BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH91152

		PLAINTIFF		)  CITATION NO P976200391

ATLAS BUILDING & CONTRACTING		)

		DEFENDANT		)  OPINION AND ORDER



                          INTRODUCTION



	Hearing was held on December 11, 1991.  The Oregon Occupational
Safety & Health Division, Department of Insurance and Finance,
were represented by Mr. Norman F. Kelley.  Mr. Jason A. Brooks,
dba Atlas Building & Contracting, appeared pro se, representing
Atlas Building & Contracting. Ms. Angela Trafton, Workers'
Compensation Board Recorder, recorded the proceeding.  Exhibits
1 to 9 were received in evidence.  The record closed December
11, 1991.



                              ISSUES



	The propriety of Citation No P9762003091, Item 1-1 violation of
OAR 437-03-001, a serious violation, with a penalty assessment
$500, for failure to the employer to protect employees from fall
hazards while working at elevated heights.



	The propriety of Citation No. P976200391, Item 2-2, violation
of OAR 437-03-050, a general violation, with no penalty
assessment, for improper use of ladders.



                           FINDINGS OF FACT



	Mr. and Mrs. Steen own a "residence" at 1155 Bay Street,
Florence, Oregon.  The Steens wanted to renovate, or remodel,
the residence to operate a business known as "The Edwin K. Bed &
Breakfast" and the "West End Gallery".  Renovation, or
remodeling, began approximately August 25, 1990 and was
completed July 1, 1991. Twenty-five to thirty "subcontractors"
were hired by Mr. and Mrs. Steen during the remodeling project
(Testimony of Mr. Steen).



	Mr. Jason A. Brooks, dba Atlas Building & Contracting, is a
residential contractor, certified, bonded and licensed by the
State of Oregon.  On August 23, 1990, Mr. Steen and Mr. Brooks
entered into a contract under which Atlas Building & Contracting
would perform labor on the residence.  Mr. Steen was the general
contractor.  Atlas Building & Contracting was the subcontractor
(Ex. 8).



	Mr. Gross is a residential contractor, certified, bonded and
licensed by the State of Oregon.  Mr. Gross is, primarily, a
roofing contractor.   On October 31, 1990, Mr. Steen and Mr.
Gross entered into a contract under which Mr. Gross would
furnish labor to roof the residence.  Mr. Steen was the general
contractor.   Mr. Gross was a subcontractor (Ex. 9).  Late, Mr.
Gross was hired by Mr. Steen, under a verbal contract.  Mr.
Gross did inside painting, put cedar shakes on the house and did
caulking work, under he second contract (Testimonies of Mr.
Steen and Mr. Gross).



	The Steens had a construction loan with the Oregon Pacific
Banking Company, located in Florence, Oregon.  Mr. Brooks was
paid $20 per hour, per hour worked, for his labor and expertise.
 Mr. Gross was paid $10 per hour, per hour worked, for his labor
and expertise (Exs. 8 & 9 and Testimonies of Mr. Steen, Mr.
Gross and Mr. Brooks).  Payment was made to Mr. Gross and Mr.
Brooks on a weekly basis.  Mr. Gross and Mr. Brooks kept logs,
or time sheets, of their respective house worked per week, which
were turned in to either Mr. Steen or Mrs. Steen.  Mr. Steen or
Mrs. Steen authorized payment.  The Oregon Pacific Banking
Company, as per Mr. and Mrs. Steen's authorization issued checks
and paid Mr. Gross and Mr. Brooks (Testimonies of Mr. Steen, Mr.
Gross and Mr. Brooks).



	Mr. Steen, as general contractor, provided supporting
equipment, such as scaffolding, and other materials required for
the completion of the remodeling project.  The scaffolding and
some ladders were rented by Mr. Steen.  The rental charges and
other charges for materials were paid for by Mr. Steen.  Mr.
Steen picked up and delivered the supporting equipment and other
materials to the job site.  Mr. Brooks provided hand and power
tools, including pneumatic nailing equipment, normally used in
this trade or business, i.e., jigsaws, circular saws and other
roofing equipment (Testimonies of Mr. Steen, Mr. Gross and Mr.
Brooks).



	Mr. Gross, when working as a roofer, was not told by Mr. Steen
when to report to work, what work to perform or how to perform
the work activities.  Mr. Gross, when working as a general
helper, was told by Mr. Steen when to report to work, what work
to perform and how to perform the work activities.  Mr. Steen,
Mr. Gross and Mr. Brooks moved and constructed the scaffolding,
as needed, to perform various work tasks required.  Mr. Steen
and Mr. Brooks, periodically, consulted about any structural
changes to be made in the basic master plan for the remodeling
project (Testimonies of Mr. Steen, Mr. Gross and Mr. Brooks).



	Mr. Wooley and Mr. Patterson are Safety Compliance officers for
the Oregon OSHA Division, Department of Insurance and Finance. 
On March 19, 1991, they were making general inspections of work
sties in the Florence, Oregon area.   Mr. Gross was observed on
the roof of the residence being remodeled without apparent
safety devices or fall protection (Ex 5).  Therefore, Mr. Wooley
and Mr. Patterson inspected the Edwin K. Bed & Breakfast job
site.  The scaffold was observed.    The scaffold did not have
guardrails or other safety devices to prevent falls. The
scaffold was improperly constructed.  An aluminum ladder was
used to brace or support the scaffold (Testimony of Mr.
Patterson and Ex. 5).



