BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
  Health Division			)  Docket No: SH92199

 	Plaintiff			)

					)  CITATION NO: L421802892

	v.				)

F. RODRIGUEZ CONSTRUCTION		)

	Defendant			)  OPINION AND ORDER



Pursuant to notice, a hearing was convened and closed on January
13, 1993, in Bend, Oregon, before the undersigned referee. The
plaintiff, Oregon Occupational Safety and Health Division
("OROSHA"), was represented by Ms. Armonica Gilford. The
defendant, Mr. Frank Rodriguez, appeared pro se exhibits 1
through 7 were received in evidence. The hearing was recorded by
Business Support Services.



                          ISSUE



Whether defendant was an employer at the time of OROSHA's
January 1992 inspection, and, if so, whether he was the
responsible employer.



                        STIPULATIONS



1. The parties have stipulated to the truth and accuracy of the
violations set forth in Items 1-1, 1-2, and 2-3 of Citation No.
L421802892



2. However, the defendant's defense is that he was not the
employer responsible for the aforementioned violations, or for
ensuring compliance with the rules he allegedly violated.



                      FINDINGS OF FACT



In early January 1992, Mr. Billy Jackson hired Mr. Randal Teel
to install three roofs. The agreement between Jackson and Teel
was verbal. Shortly thereafter, the defendant spoke to Teel
about helping out on the roofing job. The two then spoke to
Jackson. Jackson hired the defendant to help Teel. Again, the
agreement was verbal. All three individuals  Jackson, Teel, and
the defendant  were licensed contractors. Ex. 41.



On January 8, 1992, an OROSHA Safety Officer inspected the site
of the roofing project. He noticed several safety violations. He
was unable, however, to ascertain who the responsible employer
was. Consequently, he cited Jackson, Teel, and the defendant, as
well as several other workers. Ex. 41.



               CONCLUSIONS OF LAW AND OPINION



In this case, OROSHA has cited the defendant for several alleged
violations. The defendant does not dispute that the violations
occurred. Rather, he disputes OROSHA's assertion that he was the
responsible employer.



OROSHA has the burden of proof. To carry its burden, it must
prove that the defendant was both an employer and the
responsible employer. The evidence indicates that there were
three possible employers, who could have been responsible for
the violations. Although OROSHA has cited all three alleged
employers, it concedes that only one employer can be found
responsible. However, none of the other alleged employers have
been joined in this proceeding.



Consequently, the resolution of this case does not necessarily
require a finding of who is the responsible employer. The first
inquiry is to determine whether the defendant was an employer.
That is, he cannot be the responsible employer, if there is no
persuasive evidence that he was an employer. Accordingly, if he
was not an employer, the fact-finder's inquiry should stop. Any
further analysis would be dicta. On the other hand, if he was an
employer, the fact-finder should proceed to determine whether he
was the responsible employer.



Under the Safe Employment Act, an employer is defined as follows:



"[A]ny person who has one or more employees, or any sole proprietor or member of a partnership who elects worker's compensation coverage as a subject worker pursuant to ORS 656.128." ORS 654.005(6) & OAR 438-85-006(13).
There is no evidence that the defendant elected workers' compensation coverage as a subject worker under ORS 656.128. Accordingly, OROSHA must prove that the defendant "ha[d] one or more employees." ORS 654.005(6). The evidence in this case indicates that Jackson verbally hired Teel to construct three roofs. Shortly thereafter, the defendant learned of the job. Desiring work, he spoke with Teel about assisting him. Consequently, Teel and the defendant spoke to Jackson. Jackson verbally hired the defendant to help Teel install the roofs. While Teel and the defendant were installing one of the roofs, the OROSHA inspector arrived. He observed multiple safety violations and eventually cited Jackson, Teel, and the defendant. Under such circumstances, I conclude that there is no persuasive evidence that the defendant "ha(d] one or more employees." ORS 654.005(6). Accordingly, OROSHA has not met its burden of proving that claimant was an employer. ORDER IT IS THEREFORE ORDERED that Citation No. L421802892, dated February 10, 1992, is set aside in its entirety. 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 FEB. 11, 1993 WORKERS' COMPENSATION BOARD By Kirk Spangler; Referee