BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH91256

					)

	Plaintiff 			)  Citation No. D4775-095-91

					)

BROWN & DUNTON, INC.			)

					)

	Defendant 			)  OPINION AND ORDER



	Pursuant to notice, a hearing was held in the above matter on
April 29, 1993, in Salem, Oregon, before Referee Donna
Garaventa.  The plaintiff, Oregon Occupational Safety & Health
Division (hereinafter Or OSHA), was represented by Thomas W.
Cowan, Assistant Attorney General.  The defendant, Brown &
Dunton, Inc., was represented by Hunter B. Emerick.  The
proceedings were recorded by Marlene Cromwell of Business
Support Services.  The record was closed on May 4, 1993,
following receipt of case authorities by the defendant.



	No affected employees elected to appear as parties pursuant to
OAR 438-85-411.



	This is a contested case under the Oregon Safe Employment Act,
ORS 654.001 to 654.295 and 654.991.



                          EXHIBITS



	Exhibits 1 through 18 were received into evidence.



                         ISSUES



	Defendant contests Item 1-1 of Citation No. D4775-095-91. 
Defendant contests both the alleged violation and the
reasonableness of the proposed penalty.



                         FINDINGS OF FACT



	Brown & Dunton, Inc. is an Oregon business which leases
industrial employees to off-site employers.  As part of its
operation, Brown & Dunton provides unemployment and workers'
compensation insurance and pays employees directly.  It then
charges the lessor employer a rate which includes wages and all
associated costs, plus a profit margin.



	 Brown & Dunton first employed Rex Rowley as a temporary
employee on August 24, 1990.  Prior to any job assignments,
Rowley participated in a general orientation program conducted
by Brown & Dunton personnel manager, Matt Heath, in which safety
in the workplace was addressed.  Rowley viewed at least two
films stressing the importance of safety in the workplace.  The
safety section of the employee handbook which had been provided
to Rowley was discussed, and Rowley was encouraged to call Brown
& Dunton at any time at a specific number if he had concerns
about the safety of work conditions at any job site.  



	Between August 24, 1990 and May 1991, Brown & Dunton placed
Rowley with various employers, including Schuler Corporation,
Space Savers, Ankeny Vineyards, Roof & Floor Components, Fred
Meyer, Fort Hill, and Dallas Planing Mill.  (Ex. 12-2.) 



	On May 18, 1991, Brown & Dunton entered into an employee
leasing agreement with Bruce Packing Company, Inc. (Bruce
Packing), under which Brown & Dunton agreed to provide employees
to Bruce Packing Company.  (Ex. 9.)  Prior to signing the
contract, Jim Brown, owner and manager of Brown & Dunton, toured
the entire operation to view the jobs his employees would be
asked to do.  The duties of Bruce Packing Company under the
terms of the contract included:  providing adequate supervision
of all leased employees; providing all training which Bruce
Packing deemed necessary to enable the leased employees to
function safely, effectively, and properly in their respective
positions; taking all steps reasonably necessary to provide
leased employees with a safe workplace, including but not
limited to complying with all local, state, and/or federal laws
and regulations pertaining thereto; and conducting and requiring
employee attendance at regular safety meetings.  Brown & Dunton
reserved the right to inspect the workplace during regular
business hours where any leased employee was working to verify
compliance with the requirement that Bruce Packing provide a
safe working environment for leased employees.



	On May 28, 1991, Brown & Dunton placed Rex Rowley at Bruce
Packing.  Rowley was assigned to work on the swing shift
sanitation crew under the immediate supervision of Dennis
Dickinson, the sanitation supervisor.  With safety in mind,
Dickinson had changed the procedure for cleaning the meat mixer
shortly after he returned to the company following a brief
hiatus.  In addition, to assure safety, he trained workers to
work in particular areas and did not rotate them to other
assignments.



	Rowley was assigned to clean the meat mixer, a large stainless
steel tub approximately five feet tall.  The mixer was powered
by two motors, each with a separate switch and power source. 
Dickinson instructed Rowley to follow a strict procedure in
cleaning the mixer.  First, he was to move other equipment away
from the mixer.  Second, he was to hit the circuit breaker to
cut off the power.  Third, he was to disconnect the two plugs
from the motors.  Fourth, he was to wrap the cords around the
starter switch boxes.  Finally, only after all prior steps had
been accomplished, he was to clean the mixer.  This included
spraying water from a hose into the mixer while standing on the
platform and moving the two paddles inside the machine manually
with his hands or his feet.   



	On two occasions, Dickinson personally participated in and
assisted Rowley with the correct procedure for cleaning the meat
mixer.  On a third occasion, he observed Rowley perform the
cleaning procedure correctly.  Thereafter, Dickinson observed
Rowley at least three times an hour as he walked by Rowley's
station during the supervision of his crew.  On every occasion,
Rowley was following the correct procedure.



	Between May 28 and June 13, 1991, Jim Brown returned to Bruce
Packing on two occasions to pick up time sheets and inquire how
things were going, but he did not observe Rowley on either
occasion.



	On June 13, 1991, while working as a sanitation worker at Bruce
Packing, Rowley became entangled in one of the shafts of the
meat mixer and sustained fatal injuries.  Dickinson heard a
scream and looked up in time to observe Rowley inside the
operating meat mixer just before Rowley was pulled out of sight
into the vat.



