Van Buren-Madawaska Corporation

Plain-English summary

OSHA issued 21 citations involving twelve northern Maine logging worksites, including woods operations, labor camps, and a maintenance garage. Van Buren-Madawaska accepted that the cited conditions would violate the Act if it was the workers' employer, but argued that contracted logging operators employed them as independent businesses. The ALJ granted summary judgment to the Secretary and treated Van Buren as the employer. The Commission held that the stipulated record did not resolve key parts of the economic realities test, including whom workers considered their employer, who controlled safety conditions, whether operators exercised business judgment, and how worker pay was determined. It set aside the summary judgment and remanded for additional evidence without deciding the ultimate employment question.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.142 is identified for labor-camp allegations; the other cited standards are not listed in the decision.
• Outcome: Summary judgment affirming the citations set aside; case remanded for factfinding on employer status.
• Key point: Contract labels do not decide OSH Act employment status, and an incomplete economic-realities record cannot support summary judgment for either side.

Full text (OSHRC public release)

Docket No. 87-0214_87-0217_87-0450_87-0459

SECRETARY OF LABOR,

Complainant,

v.

VAN BUREN-MADAWASKA CORPORATION,

Respondent.

OSHRC Docket Nos. 87-0214,

87-0217,

&
87-0450

through
0459

DECISION

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The Secretary of Labor cited Van Buren-Madawaska Corporation
("Van Buren") for numerous violations of the Occupational Safety and Health Act
of 1970 [1/] following an inspection of twelve worksites in the
woods of Northern Maine. Van Buren agrees that the cited conditions violate the Act, but
contends that it was not the employer of the workers exposed to the hazards and was
therefore not the proper entity to be cited. The Secretary and Van Buren subsequently
agreed to a stipulated set of facts and submitted cross-motions for summary judgment on
the issue of whether Van Buren was properly cited for the violations. The administrative
law judge granted the Secretary's motion, denied Van Buren's, affirmed the citations, and
assessed the proposed penalties. We conclude that neither party is entitled to summary
judgment, set aside the judge's order, and remand the case for further proceedings.

A

Van Buren's business consists of building and maintaining roads
across forest lands, timber resource management under contract with landowners, and
harvesting and milling wood. Before 1981, Van Buren had employees who cut wood. Beginning
in 1981, the company required those of its employees who wished to continue cutting wood
for Van Buren, or anyone else who wished to begin cutting wood for Van Buren, to sign
contracts under which they would cut wood on land designated by Van Buren and deliver the
cut wood to yards on Van Buren's land. The entities that contracted with Van Buren are
referred to as "operators." The operators, which include both corporations and
individuals, engage "workers" to cut and deliver the wood.

Van Buren tells the operators where to cut, what trees to cut,
how much to cut, and where to deliver the wood. The operators are paid based on the amount
of wood delivered. The contract provides that the operators can supervise, hire and fire
workers as well as establish pay and hours for the workers. The operators cannot sell cut
wood without Van Buren's permission. They are required to obtain a variety of insurance
policies, including coverage that indemnifies and holds Van Buren harmless against various
types of lawsuits. The contract also requires the operators to comply with various laws,
including the OSH Act.

B

The OSH Act imposes a duty on an "employer" to
provide for the on- the-job safety and health of its "employees." 29 U.S.C. �
654(a). Therefore, a business organization is generally only liable under the Act for
violations that affect the safety or health of persons with whom it has entered into an
employment relationship. To determine whether an employment relationship exists, the
Commission applies the "economic realities test," which was developed and
refined in the context of other "remedial legislation" and first applied by the
Commission in the OSHA context in Griffin & Brand of McAllen, Inc., 78 OSAHRC
48/C13, 6 BNA OSHC 1702, 1978 CCH OSHD � 22,829 (No. 14801, 1978). The test emphasizes
the substance over the form of the relationship. It requires an inquiry into the following
factors:

(1) Whom do the workers consider their employer?

(2) Who pays the workers' wages?

(3) Who has the responsibility to control the workers?

(4) Does the alleged employer have the power to control the
workers?

(5) Does the alleged employer have the power to hire, fire or
modify the employment condition of the workers?

(6) Does the workers' ability to increase their income depend
on efficiency rather than initiative, judgment, and foresight?

(7) How are the workers' wages established?

