Soliz v. Plunkett

• Decision Date: 09 April 1980
• Docket Number: No. 77-3497,77-3497
• Parties: 88 Lab.Cas. P 33,897 Tomas SOLIZ et al., Plaintiffs-Appellants, v. Kenneth PLUNKETT, a/k/a "Guy Plunkett", et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 272

615 F.2d 272

88 Lab.Cas. P 33,897

Tomas SOLIZ et al., Plaintiffs-Appellants, v. Kenneth PLUNKETT, a/k/a "Guy Plunkett", et al., Defendants-Appellees.

No. 77-3497.

United States Court of Appeals, Fifth Circuit.

April 9, 1980.

As Modified on Denial of Rehearing and Rehearing En Banc May 19, 1980.

Florida Rural Legal Services, Inc., Robert A. Williams, Immokalee, Fla., Robert M. Hustead, Delray Beach, Fla., William P. Healy, Fort Pierce, Fla., for plaintiffs-appellants.

Paul A. Saad, John P. McAdams, Tampa, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before SIMPSON, CHARLES CLARK and FRANK M. JOHNSON, Jr., Circuit Judges.

SIMPSON, Circuit Judge:

Appellants, thirty-three migrant farmworkers, brought suit in the district court against appellees, four individuals and three corporations, alleging numerous violations of the Farm Labor Contractor Registration Act (the Act), 7 U.S.C. §§ 2041-55. At the close of plaintiff's presentation of the evidence the defendant appellees moved for involuntary dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The district judge responded by dismissing the action with prejudice upon finding that none of the defendants were farm labor contractors within the meaning of 7 U.S.C. § 2042(b) and that the defendant farmers had properly kept the payroll records as required by 7 U.S.C. § 2050c. The migrant workers appeal only the lower court's determination that appellee Plunkett is not a farm labor contractor. We find that the action was prematurely terminated because the migrant workers met their initial burden of showing that Plunkett is a farm labor contractor. Accordingly we reverse and remand for further proceedings.

The dispute concerns the harvesting of peppers by migrant farmworkers in Hendry County, Florida. The persons involved in the harvesting activities logically separate among six tiers. On the bottom tier are appellants, the migrant workers who actually pick the peppers. The second tier consists of the crew leaders, some of whom are apparently also migrant farmworkers. The crew leaders directly recruit and solicit the migrant workers when a field is ready for harvest. They are clearly farm labor contractors and are subject to the provisions of the Act, see 7 U.S.C. § 2042(b)(1), but none are party to the instant litigation. Appellees occupy the remaining four tiers. Appellee Plunkett is the sole inhabitant of the third tier. He determines the number of workers needed to harvest the field, acts as liaison between the farmers and the crew leaders and generally supervises the harvesting operation at the field. On the fourth tier is Johnson and Johnson Contracting which appears to be a loosely organized group consisting of four farmers, Plunkett, and the officers of two of the corporate farmers. The only apparent function of Johnson and Johnson Contracting is to operate as a central headquarters for payment of wages associated with the harvest, thereby simplifying the bookkeeping of the harvesting operation. On the fifth tier is Johnson Brothers, Inc., which ships and packs the peppers. The sixth and final tier consists of four farmers, appellee Edgar Gallops and three corporations.

The Act defines a farm labor contractor as "any person, who, for a fee, either for himself or on behalf of another person, recruits, solicits, hires, furnishes, or transports migrant workers (excluding members of his immediate family) for agricultural employment." 7 U.S.C. § 2042(b). Farm labor contractors are required to register with the Department of Labor, must carry their registration certificates while engaging in farm labor contractor activities, must display the certificate to persons with whom they deal in a farm labor contractor capacity and must comply with numerous other requirements of the Act. 7 U.S.C. § 2045. Although appellants' complaint alleged that all appellees were farm labor contractors, their appeal is limited to the narrow question of whether Plunkett is a farm labor contractor. For this reason our review of the facts centers around his activities.

Harvesting operations are typically initiated when one of the farmers advises Plunkett that a field is ready for harvest. Plunkett goes to the field and determines the number of workers needed. He then contacts one or more crew leaders and requests that they bring their crews to the field at a designated time. The crew leaders personally contact the individual migrant workers. Some workers are transported to the fields by the crew leaders; others provide their own transportation.

At the field Plunkett has plenary supervisory power. He determines the areas to be picked, the hours of work, and he has the authority to fire individual workers. The rate of pay is set by either Plunkett or the farmer. He also insures that the daily payroll sheets are correctly completed.

