Mendez v. Brady

• Decision Date: 06 June 1985
• Docket Number: No. G82-391 CA6.,G82-391 CA6.
• Citation: 618 F. Supp. 579
• Parties: Maria MENDEZ, et al., Plaintiffs, v. Robert BRADY, the Brady Bunch, Inc., a Michigan corporation, and Fidel Chavez, Defendants.
• Court: U.S. District Court — Western District of Michigan

618 F. Supp. 579

Maria MENDEZ, et al., Plaintiffs, v. Robert BRADY, the Brady Bunch, Inc., a Michigan corporation, and Fidel Chavez, Defendants.

No. G82-391 CA6.

United States District Court, W.D. Michigan, S.D.

June 6, 1985.

COPYRIGHT MATERIAL OMITTED

Michigan Migrant Legal Assistance Project, Inc. by Mark Schneider, Richard G. Kessler, Ronald G. Kirschenheiter, Grand Rapids, Mich., and Vincent H. Beckman, Emirene Mendoza, Scott Stensaas, Berrien Springs, Mich., for plaintiffs.

Landman, Luyendyk, Latimer, Clink & Robb by Thomas H. Andres, Jr., Parmenter, Forsythe, Rude, Van Epps, Briggs & Fauri by Arthur M. Rude and James R. Seastrom, Muskegon, Mich., for defendants.

OPINION AND ORDER

HILLMAN, District Judge.

Plaintiffs in this case are 22 migrant farm workers who picked blueberries for defendant Brady Farms, Inc., a large blueberry growing operation located in Ottawa County, Michigan. Plaintiffs' amended complaint includes causes of action under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (FLSA), the Farm Labor Contractor Registration Act, 7 U.S.C. § 2041, et seq. (FLCRA),¹ and common law fraudulent misrepresentation for the years 1980 and 1982. Named as defendants are: Brady Farms, Inc. (Brady Farms); Fidel Chavez (Chavez), a crew leader for Brady Farms, in 1980 and 1982; The Brady Bunch, Inc. (Brady Bunch), a blueberry packing operation; and Robert L. Brady, a stockholder in, and general manager of, the corporate defendants.

On August 7, 1984, the court issued partial summary judgment against the defendants for violations of the FLCRA. In that opinion, the court held:

1) Defendant Chavez housed each plaintiff without proper certification in violation of 7 U.S.C. § 2050(a);

2) Defendant Chavez did not make statutory written disclosures to each plaintiff required by 7 U.S.C. § 2045(b);

3) Defendant Brady and defendant Brady Farms, Inc., engaged a farm labor contractor who was not certified to house each farmworker plaintiff in violation of 7 U.S.C. § 2043(c).

The remedy for these violations, pursuant to 7 U.S.C. § 2050a, b, was held in abeyance pending trial.

A bench trial was held over eight days, from September 18, 1984, until October 1, 1984. The court heard the testimony of 17 witnesses and received 125 exhibits. During trial defendants, The Brady Bunch, Inc., and Robert L. Brady, individually, were dismissed pursuant to Fed.R.Civ.P. 41(b). This opinion constitutes the court's finding of fact and conclusions of law on the remaining issues as required by Fed.R. Civ.P. 52(a).

Plaintiffs' FLSA Claim

Plaintiffs allege that defendant Brady Farms violated the FLSA in two respects. Plaintiffs claim that defendants failed to pay them the minimum wage as required by 29 U.S.C. § 206(a). The prescribed minimum wage was $3.10 for each hour worked in 1980, and $3.35 for each hour worked in 1982. Plaintiffs also claim that defendants failed to keep accurate records as required by the FLSA, 29 U.S.C. § 211(c), and regulations promulgated thereunder.

As a threshold matter, the court finds that the relationship between each of the plaintiffs and the defendant Brady Farms triggered the protection of the FLSA. The business of Brady Farms involves commerce among the several states within the meaning of 29 U.S.C. § 203(b). Yet, defendants argued that some of the plaintiffs were not employees of Brady Farms because they were not "registered," but rather were only "helpers" to other employees who were "registered." However, all of the plaintiffs picked blueberries in the fields of defendant Brady Farms. Fidel Chavez, the crew leader for Brady Farms, was aware that all of the members of the various families were working in the fields. There was no evidence that Chavez, or any other Brady Farms' agent attempted to prevent any of the plaintiffs from working because they were not "registered."

FLSA has the following definitions, at 29 U.S.C. § 203:

"(d) `Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee ...;

(e)(1) ... the term `employee' means any individual employed by an `employer';

(g) `Employ' includes to suffer or permit to work."

