UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 14801

GRIFFIN & BRAND OF McALLEN, INC.,

 

                                              Respondent.

 

 

June 9, 1978

DECISION

Before CLEARY, Chairman; and BARNAKO, Commissioner.

CLEARY, Chairman:

            Following an inspection of a farm at which a migrant worker crew picked melons and lived during the 1975 season, the Secretary of Labor issued two citations charging respondent, Griffin and Brand of McAllen, Inc., which had hired the crew, with violating the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter ‘the Act’ or ‘O.S.H.A.’]. Citation No. 1 alleges that respondent failed to comply with six standards requiring the posting of information and maintenance of certain records pertaining to safety and health. Citation No. 2 alleges a failure to comply with fourteen standards pertaining to the condition of housing used by the migrant workers.  Respondent timely contested the citations.

            The case was heard by Administrative Law Judge Harold A. Kennedy, who vacated the citations on the ground that respondent was not the employer of the migrant workers because their crew leader was an independent contractor. The Secretary of Labor took exception to the vacation and petitioned for review. The petition was granted and review of the Judge’s decision was ordered by me pursuant to the authority granted by section 12(j) of the Act. We believe that the Judge erred in failing to hold that respondent was the employer of the migrant workers.

I. Facts

            Respondent cultivates, harvests, and markets fruits and vegetables in southern Texas. It harvested and marketed the 1975 cantaloupe crop grown by Mike A. Burkholder on land he had leased. Respondent’s top field representative, Red Martin, supervised the harvesting, but the picking was done by a migrant farm worker crew of eighteen men, none of whom was listed on respondent’s employee payroll.[1] On several occasions, respondent supplied conveyors to lift melons into trucks, but respondent’s payroll employees operated the conveyors. The trucks used to haul the melons were owned and operated by the migrant crew’s chief, Humberto Bazan.

            Bazan and his crew were not obligated to work exclusively for respondent, and had worked for other harvesters. The crew nonetheless had picked onions, peppers, and melons for respondent at various farms between March and September each year since 1969. In the late spring of 1975, Bazan was told by Red Martin that work picking melons was available near Presidio and Pecos, Texas. Bazan preferred to work on the farm near Pecos because he knew that housing was available on the farm.[2] He and his crew were hired to work on the farm near Pecos. They drove to the farm in Bazan’s trucks and moved into the houses on the farm several days before work began.

            Respondent had no direct dealings with crew members during the harvesting. Martin told Bazan where and when to pick melons, and what quality and size of melons should be picked.[3] Bazan in turn related these instructions to crew members. Bazan alone had the authority to hire, fire, discipline, and direct the work of individual workers. Martin testified that he would not discipline a crew member for misconduct or improper work, but would bring such conduct to Bazan’s attention. Martin also testified, however, that the entire crew would be fired if Bazan failed to correct a problem as Martin requested.

            Respondent paid Bazan and his crew at the same rate and in the same manner as it paid all other crews picking melons. There was no negotiation over pay rates. Bazan was paid for hauling melons in his trucks to the packing shed.[4] Based on daily reports filed by respondent’s field men and weekly reports filed by Bazan, Bazan also was paid $2 per hour for each crew member. Each crew member’s gross pay of $1.80, the prevailing minimum wage, came out of the $2 paid to Bazan. Bazan and the other crew leaders working for respondent near Pecos hired an accountant to handle social security and income tax records and withholding for their crews. Respondent received copies of Bazan’s payroll records in order to assure that Bazan properly paid his crew.[5]

II. Discussion and Conclusion

            There is no single criterion for determining the existence of an employer—employee relationship. The primary test at common law is known as the right of control. If an alleged employer controls both the results of work and the means by which workers accomplish the result, the workers are considered to be his employees. The National Labor Relations Board uses this test, although it is applied in light of the economic realities of each employment relationship. Deaton Truck Lines, Inc., 143 NLRB 1372, 53 LRRM 1496 (1963), pet. for rev. dismissed, 337 F.2d 697 (5th Cir. 1964). A variety of factors are significant under this test. See, e.g., Standard Oil Co. 230 NLRB No. 137, 96 LRRM 1294 (1977).

            The so-called economic realities test, considered in light of a statute’s purposes, is used in applying remedial legislation that Congress did not intend to be limited to employment relationships defined by common law principles. Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947). This test is used in cases arising under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (id.); the Social Security Act, 42 U.S.C. § 301 et seq. (United States v. Silk, 331 U.S. 704 (1947)); and the Occupational Safety and Health Act[6] (Wheeling-Pittsburgh Steel Corp., 4 O.S.H. Cas. (BNA) 1578, 1976-77 CCH OSHD para. 20,968 (No. 7390, 1976)).

            Whether respondent is an employer of the migrant workers does not depend on isolated factors. The Commission has considered the following questions while identifying an employer: (1) whom do the workers consider their employer; (2) who pays the workers’ wages; and (3) who has the responsibility to control the workers. Weicker Transfer and Storage Co., 75 OSAHRC 29/A2, 2 BNA OSHC 1493, 1974-75 CCH OSHD para. 19,215 (Nos. 1362 & 1373, 1975). Other relevant inquiries under the economic realities test include: (1) does the alleged employer have the power to control the workers; (2) does the alleged employer have the power to fire, hire, or modify the employment condition of workers; (3) does the workers’ ability to increase their income depend on efficiency rather than initiative, judgment, and foresight; and (4) how are the workers’ wages established. See Hodgson v. Griffin and Brand of McAllen, 471 F.2d 235 (5th Cir. 1973), cert. denied, 414 U.S. 819 (1973).