6 BNA OSHC at 1703, 1978 CCH OSHD at pp. 27,600-601.

Before the judge, the Secretary and Van Buren both argued that
application of the Griffin & Brand test to the stipulated facts entitled them
to summary judgment. In finding for the Secretary, the judge applied an economic realities
test that relied on the nature of the contract and the manner in which it was negotiated
instead of examining each of the elements of the Griffin & Brand test. Upon
analyzing the stipulated facts under that test, we find that there are material facts
still in dispute as to several of the elements of the Griffin & Brand test.
Since summary judgment is properly granted only where there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law, Fed.R.Civ.P. 56,
we set aside the judge's order granting the Secretary's motion for summary judgment.[[2/]]

C

Still in dispute, or at least unresolved (due to lack of
evidence), are factual issues that would allow us to determine whom the workers consider
to be their employer; whether and to what extent Van Buren exercises control over the
workers; whether the operator's ability to increase its income depends on efficiency
rather than initiative, judgment, and foresight; and how the workers' wages are
established.

(1) Whom do the workers consider their employer?

The stipulation establishes that the operators consider
themselves to be independent contractors, but it does not establish who the workers believe
is their employer. If the workers believe that Van Buren is their employer, that would be
strong evidence that the economic relationship between Van Buren and the operators is more
like an employer-supervisor relationship than a relationship between a business and an
independent contractor. Van Buren contends that the workers consider the operators to be
their employers, but it relies on stipulated facts that may or may not support its claim,
e.g., the stipulations concerning the operator's power to hire, fire, supervise, and pay
employees. These factors are usually present in an employer/employee relationship, but
they are not necessarily determinative in their effect on the perceptions of the workers.
It is not unusual for a company to delegate to supervisory employees the authority to
hire, fire, and supervise lower level employees. Therefore, the authority of the operators
to hire and fire employees does not conclusively establish that the workers consider the
operators, rather than Van Buren, to be their employers.

In addition to seeking better evidence of what the workers
actually think, it would also be helpful to us to know more about the status of the
workers and the operators, including which operators have employees, how many employees
each has, and how many of the operators and employees are former employees of Van Buren.
The stipulated facts provide some information but it is difficult to get a clear picture
of that relationship from the stipulations. For example, Van Buren's assertion that all
nine of the "operators" involved in these cases are either corporations,
partnerships or sole proprietorships suggests that the operators are separate, independent
business entities. However, the limited record before us does not establish the extent to
which the operators engage in business outside of Van Buren's logging operations. The
Secretary, on the other hand, suggests that all of the operators are former employees of
Van Buren, who have merely continued their old relationship in a new guise that differs
only in form and not in substance from the old relationship. Based on these assertions,
the judge found that "[a]pparently the work performed under the written contract is
precisely the same as the work previously done by the operators prior to 1981 when the
acknowledged relationship was that of employer and employee." However, we find that
there is no evidence to support the judge's findings and the factual assertions on which
they are based.

(2) To what extent does Van Buren control the workers?

An employment relationship gives the employer the right to
direct the activities of the employees to produce economic gain or accomplish other
objectives the employer may have. The OSH Act imposes on the employer the corresponding
responsibility to control the work environment to assure the safety and health of the
employees. Therefore, in determining whether there is an employment relationship for
purposes of the OSH Act, the Commission "place[s] primary reliance upon who has
control over the work environment such that abatement of hazards can be obtained." MLB
Industries, 85 OSAHRC 42/A3, 12 BNA OSHC 1525, 1527, 1985 CCH OSHD � 27,408, p.
35,510 (No. 83-231, 1985). Accord, Tricil Resources v. Secretary of Labor,
842 F.2d 141 (6th Cir. 1988); Brock v. Chicago Zoological Society, 820 F.2d 909
(7th Cir. 1987); Clarkson Construction Co. v. OSHRC, 531 F.2d 451 (10th Cir. 1976).

Applying the rationale of MLB Industries to the limited
record before us would lead to the conclusion that Van Buren was improperly cited since
the operators appear to be in a better position to assure safe working conditions than Van
Buren is in.[[3/]] Most of the violations that Van Buren is alleged to have committed took
place at twelve different locations in the woods on land that neither Van Buren nor the
operators own. Many of the violations involved equipment, including chainsaws and
skidders, which the operators and workers "furnish, use and maintain." The
operator "supervises (the) daily activities of the workers such as felling, hauling
and equipment maintenance" and "accepts full responsibility for compliance and
enforcement of all requirements of OSHA." Although Van Buren's foresters tell the
operators where to cut, what type of wood to cut, and how much wood to cut, there is no
evidence that the foresters or other Van Buren employees are present in the woods during
the cutting.