The regulations promulgated pursuant to the FLSA further explain the meaning of "suffer or permit to work" at 29 C.F.R. 785.11:

"Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time."

(Citations omitted.)

The regulations further define the duty of management regarding work performed on its behalf, at 29 C.F.R. 785.13:

"In all such cases it is the duty of management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rules and must make every effort to do so."

(Citations omitted.)

The regulations make it clear that any of the plaintiffs who were "suffered or permitted" to harvest blueberries for the benefit of defendant Brady Farms were employees of defendant Brady Farms. Defendant Brady Farms made no effort to fulfill its duty to keep so-called "helpers" from working in the fields if it did not wish to employ those individuals. Testimony demonstrated that defendants had knowledge of the pattern and practice of all members of a family to work in the fields. To accept defendants' attempted registered employee/helper distinction in this context would allow growers to circumvent minimum wage requirements by registering only one member of a family, having the entire family work and then combining the amount earned by a family on the piece rate basis to satisfy minimum wage for the registered worker. Cf Mitchell v. Hertzke, 234 F.2d 183 (10th Cir.1956). (Where snap bean picking was done by families working as a unit and only records which were kept were of the head of a family who collected pay, there was a violation of 29 U.S.C. § 211(c) and regulations promulgated thereunder.)

Further, I find that plaintiffs were not independent contractors. Plaintiffs performed unskilled work under supervision. Plaintiffs had no control over the growing of blueberries and were assigned rows by defendant Chavez or his son, Arturo Chavez. Plaintiffs' work did not involve any opportunity for profit or loss, depending on their managerial skill. Plaintiffs had no investment in equipment or materials, nor did they employ helpers. They were hired for the duration of the harvest season. They performed work integral to the business of Brady Farms. See, e.g., Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748 (9th Cir.1978); cf. Donovan v. Brandel, 736 F.2d 1114 (6th Cir. 1984), reh'g denied, 760 F.2d 126 (6th Cir. 1985).

Further, I find that Chavez's status as crew leader does not affect Brady Farms' status as an employer of the employee-plaintiffs. Plaintiffs worked on the premises of Brady Farms. Brady Farms had the ultimate power to hire and set the employment conditions for plaintiffs although some of this power may have been delegated to Chavez. Brady Farms, through Robert Brady, effectively controlled the manner in which Chavez discharged his supervisory functions. Brady Farms computed each individual's pay, issued checks and deducted taxes. Given these factors, Brady Farms was the employer of plaintiffs within the meaning of the FLSA. See, e.g., Hodgson v. Griffin and Brand McAllen, Inc., 471 F.2d 235, 237 (5th Cir.1973); Castillo v. Givens, 704 F.2d 181, 192 (5th Cir.1983). Accordingly, Brady Farms was required to pay each plaintiff minimum wage under the FLSA and keep accurate records of the hours worked by each plaintiff.

For their work picking blueberries, plaintiffs were compensated at a rate of $2.00 per "flat." Each flat consisted of 12 pints of blueberries. To earn the minimum wage of $3.10 per hour in 1980, plaintiffs would have had to pick an average of 1.55 flats per hour. In 1982, plaintiffs would have had to average 1.67 flats per hour to earn the minimum wage of $3.35. Plaintiffs maintain that they did not pick sufficient flats per hour to earn minimum wage, which claim defendants contested.

Defendants submitted records of flats picked and hours worked for the 1980 and 1982 seasons. According to these records, all of the plaintiffs for whom defendants kept records earned at least minimum wage. In fact, according to defendants' records, every blueberry picker in 1980 and 1982 earned at least minimum wage for every hour worked on defendants' piece rate basis of compensation. However, plaintiffs challenge the accuracy of defendants' records with respect to the number of hours worked by each plaintiff.

29 C.F.R. § 500.80 lists the payroll information an employer of migrant workers must maintain:

"(a) Each farm labor contractor, agricultural employer and agricultural association which employs any migrant or seasonal agricultural worker shall make and keep the following records with respect to each worker, including the name, permanent address, and Social Security number:

(1) The basis on which wages are paid;

(2) The number of piecework units earned, if paid on a piecework basis;

(3) The number of hours worked;

(4) The total pay period earnings;

(5) The specific sums withheld and the purpose of each sum withheld; and

(6) The net pay."

I have carefully reviewed defendants' records in light of other evidence introduced in this case and agree that they are unreliable with respect to the hours worked by each plaintiff. The 1980 records are inadequate and/or unreliable regarding hours worked for the...