BEFORE THE WORKERS' COMPENSATION BOARD OF



                          THE STATE OF OREGON



                           HEARINGS DIVISION



Oregon Occupational Safety &                                    
      Health Division			)  Docket No:  SH-91035

					)

	Plaintiff,			)

					)

		vs.			)  Citation No:  V9801-003-91

					)

EXCELD SERVICES				)

					)

	Defendant.			)  OPINION AND ORDER



	Pursuant to notice, a hearing was held and closed on June 22,
1995 in Portland, Oregon before David D. Lipton, Administrative
Law Judge.  The plaintiff, Oregon Occupational Safety and Health
Division (OSHA), was represented by Armonica Gilford, Assistant
Attorney General.  The defendant, Exceld Services, was
represented by its owner, Louis Schwartzenberger.  The
proceedings were recorded by Jim Terrall of Harris Reporting.  



	Exhibits A through E and 1 through 14 were admitted.



                         ISSUE



	The defendant contests the Citation issued November 28, 1990 on
the grounds that he is not an employer and not subject to ORS
Chapter 654 and the Administrative Rules promulgated under.  



                     FINDINGS OF FACT



	Exceld Services is an Oregon business owned and operated by
Louis Schwartzenberger.  This business provides dust collector
and bag house maintenance services to industries with air
pollution control equipment.  Mr. Schwartzenberger is the
business' only permanent employee.  



	At the time of a pre-hearing conference, the parties stipulated
that Exceld Services contracted with Armstrong World Industries
to remove dust and install bindicators (depth measuring devices)
in dust bins on Armstrong's premises.  Exceld Services obtained
workers from Labor Force, a temporary service agency, to assist
him in performing the work required under the contract. 
Armstrong's agreement with Exceld Services required Exceld
Services to be responsible for compliance with safety
requirements (Ex. E, sec. 14) and required the contractor to
furnish adequate and competent supervision (Ex. E, sec. 16).



	Exceld Services' contract with Labor Force required Exceld
Services "to comply with all applicable laws" and "to provide
any safety equipment, clothing or devices necessary or required
by law for any work to be performed . . ." ( Ex. 4, pg. 54, sec.
4).



	Labor Force provided Exceld Services with two workers, Jeff
Jennings and Phillip Langford.  The two laborers met Mr.
Schwartzenberger on Friday, October 12.  They reviewed the work
to be performed but were unable to perform any work on that day.
 They returned the following day and began work at about 8 a.m.  



	The bag houses where the job was to be performed are entered
from a hatch.  The bag houses were filled with dust which
accumulated as the workers unclogged the dust which had
accumulated in the feeder tubes.



	During the course of unclogging the second bag house, Mr.
Langford was buried by the dust and suffocated.  



	Workers obtained from Labor Force are paid directly by Labor
Force from amounts billed to companies utilizing their temporary
workers.



	At the time of the pre-hearing conference, the parties further
stipulated that the bag houses were a steel tank which was a
confined space, that the tool used to release clogged dust was a
five foot pitchfork and that the performance of the task of
unclogging the dust subjected the workers to the released dust. 
The parties further stipulated that the allegations contained in
Citation 1-3A are correct.  The parties stipulated with respect
to Citation Items 1-4, 1-5, 1-6 that the facts therein stated
are correct.  The parties stipulated with respect to Citation
Item 1-7 that there were no Class A fire extinguishers available
at the work site.



	Exceld Services' payment to Labor Force for the services of the
workers together with Exceld Services' control over the
performance of the work is sufficient to find that Exceld
Services was an employer subject to ORS Chapter 654.  



                       OPINION AND CONCLUSION





	Exceld Services does not, in material part, contradict the
facts identified in the citation.  Rather, it is the position of
Exceld Services that it is not an employer and that either
Armstrong World Industries or Labor Force were responsible to
perform the duties identified in the citation.  



	There are seven factors to consider in determining whether a
business entity is an employer.  These are:

	1.   Whom do the workers consider their employer?

	2.   Who pays the workers' wages?

	3.   Who has the responsibility to control the workers?

	4.   Whether the employer has the power versus the
responsibility to control the workers?

	5.   Whether the employer has the power to hire, fire or modify
the conditions of employment of the workers.

	6.   Whether the workers' ability to increase their income
depends upon efficiency rather than initiative, judgment or
foresight.

	7.   How the workers' wages are established. 

See, Secretary v. Kennedy t/a Nation's Hoop Carpenters, 14
O.S.H. Cas (BNA) 1744 (1990).



	Although we do not know whom the workers considered their
employer, in completing the workers' compensation claim form,
Labor Force identified Mr. Langford as its employee.  

	Although Labor Force personally paid the wages of the workers,
the money paid for those wages came from Exceld Services.  Labor
Force was merely a conduit for the payment of wages.  Robinson
v. Omark Industries, 46 Or App 263 (1980).  Mr. Schwartzenberger
set up meetings with the workers to go over the work, determined
when they would meet to start the day, explained the job to the
workers and was present during the performance of the labor.  In
addition, Exceld Services was required by its contract with
Armstrong to provide competent supervision.  I therefore find
that Exceld Services had both the responsibility to control the
workers as well as the authority to control the workers.  



	Exceld Services did not directly hire the workers; they were
provided to him.  There is no evidence as to what Exceld
Services' responsibility would be had it determined that a
worker provided to it was not capable of performing the
necessary work.  



	 The workers' wage were established by Labor Force and the
workers were not able to increase their income by any identified
means.  



	Because I find that Exceld Services both paid the workers'
wages and had the responsibility and authority to control the
workers, I find that Exceld Services was an employer subject to
ORS Chapter 654.



	In addition, I find that Exceld Services was in the best
position between Armstrong World Industries and Labor Force to
assure the safety of the workers performing the job.  OR-OSHA v.
Brown and Dutton Inc., Docket No. SH-91056 (1993), Secretary v.
Antonio Levesque and Sons, Inc., 13 O.S.H. Cas. (BNA), 1712
(1988).



	Exceld Services' defense that it was not an employer subject to
ORS Chapter 654 having failed, I find that the Citation should
be affirmed.



                         ORDER



	IT IS HEREBY ORDERED that Items 1-1 through 1-7 of Citation No.
V9801-003-91 are affirmed.



	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 Portland, Oregon, July 28, 1995



				Workers' Compensation Board

				David D. Lipton

				Administrative Law Judge