However, Van Buren's lack of control over the equipment and
over the daily activities at the worksite is not the only factor to consider in
determining whether Van Buren controls the safety and health of the workers. Some of the
citations issued to Van Buren involve safety and health problems not directly related to
cutting activities in the woods. The citations in Docket Nos. 87-217 and 87-455 allege
violations of the temporary labor camp standards published at 29 C.F.R. � 1910.142. It is
not clear what type of structures are involved in these citations. Perhaps they were
formerly owned by Van Buren or are still owned by Van Buren. The citations in Docket No.
87-456 involve a maintenance garage. Since the operators and their workers appear to be
concerned only with the cutting and transporting of wood, we would not expect an operator
to own or run a maintenance garage. Van Buren might have more control than the operators
over these cited working conditions, but the record provides us with no basis for
determining that this is the case.

(3) Does the operator's ability to increase its income depend on efficiency rather than
initiative, judgment, and foresight?

The wording of this part of the test is somewhat murky, but its meaning can be understood
by considering its origin. The wording is first encountered in Rutherford Food Corp. v.
McComb, 331 U.S. 722, 67 S.Ct. 1473 (1947) In Rutherford, the Court held that
meat boners who formed part of a slaughterhouse production line and who were paid on a
piecework basis under a contract were employees covered by the Fair Labor Standards
Act[[4/]] rather than independent contractors. The Court stated:

While profits to the boners depended upon the efficiency of
their work, it was more like piecework than an enterprise that actually depended for
success upon the initiative, judgment or foresight of the typical independent contractor.

331 U.S. at 730: 67 S.Ct. at 1477. Thus, under Rutherford, the
ability of an operator to increase its income by the exercise of business judgment would
indicate that the operator is an independent contractor. However, if the operator in
practice exercises little business judgment, but simply attempts to cut as much wood as
possible in the time available, the test suggests an employment relationship rather than
an independent contractor relationship.[[5/]]

The stipulated evidence establishes that the operators are paid
for the amount of wood they cut and deliver to Van Buren. Moreover, Van Buren tells then
the type and amount of wood they can harvest, and the "[o]perators may not sell cut
wood to [Van Buren's competitors, except upon a stumpage purchase agreement between [Van
Buren] and (the) [o]perator." These facts suggest that Van Buren determines how much
an operator can earn. Van Buren argues that the operators can achieve as much financial
reward as they desire but the portions of the stipulation it cites do not support this
claim. Nor do the stipulations indicate whether the operators can realistically expect to
increase their income through the exercise of business judgment. In order to answer this
part of the Griffin Brand test, evidence of whether the operators can increase
their income and how they can do so is required.[[6/]]

(4) How are the workers' wages established?

It was stipulated that the operators receive a lump sum payment
based on the amount of wood that is cut and delivered to Van Buren. The operator
establishes the levels of compensation for the workers, but there is no evidence of how
the operator establishes those levels. The operator could pay his or its workers an hourly
wage, which might suggest that the operator is their employer. However, if the operator
pays the workers a lump sum based on the amount of wood they cut, it might appear that the
operator is merely acting as a conduit for Van Buren, rather than as the independent
employer of the workers.

D

The American Pulpwood Association, appearing as amicus curiae,
points out that the economic realities test is not designed to do away with bona fide
independent contractor relationships, citing United States v. Silk, 331 U.S. 704,
67 S.Ct. 1463 (1947). The Association asserts that an industry of small pulpwood logging
contractors has developed and flourished since the turn of the century. The Association
contends that this case typifies the practices in the industry and demonstrates a bona
fide independent contractor relationship.

If, as the American Pulpwood Association contends, the
arrangement between Van Buren and the operators is typical of the industry and was
developed for legitimate economic reasons, that would support Van Buren's claim that it is
not the employer of the workers in this case. However, the factual assertions made by the
Association are not established by the stipulated facts and we cannot assume they are
true.[[7/]] On remand, the judge shall afford the parties the opportunity to present
evidence relevant to the American Pulpwood Association's claims as well as to their own
unsupported factual assertions.

