C. R. BURNETT AND SONS, INC.; HARLLEE FARMS

OSHRC Docket Nos. 78-1103; 78-1105 (Consolidated)

Occupational Safety and Health Review Commission

October 31, 1980

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Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, USDOL

Ann Margaret Pointer, for the employer

H. Michael Semler, Migrant Legal Action Program, Inc., for the employees

Pamela Browning, National Association of Farmworker Organizations, for the employees

Mariclaire Hale, American Civil Liberties Union of Virginia, for the employees

Anne C. Gonzales-Hartwig and Thomas C. Hochstatter, Director, Migrant Program Legal Action of Wisconsin, Inc., for the employees

Dick Ginsburg, Director, Oregon Legal Services Corporation, for the employees

William S. Geimer, Executive Director, Farmworkers Legal Services of North Carolina, for the employees

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   A decision of Administrative Law Judge James D. Burroughs is before the Commission for review under section 12(j) of the Act, 29 U.S.C. §   661(i).   Judge Burroughs vacated a citation issued to C.R. Burnett & Sons, Inc. ("Burnett") and a citation issued to Harllee Farms ("Harllee").   Both citations alleged other [*2]   than serious violations of the Act for noncompliance with certain provisions of 29 C.F.R. §   1910.142, n1 the occupational safety and health standard for temporary labor camps. The citation issued to Harllee also alleged noncompliance with 29 C.F.R. §   1903.2(a)(1). n2 Chairman Cleary granted the Secretary of Labor's petition for discretionary review of the judge's decision in this case. n3 The threshold question presented by this case is whether the temporary labor camps owned and operated by Respondents are "workplaces" under the Act. n4

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n1 It was alleged that Burnett failed to comply with § §   1910.142(b)(1) and 1910.142(b)(11).   Harllee was charged with violations of § §   1910.142(a)(3) and 1910.142(g).   No penalty was proposed in either case.   The cited sections read as follows:

Subpart J -- General Environmental Controls

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§   1910.142 Temporary labor camps.

(a) Site.

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(3) The grounds and open areas surrounding the shelters shall be maintained in a clean and sanitary condition free from rubbish, debris, waste paper, garbage, or other refuse.

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(b) Shelter. (1) Every shelter in the camp shall be constructed in a manner which will provide protection against the elements.

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(11) All heating, cooking, and water heating equipment shall be installed in accordance with State and local ordinances, codes, and regulations governing such installations.   If a camp is used during cold weather, adequate heating equipment shall be provided.

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(g) Lighting. Where electric service is available, each habitable room in a camp shall be provided with at least one ceiling-type light fixture and at least one separate floor or wall-type convenience outlet.   Laundry and toilet rooms and rooms where people congregate shall contain at least one ceiling- or wall-type fixture.   Light levels in toilet and storage rooms shall be at least 20 foot-candles 30 inches from the floor.   Other rooms, including kitchens and living quarters, shall be at least 30 foot-candles 30 inches from the floor.

n2 The section provides:

§   1903.2 Posting of notice; availability of the Act, regulations and applicable standards.

(a)(1) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor.   Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customerily posted.   Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

n3 In its petition, the Secretary takes exception to the judge's decision on the following grounds:

1.   The judge erred in ruling that, under an unduly restrictive interpretation of the "condition of employment" test, Respondent's temporary labor camps are not subject to section 1910.142.

2.   The judge erred in finding that alternative housing comparable to that provided in Respondent's camps was available in the surrounding geographical area.

n4 Prior to the hearing, both Respondents admitted in their responses to the Secretary's requests for admissions that the violative conditions described in the citations existed at their temporary labor camps on the dates that they were inspected.   The Burnett and Harllee cases were scheduled for hearing on the same day.   Because the cases involve the same issue, the judge consolidated the two cases at the outset of the hearing without objection from any party.

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The Secretary of Labor ("Secretary") filed a brief on review as did Respondents jointly.   The Commission granted the petition for leave to appear as amici curiae ("Amici") filed by the Migrant Legal Action Program ("MLAP") and Florida Rural Legal Services ("FRLS") and accepted the brief on review that they submitted jointly.   In addition, the parties and Amici presented oral argument before the Commission.   After considering the evidence and arguments made before us, we reverse the judge's decision and conclude that Respondents' temporary labor camps are within the coverage of the Act.   We therefore affirm the citation issued to each Respondent.

I

Burnett is a corporation engaged in farming approximately 100 acres of tomatoes, 500 acres of oranges and grapefruits, and 50 acres of watermelons each season.   The cultivation and harvest periods for these crops vary.   Burnett produces two tomato crops a year.   Tomatoes are planted in August for harvesting in late October, November, and early December, and they are also planted in late December and January for harvesting in May and June.   The citrus   [*4]   crop is harvested sporadically from November through May.   Watermelons are planted in January and February for harvesting in May, June, and July.

Located in the center of Burnett's citrus groves is a temporary labor camp that Burnett has owned and operated for at least 10 years.   The camp consists of five wood frame buildings, each with at least a kitchen, bath, and bedroom.   The camp provides year-round housing to the migrant workers who are supplied by crew leader Nick Rios n5 and who also request or need such accommodations.   Residents of the Burnett camp are not charged rent or electricity costs, but they do purchase their own gas for cooking.

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n5 The crew leader, an important person in the migrant worker system, is responsible for supplying the farm with a work force.   The crew leader assigns housing at the labor camp, helps workers find alternative housing, and at times furnishes transportation to the fields.   Other crew leaders besides Rios supplied Burnett with farm workers.

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At harvest time for each crop, occupancy [*5]   at the camp varies from 10 to 20 people.   A full-time employee of Burnett performs maintenance work for the camp, generally every day.   Crew leader Rios and Donald Ray Burnett, Burnett's president, oversee the camp's operation.