            The crew leader alone contracted with respondent, or other harvesters, for the work of the crew and alone had the right to hire, fire, and discipline members of the crew. The crew leader alone gave work instructions to the crew. Bazan alone had the duties of paying his crew and handling the paperwork connected with the payment. Thus, it appears from the formal structure of the employment relationship between respondent and the migrant workers’ crew leader that the leader was an independent contractor, as respondent and the crew leader testified that he was. Formal technicalities are not determinative, however, if they present a false image of the employment relationship. See e.g., Eureka Newspapers, Inc., 154 NLRB 1181, 60 LRRM 1119 (1965).

            Migrant farm workers often receive insufficient income to permit the purchase of vehicles necessary for moving from area to area as harvesting seasons change. This causes employment uncertainty for the workers and those harvesters who need the workers. The uncertainty has been relieved in part by the appearance of ‘middlemen’ who, for a fee, recruit, furnish, and transport migrant workers and contract for their services. These middlemen are known as farm labor contractors and must register as such with the Department of Labor. 7 U.S.C. §§ 2042(b) & 2043. Bazan was a registered farm labor contractor. Bazan’s occupation and rights as a labor contractor should not be confused with the harvesting work performed by him and his crew.

            During the harvesting, Bazan was, in effect, respondent’s foreman, through whom work instructions were given to the migrant workers. Picking cantaloupe is not a complicated task and therefore it would not have been necessary to give the farm crew detailed instructions, especially because the crew previously had picked melons for respondent. Martin nonetheless told Bazan where and when to pick the melons. More importantly, Bazan was instructed as to the ripeness and size of melons that should be picked. The giving of detailed work instructions often provides an indication of an employer-employee relationship, but where detailed instructions are inappropriate, possession of the ultimate power of direction and control also indicates the existence of such a relationship. Cf. Ringling Bros.—Barnum & Bailey Combined Shows, Inc. v. Higgins, 189 F.2d 865 (2d Cir. 1951). Respondent’s refusal to permit Bazan’s experienced crew to use its discretion demonstrates respondent’s ability and interest in maintaining control over the harvesting. The fact that respondent conveyed work instructions to the migrant workers through their chief, rather than speaking to the workers directly, does not suggest otherwise. Work instructions, especially those concerning uncomplicated physical labor, often are given only to a foreman who must relate the instructions to the work crew.

            The ability to fire and discipline workers is important in assuring that the quality of their work will not decline. Consequently, possession of that ability is a strong indication of the existence of an employer-employee relationship. Respondent did not possess the right to fire or discipline crew members, but it clearly had the power to achieve such ends. Martin unequivocally testified that he would fire the entire crew if Bazan did not take whatever steps Martin requested to correct what he believed to be a problem created by a crew member. Respondent argues that it is significant that Martin would not discipline a migrant worker personally. This argument is not persuasive in light of Martin’s testimony that neither would be discipline respondent’s payroll employees but would refer employee misconduct to the employee’s supervisor.[7] It is not realistic to argue that Bazan’s right of control could deter respondent from exercising its power of control.

            Respondent had exclusive control over the wages paid to the migrant workers. Respondent did not bargain over wages, it paid the prevailing minimum hourly wage of $1.80 to all workers who picked melons during the 1975 seasons. Respondent’s control was not altered by arranging for Bazan to process the workers’ pay.[8] Indeed, Martin testified that respondent used the payroll records received from Bazan to monitor his payments to the crew in order to assure that crew members received $1.80 per hour. The basic wage was not dependent upon profits from the harvest or upon the efficiency of the workers. Bonuses of up to eight cents per hour were granted, but, as Martin testified, they did not differ from bonuses cutomarily given to corporate employees for exceptional work. A worker’s inability to increase his income through initiative, judgment, and foresight is an indication that the worker is an employee and not an independent contractor. See News-Journal Co. v. National Labor Relations Board, 447 F.2d 65 (3d Cir. 1971), cert. denied, 404 U.S. 1016 (1972).

            The important difference under the economic realities test between legal authority and practical power is clearly exhibited by this case. While Bazan retained all the rights typically possessed by an employer/independent contractor, respondent effectively controlled the exercise of those rights. Indeed, the facts of this case do not differ in any important respect from the facts of Hodgson v. Griffin and Brand of McAllen, Inc., supra, in which the Fifth Circuit Court of Appeals held respondent to be an employer of migrant workers for the purposes of the Fair Labor Standards Act. The court reached this conclusion after considering several factors, among which were that Griffin and Brand paid migrant workers directly and withheld income tax and social security payments. After the decision in that case was issued, respondent shifted the responsibility for processing the migrant workers pay to crew leaders. We do not find this shift in responsibility to be significant because respondent retained the ability to establish wage rates, which, as Martin testified, routinely were fixed at the prevailing legal minimum. A modification in the legal or formal aspects of an employment relationship does not alter the relationship for the purposes of the Act if the practical or substantive aspects of the relationship remain unchanged. Cf. Mednick v. Albert Enterprises, Inc., 508 F.2d 297 (5th Cir. 1975).