Under the economic realities test of Griffin & Brand,
no single factor determines whether an employment relationship exists. As our discussion
above indicates, the stipulated facts yield conflicting signals on whether Van Buren is
liable under the OSH Act for the cited violations. We express no opinion on the ultimate
outcome, but hold only that on the present record there remain genuine issues of material
fact and that neither party is entitled to judgment as a matter of law.

Accordingly, the judge's order granting the Secretary's
cross-motion for summary judgment is set aside. The case is remanded for proceedings
consistent with this opinion.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED: April 21, 1989

SECRETARY OF LABOR,

Complainant

v.

VAN BUREN-MADAWASKA CORPORATION

Respondent

OSHRC Docket No. 87-0214, 87- 0217,

87-0450
through 87- 0459

DECISION AND ORDER ENTERED UPON CROSS MOTIONS FOR

SUMMARY JUDGMENT

Van Buren-Madawaska Corp. (VBM), was issued twenty-one
citations on January 21, 1987, alleging serious and nonserious violations of various
safety and health standards and recording requirements involving various work sites in
Maine VBM contested the citations and the assessment of penalties proposed by the
Secretary. VBM concedes that the violations did in fact occur as described in the
citations. The controversy presented in these cases on cross motions for summary judgment
focuses on whether VBM is the "employer" having the duty of OSHA compliance.

VBM is a corporation engaged in the business of timber resource
development, including building and maintaining logging roads, managing harvesting
activities, and milling wood. VBM admittedly employs foresters, engineers and heavy
equipment operators who grade the timber, designate the tracts of forest lands to be cut,
and construct the necessary access roads.

Prior to 1981 VBM performed all phases of the logging business
including cutting trees and hauling logs. Since 1981 VBM entered into written contracts
with various "operators" who, according to the terms of the contract, "at
its sole cost and expense, cut and skid and haul tree-length wood, sawlogs and other
forest products produced from the timber on the tract designated...." The operators
are paid a fixed price per ton or "fbm." During the term of the agreement the
operators are required to provide and maintain: workers compensation and employers
liability insurance covering the operator's employees; specified minimum amounts of public
liability and property damage insurance to protect the operator "from claims for
damages for bodily injury, including personal injury and accidental death, as well as
claims for injury to or destruction of property which may arise from operations performed
under this Agreement;" and specified minimum amounts of automobile liability and
property damage insurance on "all owned, non-owned, and hired vehicles used in
performing work under the Agreement."

The operator agreement also provides the following pertinent
provisions:

8. Contract Insurance. The operator agrees to indemnify and hold harmless and
   defend and reimburse the Company [VBM] from and against any and all claims, actions,
   suits, damages, liabilities, costs and/or expenses of any kind whatsoever on account of
   injuries to or death of any persons, or on account of damage to property arising out of
   any act or accident occurring in the conduct and execution of the work to be performed
   under this Agreement, whether in the harvesting, hauling or unloading any wood product
   arising from any act, omission or negligence of the Company, and of the Operator or
   Operator's employees, agents, contractors, suppliers, or licensees.

This hold harmless and indemnification agreement shall be
insured with carriers satisfactory to the Company. Certificates of such insurance shall be
filed with the Company prior to any deliveries under this Agreement. The certificates
shall indicate that none of the policies will be canceled or changed until 30 days after
written notice has been delivered to the Company ....

9. Representations and Warranties. Operator warrants
   that all wood delivered hereunder shall be free and clear of any and all encumbrances and
   liens. Operator agrees to, and does hereby, accept full and exclusive responsibility for
   compliance and enforcement of all requirements set forth in the Occupational Safety and
   Health Act of 1970 as amended and any other laws or governmental rules and regulations
   pertaining to wood harvesting; and for the payment of any and all contributions or taxes
   for unemployment insurance, old age retirement benefits, Workmen's Compensation or any
   other such employee entitlements now or hereafter imposed by law. The Operator warrants
   that he is and will remain in compliance with the Maine Workmen's Compensation Act and
   Maine Employment Security Law.