Harllee is a partnership that primarily grows tomatoes; other crops such as melons are farmed on a small scale.   Harllee produces two tomato crops a year, planting and harvesting the crops on the same schedule as Burnett.   Approximately 330 acres of tomatoes are farmed in the fall and 100 acres in the spring.   Harllee employs about 25 to 30 "everyday hands" who perform regular farm duties, such as driving tractors, and also harvest the small melon crop. In addition, Harllee hires a temporary work force, the size of which fluctuates according to the nature of the tasks to be performed.   During harvest time, Harllee employs approximately 160 to 170 pickers.   After the harvest, 12 to 15 farm workers are employed to "clean up", and then 10 to 12 farm workers are employed to plant, stake, and tie the next tomato crop. n6

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n6 The record provides no comparable employment figures for Burnett.

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Harllee's temporary labor camp is considerably larger than Burnett's.   The camp contains a long concrete building referred to as the "barracks" that consists of 18 individual units occupied by the workers recruited by crew leader Daniel Hernandez.   Four frame houses occupied by the crew of Daniel's brother, Jose Hernandez, comprise the remainder of the camp. Between 85 and 90 people live in the camp. The camp is closed during July, August, and September.   The migrant workers residing in the camp are not charged rent; however, they pay for both electricity and cooking gas.   Harllee's farm manager is responsible for keeping the camp in good order, while the crew leaders are supposed to keep the camp clean and undamaged.   Contractors are hired by Harllee to make repairs.

Respondents pay their farm workers the same wages: the minimum hourly rate ($2.65 at the time of the hearing) or a piece rate, e.g., 40 cents per bucket of tomatoes picked.   According to the depositions of a Burnett employee and a Harllee employee, workers generally earn more at the piece rate. n7

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n7 Those members of Nick Rios' crew who live at Burnett's camp are paid at the same rate as those who reside elsewhere.   Those members of Daniel Hernandez's crew who do not live in the Harllee camp receive an extra five cents per bucket when working at the piece rate or an extra five dollars per day for gasoline when working by the hour at the minimum wage.

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Neither Respondent requires its farm workers to reside in its labor camp. Moreover, neither Respondent prevents workers residing at its camp from working elsewhere when that Respondent has no jobs available.   However, both Respondents would discharge from their camps any farm workers who refused to work for them when requested to do so.   When asked at the hearing what benefit Harllee receives from operating the labor camp, James Oxford, Harllee's farm manager, replied that Harllee is assured of "available labor." Both Respondents employ farm workers who do not reside in their camps. However, when asked whether Burnett had experienced any difficulty in obtaining farm labor between January and [*8]   June of that year, Burnett's president testifed, "Well, not necessarily . . . but we do have a problem getting local help, help from areas around."

Compliance Officer Nancy Hodenius performed the inspection of the Burnett camp; the Harllee camp was inspected by Compliance Officer William Trent.   At the hearing, both compliance officers testified that they inspected Respondents' labor camps pursuant to the Secretary's Field Information Memorandum No. 76-17.   Paragraph 2c(5) of that memorandum provides:

Determine if housing is provided as a condition of employment. Living in employer-provided housing is construed as a condition of employment if a) employers require employees to do so; or b) geographical circumstances require employees to do so, i.e., lack of comparable alternative housing in the area.   Notwithstanding an appearance of a landlord-tenant relationship, OSHA standards are applicable when housing is provided as a condition of employment.

More particularly, Hodenius and Trent testified that they determined that housing was provided as a condition of employment because comparable alternative housing was not available to the residents of the camp and therefore provision [*9]   "b)" had been satisfied.   A considerable portion of the hearing was devoted to the question of whether alternative housing was available to the migrant workers.

Respondents generally contended in their post-hearing brief that their labor camps are not "workplaces" under the Act because their farm workers were not required to live in the camps. In his post-hearing brief, the Secretary emphasized that Respondents maintain the camps for their own benefit, not the benefit of the farm workers, in order to assure themselves of an available labor force.   Subsequent to Judge Burroughs' order granting the post-hearing petition of MLAP and FRLS to appear jointly as amici curiae, MLAP and FRLS submitted a brief to the judge in which they argued that the camps are covered by the Act because they are maintained by Respondents as part of their business operations.

II

Judge Burroughs vacated the citations issued to Burnett and Harllee because he concluded that the temporary labor camps were not "workplaces" within the meaning of the Act, 29 U.S.C. §   653(a), and were therefore not subject to the provisions of section 1910.142.   Initially the judge observed that the scope of the Act is [*10]   not without limitation, for coverage of the Act must be limited to workplaces and working conditions.   Although the judge recognized that a workplace does not normally encompass a place of residence, he reasoned that the remedial nature of the legislation allows for a more liberal view of the term workplace. Thus, he rejected Respondents' assertion that labor camps are not within the purview of the Act unless employment is performed at the camp. Nevertheless, the judge also refused to construe the term workplace in a manner that, in his view, would strain its ordinary meaning.

The judge stated that the "condition of employment" test set forth in the Secretary's Field Memorandum No. 76-17, supra, was a reasonable approach for determining whether Respondents' temporary labor camps constitute "workplaces." He rejected the contentions of Amici that the "condition of employment" test is unnecessarily restrictive and that neither the Act nor the standards provide authority for the use of that test.   Judge Burroughs stated, "Acceptance of their [Amici's] rationale would result in coverage of every temporary labor camp in which workers reside . . . [which] would result in coverage   [*11]   in some instances where the housing was not a logical extension of the workplace." Applying the "condition of employment" test, Judge Burroughs determined that the first criterion was not met because the evidence established that Respondents did not require their employees to live in the camps. He then concluded that the second criterion was not met because the record established that comparable alternative housing was available to migrant workers.