            The Secretary relies on Rutherford Food Corp. v. McComb, supra, to support the argument that cases arising under the Fair Labor Standards Act are persuasive authority in cases arising under O.S.H.A. Respondent argues that F.L.S.A. cases are irrelevant to the issue of an employment relationship under the Act because the term employer is defined more broadly by F.L.S.A. than by O.S.H.A. It is not necessary to pass on the relative scope of the definition of employer under the two acts in order to disagree with respondent’s argument. The economic realities test is applied in cases arising under both acts to ascertain the alleged employer’s actual ability to control the work of alleged employees. In the case cited by the Secretary, the Supreme Court stated that decisions in cases defining the scope of the employee—employer relationship for the purposes of one piece of remedial legislation are persuasive in the consideration of a similar coverage under other remedial acts. The cases upon which the Court relied arose under the National Labor Relations Act of 1935 29 U.S.C. § 151 et seq., and the Social Security Act of 1935, 42 U.S.C. § 301 et seq. At that time, the economic realities test was used to characterize employment relations at issue in cases arising under these acts. United States v. Silk, supra. Accordingly, we reject respondent’s argument.

            Of course, decisions in cases arising under one act are not dispositive of cases arising under a different act if the purposes of the acts differ. The purposes of the Fair Labor Standards Act and the Occupational Safety and Health Act are not identical, but they do overlap to some extent. One of the primary purposes of the former statute is to eliminate substandard wages and excessive hours of work in order to improve the health, efficiency, and general well-being of workers. 29 U.S.C. § 202; Southland Gasoline Co. v. Bayley, 319 U.S. 44 (1943). The purpose of the latter act is to promote the safety and health of workers by, among other things, eliminating or reducing hazardous working conditions. Section 2(b) of the Act. Thus, both statutes have, as their design, improvement of working conditions and the well-being of employees. Both pieces of legislation impose duties on employers who, as a class, are more capable than transient workers of assuring adequate wages and work free of hazardous conditions. See generally Mednick v. Albert Enterprises, Inc., supra, and cases cited therein.

            The Administrative Law Judge correctly noted that the Act is not to be given a technical or narrow construction. Yet the Judge, apparently feeling constrained to restrict the term ‘employer’ to what he called the term’s ‘plain meaning,’[9] relied heavily on formalities, such as who withheld social security payments and who had the right rather than the power of control, in characterizing the employment relationship between respondent and the migrant workers. As the cases cited above evidence, however, the term ‘employer’ is one of art in remedial legislation that is to be defined according to the statutory context in which it is found and the practical realities of the employment relationship being scrutinized. After careful analysis, we are persuaded that respondent was the workers’ employer for the purposes of the Act.

            Accordingly, it is ORDERED that the Judge’s decision is vacated and this case is remanded for a decision on the merits of the two citations issued to respondent.

 

FOR THE COMMISSION:

 

Ray H. Darling, Jr.

Executive Secretary

BY: Gloria W. White

Acting Executive Secretary

DATED: JUN 09, 1978

 

Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.

SEPARATE OPINION

            As a new member of the Commission, I must resolve the issue of my participation in pending cases. It is also necessary for me to set out the principles guiding my decision on this important issue.

            In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received my commission on May 1, 1978. A decision was already in preparation when I assumed office. I have concluded that the wisest exercise of discretion is to decline to participate in this case even though a new Commission member has authority to participate in pending cases. It should be emphasized that by declining to participate I express no opinion on the procedural or substantive issues in this case or on the appropriateness of the accompanying order.

Discretion of Commission Members

            As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action. In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating. The Court of Appeals rejected petitioner’s contention that the FTC can act in its adjudicatory capacity only when all members participate, except when there is a vacancy. The court ruled that official action can be taken by the majority of the requisite quorum. Also Frisher & Co. v. Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930) cited approvingly in FTC v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the Occupational Safety and Health Act, 29 U.S.C. § 661(e), provides:

For the purposes of carrying out its functions under this chapter, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.

 

            Thus, the unanimous decision already reached in this case satisfies the quorum and official action requirements of the Act and my participation is not necessary for the Commission to carry out its adjudicatory functions in this particular case.

            However, it is also settled that a new member of an administrative agency may participate in pending cases. For example, a new member of the Civil Aeronautics Board who had not participated in previous proceedings was entitled to vote and break an existing tie where he had familiarized himself with the record. Western Airlines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960)[10]. In United the court indicated that, where a member voting with the majority without hearing oral argument ‘had the record before him and the benefit of briefs’, there was no abuse of discretion in his participation, 281 F.2d at 56. There are numerous other cases supporting this holding. The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):

The decisions of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him. [footnotes omitted]

 

348 F.2d at 802.[11] See Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authority to participate in all cases pending before the Commission on assuming office.

            Though a new member may participate in all pending cases, particularly those involving an impasse, the decision remains a matter of discretion since adjudicatory decision may be upheld on a majority of a quorum. In FTC v. Flotill prod., 389 U.S. 179 (1967) rev’g 358 F.2d 224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies, declined to participate because he had not heard the oral argument. Thus, three of the possible four Commissioners actually participated in the decision. As a result, the FTC issued a cease-and-desist order based on the affirmative vote of only two members. Despite its obvious impact on the number of members constituting a majority, the Court did not review the exercise of discretion by the new member. Instead, the Court accepted the abstention at face value and upheld the action of the two members of the FTC. See also La Preyre v. FTC, 366 F.2d 117 (5th Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition, administrative decisions involving two or more abstentions have been upheld by reviewing courts without question or comment on the grounds for these abstentions. All that was necessary to sustain the agency decision was a majority of the required quorum. E.G., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied 403 U.S. 923 (1971).