10. General ....Notwithstanding any other provisions of
    this Agreement, no relationship of employer/employee or master/servant, between the
    Company and the Operator or between any agent, employee or subcontractor to the Operator
    shall be deemed to exist. The Operator shall select and pay its own employees, agents or
    subcontractors and neither the Operator nor its employees, agents or subcontractors shall
    be subject to any orders, supervision or control of the Company. It is mutually understood
    and agreed that the Operator is deemed to be an independent contractor.

The citations in all 12 cases relate to the work performed by
the operators under the written contract. The Secretary contends that notwithstanding the
agreement between the operators and VBM, the operators and anyone purportedly working for
an operator under the agreement are employees of VBM under the OSH Act and not independent
contractors.

A stipulation was entered into between the parties as to the
facts that are to form the basis for resolution of the cases. The admitted facts appear in
Appendix A.

The definition of the term "employer" under the OSH
Act is determined by reference to both economic realities and the purposes of the Act. As
the Court of Appeals for the Fourth Circuit stated in Brennan v. Gilles &
Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir. 1974). we "should be guided by these
'economic realities' in interpreting the terms 'employer' and 'employee' in a manner to
achieve statutory objectives." Any private agreement between parties cannot control
the statute. Frohlick Crane Service, Inc. v. OSHRC, 521 F.2d 628, 631 (10th
Cir. 1975). Thus, what the contracting parties call themselves is immaterial; we must look
to the actual relationship between the parties.

VBM argues that consideration of the seven-point economic realities test set out by the
Review Commission in Griffen & Brand of McAllen, Inc., 6 BNA OSHC 1702, 1978
CCH OSHD � 22, 829, warrants the conclusion that the operators are independent
contractors.[[1/]]

VBM maintains that it has no relationship with the individual
workers who consider themselves employees of the operators; that while VBM pays the
operators a "lump sum contract price for wood delivered", it is the operators
who establish and pay compensation to the workers; that the operators have the
responsibility to control the workers by daily supervision over felling, limbing,
skidding, hauling, and equipment maintenance; that VBM does not have either the power to
control the workers or (because the contract is for a specified term) the power to hire,
fire, or modify employment conditions of the operators and the workers; and that while the
income of the operators depends on the quantity of work performed, the "workers
employed by the operator could presumably increase their income by demonstrating
initiative and good judgment." VBM's brief at 4-6.

The arguments presented by VBM manifest not a small degree of
fluidity in their ability to focus our attention upon the operators on the one hand and,
depending on the point to be made, then upon the workers. It is the status of the
operators that governs the outcome of these cases.

The operators (and perforce anyone working under them) clearly
are not independent cutters/harvesters/haulers of wood, selling the product of their labor
on the market for whatever price they can command.[[2/]] They work under rather
circumscribed conditions; VBM directs them as to where and what to cut, right down to the
size and quantity of the wood products.[[3/]] Apparently the work performed under the
written contract is precisely the same as the work previously done by the operators prior
to 1981 when the acknowledged relationship was that of employer and employee.

It is true that the operators furnish and maintain their own
equipment and the day-to-day conduct of the operators and those working under them is the
responsibility of each operator. The operators determine for themselves when to begin
work, how many hours to work, when to stop each day, and all other such details. The
operators hire their own men, determine how many to employ and how much to pay them
without supervision or interference by VBM. However, the operators' discretion in these
matters is effectively limited by the fact that their compensation under the contract is
dependent on the quantity of wood products delivered to VBM's mills. Indeed, the operators
apparently are economically dependent on VBM, at least during the term of the contract,
and the work rendered by the operators is an integral part of VBM's business, which are
important factors in determining whether a worker is an "employee." Donovan
v. Dial America Marketing, Inc., 757 F.2d 1376, 1382, 1385 (3rd Cir. 1985).

The most striking feature of the cases in the instant
proceeding relates to several terms of the written agreement between VBN and the
operators. Generally, the most important test to determine employer- employee status is
the degree of control exercised by the alleged employer over the alleged employee. Were
the relationship between VBM and the operators actually that of principal and independent
contractor, one would expect that such previously noted contract provisions as workers
compensation and employers liability insurance covering employees of the operators would
be the sole concern and responsibility of the operators. The same may be said about the
contractual conditions requiring the operators to obtain public liability and property
damage insurance in specified amounts as well as specified amounts of automobile liability
and property damage insurance covering all owned, non-owned and hired vehicles used in
performing work under the agreement. But what really points up the degree to which VBM
prescribes the broad terms and conditions of work is the "hold harmless and
indemnification" clause, quoted above, which requires the operators to indemnify VBM
against all claims that may arise from any act, omission or negligence on the part of VBM
as well as the operator or his employees and agents engaged in the performance of work
under the agreement.

