BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
 Health Division			)  Docket No: SH92200

	Plaintiff			)  Citation No. A879503792

RU & DIGER CONST INC,			) 

	Defendant			)  Opinion & Order



	Pursuant to notice, a hearing was held on January 13, 1993, in
Portland, Oregon.  Ed Rudiger, dba as Rudiger Construction, was
present, but was not represented by counsel. D. Kevin Carlson,
assistant attorney general, represented the Oregon Occupational
Safety and Health Division (the division). Exhibits 110 were
offered and accepted, except exhibit 5, which was withdrawn by
the division.  The record was closed on day of hearing.



                         ISSUES:



         1) Whether the employer was subject to the OR-OSHA
rules and regulations.



         2) Whether the employer violated OAR 437-03-001  29 CFR
1926.642 (a) (1) by being in an excavation over 5 feet deep
without protection from cave-ins and whether the $500 penalty
was reasonable.



         3) Whether the employer violated OAR 437-89-570 (9) by
not staving clear of a load hoisted and lowered into an
excavation by a backhoe and whether the $500 penalty was
reasonable.



                       FINDINGS OF FACT:



         Leslie Anderson, a safety compliance officer,
specializing in construction and excavation inspections, on
February 6, 1992, was driving around the Portland metro area
looking for new construction.  She noticed new construction at
an apartment complex at 4412 S. E. 122nd street.  She discovered
that the prime contractor was JBH Construction Co. and met with
its representative, Bob Fowler, upon entry to the work site. Mr.
Fowler informed her that there were several subcontractors,
including Ed Rudiger, who was installing water and sewer lines.
Ted Rudiger, Ed Rudiger's son was working on the site with his
father.



         While conducting a routine inspection, Ms. Anderson
talked to Mr. Ed Rudiger, who became verbally abusive.  He had
been threatening to compliance officers in the past so she went
to the trailer to phone her office for instructions.  While she
was calling her office from a trailer house, she observed Ted
Rudiger operate a backhoe and Ed Rudiger lowered in and out of
an excavation on the backhoe ring that carried a load.  Ms.
Anderson phoned her office again and had another compliance
officer Patrick Darby participate in the inspection.



         Ms. Anderson took a picture of the excavation in
question, photos of similar holes in the area and several photos
of the backhoe area from the trailer.  She took pictures of a
similar holes in the area because of her difficulty in dealing
with Mr. Ed Rudiger.  The soil in and around the holes was
unstable. Ms. Anderson informed Ed Rudiger of the violations and
he admitted that he was in the hole.  The compliance officers
were unable to close the inspection on February 6, 1992, because
of the lack of cooperation and had to return on February 11,
1992, with an inspection warrant.



         Bob Fowler, Ed Rudiger and Ted Rudiger all told the
compliance officers that the Rudigers were working as partners. 
Ed Rudiger and Ted Rudiger also told Mike Galloway, an
enforcement investigator for the Construction Contractor's Board
and Landscape Contractor's Board during a February 12, 1992,
inspection that they were working as partners at the job site. 
Rudiger Construction Co. was not registered with the
Construction Contractor's Board as a sole proprietor.  At one
point during the OSHA inspection, Ed Rudiger informed Ms.
Anderson that he was a sole proprietor, not subject to OSHA
rules.



                          OPINION:



         1) Subjectivity to OR-OSHA rules.  The employer
contends that he is a sole proprietor with no employees and thus
is not subject to the OROSHA rules.  His son testified that he
was not working for his father as a partner on February 6, 1992,
but was just helping him out in exchange for using his father's
equipment or in exchange for his dad's help in his other
businesses.



         ORS 654.003 provides that the purpose of the Oregon
Safe Employment Act is to assure as far as possible safe and
healthful working conditions for every working man and woman in
Oregon, to preserve our human resources and to reduce the
substantial burden in terms of lost production, wage loss,
medical expenses, disability, compensation payment and human
suffering, which is created by occupational injury and disease. 
ORS 654.010 requires that every "employer" furnish a safe
employment place and ORS 654.022 provides that every employer,
owner, employee and other  person shall obey and comply with the
standard rule or regulation made in connection with the Safe
Employment Act.



         "Employer" is defined in ORS 654.005 (5) and OAR
437-01-015 (23) 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. "Employee" is defined in ORS 654.005 (4) and OAR
437-01-015 (19) 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 the employer, ....or any individual who
is provided with worker's compensation coverage as a subject
worker pursuant to ORS chapter 656, whether by operation of law
or election.



         The evidence in this case indicates that Ed Rudiger was
performing work on the construction site with his son Ted
Rudiger as partners.  They represented themselves to be partners
to the general contractor Mr. Fowler, several compliance
officers and to the Oregon State Construction Contractors
Board's enforcement investigator.  Rudiger Construction Co. was
no longer registered as a corporation in February 1992.