Decision Not to Participate

            I decline to participate in this case because a majority of the Commission has reached agreement on the merits and my vote would have no effect on the outcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a unanimous decision, my participation would delay the issuance of decisions and conflict with the goal of a prompt and efficient decision-making process. See generally Atlas Roofing Co. Inc. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. § 555(b). Since abatement is stayed until the Commission enters a final order, 29 U.S.C. § 659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that a violation of the Act exists. That result would be inconsistent with the statutory purpose to assure so far as possible safe and healthful working conditions for every working man and woman. 29 U.S.C. § 651(b).

            I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock. Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission’s administrative law judges. Moreover, these decisions also promote needless litigation in the U.S. Courts of Appeals to decide issues which should initially be determined by the Commission, because its members have specialized training, education, and experience in occupational safety and health. 29 U.S.C. § 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co. Inc. v. OSHRC, supra at 963-964. Administrative resolution of pending issues also promotes a more uniform application and development of occupational safety and health law. After reading the record, I will participate in the consideration and decision of these cases.

Conclusion

            My decision not to participate in pending cases which have reached a unanimous decision by my colleagues, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases. It also assures the parties and the public of the full benefit of Commission review. Both of these results are essential in deciding cases affecting the lives, health and safety of American workers, the operation of American business, and the effective adjudication of cases by the administrative law judges.

 

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 14801

GRIFFIN & BRAND OF McALLEN, INC.,

 

                                              Respondent.

 

 

June 28, 1978

DECISION AND ORDER

Appearances:

James F. Gruben, Esq., and Heriberto de Leon, Esq., of Dallas, Texas, for the Secretary

 

H. Hollis Rankin, III, of McAllen, Texas, for the Respondent.

 

Harold A. Kennedy, Judge, OSHRC:

            Following an inspection of a place of employment described as ‘Berkholders Farm, 7 miles northeast of Coyanosa, Texas . . . produce farm labor housing,’[12] the Complainant Secretary of Labor on August 13, 1975, issued two citations charging the Respondent Employer with violating the Occupational Safety and Health Act of 1970 by failing to comply with certain safety and health standards issued under the Act. The first citation, designated Citation No. 1 (Non-Serious), alleged that Respondent had failed to comply with six standards requiring the posting of information and maintenance of certain records pertaining to safety and health. The specific charges[13] read as follows:

Item Standard cited

Description

 

Item

Standard Cited

Description

1

29 CFR 1903.2(a)

 

Employer had not posted in a prominent place the standard poster informing employees of the job safety and health protection provided under the Occupational Safety and Health Act of 1970.

 

 

2

29 CFR 1904.2(a)

The employer was not maintaining the standard log of occupational injuries and illnesses, OSHA Form 100 as required by the Act.

 

3

29 CFR 1904.4

The employer was not maintaining the supplementary record of occupational injuries and illnesses, OSHA Form 101 as required by the Act.

 

4

29 CFR 1904.5(a)

An annual summary of occupational injuries and illnesses had not been compiled for this establishment.

 

5

29 CFR 1904.5(d)

 

The employer did not post, and keep posted, a copy of the establishment’s annual summary of occupational injuries and illness, OSHA Form 102, during the period from February 1 until March 1 as required by the Act.

 

6

29 CFR 1904.6

The employer did not retain records of occupational injuries and illnesses at the establishment as required by the Act.

 

 

            The second citation, designated Citation No. 2 (Serious), alleged that Respondent failed to comply with 14 different standards pertaining to temporary labor camps. Such charges, which were later reduced to nonserious ones (Para. III of the complaint), read as follows:

Item

Standard Cited

Description

1A

29 CFR 1910.142(a)(1)

 

Camp site around housing on east side was not adequately drained, due to pool of standing water approximately 35 feet from house.

 

1B

29 CFR 1910.142(a)(3)

 

Grounds and open areas surrounding the shelters were not maintained in a clean and sanitary condition free from rubbish, debris, waste paper, garbage, or other refuse.

 

1C

29 CFR 1910.142(b)(2)

 

Rooms used for sleeping purposes did not contain at least 50 square feet of floor space for each occupant.

 

1D

29 CFR 1910.142(b)(3)

 

Beds or similar facilities were not spaced 36 inches both laterally and end to end and were not elevated at least 12 inches from the floor. (No beds were provided for any of the 4 apartments in the east side building.)

 

1E

29 CFR 1910.142(b)(8)

 

All exterior openings were not effectively screened with 16—mesh material, and screen doors were not equipped with self-closing devices.

 

1F

29 CFR 1910.142(b)(10)

 

Sanitary facilities were not provided for storing and preparing food, (only two refrigerators on east side building which had four occupied apartments.)

 

1G

29 CFR 1910.142(c)(1)

An adequate and convenient water supply, approved by the appropriate health authority was not provided.

 

1H

29 CFR 1910.142(d)(9)

An adequate supply of toilet paper was not provided in each privy.

 

1I

29 CFR 1910.142(d)(10)

Privies and toilet rooms were not kept in a sanitary condition, they were not cleaned at least daily.

 

1J

29 CFR 1910.142(f)(3)

An adequate supply of hot and cold running water was not provided for bathing and laundry purposes, nor were containers for heating water provided.

 

1K

29 CFR 1910.142(h)(1)

 

Fly-tight, rodent-tight, impervious cleanable or single service containers, approved by appropriate health authority were not provided for the storage of garbage.

 

1L

29 CFR 1910.142(i)(2)

Sleeping quarters of any of the workers or their families were not separate from kitchen and dining area.