III

A

Respondents contend on review that Judge Burroughs applied the appropriate test for determining the Act's jurisdiction and correctly concluded that Respondents' camps are not covered by the Act. n8 Respondents emphasize their support for the judge's statement that the expansive jurisdictional view urged by the Secretary and Amici would result in coverage of all temporary labor camps even where the housing is not a logical extension of the workplace. Respondents warn that the test proposed by the Secretary and Amici is so broad that it would mean that housing provided by the employer in an industrial company town would be a "workplace" and thus subject to the Act. n9 Respondents note that, in Spencer Farms, Inc., 77 OSAHRC   [*12]   138/F11 (No. 76-2693, 1977 ALJ), a Commission judge concluded that the Act does not cover employer-provided housing in which employees are not required to live because such housing is not related to or a condition of employment. For additional support, Respondents cite Southern Pacific Transportation Co. v. Usery, 539 F.2d 386, 390 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977), in which the court states that "the term 'working conditions' plainly refers to something more limited than every aspect of an entire industry."

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n8 They further assert on review that the judge correctly concluded that the "condition of employment" test is not met in this case.   They particularly agree with his finding that alternative housing comparable to Respondents' camps is available to the migrant farm laborers working for Respondents.

n9 When questioned at oral argument as to whether he knew of a company town where housing is provided gratuitously to a transient work force, Respondent's counsel admitted that he did not.   However, counsel did state that he was aware of several situations where housing for permanent workers is provided at heavily subsidized rates.

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Respondents assert that the Secretary's enforcement authority under the Act is limited to "workplaces" or "places of employment." Citing various provisions of the Act, they maintain that the term "workplace" must be defined in a manner consistent with worker compensation law. n10 Respondents contend that their temporary labor camps would not be considered "workplaces" under worker's compensation law because residence in the camps is not a condition of employment. Respondents rely upon Carr v. United States Sugar Corp., 136 So.2d 638 (Fla. 1962), asserting that the Supreme Court for the State of Florida has held that off-duty injuries to employees that occur in employer-provided housing are compensable only if employees are required to reside on the premises or if some aspect of the job necessitates residence there.

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n10 Respondents note that the Act does not define "workplace" and similar terms, such as "places of employment" and "working conditions," used in the Congressional purpose provisions in section 2(b) of the Act, 29 U.S.C. §   651(b).   Respondents consider the "definitional key" to be section 4(b)(4) of the Act, 29 U.S.C. §   653(b)(4), which states:

Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

Respondents contend that the language used in the Act to describe coverage of employee compensation laws, i.e., "arising out of . . . employment," is the same language used to describe coverage under the Act in section 2(b)(13) of the Act, 29 U.S.C. §   651(b)(13), which provides that safe and healthful working conditions can be assured "by encouraging joint labor-management efforts to reduce injuries and diseases arising out of employment" (emphasis added).

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Respondents further contend that nowhere in the legislative history of the Act is any reference made to the Act's coverage of employee housing or any other facility where no work is performed by employees.   Burnett and Harllee note parts of the legislative history that support application of the common law definition of "workplace." n11

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n11 S. Rep. No. 1282, 91st Cong., 2d Sess. 9, and H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 21, reprinted in Subcomm. on Labor, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of of 1970, at 149, 851 (Comm. Print 1971).

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Respondents also argue that the cited provisions of section 1910.142 are inapplicable because the American National Standards Institute ("ANSI") standard n12 from which those OSHA standards were derived contains a scope provision setting forth requirements for coverage that have not been met in this case.   Respondents find further support [*15]   for the "condition of employment" test in the scope provision proposed for section 1910.142(a) on September 23, 1974, but withdrawn by the Secretary on May 4, 1976.   Burnett and Harllee note that soon after that proposed regulation was withdrawn, the Secretary issued Field Memorandum No. 76-17 (quoted above in pertinent part and referred to by the compliance officers at the hearing).

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n12 ANSI Z4.4-1968 entitled "Minimum Requirements for Sanitation in Temporary Labor Camps" reads in pertinent part:

1.1 Scope. This standard is applicable to all camps or temporary abodes established for the housing and accommodation of persons with or without their families employed in any occupation or work which requires the maintenance of a labor force in temporary quarters.

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Respondents additionally argue that the Act does not apply to the facts of this case because existing federal and state law is specifically intended to regulate temporary labor camps. They note that the U.S. Department of Labor's Employment and Training   [*16]   Administration ("ETA") has promulgated standards at 20 C.F.R. Part 620 that provide for a pre-occupancy labor camp inspection and that require proper maintenance of sanitation facilities, heat, and lighting in housing supplied to temporary workers regardless of whether the workers are required to live on the premises.   Respondents contend that the difficulties of migrant farm workers are not OSHA's concern because the Farm Labor Contractor Registration Act of 1963, 7 U.S.C. § §   2041-2053 (1963), as amended by Farm Labor Contractor Registration Act Amendments of 1974, Pub. L. 93-518 (1974) ("FLCRA") was enacted especially to prevent abuses of transient farm workers.   Respondent notes that FLCRA, which requires licensing of farm labor contractors, regulates employment terms, transportation, and housing of migrant farm workers.   Moreover, Respondents assert that the State of Florida currently regulates farm worker housing in that local County Health Departments are required to conduct preoccupancy inspections where five or more temporary, seasonal, or migrant farm workers reside. Finally, Respondents warn that, if compliance with the Act requires employers to make substantial [*17]   alterations, the temporary housing may be shut down.   They note that farm workers living in nearby towns constitute an available labor force.

