THE STATE OF OREGON

                           HEARINGS DIVISION

Oregon Occupational Safety &                                    
  Health Division			)  Docket No:  SH-93265


	Plaintiff,			)


		vs.			)  Citation No:  G8421-071-93




	Defendant.			)  OPINION AND ORDER

	Pursuant to notice, a hearing was held in the above matter on
December 5, 1995, in Salem, Oregon, before Administrative Law
Judge Donna Garaventa.  The plaintiff, Oregon Occupational
Safety & Health Division (hereinafter OR-OSHA), was represented
by Thomas Cowan.  The defendant, Alan Roth, appeared on his own
behalf.  The proceedings were recorded by Marlene Cromwell of
Business Support Services.  The record was closed on December 5,

	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 ORS 654.991.


	Exhibits 1 through 8 were received into evidence.


	1.  Defendant challenges the validity of Citation No.
G8421-071-93 generally, contending that he was not an employer
subject to the Oregon Safe Employment Act and that the State of
Oregon does not have authority to impose safety regulations on

	2.  Defendant challenges Item 1-1 of Citation No. G8421-071-93.
 Specifically, Defendant denies that a violation occurred,
challenges the classification of the violation as serious, and
disputes the amount of the penalty imposed.

                       FINDINGS OF FACT

	On August 12, 1993, Stephen Gilbert, a safety compliance
officer for OR-OSHA, was driving his vehicle in the course of
his employment and observed a roofing job underway at 844 Park
St., Lebanon, Oregon.  He stopped, approached the site where he
observed three men working on the second-story roof with the
eaves approximately 20 feet above ground.  He yelled up to the
workers and asked that the owner or employer come down. 
Defendant came down from the roof.  Mr. Gilbert identified
himself, conducted an opening conference, and asked Defendant if
he had provided fall protective equipment.  Defendant responded
that the three were using slats of the old roof to hold onto. 
Gilbert stated that it was not an acceptable means of fall
protection.  Roth responded that the workers were responsible
and that they worked at their own risk.

	Roth then returned to the roof.  When Gilbert asked to speak to
the other two workers, all three men came down from the roof. 
Roth refused to allow Gilbert to speak to the other workers and
the three (Roth and the two other workers) left the job site.

	On August 31, 1993, a citation issued, alleging a violation of
OAR 437-03-040(1), classifying the violation as serious, and
imposing a penalty of $450.  Defendant requested a hearing on
the citation by letter dated September 3, 1993, and received by
OR-OSHA on September 9, 1993. 

                         CONCLUSIONS AND OPINION

	The policy of the Oregon Safe Employment Act is set out in ORS
654.003, and provides in pertinent part:

"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 payments and human suffering, which is created by occupational injury and disease. . . ."
In an effort to accomplish the policy, ORS 654.010 requires every employer to furnish employment and a place of employment which are safe and healthful for its employees. ORS 654.005(5) defines an employer 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." The legislature has adopted a strong safe-employment policy and requires employers to equip workplaces with reasonably necessary "devices and safeguards." ORS 654.003; ORS 654.010. The authority to establish fall protection requirements was delegated by the legislature to the Department of Consumer and Business Services (DCBS, formerly Department of Insurance and Finance [DIF]). ORS 654.025(2); ORS 654.035. Pursuant to that authority, DCBS promulgated OAR 437-03-040(1), which provides:
"All employees shall be protected from fall hazards when working on unguarded surfaces more than 10 feet above a lower level or at any height above dangerous equipment, except when connecting steel beams as stipulated in OAR 437-03-040(2)."
Initially, Defendant challenges the authority of the state to impose safety regulations on employers. That authority comes from the legislature. ORS 654.010; ORS 654.025(2); ORS 654.035. Secondly, Defendant alleges that OR-OSHA has failed to establish that, at the time of the inspection, he was an employer subject to the Act. In Harris v. State Industrial Accident Comm., 191 Or 254 (1951), the Oregon Supreme Court held that the ultimate test of employer-employee relation for workers' compensation purposes is the right to exercise control. That test was adopted for purpose of determining an employment relationship in a safety case in Accident Prevention Div. v. Stadeli Pump, 18 Or App 357 (1974). The courts have considered various factors in determining whether a "right to control" establishes an employment relationship. See, e.g., Great American Ins. v. General Ins., 257 Or 62 (1970). Here, there is no direct testimonial evidence that at the time and place of the inspection, Defendant was an employer subject to the Act. Defendant claimed to have no recollection of working at the site in question, of employing any workers, of meeting Mr. Gilbert, or of participating in a safety inspection on the date in question. The record, including the documentary evidence and the testimony of Stephen Gilbert, however, presents sufficient facts from which a finding that Defendant was an employer can be inferred. At the time Gilbert approached the site, three men were working on the roof. (Exhibit 6; testimony of Gilbert.) Defendant is a general contractor by trade and has performed roofing replacement in the past. (Testimony of Defendant.) Gilbert's credible testimony establishes that, when he asked to speak to the owner or employer, Defendant came down from the roof and participated in the discussion with him. Defendant described to Gilbert the procedure being used in the roofing operation. When Gilbert asked to speak to the other two workers, Defendant refused his request, and, by his actions, appeared to exercise control over the workers by instructing them to leave the job site with him. Considering all of the evidence, I find that, at the time and place of the inspection in question, Defendant was the employer who exercised control over two workers and was, therefore, an employer subject to the Oregon Safe Employment Act. Item 1-1 OAR 437-03-040(1) requires that employees must be protected from fall hazards when working on unguarded surfaces more than 10 feet above a lower level. The compliance officer saw and photographed two employees working on a roof approximately 20 feet above the ground without fall protection. I conclude, based on the evidence presented, that Defendant violated OAR 437-03-040(1). In classifying the violation as serious, the compliance officer considered that possible injuries resulting from a fall could result in bone fractures or significant cuts. Considering the circumstances described in the operation, I find that the officer's assessment was reasonable. Accordingly, I conclude that the violation was correctly classified as serious under OAR 437-01-015(48) and (53)(a). OAR 437-01-135 charges the compliance officer with evaluating and determining the probability of an accident which could result in an injury or illness from a violation. Based on his explanation at hearing, I find that the officer's assessment of a medium probability of a serious injury occurring under OAR 437-01-135(3)(b) is appropriate. The compliance officer determined the penalty under Table 1, set out in OAR 437-01-145, and adjusted pursuant to the factors described in OAR 437-01-145(2). He reduced the $500 penalty by 10 percent under OAR 437-01-145(2)(b), for the employer having fewer than 50 employees during the 12 months prior to the inspection. OAR 437-01-145(2)(b) allows a reduction of 20 percent when the violation is corrected before the end of the inspection. Here, the compliance officer testified that all employees left the job site before the end of the inspection at the direction of the employer. That action removed employees from exposure to the unsafe condition, correcting the violation for which an additional 20 percent reduction is allowed. Accordingly, the penalty of $500 should be reduced a total of 30 percent, for an adjusted penalty of $350. ORDER NOW, THEREFORE, IT IS HEREBY ORDERED Item 1-1 of Citation No. G821-071-93, which found that Defendant violated OAR 437-03-040(1), is affirmed. The penalty imposed for the violation is reduced to $350. 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, December 8, 1995 Workers' Compensation Board Donna Garaventa Administrative Law Judge