 

1M

29 CFR 1910.142(j)

 

No effective measure was taken to prevent infestation by and harborage of animal or insect vectors or pests.

 

1N

29 CFR 1910.142(k)

Adequate first aid facilities approved by a health authority was not maintained or made available for the members of the labor camp for the emergency treatment of injured persons.

 

 

            The above alleged violations of standards or regulations when viewed together in relationship to each other constitute a hazard of higher gravity and result in an alleged serious violation.

            No penalty was proposed for Citation No. 1. A penalty of $550 was originally proposed for Citation No. 2, but it was later reduced to $350 (Para. VI of the complaint). Respondent timely contested all of the charges and the penalty proposed.

            After pleadings were filed, the case was heard on January 13 and 15, 1976, in Pecos and Brownsville, Texas, respectively. The Secretary called the following as witnesses: Mike A. Burkholder, who leases and operates a 3700 acre farm near Coyanosa, Texas; Jose Candia, Mr. Burkholder’s farm foreman; Humberto Bazan, a migrant labor crew leader; Mrs. Humberto Bazan; David Garcia, an ‘OSHA’ Compliance Officer; and Edmundo Gonzales, a United, States Department of Labor wage and hour ‘compliance specialist.’ Respondent called one defense witness, Glen R. ‘Red’ Martin, Respondent’s ‘head field man.’

            The pleadings establish that Respondent’s business affects commerce and that it is an ‘employer’ within the meaning of the Act (Tr. 13). Respondent has, however, raised constitutional and a number of other objections with respect to the Secretary’s actions, many of which I am not empowered to pass on.[14] Respondent asserts that the Act authorizes regulation of a ‘workplace,’ not ‘temporary housing.’ He also argues that the temporary housing regulations are vague and, in fact, conflict with other regulations of the Secretary. Respondent’s principal contentions are, however, that the Secretary has neither established that Respondent was the employer of the harvest workers who utilized the housing on the Burkholder Farm nor that Respondent furnished housing, directly or indirectly, to such workers. The evidence bearing on these issues will be examined.

            Mr. Burkholder, who owns a wholesale-retail seed business known as ‘3 B Seed Company’ (Tr. 32), made an agreement with the Respondent for the growing and harvesting of 300–400 acres of cantaloupes during the 1975 season. Burkholder, referred to as the ‘grower’ in the written agreement, was to be responsible for the growing of the melon crop. Respondent, referred to as the ‘shipper,’ was to be responsible for selling of the melons. While the agreement recited that the harvesting and packing was to be the joint responsibility of both the grower and the shipper, Mr. Burkholder and his employees did not assist with the harvesting of the melon crop except on certain occasions when Mr. Burkholder, on request, had sent tractors and drivers into the field to ‘pull trucks out of the mud’ (Tr. 44–5, also 78–84).

            Mr. Burkholder summed up the arrangement in these words (Tr. 35):

They put up half of the money for growing a crop, then I furnish the management, the machinery for growing the crop. Then they harvest and pack the crop. We share the expenses and share the profits.[15]

 

            The proceeding focuses upon five buildings, referred to as ‘housing units,’ located on the farm. They were built some years before for farm tenants. Some units had two rooms and some had three. All had kitchens and bathrooms. They had been ‘real nice’ but allowed to fall into a state of disrepair (Tr. 22, 34, 67). Four of the units were houses, identified by square boxes labeled #1, #2, #3, and #4 on a map drawn by Witness Burkholder, and the fifth, marked ‘A’ on the map, was an apartment building. Approximately 35 persons occupied the four houses and the apartment house between July 10 and August 5, 1975, the day after the Secretary’s inspection (Tr. 23, 29, 120). Persons occupying the housing units were workers in the Bazan work crew or family members of such workers. Such persons included Humberto Bazan, three of his sons, his wife, and two grandchildren, and all were transported from Mission, Texas, to the Burkholder farm in trucks owned by Mr. Bazan (Tr. 92–6, 108). Fourteen persons occupied House #2, the largest unit, but apparently seven of these (men) went to another unit for sleeping (Tr. 101–07, 147). As the map indicates, the four houses are situated along the north side of a road and south of a concrete irrigation ditch (Tr. 76). The houses are approximately 15 yards apart (Tr. 21). The apartment building is located some distance away from the houses and on the south side of the road and a dirt irrigation ditch (Tr. 76).

            Mr. Humberto Bazan had worked as a crew leader for Respondent for a number of years prior to 1975 but not in the Pecos area.[16] (Respondent apparently had harvested crops in the Pecos area in the 1950’s but not after that until 1975, Tr. 192.) Mr. Bazan knew of the housing at the Burkholder Farm as he had worked in the area for others (Tr. 96, 109, 112, 122).

            Respondent’s head field man, Red Martin, advised Mr. Bazan that there were crops to be harvested at either Presidio or Pecos, Texas, and that housing would not be available at either place. Mr. Bazan chose to go to Pecos because of the housing units on the Burkholder Farm. Mr. Bazan made a trip to the Burkholder Farm in advance of the harvest and supposedly obtained Burkholder Farm Foreman Candia’s ‘okay’ (Tr.117) to use the housing there. See Tr. 112–17, 123–25; also Tr. 97; 196–7.

            Mr. Candia could not remember that anyone inquired about use of the housing on the Burkholder Farm, although he did recall seeing Mr. Bazan once when the latter was cleaning some of the housing units (Tr. 20, 26–7). He testified that he supervised three full time employees and sometimes other workers for Mr. Burkholder, but he and the farm employees had nothing to do with harvesting of the melon crop (Tr. 18–19; also 79 (Burkholder)).