B

The Secretary asserts that the restrictive "condition of employment" test applied by Judge Burroughs was the incorrect test for determining whether the Act covers the housing provided by Respondents to their employees.   He contends that the proper test is whether employee housing is provided by an employer to further its business activities and thus has a "direct relationship to employment." The Secretary maintains that the "direct relationship to employment" test is sensitive to the occupational realities facing residents of temporary labor camps and consistent with Congressional intent.   According to the Secretary, the two factors necessary to meet this test are:

(1) the employer owns, controls, or provides the housing, and

(2) the employer maintains the housing on its premises to ensure that an adequate supply of labor is available.

The Secretary asserts that Commission precedent supports both the "direct relationship" test and the contention that, regardless of whether residence in a labor camp is required, farm workers are entitled [*18]   to health and safety benefits when in the labor camp as well as when working in the fields.   He quotes a passage from the judge's decision in Walter C. Mehlenbacher, 78 OSAHRC 72/A11 (No. 15904, 1978 ALJ) which reads as follows:

Although no farm laborer is compelled to live at a farm labor camp, the needs of the agricultural farm community and of the migrant farm laborers arising from the remoteness of farm field and living facilities from the mainstream of commerical transient accommodations and transportation, the economic considerations both for laborer and farm owner, the uncertainties of weather and other agricultural factors at harvest time and the need of a ready available labor source close at hand, and the general convenience of all concerned, inextricably weaves the migrant labor camp and the farm field into one fabric - the workplace.

The migrant farm laborer, in a sense, is a captive of his occupational environment, and is entitled under the Act to the minimum benefits of safety and health not only when working in the fields but when on the farm labor camp.

78 OSAHRC 72/A11 at C5.   The Secretary explains that the judge's decision in Mehlenbacher recognizes the [*19]   employer's responsibility to maintain its temporary labor camp in safe and healthful condition even though its employees can choose not to reside in the camp.

Additionally, the Secretary cites the following Commission decisions as support for his "direct relationship to employment" criterion for determining coverage of temporary labor camps: Griffin & Brand of McAllen, Inc., 78 OSAHRC 48/C13, 6 BNA OSHC 1703, 1978 CCH OSHD P22,829 (No. 14801, 1978) (corporation that harvests and markets fruit crop, using migrant farm workers hired, directed, disciplined, and paid by independent farm labor contractor, is "employer" under the Act); Isaac Perres, 77 OSAHRC 169/A14, 5 BNA OSHC 1807, 1977-78 CCH OSHD P22,117 (No. 14096, 1977) (Commission affirmed and adopted judge's decision that motel is temporary farm labor camp under section 1910.142 because employer actually controlled the motel's operations and only farm laborers working for employer resided there). n13 The Secretary further notes that in Sugar Cane Growers Cooperative of Florida, 76 OSAHRC 62/E4, 4 BNA OSHC 1320, 1976-77 CCH OSHD P20,795 (No. 7673, 1976) ("Sugar Cane"), the Commission recognized the need to protect [*20]   farm workers from hazardous conditions associated with farm employment that violate section 5(a)(1) of the Act. n14 In Sugar Cane, the Commission concluded that the employer's stake-body trucks that transported farm workers to the fields were "places of employment" within the meaning of section 5(a)(1) of the Act and thus were within the Act's jurisdiction.   The Secretary states his agreement with the Commission's holding in Sugar Cane that the term "place of employment" should not be restrictively defined, but rather that it should be liberally construed so as to effectuate the remedial purpose of the Act.   Specifically, the Secretary refers to the Commission's conclusion that whether farm workers were required to ride in the truck was "immaterial" to a determination of the Act's coverage. Also noted by the Secretary is that the Commission, citing Clarkson Constr. Co. v. OSHRC, 531 F.2d 451 (10th Cir. 1976), considered the critical jurisdictional factor to be that the use of the trucks furthered the grower's business. n15 The Secretary argues that the "economic realities" test, rather than technical distinctions, should be the basis for a determination of coverage under [*21]   the Act.   He contends that the Commission should base its conclusion on the direct relationship that temporary labor camps have to the employment of migrant farmworkers, citing Griffin and Brand of McAllen, Inc., supra.

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n13 The Secretary also relies upon the following unreviewed judges' decisions: Dryden Farms, Inc., 77 OSAHRC 208/C12 (No. 76-3814, 1977 ALJ); Jimmy R. Carlson, 77 OSAHRC 13/D9 (No. 14303, 1977 ALJ); Richard Norby & Rocky Norby, Partners, 76 OSAHRC 125/C9 (No. 14502, 1976 ALJ).   Furthermore, the Secretary recognizes that the contrary view is expressed in Spencer Farms, Inc., supra, another unreviewed judge's decision.   We note that the Commission is not bound by an unreviewed judge's decision.   Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070 (2d Cir. May 17, 1976).

n14 29 U.S.C. §   654(a)(1).   The section reads as follows:

(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

n15 On review, Respondents distinguish Sugar Cane from the instant case on the ground that in Sugar Cane it was established that the vast majority of farm workers used the transportation supplied by the employer to go to and return from the fields usually every working day.   Respondents distinguish Walter C. Mehlenbacher, supra; Griffin & Brand of McAllen, Inc., supra; and Isaac Perres, supra, on the basis that the applicability of the Act to temporary labor camps was not at issue in those cases.   Respondents thus argue that the judge's statement in Walter C. Mehlenbacher on the relationship of migrants to temporary labor camps is merely dicta in which factors not present in the instant case, such as remoteness of the camp, are discussed by the judge.