	The inspection was somewhat difficult regarding obtaining
information and facts.  Confusion surrounded the inspection
process.  Mr. Gross and Mr. Brooks left the job site during the
inspection process.  Mr. and Mrs. Steen, although not initially
on the job site, appeared on the job site during the inspection
process.  Mrs. Steen was concerned about the Safety Compliance
officers trespassing on private property. Local law enforcement
officers were called to the job site, and appeared.  At some
point, discussions were had between the Safety Compliance
officers and Mr. Steen, Mrs. Steen, Mr. Gross and Mr. Brooks. 
Mr. Steen, Mr. Gross and Mr. Brooks advised the Safety
Compliance officers that Mr. Gross and Mr. Brooks were
subcontractors.  Mr. Gross and Mr. Brooks produced their
respective residential contractor cards, designating exempt
status, for viewing by of the Safety Compliance officers.  The
Safety Compliance officers viewed the cards and returned the
cards to Mr. Gross and Mr. Brooks.



	On April 8, 1991, Citation No. P976200391 issued.  Atlas
Building & Contracting was cited with a serious violation of OAR
437-03-001 for failure to have safety devices, i.e., guardrails
and toeboard, on the scaffolding.  A penalty of $500 was
assessed. Atlas Building & Contracting was also cited with a
general violation of OAR 437-03-050 for using the aluminum
ladder, as a guy or brace, for other than its intended purpose. 
No penalty assessment was made (Ex 1).



	Mr. Brooks left the job site, during 1991.   Mr. Brooks had
finished the work activities which had been contracted for by
Mr. Steen.  Mr. Gross remained on the job site after June 1991. 
Mr. Gross continued his work activities until July 1, 1991, when
the construction project was completed (Testimonies of Mr.
Brooks and Mr. Gross).



                   CONCLUSIONS OF LAW AND OPINION



                              CREDIBILITY



	Mr. Steen, Mr. Gross and Mr. Brooks, based on demeanor, are
credible witnesses.  Mr. Patterson, based on demeanor, is a
credible witness.  Discrepancies as to facts testified to among
the witnesses, if any, are attributed to the confusion which
existed at the time of the inspection and the dimming of
memories due to the passage of time.



	Citation No. P976200391



	Citation No P976200391, Item 1-1, violation of OAR 437-03-001,
and Item 2-2, violation of OAR 437-03-050, should be vacated and
set aside.



	Mr. Brooks does not question the validity of Citation No.
P976200391, including the penalty assessment, if Atlas Building
& Contracting was an employer with employees on the Edwin K. Bed
& Breakfast job site.  Mr. Brooks contends his "status", i.e.,
independent contractor versus employer, determines the validity
of the citation, as it applies to Atlas Building & Contracting. 
I agree.  Mr. Brooks also contends that Atlas Building &
Contracting was a subcontractor, under contract with Mr. Steen,
and not an employer with employees, in this case, Mr. Gross.  I
agree.



	An "employee" is any individual who engages to furnish services
for a remuneration, financial or otherwise, subject to the
direction and control of an employer.  ORS 656.005(4).  An
"employer" is any person who has one or more employees.  ORS
656.005(5).  Given these definitions, no employer-employee
relationship existed between Atlas Building & Contracting and
Mr. Gross.



	Mr. Gross and Mr. Brooks were residential contractors,
certified, bonded and licensed by the State of Oregon.  They
were in the "exempt class".  ORS 701.035(2)(b).  As such, they
necessarily qualified as independent contractors under the
mandates of ORS 701.025 ORS 701.035(1).  Mr. Brooks and Mr.
Gross, independent of each other, contracted with Mr. Steen, the
general contractor, to perform construction work activities on
the Edwin K. Bed & Breakfast facility, and job site. There was
no contract, written or oral, between Mr. Brooks and Mr. Gross
under which Mr. Gross engaged to furnish services for
remuneration to Mr. Brooks, subject to the direction and control
of Mr. Brooks.  That right, if it existed, existed only between
Mr. Steen and Mr. Gross, as general contractor and subcontractor
under the written contract, and, possibly, as an employer and
employee under the verbal contract.  The contracts, written and
verbal, between the Steens and Mr. Gross so provided.  Mr.
Steen, at time, directed and controlled the work activities of
Mr. Gross.  The Steens paid Mr. Gross, through the Oregon
Pacific Banking Company, for the services provided them.



	Given the above, I conclude Oregon OSHA has failed in its
proof.  Oregon OSHA has failed to establish an employer-employee
relationship between Mr. Brooks, dba Atlas Building &
Contracting, and Mr. Gross.  Accordingly, I am of the opinion
Citation No P976200391, Item 1-1 and Item 2-2, is invalid, as
applied to Atlas Building & Contracting.  This being so,
Citation No P976200391 should be, and is, vacated and set aside.



                              ORDERS



	NOW, THEREFORE, IT IS HEREBY ORDERED Citation No. P976200391,
Item 1-1, serious violation of OAR 437-030-001, including the
penalty assessment of $500, is vacated and set aside.



	IT IS FURTHER ORDERED Citation No P976200391 Item 2-2, general
violation of OAR 437-03-050, is vacated and set aside.



	IT IS FURTHER ORDERED any and all relief requested by Oregon
OSHA, Department of Insurance and Finance, is denied.



	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
183.482.



	ENTERED at Salem, Oregon on DEC 31, 1991 



				WORKERS COMPENSATION BOARD

				T. LAVERE JOHNSON, REFEREE