         I do not accept the son's testimony that he and his
father were not working as partners and that he was not working
for his father on February 6, 1992.  The compliance officers saw
the son working for his father under the father's direction and
control.  The son testified at hearing that he did not get paid
for his work, but that testimony is contradicted by his own
statements to the compliance officers and by Ed Rudiger's letter
to the Contractor's Board (Exhibit 108) where he represented
that his son was a subcontractor.  In addition, the son said
that he received equipment use and work from his father in
exchange for his working on the construction project, which
qualifies under the act as remuneration.



         ORS 656.005 (13) defines an employer as any person who
contracts to pay a remuneration for and secures the right to
direct and control the services of any person and a subject
worker in subsection (26) as a worker who is subject as provided
in ORS 656.027.  ORS 656.027 provides that all workers are
subject workers except (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 in order to be exempt.
I find that under ORS 656.G27 that Ed Rudiger and Ted Rudiger
were nonexempt partners and were thus required to comply with
the requirements of the Oregon Safe Employment Act.



	2) Violation of OAR 437-03-001, 29 CFR 1926.652 (a) (1).



         OROSHA contends that Ed Rudiger violated this standard
by being in an excavation of 5 feet or more in depth that was
not protected from cave-ins.  This standard provides:



"Each employee in an excavation shall be protected from cave-ins by an adequate protective system designed in accordance with paragraph (b) or (c) of this section except when: (i) Excavation are made entirely in stable rock; or (ii) Excavation are less than 5 feet (1.52 m) in depth and examination of the ground by a competent person provides no indication of a potential cave-in."
The division has the burden to prove that the employer violated the section charged; ORS 183.4S0 (2) and ORS 654.290 (2). I find that the Division has sustained its burden of proof. I accept the testimony of the compliance officer that she saw Ed Rudiger being lowered into and out of a hole that was deeper than 5 feet and the hole was not protected from cave-ins. While she did not actually see him in the hole, that was the only place he could have gone. Ed Rudiger later admitted that he had been in the hole. According to Ms. Anderson, the hole where Mr. Rudiger entered was about 12 feet deep, well in excess of the 5 feet required. The excavation was not made entirely in stable rock, but was in unstable soil that was likely to cave-in. She took a photograph of the hole in question as well as similar holes with the same depth and soil conditions in the area (exhibit 6). She observed no Protection in the hole for cave-ins. The $500.00 penalty proposed in the citation appears appropriate. It was calculated in accordance with the administrative rules OAR 437-01-135 through 437-01-150 and based upon the likelihood or probability of injury and how serious the injury would be. She was conservative in determining the penalty. While OAR 437-01-145 allows for a reduction if the employer corrects the violation before the end of the inspection, there is no evidence that the violation was corrected and because of the employer's hostility, closure could not be effected on the day of the inspection. The compliance officer did not receive the information needed to see if the employer was entitled to other reductions; 3) Violation of OAR 437-89-570 (9). OROSHA contends that the employer violated this standard by not staying clear of a load hoisted and lowered into an excavation. This standard provides:
"All employees shall be kept clear of the load about to be lifted and of suspended loads."
I find that the division has proved that Ed Rudiger violated this standard by riding a load into a hole, as observed by Ms. Anderson. Ed Rudiger not only did not stay clear of the load, he was on it. The purpose of the standard, according to Ms. Anderson is to keep the worker from injury from a failure of a rigging system or from being struck by the load. I also find that the $500.00 penalty, also determined in accordance with the administrative rules was appropriate. Adjustments to the penalties are optional and not required by the regulations. Ed Rudiger's assertion that he knows more about what are safe and unsafe conditions, having worked in construction for so many years, is really no defense at all. His contention that he has not had accidents in the past is also not a defense. Since he is a subject employer or employee as a partner, he must comply with the Oregon Safe Employment Act. While he expressed his irritation with OSHA, he never denied that he was in a hole, not protected from cave-ins and he never denied that he was riding the rigging rather than standing clear of it. There was no evidence that the division was particularly out to get the *Rudigers. The violations were observed during a routine inspection of a new construction site and the compliance officers acted reasonably in the face of his hostility and lack of cooperation. ORDER: IT IS THEREFORE ORDERED that Citation No. A879503792 is affirmed. NOTICE TO ALL PARTIES If you are dissatisfied with this Order, you may, not later than sixty (60) days after the mailing date on this Order, request a review by the Court of Appeals, Third Floor, Justice Building, Salem, OR 97310, pursuant to ORS 656.740(4) and 183.480 et seq. A request for review shall be mailed to the Court of Appeals at the above address with copies of such request mailed to all other parties to this proceeding. Failure to mail such a request for review within sixty (60) days after the mailing date of this Order will result in LOSS OF RIGHT TO APPEAL FROM THIS ORDER ENTERED at Portland, Oregon, on JAN 26 1993 WORKERS' COMPENSATION BOARD Vinita J. Neal Referee