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The Secretary asserts that the language and underlying purpose of the Act indicate that this remedial legislation applies to all temporary labor camps occupied by migrant farm workers. n16 He contends that various sections of the Act evidence Congressional intent not to limit the Act's protective coverage to places where work is actually performed.   In this regard, the Secretary observes that Congress recognized the need for and stated the Act's purpose as assuring safe and healthful "work situations" (section 2(a) of the Act, 29 U.S.C. §   651(a)), "working conditions" (section 2(b) of the Act, 29 U.S.C. §   651(b)), and "work experience" (section 2(b)(7) of the Act, 29 C.F.R. §   651(b)(7)).   The Secretary also refers to section 5(a)(1) of the Act, 29 C.F.R. §   654(a)(1), which requires each employer to "furnish to each of his employees employment and a place of employment' free from recognized hazards likely to cause death or serious physical harm" (emphasis supplied by the Secretary).   Moreover, the Secretary cites the general language in section 6(g) of the Act, 29 U.S.C. §   655(g), that directs him [*23]   to evaluate the needs of certain "work environments" when determining priority for establishing standards.

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n16 We note that Respondents do not deny that the Act applies to farm workers.   We acknowledge the Secretary's assertion that such agricultural labor coverage is not common in remedial federal labor legislation.   See National Labor Relations Act, 29 U.S.C. §   152(3); Fair Labor Standards Act, 29 U.S.C. §   213(a)(6).

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The Secretary asserts that the issue of whether migrant farm workers are covered under the Act should not be determined by adherence to state workers' compensation cases.   He notes that, contrary to the submission made by Respondents, the Florida court in Carr v. United States Sugar Corp., supra, upheld the migrant worker's claim for workers' compensation by applying the same criteria as the Secretary proposes in the instant case.   Moreover, the Secretary observes that a Florida court has held that an employee injured while residing in employer-provided housing is entitled to compensation [*24]   when the housing is provided by the employer in order to further its own business purpose, regardless of whether employees are required to live on the premises.   Wilson Cypress Co. v. Miller, 26 So.2d 441 (Fla. 1946) (employee not required to sleep on house boat provided rent-free by employer).

According to the Secretary, further evidence of Congressional intent that the Act should be applied broadly is found in section 6(a) of the Act, 29 U.S.C. §   655(a), which permitted the Secretary to adopt, as OSHA standards, national consensus standards, a number of which addressed hazards not directly related to the work being performed.   Section 1910.141, the general industry sanitation standard, and section 1910.142, the standard allegedly not complied with in the instant case, are cited as examples of OSHA standards derived from such broad national consensus standards.   The Secretary analogizes between on-premises eating facilities provided by an employer, which are covered under section 1910.141, and temporary labor camps maintained by an employer.   He notes that eating and housing facilities are conveniences to employees that benefit employers by attracting employees to the job and [*25]   by increasing productivity.

The Secretary contends that in the fiscal 1979 appropriations bill for the Department of Labor, n17 Congress unequivocally expressed its intent that the Act apply to temporary labor camps. The pertinent part of that bill reads:

Provided further, that none of the funds appropriated under this paragraph shall be obligated or expended to prescribe, issue, administer, or enforce any standard, rule, regulation, or order under the Occupational Safety and Health Act of 1970 which is applicable to any person who is engaged in a farming operation which does not maintain a temporary labor camp and employs 10 or fewer employees . . . .

The Secretary cites as further support the conference report on the bill, which stated that this exemption "allows the Occupational Safety and Health Administration to inspect any farm, regardless of size, that maintains a temporary labor camp." H.R. Rep. No. 95-1746 (Conference Comm.), 95th Cong., 2d Sess. 1.   The Secretary asserts that the provision in the 1979 appropriations bill shows that Congress considers OSHA enforcement at temporary labor camps to be an objective of high priority.   Also noted by the Secretary is the [*26]   lack of any "condition of employment" test limiting the coverage of the Act to less than all temporary labor camps. The Secretary argues that, because Congress has expressed its desire that all camps be covered, there can be little justification for restricting enforcement of the Act merely because the peculiar facts of a case do not meet the "condition of employment" test.

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n17 Pub. L. No. 95-480, Title I, 92 Stat. 1567 (1978).

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The Secretary further asserts that the direct relation to employment test as a predicate for inspections is consistent with OSHA Instruction CPL 2.37 n18 dated June 15, 1979, the most recently issued internal guideline on temporary labor camp inspections. According to the Secretary, that instruction supercedes Field Information Memorandum No. 76-17, the document relied upon by Judge Burroughs.   However, the Secretary asserts that neither OSHA Instruction CPL 2.37 nor Field Information Memorandum No. 76-17 have the force and effect of law, nor can they be used as "administrative straightjackets"   [*27]   to limit the Act's coverage because jurisdiction flows from the language of the Act itself, citing FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD P22,060 (No. 13155, 1977) and cases cited therein.   Nevertheless, the Secretary urges the Commission to accord his interpretation of the standard as expressed in OSHA Instruction CPL 2.37 substantial deference, citing Udall v. Tallman, 380 U.S. 1, 16-17 (1965), rehearing denied, 380 U.S. 989 (1965), among other cases.

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n18 The pertinent parts of this Instruction read as follows:

F.   Enforcement of Temporary Labor Camp Standards.

1. . . .   NOTE: A "temporary labor camp" or "migrant housing facility" is defined as farm housing directly related to the seasonal or temporary employment of migrant farm workers.   In this context, "housing" includes both permanent and temporary structures located on or off the property of the employer, provided it meets the foregoing definition.

* * *

H.   Documentation for Migrant Housing Inspections.

The following facts shall be carefully documented:

* * *

5.   Determine if housing provided or made available by the employer is related to the employment of the worker.   Housing should be treated as employment-related if, a) employers require employees to live in the housing, or b) isolated location or the lack of economically comparable alternative housing make it a practical necessity to do so, and/or c) the housing is provided or made available as a benefit to the employer.