	On June 26, 1991, Sam Drill, a compliance officer for Oregon
OSHA, conducted an inspection of the work site at Bruce Packing.
The inspection was prompted by the fatal accident which had
occurred on June 13, 1991.  On July 23, 1991, as a result of
that inspection, Oregon OSHA issued a citation and notice of
penalty to Brown & Dunton for a violation of OAR 437-40-030(1). 
The citation alleged that Brown & Dunton did not make sure that
proper training and supervision had been provided for their
employee at Bruce Packing Company.  The violation was classed as
serious and a $1,500 penalty was imposed.  Brown & Dunton
requested a hearing timely.



                        CONCLUSIONS AND OPINION



	ORS 654.010 provides:



     
"Every employer shall furnish employment and a place of employment which are safe and healthful for employees therein, and shall furnish and use such devices and safeguards, and shall adopt and use such practices, means, methods, operations and processes as are reasonably necessary to render such employment and place of employment safe and healthful, and shall do every other thing reasonably necessary to protect the life, safety and health of such employees."
In accordance with the legislative direction to enforce and administer the law, and pursuant to its rulemaking authority granted under ORS 654.025(2), the Director promulgated Oregon Administrative Rules, Chapter 437, Division 40, effective July 30, 1982, as amended through March 1, 1991. Included among those rules is OAR 437-40-030(1), which provides:
"The employer shall see that workers are properly instructed and supervised in the safe operation of any machinery, tools, equipment, process, or practice which they are authorized to use or apply. This rule shall not be construed to require a supervisor on every part of an operation nor to prohibit workers from working alone."
The instant citation alleges that Brown & Dunton violated the above rule by not making sure that proper training and supervision had been provided for their employee at Bruce Packing Company. The critical question is whether or not Brown & Dunton was an "employer" for purposes of the Act. An employer is defined in ORS 654.005(5) 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." (Emphasis added.) Brown & Dunton is not a sole proprietor or member of a partnership. Therefore, in order for it to be obligated under the statute, it must be considered a person having employees as that term is used in the statute. There are no statutes, administrative rules, or Oregon court decisions directly interpreting the term "employer" when addressing responsibility in cases involving leased employees. However, assistance can be gained from judicial interpretation of the federal statute which presents language substantially similar to the Oregon provision. See McKean-Coffman v. Employment Div., 312 Or 543, on remand 314 Or 645 (1992); Karsun v. Kelley, 258 Or 155 (1971); Oregon Occupational Safety v. PGE, 119 Or App 17 (1993). The federal Occupational Safety and Health Act defines an "employer" as "a person engaged in business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State." 29 USC Section 652(5). (Emphasis added.) In Secretary of Labor v. MLB Industries, Inc., OSHRC No. 83-0231, OSHD Paragraph 27,408 (1985), a case with relevant facts similar to those in the present case, the Occupational Safety & Health Review Commission (Commission) discussed the criteria to be considered in determining under what circumstances a person shall be considered the employer of particular employees for purposes of application of the Act. In that case, MLB supplied workers for Crown, paid the workers directly, and billed Crown after the work was completed. Crown agreed to instruct the workers, furnish the tools, and supervise the work. Crown assumed responsibility for the employees' activities, had control of the work site, and provided the supervision of the work. The Commission held that Crown was considered the employer for purposes of application of the Act, reasoning that Crown had control over the employees and their activities and, thus, was in a better position than MLB to assure the safety of the workers it had borrowed. It concluded that Crown had both the power and the responsibility to control the employees' activities. It held that MLB was not responsible for the safety of the employees it loaned to Crown for performing the work at issue. In the present case, Brown & Dunton supplied the workers for Bruce Packing, paid the workers directly, and charged Bruce Packing for its costs and profit. Although it did provide general safety training, it did not participate in the training and supervision of the employees with respect to the specific equipment and duties at Bruce Packing. Bruce Packing, on the other hand, supplied all of the equipment and assumed responsibility for its leased employees' activities, had control of the work site, and provided the supervision of the work. Bruce Packing was in a better position than Brown & Dunton to assure the safety of Rowley when he was performing his duties as part of the sanitation crew. Under the Commission's reasoning in MLB, Bruce Packing was responsible for complying with the Act. Further support for this interpretation of Oregon law is found in the Oregon courts' assignment of the duty to provide a safe workplace under the Oregon Employers' Liability Act. ORS 654.315 imposes responsibility for complying with safety requirements on the parties having charge of the particular work. Oregon courts have repeatedly held that the duty of providing a safe place to work and a duty to provide safe tools and other protective measures under the Employers' Liability Act lies with those retaining a right to control or actually exercising control as to the manner or method in which the risk-producing activity is performed. Miller v. Georgia-Pacific Corp., 294 Or 750 (1983); Wilson v. P.G.E. Company, 252 Or 385 (1968); Thomas v. Foglio, 225 Or 540 (1961); Helms v. Halton Tractor, 66 Or App 890 (1984). Bruce Packing retained and exercised control over the manner and method in which Rowley was to perform his job. I conclude that Bruce Packing rather than Brown & Dunton is considered the "employer" for purposes of application of the Oregon Safe Employment Act. Accordingly, the citation against Brown & Dunton shall be dismissed. Because I find the above issue dispositive, I do not address defendant's other arguments. ORDER NOW, THEREFORE, IT IS HEREBY ORDERED Item 1-1 of Citation No. D4775-095-91 is dismissed. 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 AUG 12, 1993 WORKERS' COMPENSATION BOARD By Donna Garaventa Referee