            Mr. Burkholder, who apparently first leased the farm near Coyanosa in 1975, paid all farm utilities, which included electricity as well as natural gas for pumping water and heating of the housing units (Tr. 33–39, 41–2).[17] Mr. Burkholder thought the housing on the farm had little, if any, rental value, but he indicated that harvest hands (and even others, Tr. 40) could use them if they wished to (Tr. 36). They were not locked (Tr. 26). Mr. Burkholder said he knew there was a Bazan crew that harvested his crop, but he did not know they were staying at his farm until he saw some people there (Tr. 42, 58). He added that he was ‘not particularly happy about it . . . [b]ut they were already there, so I left them there’ (Tr. 79–80).

            Mr. Martin testified that Respondent did not furnish Mr. Bazan’s crew or any harvest hands with housing or transportation (Tr. 195–97). He, and thus Respondent, first learned that there were housing units on the Burkholder Farm only after the workers and their families had moved into them. He considered the housing inadequate and recommended that they move elsewhere. They did not do so until Compliance Officer Garcia arrived and inspected the housing on August 5, 1975. At that time, Mr. Martin told Mr. Bazan that the workers would have to move if they were to work for Respondent (Tr. 200):

He wasn’t willing to move. I told him that he couldn’t work for me if he didn’t move off that farm. Now, I don’t care if the man lives there, but his work would be terminated with me. There was no way he could live there and work for the company.

 

            Respondent considered its crew leader as an ‘independent contractor’ and so did Mr. Bazan. Both Respondent and Mr. Bazan considered the workers in the Bazan crew as Bazan’s employees, not Respondent’s (Tr. 193; 126–7).

            Respondent did not carry Mr. Bazan or any of his crew on its payroll. A bookkeeper was used by Mr. Bazan and other farm labor contractors to prepare social security and other government reports. A copy of such reports were supplied to Respondent. Respondent has seen to it that a minimum wage is paid to each harvest hand—a requirement reportedly imposed upon it by the United States Department of Labor under the Farm Labor Contractors Act (Tr. 222). The method of payment for harvesting was to pay the crew leader so much for carrying a load to the produce shed plus a certain amount for each worker. A bonus might also be paid, on a piece basis, for quality work. Mr. Martin testified that $6.00 was paid for each truck load carried to Respondent’s shed in nearby Fort Stockton (actually owned by a Mr. Weinacht, Tr. 193).[18] In addition, $2.00 an hour was paid to the crew leader for each worker on the harvesting crew; the crew leader retained 20¢ and remitted $1.80 to the harvest hand.

            The crew leader was told which field and the kind of produce to harvest. Respondent did not attempt to supervise the hiring or discharge of a harvest hand and dealt only with the crew leader (Tr. 193–5).

            The Secretary contends that the question of employment relation was settled by Hodgson v. Griffin and Brand of McAllen, Inc., 471 F.2d 235 (5th Cir. 1973), cert. denied, 414 U. S. 819 (1973) and Hodgson v. Okada, 472 F.2d 965 (10th Cir. 1973). I am unable to agree. Cf. Jimmy R. Carlson, OSAHRC Docket No. 14303 (Judge’s decision of March 18, 1976, pending on review).

            First of all, these were wage and hour cases arising under the Fair Labor Standards Act (FLSA), which, as the Secretary’s counsel points out, defines employment terms more ‘precisely.’ No doubt the terms ‘employer’ and ‘employee’ are to be broadly construed under both the Occupational Safety and Health Act and the Fair Labor Standards Act, but the words do not necessarily mean the same under each. The FLSA defines ‘employer’ to include (29 U.S.C. 703(d)) ‘any person acting directly or indirectly in the interest of an employer in relation to an employee. . . .’ Further, the FLSA defines ‘employ’ in the broadest possible terms (29 U.S.C. 203 (g)): “‘Employ’ includes to suffer or permit to work.”

            There are, of course, similarities in the case at bar and the Fifth Circuit’s Griffin and Brand’s wage and hour decision. In each, Griffin and Brand dealt with crew leaders in harvesting produce. Crew leaders used trucks to transport workers to the field and haul harvest from the field to the shed. Griffin and Brand paid crew leaders who, in turn, paid harvest hands ‘on a lower basis’ (on a ‘piece rate’ as determined by Griffin and Brand in the FLSA case, primarily on an hourly basis here). But there are factual differences in the cases too. In the FLSA action, contrary to the case at bar, Griffin and Brand withheld and paid social security taxes on the harvest hands. An ‘outside bookkeeper’ had been employed by Griffin and Brand ‘to do the ‘crew leader’s’ social security computations.’ Here, however, the crew leader had his own bookkeeper to keep track of the payroll and file necessary social security reports (copies of which were furnished to the Respondent to insure payment of a minimum wage per government regulations, Tr.207–12, 219–28. It is also apparent that Griffin and Brand had previously exercised considerable more control over its crew leaders and the harvest workers. In the wage and hour case, Griffin and Brand had given rather detailed directions for harvesting crops—which rows to pick, the rate of pay, and how to pay it. In any event, the court only held in Griffin and Brand, supra, that the District Court had not erred in holding that the Respondent on the facts there presented was at least a joint employer of a crew leader’s harvest hands for wage and hour purposes. The gist of the Circuit Court’s decision is contained in the following paragraph (471 F.2d at 238):