Factors to be considered in making this determination include:

* * *

(b) Ownership or control of the housing -- Is the housing owned or controlled or provided by the employer?

* * *

(d) The camp's benefit to the employer -- Does the employer make the camp available in order to ensure that his business is provided with an adequate supply of labor?

(e) Relationship of the camp occupants to the employer -- Are those living in the camp required to work for the employer upon demand?

Respondents claim that OSHA Instruction CPL 2.37 is incorrect and was issued only in response to the questions raised by this case.

  [*28]  

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The Secretary observes that, following the passage of the Act and the promulgation of section 1910.142, he deleted the safety and sanitation rules that were promulgated in 1968 by the Employment and Training Administration under 20 C.F.R. Part 620.   He explains that those standards, which applied only to temporary labor camps maintained by employers that used the ETA job order clearance system, were deleted because the OSHA standards apply to all temporary labor camps. Further, the Secretary challenges Respondent's reliance upon the scope provision of the ANSI standard from which section 1910.142(a) was derived. n19 The Secretary asserts that the scope provision was not adopted.   Moreover, the Secretary contends that even if the scope provision is applicable, its language supports the Secretary's analysis in the instant case because, read properly, the clause "which requires the maintenance of a labor force in temporary quarters" modifies "any occupation or work" rather than "persons with or without their families employed in any occupation or work. . . ." The Secretary submits that the scope provision [*29]   is thus in accord with his own view that an employer who provides housing to further its "work," or business purpose, is covered under the Act.

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n19 See note 12 supra.

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The Secretary asserts that both elements of the direct relationship to employment test, i.e., (1) the employer owns, controls, or provides the housing, and (2) the employer maintains the housing to ensure an adequate supply of available labor, are satisfied in this case.   The Secretary notes that workers at each Respondent's camp are required to work on demand.   He points to Harllee's closure of its camp during the summer when there is little if any need for migrant labor as evidence of the essential business purpose of that camp.

The Secretary further asserts that the two elements comprising the direct relationship test are characteristic of temporary labor camps, within the meaning of section 1910.142, occupied by migrant farm workers.   The Secretary requests that the Commission take a "bright line" approach and issue a broad ruling that all [*30]   such camps are directly related to employment and therefore covered under the Act. n20

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n20 See Ford Motor Co. v. National Labor Relations Board, 99 S.Ct. 1842 (1979).

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The Secretary alternatively argues that, even if the "condition of employment" test is upheld by the Commission, that test has been met in the instant case because, contrary to Judge Burroughs' finding, no comparable alternative housing was available.

C

Amici present essentially the same arguments and supporting references as those put forth by the Secretary.   More particularly, Amici join the Secretary in requesting that the Commission hold that the Act applies to all temporary labor camps. n21 Amici assert that the facts in this case are representative of temporary labor camps located in the South.

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n21 At oral argument, Amici's representative was asked whether OSHA standards would apply to an apartment building in town to which either Respondent was paying rent for its employees.   Amici's representative replied that such an apartment building would not be a temporary labor camp within the meaning of the cited standard because the primary purpose of the building's operation would not be to insure an adequate number of workers for that Respondent.   Likewise, Amici's representative stated that a small hotel owned by a grower in which some rooms are used by the grower's employees is not a temporary labor camp because the purpose of the hotel is other than to afford available labor to the grower.

  [*31]  

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In addition, Amici contend that it is the norm, rather than the exception, for the Secretary to regulate sanitation and related facilities in areas where no work is performed.   They cite to section 1910.141, which applies to "permanent places of employment" in general industry and sets forth requirements for toilet facilities, showers, change rooms, eating and drinking areas, and other sanitation concerns mostly in non-work areas.   Amici assert that many other standards, especially those aimed at protection against toxic substances, such as sections 1910.1001 (Asbestos), 1910.1003 (4-Nitrobphenyl), 1910.1010 (Benzidine), and 1910.1029 (Coke Oven Emissions), refer to section 1910.141 or establish their own sanitation requirements.   Also noted by Amici are section 1916.57(f) (shipbuilding industry standard requiring washing facilities for employees exposed to surface contaminants such as paints) and section 1926.51 (construction industry standard requiring potable water, toilets, washing facilities, and temporary sleeping quarters).   Amici argue that, because the temporary labor camp is often the only   [*32]   place where workers in the fields can satisfy typical sanitation needs, the camps provided by Respondents are directly analogous to the sanitary facilities required by the standards for the shipbuilding and construction industries as well as for permanent places of employment in general industry.

Like the Secretary, Amici argue that Congress expressly stated its intent that all temporary labor camps be covered under the Act in the 1979 Department of Labor appropriations bill.   Amici additionally note that in the Conference Report for that bill Congress expressed its continuing interest in migrant worker housing by directing the Secretary "to report to both House and Senate Appropriations Committees on migrant labor camp inspection experience and results . . . ." n22 Furthermore, Amici note that the ETA regulations referred to by Respondents are not relevant to the instant case or the vast majority of cases because they apply only to those few growers using the U.S. Employment Service.   In response to Respondents' contention that FLCRA is the federal statute more applicable to migrant farm worker housing, Amici assert that FLCRA is concerned primarily with terms and conditions of farm [*33]   worker employment and regulates farm labor contractors, who are the intermediaries between the employer and the farm workers.   Amici state that housing is usually controlled by the employer, not the farm labor contractor.   According to the Amici, the fragmented, ineffective nature of state laws regulating temporary labor camps further indicate the recognized need for effective federal standards. n23

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n22 H.R. Rep. No. 95-1746 (Conference Comm.), 95th Cong., 2d Sess. 10.

n23 Amici cite Five Migrant Farmworkers v. Hoffman, 136 N.J. Super. 242, 345 A.2d 378 (1975), for support.   In that case, the New Jersey court held that a New Jersey statute requiring pre-occupancy inspection of each migrant labor camp was preempted by the Occupational Safety and Health Act and could thus no longer be enforced.

