THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety & 

    Health Division			)  WCB Case No. SH 91026

	 Plaintiff			)  Citation No. C573002591

					)  DOI: N/A

					)  SSN: N/A

FRANK LAND, 				)  WCD No: N/A

	Defendant			)  OPINION AND ORDER

	Hearing convened and closed in Klamath Falls, Oregon on May 23,
1991. The plaintiff was represented by Assistant Attorney
General Norman Kelley. The defendant was present and represented
by Attorney Mike Ratliff.

	The sole issue is whether the Oregon Safe Employment Act
applies to Mr. Land. The parties stipulated that the alleged
violations occurred.


	Based upon a preponderance of the evidence, I find:

(1) Mr. Land leased property from the City of Klamath Falls for
the purpose of constructing a hangar for his personal use He
contracted with Mike Lounsbury, a licensed contractor to build
the hangar. Due to a slowdown in his business affairs secondary
to a divorce, Mr. Land undertook to finish the roof. (Testimony
of Mr. Land; see Ex. 8).

(2) Larry Campbell helped Mr. Land install the roof on November
15, 1990. Mr. Land stated he was teaching Mr. Campbell how to
roof. Mr. Campbell was subject to his direction and control.

(3) There was no other remuneration.

(4) If the act applies to Mr. Land, the violations listed in
this citation are accurate (stipulation of parties).

(5) Mr. Land does not have workers' compensation coverage (Ex.
43). The construction of the hangar was not in the course and
scope of Mr. Land's business. The value of Mr. Campbell's
services was less than $200 in any 30 day period.

(6) Mr. Campbell was the only possible employee on the job
subject to Mr. Land's direction and control.


	The following numbers correspond to the above findings:

(2) I resolve the conflict in testimony against defendant. He
was not forthright in his answers regarding his prior experience
as a framing contractor. Nothing in Mr. Crawford's testimony
causes me to question his veracity. Mr. Campbell had no prior
building experience. Mr. Land, in addition to being a framing
contractor in California more than 12 years ago, has constructed
similar buildings in his second career as a farmer within the
past 12 years (see Ex. 4, page 1).

(5) The job was eventually completed by Mr. Campbell and Mr.
Land in two days. Mr. Land has an Oregon contractor's license,
not required under the terms of the license to have workers'
compensation coverage. He was building the hangar for himself.

(6) Mr. Campbell's girlfriend/wife, whose name is either Kathy
or Chrissy was operating a forklift (see Ex. 4, page 1). There
is no evidence that she was being remunerated in any form.


	ORS 654.010 requires every employer to furnish a safe place of
employment. The issue is whether Mr. Land is an employer. ORS
654.005 (5) defines employer as:   "Any person who has one or
more employees, or any sole proprietor or member of a
partnership who elects workers' compensation coverage as a
subject worker" pursuant to ORS 656.128. Mr. Land did not elect
workers' compensation coverage; the issue thus becomes whether
Mr. Campbell is an employee.

ORS 654.005 (4) defines employee as:

". . .Any individual including a minor whether lawfully or
unlawfully employed, who engages to furnish services for a
remuneration, financial or otherwise, subject to the direction
and control of an employer, and includes salary, elected and
appointed officials of the state, state agencies, counties,
cities, school districts and other public corporations, or any
individual who is provided with workers' compensation coverage
as a subject worker pursuant to ORS Chapter 656, whether by
operation of law or by election."

	Examining the latter portion of the definition first, Mr.
Campbell was not provided workers' compensation coverage as
asubject worker by election. Mr. Land was not a prime contractor
letting a contract, so ORS 656.029 is not applicable. Mr. Land
had no other potential employee, so under workers' compensation
law he is not a subject employer if Mr. Campbell is not an
employee under workers' compensation law. ORS 656.023.

	Thus, if Mr. Campbell is a subject worker under workers'
compensation law or an employee under the Safe Employment Act,
Mr. Land is an employer, and subject to the Act.

	The tests are similar. A worker under the Workers' Compensation
Act, among other things, "engages to furnish services for a
remuneration."   ORS 656.005 (27).   An employee under the
Employment Act "engages to furnish services for a remuneration,
financial or otherwise. . ."   ORS 654.005 (4).   The emphasized
language was part of the original Act. Oregon Laws 1973, Ch.
833, 4. The legislative history is unknown, but presumably the
drafter sought to bring within the definition barterers. See,
for comparison, ORS 656.005 (20), (26).

	Plaintiff argues that Mr. Land's agreement to teach Mr.
Campbell roofing skills falls within the foregoing emphasized
language, and therefore brings Mr. Land under the Act. While
plaintiff's argument has serious implications for volunteer
organizations  is moral selfsatisfaction other remuneration?,
this case turns on the "engages" common language, to both

	In Hix v. SAIF, 34 Or App 819 (1978), the employer gave the
claimant money in apparent recognition of the employer's moral
obligation to recompense him for odd jobs he had performed for
the employer's benefit during the course of the summer. When the
claimant was injured, the issue was whether claimant was engaged
for remuneration. The Court found that claimant's work was
gratuitous and the payroll was gratuitous. There was no rate
set; there was no agreement between the parties that any
particular pay would be forthcoming. Claimant's expectation was
"more a reasonable hope based on the mutual goodwill of the
parties rather than any kind of implied contractural
relationship." at 824. In Martelli v. R. A. Chambers, 99 Or App
524 at 527 (1989), aff'd, 310 Or 529 (1990), the Court referred
to a quid pro quo, as opposed to a possibility of compensation. 
In Bell v. Hartman, 289 Or 447 (1980), the Court discussed the
bargain between the employer and employee to exchange common law
liability for rights to compensation. In Konnell v. Konnell, 48
Or App 551 (1980), the claimant's grandfather was not an
employee. He helped the employer when and as little as or as
much as he wanted. No salary was involved. The money that
exchanged hands was in the nature of past loans, not in the
nature of remuneration for work performed.

	The thread running through all of these cases is that there
must be an agreement  the worker "engages for a remuneration."
Here, both Land and Campbell insisted that there was no
employment relationship. They described themselves as friends.
Mr. Land may have felt he could teach Mr. Campbell about
roofing, but there is no indication that Mr. Campbell "engaged
to furnish services" in return.

                     CONCLUSION OF LAW

	Mr. Land is not an employer under the Oregon Employment Act
because Mr. Campbell did not engage to furnish services for him.


	IT IS HEREbY ORDERED that Citation No. C573002591 is dismissed.

	If you are dissatisfied with this Order pursuant to ORS 183.480
et sequitur, you may, not later than 60 days after the mailing
date on this Order, petition a review by the Court of Appeals,
Supreme Court Building, Salem, OR 97310. Any such request for
review shall be mailed to all other parties to this proceeding.
Failure to mail such a petition for review within 60 days after
the mailing date of this Order will result in loss of right of
appeal from this Order.

	Entered at Medford, Oregon on JUNE 5, 1991 


				Stephen D.Brown, Referee