615 F.2d 272 (5th Cir. 1980), 77-3497, Soliz v. Plunkett

Docket Nº:77-3497.
Citation:615 F.2d 272
Party Name:Tomas SOLIZ et al., Plaintiffs-Appellants, v. Kenneth PLUNKETT, a/k/a
Case Date:April 09, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 272

615 F.2d 272 (5th Cir. 1980)

Tomas SOLIZ et al., Plaintiffs-Appellants,


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.

Page 273

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.

Page 274

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...

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