A review of the notes taken during the hearing would support Defendant's position that the issue of employee misconduct was raised and argued at hearing. Accordingly, the issue was properly raised and this matter should be reconsidered in light of Defendant's contention that the employer could not have known of a violation of the rule when there has been an isolated incident of employee misconduct. Accordingly, Defendant argues, the element of employer knowledge cannot be met to support the issuance of a citation for a violation of this rule. In the Opinion and Order it was found that not only did the employee know he was not to stand on the top step of the ladder, but also that he had been instructed by his employer not to stand on the top step of the ladder. Defendant contends that this and the fact that the employer had an established safety program in effect at the time of the alleged violation is support for its argument that this was an isolated incident of employee misconduct.
Defendant contends that ladder use was a topic that had been discussed at the safety meeting.
Minutes from a safety committee meeting in which this issue was discussed were also part of the record and support that contention. In the arguments received as a result of the motion by Defendant to reconsider, there was some discussion by the parties as to who has the burden to prove what has been referred to as an affirmative defense of employee misconduct. It is generally accepted that OR-OSHA has the burden to prove the element of employer knowledge, but there is some disagreement on who has the burden once a prima facia case of employer knowledge is proven. In other words does the burden then shift to the employer to go forward with evidence regarding the so called isolated incident of employee misconduct. Regardless of who has the burden, Defendant's argument appears to be that as an isolated incident of employee misconduct, absent evidence of actual knowledge or evidence that the employer acquiesced in this action, the employer could not have had knowledge, even with reasonable diligence, of the conditions that lead to the violation of this rule and thus the element of employer knowledge could not be proven.