THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No . SH89287


		Plaintiff		)

		vs.			)  Citation No. M850213989


		Defendant		)  OPINION AND ORDER

	Pursuant to notice, a hearing was held in Medford, Oregon on
March 28, 1990 before Referee Brazeau. The Accident Prevention
Division (Plaintiff) was represented by Sharon Schooley. Jack
Rexius (Defendant) was present and not represented by counsel.
The hearing recorder was Sandy Chapman. The record was closed at
the conclusion of the hearing.


	Defendant appeals Plaintiff's Citation and Notice of Penalty
dated September 7, 1989.

                       FINDINGS OF FACT

	On August 25, 1989, Defendant completed and submitted a
"Notification of Operations" to the State Forestry Department,
requesting permission to perform logging operations on state
land. The request was granted and Defendant was given permission
to work through December 31, 1989. Defendant had been performing
logging activities prior to August 25, 1989. In fact, he had
performed them in the Dead Indian Road area of Jackson County
approximately one week prior to and one week after August 14,
1989. The logging activities involved loading felled logs onto a
log truck with a loader and transporting them to a lumber mill.

	Larry Rexius worked with his father on the Dead Indian Road
logging operations.

	On or about August 14, 1989, Chuck McFarland, a safety officer
with the Oregon Occupational Safety and Health Division, visited
the Dead Indian Road logging site, based on a complaint he had
earlier received. On the way to the site, he encountered Jack
Rexius emerging from a market. Rexius announced that he was
hurrying to take lunch to two boys at the worksite. McFarland
proceeded to the worksite, where he encountered Paul Rexius and
Lenny Weigert. Paul Rexius is the stepson of Larry Rexius. Lenny
Weigert is Paul Rexius's friend. Paul Rexius who is 17 years of
age, was observed by McFarland operating the log loader. Lenny
Weigert, also 17, was observed setting chokers. They had been
dropped off at the worksite by Larry Rexius that morning and had
been instructed to load logs and transport them to the mill.

	McFarland had Paul Rexius demonstrate the brakes of the log
loader. They were incapable of holding the loader in place on
level ground.

	Neither Paul Rexius nor Lenny Weigert were wearing hardhats
while working. Both wore tennis shoes. There was no emergency
vehicle on site. There was no fire extinguisher on site. The
worksite was not within 30 minutes travel time to the nearest
city. There was no registered job training program on site and
no supervisor was present. Neither was there evidence that the
operation held monthly safety meetings. There were no first aid
or other medical supplies available at the site.

	Paul Rexius and Lenny Weigert received an hourly wage for the
work they performed. Part of their remuneration was paid as a
cash wage of $4.00 per hour. The remaining remuneration came in
the form of room and board. Larry Rexius was primarily
responsible for directing the activities of the workers,
although Jack Rexius occasionally offered direction and worked
along side them. Jack Rexius represented to a State Forestry
employee that he owned the land making up the Dead Indian Road
logging site. He further stated that Larry Rexius handled
payroll and was the registered agent for the logging company.

	Nick Peckham worked for the Rexius logging operation in late
1987. Larry Rexius was primarily responsible for directing
Peckham's activities, but Jack Rexius occasionally paid him in

	After completing his inspection, Chuck McFarland authored a
report, recommended various penalties and forward his
recommendations to his supervisor for review. On September 9,
1989, Plaintiff issued a Citation and Notice of Penalty,
advising Jack Rexius of nine alleged violations of the Oregon
Safe Employment Act (hereinafter "Act"). Jack Rexius timely
appealed from Plaintiff's Citation.

                    CONCLUSIONS AND OPINION

	Defendant does not contend that the alleged violations in
Plaintiff's Citation, or the penalties proposed therein, are
unreasonable. Rather, he contests the validity of the Citation
in the first instance, contending that he did not employ workers
on or about the date of the alleged violations, and that the
Citation should, therefore, be set aside in its entirety. Thus,
as a preliminary matter, I must decide whether Jack Rexius was
an "employer" on or about August 14, 1989. After reviewing this
record, I conclude that Defendant was, in fact, an "employer" at
the pertinent times and that he was, therefore, subject to the
provisions of the Act.

	Pursuant to ORS 654.005(5), "employer" means any person who has
one or more employees. "Person" includes one or more
individuals, legal representatives, partnerships, joint
ventures, associations, corporations or any organized group of
persons. An "employee" is any individual, including a minor
whether lawfully or unlawfully employed, who engages to furnish
a service for a remuneration, financial or otherwise, subject to
the direction and control of an employer. ORS 654.005(4). Every
"employer" has a duty to furnish a safe place of employment. ORS
654.010. Any employer failing to do so is subject to penalties
under the Act. ORS 654.071.

	In the present case, I find that Jack Rexius and Larry Rexius
operated their logging operation either as a partnership or
joint venture on or about August 14, 1989. Each appears to have
had certain financial and managerial responsibilities for the
day-to-day workings of the operation. Thus, the logging
operation was a "person" for purposes of the Act. I further
conclude that this "person" employed Paul Rexius and Lenny
Weigert on or about August 14, 1989. Paul Rexius and Weigert
were paid cash, room and board, i.e., "remuneration", in
exchange for the performance of labor. They performed that labor
under the direction and control of both Larry and Jack Rexius.
Thus, Paul Rexius and Weigert were "employees" during the time
they worked. Based on these findings, I conclude that Defendant
was an "employer" on or about August 14, 1989.

	Turning to the Division's Citation, I find that it was properly
issued. As mentioned above, Defendant does not contend that the
specific violations and penalties contained in the Citation are
unreasonable. After reviewing the record, I agree. Chuck
McFarland testified at length regarding the specific violations,
the rules pertaining to each of them, and the method foe
arriving at the suggested penalties contained within the
Citation. From McFarland's testimony, as well as the documentary
record, I am persuaded that the Division acted reasonably and
properly in issuing its Citation.


	The Accident Prevention Division's Citation and Notice of
Penalty dated September 7, 1989 is approved.

	NOTICE TO ALL PARTIES: You are entitled to judicial review of
this Order. Proceedings for review are to be instituted by
filing a petition in the Court of Appeals, Supreme Court
Building, Salem, Oregon 97310, within 60 days following the date
this Order is entered and served as shown hereon. The procedure
for such judicial review is prescribed by ORS 183.480 and ORS

	Entered at Salem, Oreqon MAR 30, 1990 


				By Robert Brazeau