We do not think the district court’s conclusion in this case that appellant was a joint employer was clearly erroneous; on the contrary, we find that it was amply supported by the evidence. Of course, the work necessarily took place on appellant’s premises. The testimony that appellant’s field supervisors supervised the harvest work tends to indicate an employment relationship. The fact that appellant effected the supervision by speaking to the crew leaders, who in turn spoke to the harvest workers, rather than speaking directly to the harvest workers does not negate a degree of apparent on-the-job control over the harvest workers. The fact that appellant set the rate of pay of the harvest workers, decided whether crew leaders would pay a piece rate or an hourly rate in a given instance, and handled the social security contributions for the harvest workers also tend to indicate an employment relationship. Viewing the total work arrangement, we agree with the district court that appellant was a joint employer and thus responsible for the violations of the Fair Labor Standards Act.[19]

 

            Certainly the Occupational Safety and Health Act is not to be given a technical or narrow construction, and the declared purpose of such remedial legislation—to provide a safe place to work for every working man and woman in the Nation—is to be given effect. Frohlick Crane Service Inc. v. OSAHRC and Brennan, 521 F.2d 628 (10th Cir. 1975). However, these rules of construction cannot be relied upon to stretch employment terms beyond their plain meaning and deem a person an ‘employer’ of others who are in fact independent contractors or employees of them. See Allied Chemical & Alkali Workers of America, Local Union No. 1, v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S.Ct. 383 (1971).

            Viewing the total work arrangement as disclosed by the record in this proceeding, I am unable to find that the Secretary established that Respondent is an employer, joint or otherwise, of Crew Leader Bazan or any members of his work crew. Significantly, Mr. Bazan regarded himself as an independent contractor and the employer of the harvest workers. Respondent did so as well. The harvest workers were on Mr. Bazan’s payroll, not Respondent’s. Mr. Bazan, through his bookkeeper, deducted social security taxes and filed reports on them. He hired and fired the harvest workers and, even more important, exercised right of control over them. See Gilles & Cotting, Inc., 4 OSAHRC 1080 (1973) affirmed (but remanded) Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974); Southeast Contractors, Inc., v. Dunlop 512 F.2d 675 (5th Cir. 1975).[20] To hold Respondent to be the employer of the harvest workers would, in my view, be unrealistic and involve a strained interpretation of the term.[21]

            Having determined that Respondent is not the employer of Mr. Bazan or any members of his harvesting crew, it is unnecessary to consider the evidence bearing on the charges or any other issue in the proceeding. It is to be noted that the Commission has recently stated that it will hold a general contractor in the construction industry responsible for violation of safety and health standards even if his own employees were not exposed to the violative conditions. Grossman Steel & Aluminum Corp., OSAHRC Docket No. 12775, decided May 12, 1976; Anning-Johnson Company, OSAHRC Docket Nos. 3694 and 4409, decided May 12, 1976; and Beatty Equipment Leasing, Inc., OSAHRC Docket No. 3901, decided May 13, 1976. But it stressed that ‘our rule is limited in applicability to multi-employer sites in the construction industry’ (Beatty Equipment Leasing, supra). And, thus, ‘[t]he rule we have announced constitutes an exception to the general rule that an employer is liable only when its own employees have access to the violative conditions’ (Grossman Steel & Aluminum Corp., supra). The instant matter in no way involves the construction industry.[22]

            It is also to be noted that the decision herein does not hold that the harvest workers are outside of the protection of the Occupational Safety and Health Act. It simply holds that the Secretary of Labor cannot hold a party liable under the Act except as Congress has directed and under principles enunciated by the Review Commission and the reviewing courts.[23]

            Based on the foregoing, and the whole record, I make the following conclusions of law:

            1. Respondent is now, and at all times mentioned herein, an ‘employer’ within the meaning of section 3 (5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and the subject matter.

            2. It was not established that Respondent was an ‘employer’ of Crew Leader Bazan or any of the harvest workers who occupied the housing units situated on the Burkholder Farm during the 1975 cantaloupe harvesting season.

ORDER

            Based on the foregoing, and the whole record, it is ordered that Citation No. 1 and Citation No. 2 issued against Respondent on August 13, 1975, and the related proposed penalties, be, and the same are, VACATED.

 

Harold A. Kennedy

Judge, OSHRC

Dated: June 28, 1978


[1] It is unclear from the record whether more than one crew worked the Burkholder farm. It is clear, however, that respondent hired more than one crew to pick cantaloupe during 1975.

[2] Respondent did not learn of the existence of the housing until several days after the migrant workers began picking melons.

[3] Martin was not always present during the picking, but two other field men employed by respondent were present.

[4] This payment was made for the rental of Bazan’s trucks and for Bazan’s services as a driver; it was not part of the melon picking contract and was not shared with the crew.

[5] Respondent was obligated to do this by § 211(c) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and § 2050c of the Farm Labor Contractor’s Registration Act, 7 U.S.C. § 2041 et seq.

[6] Application of the Act is not restricted to common law employer—employee relationships. Frohlick Crane Service, Inc. v. O.S.H.R.C., 521 F.2d 628 (10th Cir. 1975); Brennan v. Gilles & Cotting, Inc., 503 F.2d 1255 (4th Cir. 1974).

[7] Martin raised two exceptions to this policy; he would discipline payroll employees who were observed destroying or were observed stealing respondent’s property, but the record does not indicate that the migrant workers were in a position to perform either of these actions.

