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/]](the "OSH Act") 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.