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IV

A

The question before us is whether Respondents' temporary labor camps are subject to regulation under the Act. n24 Respondents argue that the camps are not covered by the Act because no farm work is performed there.   [*34]   Nevertheless, Respondents correctly recognize that the Act's remedial jurisdiction is not limited to locations where work is actually performed.   Respondents allow that a temporary labor camp is covered by the Act if employees are expressly or, by circumstance, constructively required to live in the camp. Clearly, this "condition of employment" test is a method for determining whether a particular condition bears a sufficient nexus to employment to permit enforcement of the Act.

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n24 We agree with the Secretary that the Act applies to farm workers and their employers because no provision in the Act exempts them.   However, coverage of farm workers does not automatically mean that temporary labor camps are covered under the Act.   Although persuasive, we decline to rely on the language in the fiscal year 1979 appropriations bill in deciding if such camps are covered because that legislation was enacted eight months after the inspection in the instant case.

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Although less restrictive, the "direct relationship to employment"   [*35]   test is also a means for gauging a nexus to employment.   The Secretary and Amici urge that under that test a labor camp is covered if an employer maintains the temporary housing for the purpose of assuring an adequate supply of available labor.   Thus, the fundamental issue raised by the parties is how strong must the nexus be between employment and a condition that the Secretary seeks to regulate.

In Sugar Cane, the Commission was confronted with the identical issue arising in a similar factual context.   In that case, the Commission concluded that farm workers were entitled to job safety protection under the Act while riding to and from the fields in employer-provided trucks. The Act's jurisdiction was upheld based upon factors establishing that this manner of transportation was directly related to employment.   Moreover, the Commission specifically rejected the assertion that as a predicate for coverage such transportation must be provided as a condition of employment, i.e., that employees must be required to ride in the trucks. The Sugar Cane decision is dispositive here.   As we observed in Sugar Cane, an employer must fulfill its job safety and health responsibilities [*36]   with respect to a service, be it housing, transportation, or the like, when the provision of that service is directly beneficial, convenient, or advantageous to the employer.   Therefore, it is immaterial whether the use of that service is a condition of employment. n25 Accordingly, we conclude that conditions in a temporary labor camp are covered by the Act, more specifically 29 C.F.R. §   1910.142, when the residence of migrant workers in the camp bears a "direct relationship to employment." n26

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n25 Because we reject the more restrictive "condition of employment" test utilized by the judge below, we need not consider the second issue directed for review, i.e., whether the judge erred in finding that alternative housing comparable to that in Respondents' labor camps was available.

n26 We decline the request submitted by the Secretary and Amici for a declaration that as a matter of law all temporary labor camps bear a direct relationship to employment and are covered by the Act.   Moreover, we consider it unnecessary to fashion a definitive list of factors necessary to satisfy the "direct relationship to employment" test.   In our view, the criteria for meeting that test are fluid and should be evaluated on a case-by-case basis.   In Walter C. Mehlenbacher, 78 OSAHRC 72/A2, 6 BNA OSHC 1927, 1978 CCH OSHD P22,985 (No. 15904, 1978), the Commission adopted the decision of Judge Ditore in which he concluded that the Mehlenbacher camp was a "workplace" under the Act.   Judge Ditore never specifically indicated that he was applying a direct relationship to employment test.   Nevertheless, the criteria he employed to render his determination are illustrative.   Because Judge Ditore's holding involved a resolution of a jurisdictional question, albeit an issue raised sua sponte, we reject the Respondents' contention that the holding was dicta and is without precedential value.

  [*37]  

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In the instant case, the record establishes that Respondents own, control, and, either directly or indirectly, maintain their temporary labor camps. Moreover, each Respondent requires the migrant farm workers residing in its camp to work for it on demand.   It is clear that rent-free resident in the camps is provided because of Respondents' need to assure themselves of an available supply of labor in order to advance their own farming operations.   Therefore, we find that the residence of migrant workers in both the Burnett and Harlee camps is directly related to employment and that those camps are subject to the requirements of section 1910.142. n27

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n27 In their briefs on review, both the Secretary and Amici extensively cite to various reports and studies containing data on vital aspects of migrant farm worker life in general, such as wages, housing, and health.   We recognize the plight of migrant farm workers demonstrated by the statistics presented in the reports.   However, the cited reports were not offered into evidence.   It would therefore be inappropriate for us to consider their contents.   Because we decide the labor camp coverage issue based solely on the particular facts of this case, we need not reopen the record for submission of the reports.

  [*38]  

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B

Other considerations submitted by Respondents do not alter our conclusion.   With regard to Respondents' argument that temporary labor camps are already regulated by the Florida Department of Health, we note that the Act supercedes state law in all states that do not have a state occupational safety and health plan approved by the Secretary.   Sections 18(b) - 18(h) of the Act, 29 U.S.C. § §   667(b) - 667(h).   However, a state agency is not precluded from acting under a state law on an occupational safety and health issue which is not covered by any current OSHA standard.   Section 18(a) of the Act, 29 U.S.C. §   667(a). n28

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n28 That section of the Act provides:

Nothing in this Act shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under section 6.