An independent contractor is frequently defined as one who, in
exercising an independent employment, contracts to do certain work according to his own
methods, without being subject to the control of his employer, except as to the product or
result of his work. Casement v. Brown , 148 U.S. 615, 622, 13 S. Ct. 672,
675, 37 L. Ed. 582 (1893). The agreement --- unilaterally drafted by VBM -- was obviously
designed to create an independent contractor, custom-tailored to the needs of VBM. The
conditions of that agreement do not allow enough room for the operators to exercise a
sufficient degree of independence to characterize them as independent contractors. It is
therefore concluded that VBM is the employer of the operators and the workers under the
OSH Act.

The Secretary's motion for summary judgment is granted. VBM
having conceded the existence of the violations and the appropriateness of the penalties,
it is

ORDERED that the citations in all 12 cases are affirmed, and
penalties are assessed in the amounts proposed by the Secretary.

RICHARD BENEDETTO

Judge, OSHRC

Dated:

Boston, Massachusetts

APPENDIX A

For the purposes of this action, the parties hereby stipulate
to the facts stated below. The following definitions shall apply:

Respondent: Van Buren-Madawaska Corporation, an independently
owned and operated entity.

Operator: An individual or corporate entity engaged in the
business of cutting, harvesting and hauling wood which entered into a tree length/wood
products purchase agreement with Respondent. These entities include Robert McBreairty, Jr.
& Sons, Fox Brook Logging, Inc., Meadow Brook Logging, Inc., L&J Logging, Inc.,
C.H. Lozier, Inc., Fernand Castonguay, Gerrard Plourde, Perreault Logging, Inc. and R.J.
Logging, Inc..

Worker: An individual who fells and/or hauls trees or wood and
who was affected by the conditions or practices cited in the citations which are the
subject of these cases.

1. Respondent's business consists of building and maintaining
   roads across forest lands, timber resource management by contracts with landowners,
   managing harvesting and milling wood.

2. Respondent does not own the land on which the operators cut
   and haul trees and wood.

3. Respondent's foresters designate the areas in which
   Operators may work.

4. Respondent's foresters designate the trees which Operators
   may cut by specifying the areas to be harvested.

5. Respondent determines the type and amount of wood Operators
   harvest.

6. An Operator may only cut a tree and amount in areas
   designated by Respondent.

7. An Operator may only cut in areas designated by Respondent.

8. The Operator engages and has the power to terminate Workers.

9. The Operators and Workers furnish, use and maintain their
   own equipment in performance of their obligations.

10. The Operator establishes and pays compensation to the
    Worker.

11. The Operator establishes the hours and schedule worked by a
    Worker.

12. The Operator supervises daily activities of the Workers
    such as felling, hauling and equipment maintenance.

13. The Operator bears its own expenses including insurance,
    operating costs and equipment maintenance.

14. Respondent requires Operators to comply with State Land Use
    Regulation Commission (LURC) regulations.

15. The landowner requires Respondent to comply with State Land
    Use Regulation Commission (LURC) regulations.

16. Respondent pays stumpage fees to landowners respecting wood
    cut by Operators.

17. Operators initially skid felled wood to "yards" cleared by Operators.

18. Respondent designates which mill will receive wood cut by
    Operators.

19. Operators may not sell cut wood to Respondent's
    competitors, except upon a stumpage purchase agreement between Respondent and Operator.

20. Wood harvested by Operators is milled primarily at
    Respondent's mills.

21. Wood is hauled from the yards to the mills by trucks
    provided by the Operator or the Worker.

22. Operator determines when and frequency it hauls wood.

23. Operators can, but usually do not, work for Respondent's
    competitors during weeks the Operator works for Respondent.

