-E, at 9 a.m. Another meeting is planned for Nov. 15, at the Labor and Industries Building, at 1 p.m.