That test was adopted for purpose of determining an employment relationship in a safety case in Accident Prevention Div. 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.
Defendant is a general contractor by trade and has performed roofing replacement in the past.
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. The compliance officer saw and photographed two employees working on a roof approximately 20 feet above the ground without fall protection.