[8] Bazan retained 20 cents of the $2 he was paid for each hour of work by a member of his crew. It is unclear what this 20 cent payment was intended to cover. It may have been remuneration for Bazan’s services as a labor contractor, or for acting in effect as respondent’s foreman, or it may have been intended to cover the cost of hiring an accountant Bazan needed to handle the workers’ payroll. In any event, the payment did not alter respondent’s control over the wages paid to crew members.

[9] The Judge cites Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971), a case arising under the National Labor Relations Act, to support his restrictive definition of employer. As the Supreme Court noted, however, Congress expressly rejected the Court’s initial, expansive definition of employer by amending the N.L.R.A. in order to restrict the term to its common law underpinnings. Id at 167-168. The Act has not been so restricted. Clarkson Construction Company v. O.S.A.H.R.C., 531 F.2d 451 (10th Cir. 1976).

[10] A Commissioner may vote simply to avoid an impasse. Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

[11] The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.) cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily required if a party requested it. 348 F.2d 798, n. 14.

[12] The transcript indicates that the lessor of the farm near Coyanosa, Texas, is a Mr. Burkholder, not Berkholders (Tr. 32).

[13] Because this case is being disposed of without consideration of the merits, the cited standards will not be set forth.

[14] See Hamilton Lumber Company, OSAHRC Docket No. 9764, decided May 4, 1976, and cases cited therein. I am able to rule on Respondent’s contention that the citation was not issued with ‘reasonable promptness.’ The citation was issued eight days after the inspection and Respondent did not show any prejudice resulted as a result of any alleged delay. Respondent’s objection on this ground must therefore be overruled. See Concrete Construction Corp., OSAHRC Docket No. 2490, decided April 8, 1976. Respondent’s answer also raises questions about the Secretary’s inspection, pointing out that it had no ‘chance to inspect the investigator’s credentials or to accompany the inspectors on their inspection.’ Respondent has not pressed this issue during trial or in his brief, and I must conclude that this objection has been abandoned.

[15] The written agreement is dated February 17, 1975, and is in evidence as Respondent’s Exhibit 1.

[16] Mr. Humberto Bazan has been a migrant crew leader for a member of years and acted in such capacity in 1975. However, he was registered as an employee of a crew leader or farm labor contractor with the United States Department of Labor in 1975. His son, Frederico Bazan, was listed as a crew leader in 1975. See Tr. 186–89, 94–97; also Tr. 120–21. Mr. Humberto Bazan testified that he is teaching the business to his son (Tr. 121).

[17] Apparently there was electrical service to the housing units during the melon harvesting season, although Farm Foreman Candia responded to the question on this point, ‘Now there is’ (Tr. 26). There was running water in the housing units although the water in the tanks would sometimes get low and need to be replenished by an occupant or other person. See Tr. 38, 54–5, 69–71, 98–100; 146.

[18] Respondent employed two or more field men to assist Mr. Martin in harvesting and packing the 1975 melon crop (Tr. 45, 82, 191–2).

[19] Okada, supra, was also a wage and hour case and easily distinguishable. Okada, who was held to be a joint employer (along with the crew leader) of harvest workers working on its premises, “provided the only regular supervision of the works and the workers were “acting directly or indirectly in the interest of an employer in relation to the employees” (472 F.2d at 968-9).

[20] The mere fact that Respondent’s field men pointed out to the crew leader the type of melon to be picked did not make Respondent the employer of the crew leader of any of his harvest hands. See, for example, The Standard Oil Co. v. Anderson, 212 U.S. 215 (1909); Frohlick Crane Service, Inc., v. OSAHRC and Brennan, supra.

[21] The Supreme Court in Allied Chemical & Alkali Workers, supra, after reviewing its decision in NLRB v. Hearst Publication, 322 U.S. 111 (1944) upholding the Labor Board’s determination that newsboys were ‘employees,’ quoted in part from a Congressional report as follows (404 U.S. at 167):

“* * * In the law, there always has been a difference, and a big difference, between ‘employees’ and ‘independent contractors.’ ‘Employees’ work for wages or salaries under direct supervision. * * * It is inconceivable that Congress, when it passed the Act, authorized the Board to give to every work in the act whatever meaning it wished. On the contrary, Congress intended then, and it intends now that the Board give to words not far-fetched meanings but ordinary meanings.’ * * *”

Finding the ordinary meaning of ‘employee’ not to include retired workers who “have ceased to work for another for hire,” the Supreme Court reversed the Labor Board’s determination to the contrary.

[22] Since the Commission has stated that it still adheres to the principle that there must be an employment relation between the cited employer and affected workers (except in multiple employer construction situations), it is not necessary to decide whether Respondent could be held to have furnished the housing on the Burkholder Farm. See Gilles & Cotting, Inc., supra, Southeast Contractors, Inc., v. Dunlop, supra. It could be argued that Respondent did furnish the housing only on the basis that its grower-partner, Mike Burkholder, ultimately assented to its use by the harvest hands and their families. Of course, a partner’s action only for himself is not chargeable to the partnership. See Caswell v. Maplewood Garage, 149 A. 746, 73 A.L.R. 433 (N.H. 1930).

[23] The Secretary can undoubtedly proceed against the farm labor contractor or crew leader as the employer under the Occupational Safety and Health Act and under the Farm Labor Contractors Registration Act in connection with the furnishing of substandard housing to harvest workers (7 U.S.C. 2041 et seq.).

It is not disputed that the housing furnishing was largely substandard.