THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92167

	Plaintiff			)  CITATION NO: R078604092

		vs.			) 


	Defendant			)  OPINION AND ORDER

Hearing was convened on September 28, 1992. The plaintiff,
Oregon Occupational Safety & Health Division, appeared through
Special Compliance Officer, James Ramsey, and was represented by
counsel, Norman Kelley. The defendant, Ailstock Roofing, was
present through Bob Ailstock. Exhibits A through 8 were admitted
into evidence. The proceedings were recorded by Marlene Cromwell
of Business Support Services. The record closed at the
conclusion of the hearing on September 28, 1992.


The propriety of a March 13, 1992 safety citation and assessment
of a penalty (No. R07804092) for a fall hazard.

                        FINDINGS OF FACT

Bob Ailstock is a sole proprietor of a roofing business,
Ailstock Roofing. This business entity contracted with Empire
Builders as an independent contractor to build roofs for a new
apartment complex. In order to timely complete the job he
entered into a verbal contract with H. Glen Lewallen, dba,
Winchester Construction, another sole proprietor in the roofing

The preexisting relationship between Ailstock Roofing and
Winchester Construction was an arrangement whereby the two sole
proprietors would on occasion help each other out when one of
the businesses had a contract which required more than one man.
On these occasions they would join together, share in the work,
and divide the profits in accordance with the individual effort

This was the arrangement on the contract for Empire Builders.
Ailstock Roofing needed additional help in order to complete the
contract on time and procured the services of Lewallen. The two
men agreed that they would work equally on the project and share
the profits fifty fifty.

On February 24, 1992 both Ailstock and Lewallen were at the job
site installing roofing paper on a pitched roof. They were
working at an estimated height of 20 feet measured from the
ground to the eve of the roof. An unprotected fall from the roof
by a worker could have caused serious injury or death. While
engaged in this activity Lewallen was not wearing fall
protection, nor was any other safety device being utilized to
protect against a fall.

Ailstock Roofing was cited by Special Compliance Officer, James
Ramsey, for violation of OAR 437-3-040(1). A penalty was
assessed in the amount of $500 after taking into account
mitigating factors. The citation issued on March 13, 1992 and
was timely appealed by Ailstock Roofing.


The evidence is persuasive that Lewallen was working without
fall protection on an unguarded surface more than 10 feet above
a lower level. The evidence is also persuasive that the
calculation of the penalty amount was correctly determined in
accordance with OAR 437-01-145. Therefore, assuming Lewallen was
an employee of Ailstock Roofing, there was a violation of OAR
437-3-040(1) for which Ailstock Roofing is responsible for.

The state asserts the relationship between Ailstock Roofing and
Lewallen was that of employer/employee. Ailstock Roofing takes
the converse position arguing that Lewallen was not an employee
of Ailstock Roofing, but rather was a partner.

ORS 654.005(4) provides:

"Employee" means 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...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.

ORS 656.027(8) states:

All workers are subject to this chapter except those non-subject
workers described in the following subsections:

...(8) Partners who are not engaged in work performed in direct
connection with the construction, alteration, repair,
improvement, moving or demolition of an improvement on real
property or appurtenances thereto. When labor or services are
performed under contract, the partnership must qualify as an
independent contractor.

The evidence is persuasive that Ailstock and Lewallen were not
business partners in the legal sense. Ailstock Roofing procured
the contract and was responsible for getting the work done to
specifications. If the work was substandard in any way Ailstock
Roofing was liable. Ailstock Roofing also received payment for
the completion of the work. The evidence is insufficient that
Lewallen shared in any of these privileges or burdens. Although
Lewallen testified that he would have helped out had things gone
awry on the project, this was a self-imposed moral obligation as
opposed to a legal obligation.

Accordingly, as a factual matter, I find that Ailstock and
Lewallen were not partners and that their relationship most
closely approximates that of an employer/employee. The evidence
is persuasive that Ailstock controlled and directed the activity
in question. And that Lewallen performed services for which he
received payment for in keeping with the individual effort

Even assuming a partnership relationship can be said to have
existed the nature of the work would not have exempted the
partnership under ORS 656.027(8). As such Lewallen, by operation
of law, was a subject worker. Therefore, in accordance with the
provisions of ORS 654.005(4), Lewallen was deemed to be an
employee. The intent of the parties notwithstanding, I find that
Lewallen was an employee of Ailstock Roofing at the time of the
safety violation.

Ailstock Roofing also raises the affirmative defense of estoppel
by conduct. The elements of equitable estoppel are: (1) there
must be a false representation; (2) it must be made with
knowledge of the facts; (3) the other party must have been
ignorant of the truth; (4) it must have been made with the
intention that it should be acted upon by the other party; and
(5) the other party must have been induced to act upon it. See
Bennet v. City of Salem, 192 Or 531, 541 (1951). The evidence is
persuasive that sometime around December 1991, prior to
commencement of the job, Ailstock contacted the local OSHA
office and spoke to a woman there. Apparently, this individual
made a representation that led Ailstock to believe that
compliance with fall protection regulations as applied to
Lewallen would not be necessary on the project. It was
Ailstock's testimony that he relied on this representation in
deciding to allow Lewallen to work with him.

The evidence is insufficient to establish that a false
representation was made to Ailstock by an agent of OSHA with
"knowledge of the facts." Ailstock could not identify by name or
position the individual that he spoke to or the office that he
called. In addition evidence concerning the nature of the
conversation between Ailstock and the unidentified person is not
adequate to make findings of fact with respect to the elements
of estoppel. Given these difficulties, I find that Ailstock
Roofing failed to carry its burden of proof in establishing
equitable estoppel.

To conclude, the state has carried its burden of proof in
demonstrating a violation of OAR 347-3-040(1) for which the
defendant is responsible for.


The March 13, 1992 safety citation and assessment of a penalty
(No. R07804092) is affirmed in all respects.

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, Oregon, on NOV. 13, 1992  


				By Abigail L. Herman