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In answer to Respondents' contention that, in accordance with section [*39]   4(b)(4) of the Act, the definition of "workplace" under state workers' compensation laws should apply to the Act, we note that in Sugar Cane the Commission stated that principles deleloped for deciding cases arising under other social legislation, particularly workers' compensation laws, are helpful, but they are not controlling.   Moreover, as noted by the Secretary, Florida workers' compensation law has been held to cover employees not rquiered to live in employer-provided housing. Wilson Cypress Co. v. Miller, supra.

On the subject of Respondents' argument that the scope provision of ANSI Z4.4-1968, the national consensus standard from which the OSHA standards in section 1910.142 were derived, applies to section 1910.142 even though the Secretary did not adopt that scope provision, we determine that section 1.1 of ANSI Z4.4-1968 does not limit the coverage of section 1910.142 because it was not adopted by the Secretary as part of the OSHA standard.   Under section 6(a) of the Act, the Secretary is not bound to adopt all provisions of national consensus standards.   Moreover, the Secretary's exclusion of the ANSI scope provision did not constitute an impermissible modification [*40]   of the substantive requirements of the standard.   See Diebold, Inc. v. OSHRC, 585 F.2d 1327, 1332 n.6 (6th Cir. 1978). Therefore, the scope provision is without effect under the Act. n29 See Noblecraft Industries, Inc., 75 OSAHRC 5/A2, 3 BNA OSHC 1727, 1975-76 CCH OSHD P20,168 (No. 3367, 1975), vacated and remanded in pertinent part, 614 F.2d 199 (9th Cir. 1980); Cf. Bechtel Power Corp., 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1975-76 CCH OSHD P20,503 (No. 5064, 1976), aff'd, 548 F.2d 248 (8th Cir. 1977) (limititation of Construction Safety Act's applicability to employers of laborers or mechanics does not apply to scope of the construction standards under the Occupational Safety and Health Act). n30

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n29 Furthermore, we do not read the scope provision to limit coverage to camps in which farm workers are required to reside.

n30 Commissioner Barnako concludes that the scope provision of ANSI Z4.4-1968 governs the coverage of section 1910.142.   To the extent that this position is inconsistent with his prior position in Noblecraft Industries, Inc., supra, he would not follow that decision.   He agrees that the Secretary is not bound to adopt all provisions of national consensus standards.   However, he concludes that his colleagues' failure to apply the ANSI scope provision is inconsistent with the well settled principle that the Secretary cannot make any substantive change from the source standard when promulgating a standard pursuant to section 6(a) of the Act, 29 U.S.C. §   655(a).   See Deering-Milliken, Inc., 78 OSAHRC '01/A2, 6 BNA OSHC 2143, 1978 CCH OSHD P23,191 (No. 12597, 1978), appeal docketed No. 79-1212 (5th Cir. Jan. 26, 1979).   The scope provision of ANSI Z4.4-1968 defines the applicability of the ANSI standard; to interpret section 1910.142 without reference to this scope provision would constitute a substantive alteration in the standard.

In Commissioner Barnako's view, the majority's reliance upon Bechtel Power Co. is misplaced.   That case dealt with the Secretary's authority to promulgate Construction Safety Act standards as standards under the Act.   Although the Construction Safety Act standards are limited in applicability to a class of employers having a contractual relationship with the Federal Government, the Commission in Bechtel Power Co. held that as occupational safety and health standards they are not similarly restricted.   The Commission reasoned that the Act applies to "employers" as that term is defined in the Act and also noted that section 4(b)(2), 29 U.S.C. §   653(b)(2), gives the Secretary the authority to extend the coverage of established Federal standards, such as the Construction Safety Act standards, without resort to formal rulemaking.

Section 1910.142 was promulgated from a national consensus standard.   A "national consensus standard" is one which, among other things, "has been adopted and promulgated by a nationally recognized standards producing organization under procedures whereby . . . persons interested and affected by the scope or provisions of the standard have reached substantial agreement." 29 U.S.C. §   652(9).   [emphasis added].   If the scope of the ANSI standard is changed, there is no consensus and therefore the Secretary's promulgation of section 1910.142 would be improper.   See Noblecraft Industries, Inc., 614 F.2d 199 (9th Cir. 1980). Accordingly, Commissioner Barnako concludes that the scope provision of ANSI Z4.4-1968 governs the applicability of the cited standard.

Even though Commissioner Barnako concludes that the scope provision of ANSI Z4.4-1968 governs the applicability of section 1910.142, he concludes that the ANSI scope provision does not exclude applicability of the standard to Respondents' camps.

  [*41]  

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With regard to the significance of the Secretary's Field Information Memorandum 76-17 relied upon by the judge in his decision, we note that OSHA Instruction CPL 2.37 supercedes that document.   Furthermore, it is well established that the Secretary's internal administrative directives lack the force and effect of law and are thus not binding on the Commission.   FMC Corp., supra. In reply to Respondents' contention that the Act does not apply to their camps because ETA standards issued by the Secretary already regulate temporary labor camps, we note that the Secretary revoked the ETA regulations at 20 C.F.R. Part 620 after the Act was passed and section 1910.142 was promulgated. Respondents also argue that FLCRA, which was enacted particularly to prevent migrant farm worker abuse before the Act was passed, already regulates farm worker housing. In response, Amici correctly point out that the purpose of FLCRA is to regulate farm labor contractors, while it is the employers who usually control housing conditions.

V.   Order

As noted above, both Respondents admit that they failed to comply [*42]   with the citen standards.   Having concluded that Respondents' temporary labor camps are covered under the Act, we accordingly affirm the citation issued to Burnett for noncompliance with sections 1910.142(b)(1) and 1910.142(b)(11) and the citation issued to Harllee for noncompliance with sections 1903.2(a)(1), 1910.142(a)(3), and 1910.142(g).   No penalty is assessed for these other than serious violations.

IT IS SO ORDERED.