24. Respondent and Operator have a contract respecting their
    obligations and rights.

25. Neither the Operator nor Respondent may terminate the
    relationship without exposure to liability.

26. Respondent drafted each contract without predrafting
    negotiation with the Operator.

27. The contract obligates the Operator for a specified period
    of time.

28. Respondent pays Operator by the amount of wood cut and
    delivered, i.e. per ton.

29. Respondent is not obligated to purchase wood which does not
    meet specifications in the contract.

30. Respondent pays Operator a lump sum price.

31. Respondent does not pay taxes or social security in respect
    to the Operators.

32. The Operators have worked on land managed by Respondent on
    a regular but not exclusive basis, week after week except during "mud season."

33. Prior to 1981, Respondent was engaged in all phases of the
    logging industry, including harvesting, milling, timber management and reforestation. It
    employed employees for whom Respondent carried workmen's compensation insurance, and also
    engaged independent contractors to harvest and mill wood.

34. After 1981, Respondent reduced the scope of its activities
    to building and maintaining logging roads and timber resource management by contract with
    landowners. It employs approximately 20 full-time employees for these activities,
    including a general manager, assistant managers, timber graders, heavy equipment operators
    and engineers.

35. No former employee, as referred to in item 33, supra, or
    any other individual may cut trees for Respondent without entering into a contract.

36. The conditions and practices cited in these cases do/did
    exist and do/did/would constitute violations of the Occupational Safety and Health Act of
    1970, if caused by an employer as defined by the Act.

37. The Operator accepts full responsibility for compliance and
    enforcement of all requirements of OSHA.

38. Each Operator has tendered payment to Respondent for its
    portion of the proposed penalty.

39. The Operator understands and agrees that it is an
    independent contractor.

FOOTNOTES:

[[1/]] 29 U.S.C. � 651-678.

[[2/]] That both parties have moved for summary judgment does
not mean that we must grant judgment as a matter of law for one side or the other. See
Mingus Constructors, Inc. v. U.S., 812 F.2d 1387, 1391 (Fed. Cir. 1987). Summary
judgment is not to be granted unless the moving party is entitled to judgment as a matter
of law and there is no dispute as to material facts. Harrison Western Corp. v. Gulf Oil
Co., 662 F.2d 690, 691-2 (10th Cir. 1981).

[[3/]] The fact that the critical control factor favors Van
Buren's position creates strong doubts in our minds as to the correctness of the judge's
holding that the workers were employees of Van Buren. Nevertheless, we are not able to
conclude on the basis of this record that the judge should have granted Van Buren's motion
for summary judgment.

[[4/]] 29 U.S.C. � 201 et. seq.

[[5/]] In applying this element of the Griffin & Brand test,
it is appropriate to focus on the status of the operators rather than "the
status of the workers. The purpose of this element of the Griffin & Brand
test is to assist the adjudicator in distinguishing between employment and independent
contractor relationships. Here, there is no contention that the workers were independent
contractactors. There is a contention, however, that the workers were employed by
independent contractors.

[[6/]] Another related question that is not resolved on this
record is whether the operators are financially dependent on Van Buren. Van Buren argues
on review that the judge erred in finding that the operators are "apparently ...
economically dependent" on the work it provides. It correctly notes that the judge's
finding is unsubstantiated on the record and argues that the finding is also wrong as a
matter of fact.

[[7/]] As indicated throughout this decision, the American
Pulpwood Association is not alone in finding it necessary to go beyond the stipulated
facts in order to address the central issue that is before us. The judge and both parties
also went well beyond the record in analyzing whether Van Buren is the employer of the
workers at issue. In our opinion, this inability of all concerned to stay within the
narrow confines of the existing record provides strong support for our conclusion that
neither party is entitled to summary judgment based on that incomplete record.

[[1/]] In Griffin the Review Commission listed the
following as relevant inquiries under the economic realities test:

(1) whom do the workers consider their employer; (2) who pays the workers' wages; (3) who
has the responsibility to control the workers; (4) does the alleged employer have the
power to control the workers; (5) does the alleged employer have the power to fire, hire,
or modify the employment condition of workers; (6) does the workers' ability to increase
their income depend on efficiency rather than initiative. judgment, and foresight; and (7)
how are the workers' wages established.

[[2/]] Stipulation 19 states "Operators may not sell cut
wood to Respondent's competitors, except upon a stumpage purchase agreement between
Respondent and Operator."

[[3/]] The agreement between VBM and the operators includes
such specifications as length, butt diameter, unacceptable defects, piling and scaling
procedures.