The office manager of the packing shed reviews the payroll sheets, determines the proper deductions for each worker and issues a single check drawn on Johnson and Johnson Contracting to each crew leader. Twenty or thirty dollars per day is included for the crew leader's services. The crew leader in turn distributes the wages to each migrant worker, usually in cash. The farmers periodically reimburse Johnson and Johnson Contracting for amounts paid to harvest their crops.

Plunkett receives twenty-five dollars per day for contacting crew leaders and supervising the harvesting operation in the field. He also receives a per item fee for hauling the crops from the field to the packing house.

In early January 1977 appellee Edgar Gallops requested Plunkett to arrange for the harvest of the pepper crop at his field. Plunkett contacted one crew leader directly and contacted two others through his nephew. On the morning of January 7, 1977 the three crew leaders and their crews arrived at the Gallops field. None of the workers were informed, as the Act requires, of the rate to be paid. 7 U.S.C. § 2045(b). Several other violations of the Act occurred, including, but not limited to, failure to disclose and post the conditions of employment. 7 U.S.C. § 2045. After picking for approximately forty-five minutes, the workers were told that the rate would be fifty-five cents per bucket. Appellants protested the rate, a work stoppage ensued and eventually appellants left the fields. The instant litigation followed.

Although the crew leaders are farm labor contractors, they were not joined as defendants because their limited financial resources would leave a judgment against them unsatisfied. It is evident that if Plunkett is a farm labor contractor he is guilty of numerous violations of the Act; he is not registered and the required disclosures were not made or posted. 7 U.S.C. §§ 2043, 2045. Furthermore, if Plunkett is a farm labor contractor, then appellee Gallops violated 7 U.S.C. § 2043(c) by engaging the services of Plunkett before determining that Plunkett had the required registration certificate.

The Farm Labor Contractor Registration Act establishes a system of registration for, and imposes obligations on, farm labor contractors, the "middlemen in making work arrangements between farmworkers and growers and (who) in this capacity often recruit, transport, supervise, handle pay arrangements, and, otherwise act as intermediary between the migrant worker and the farmer." Senate Report No. 202, 88th Cong., 2d Sess., reprinted in (1964) U.S.Code Cong. & Admin.News, p. 3690. The Act, as amended in 1974, provides a civil remedy to migrant workers injured by violations of its provisions. 7 U.S.C. § 2050.

On this appeal we must determine whether Plunkett is a person "who, for a fee, either for himself or on behalf of another person, recruits, solicits, hires, furnishes, or transports migrant workers . . . for agriculture employment." 7 U.S.C. § 2042(b) (emphasis added). The migrant workers, as plaintiffs, bore the initial burden of establishing the applicability of this provision of the Act. See Marshall v. Buntings' Nurseries of Selbyville, Inc., 459 F.Supp. 92, 99 (D.Md.1978); Usery v. Golden Gem Growers, Inc., 417 F.Supp. 857, 860 (M.D.Fla.1976). In other words, to survive the Rule 41(b) motion to dismiss, the migrant workers were required at least to show, by a preponderance of the evidence, that Plunkett was a farm labor contractor. Fed.R.Civ.P. 41(b). See Emerson Electric Co. v. Farmer, 427 F.2d 1082, 1086 (5th Cir. 1970); Weissinger v. United States, 423 F.2d 795, 798 (5th Cir. 1970) (en banc). If appellants met this initial burden then the burden shifted to the defendants to show that they were within one of the enumerated exceptions to the statutory definition of a farm labor contractor. ¹ Accordingly, we need not consider whether Plunkett qualifies under one of the exceptions because the burden of establishing the applicability of an exception lies with the defendants and because the evidence admitted prior to dismissal failed to establish the applicability of any exception.

The agreed upon statement of facts reveals that Plunkett received a fee for contacting the crew leaders, and the parties stipulated that plaintiffs are within the Act's definition of the term migrant worker. 7 U.S.C. § 2042(g). The only inquiry that remains is whether Plunkett recruited, solicited, hired, furnished, or transported the migrant workers. 7 U.S.C. § 2042(b). Our review of the district court's interpretation of the statute involves a question of law and therefore is not constrained by the clearly erroneous standard of Rule 52(a) of the Federal Rules of Civil Procedure. Interpretation of the statute is guided by the rules of statutory construction, the plain meaning of the statute's terms, previous court interpretations, the interpretation of the Secretary of Labor as the administrative agency charged with administration of the statute, and the legislative history of the Act....