Donovan v. Marrero, 82-1314

• Decision Date: 15 November 1982
• Docket Number: No. 82-1314,82-1314
• Citation: 695 F.2d 791
• Parties: 96 Lab.Cas. P 34,309 Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor v. Felix MARRERO, Appellant. . Submitted Under Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 791

695 F.2d 791

96 Lab.Cas. P 34,309

Raymond J. DONOVAN, Secretary of Labor, United States

Department of Labor v. Felix MARRERO, Appellant.

No. 82-1314.

United States Court of Appeals, Third Circuit.

Submitted Under Rule 12(6)

Nov. 15, 1982.

Decided Dec. 27, 1982.

T. Timothy Ryan, Jr., Sol. of Labor, Beate Bloch, Associate Sol., Washington, D.C., Marshall H. Harris, Regional Sol., Philadelphia, Pa., Paul E. Myerson, Barbara E. Kahl, U.S. Dept. of Labor, Washington, D.C., for appellee.

Joseph E. DeSantis, Terry D. Weiler, DeSantis, Huckabee, Weiler & Schmehl, Reading, Pa., for appellant.

Before ALDISERT, SLOVITER and ROSENN, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In this action brought by the Secretary of Labor, we must determine whether an independent contractor whose sole business is the removal of spent compost from mushroom houses is a "farm labor contractor" within the meaning of the Farm Labor Contractor Registration Act of 1963 as amended (FLCRA), 7 U.S.C. Sec. 2041 et seq. The district court held that defendant Marrero was a "farm labor contractor," and granted summary judgment for the Secretary. Marshall v. Marrero, 536 F.Supp. 517 (E.D.Pa.1982). We affirm.

I.

The Secretary's complaint sought injunctive relief, alleging that defendant Marrero had failed to comply with the registration, disclosure, posting and recordkeeping requirements of the FLCRA, 7 U.S.C. Secs. 2043(a), 2045(b), (c), (e). Marrero does not deny that he has failed to comply with these provisions, but contends that he is not required to do so since he is not a "farm labor contractor" within the meaning of the FLCRA.

The parties submitted the case to the district court on the basis of a stipulation of facts. As recited in the stipulation, defendant Marrero, doing business as Green Grass Conveyor Service in partnership with another individual, is engaged "in the performing of certain services for mushroom growers in Berks County, Pennsylvania." Specifically, Marrero operates a so-called "take-out" operation, removing used compost from mushroom house beds after the mushroom harvest has been completed. ¹ The "take-out" operation is performed by a crew of approximately six workers, using electrically operated portable conveyor belts to transport the spent compost from the mushroom houses into waiting trucks. The crew shovels the compost from the mushroom house beds onto the conveyor belts, operates the conveyor belts, and drives the trucks to disposal sites outside the mushroom farm.

Neither Marrero nor the crews he employs to perform the "take-out" operation are employees of the mushroom growers. The crews are the separate employees of Marrero; Marrero is an independent contractor who provides the "take-out" service to the mushroom growers on a contract basis, receiving a fixed sum out of which he pays his employees. Marrero "has no employees other than those whose services are required in the 'take-out' business," all of whom "are domiciled and reside in the area of employment and do not move from place to place seeking employment." The employees provide their own transportation to and from work. The "take-out" operation occurs only once per mushroom crop and the average grower has two, or possibly three, crops per year. Nevertheless, "the services rendered by [Marrero] are performed throughout the entire year (12 months of the year) and the employees, if they desire, have steady full employment." Finally, the parties have stipulated that Marrero has never obtained a certificate of registration under the FLCRA.

Based on the stipulated facts, the district court concluded that Marrero was a "farm labor contractor" within the meaning of the FLCRA. Marrero appeals.

II.

The Farm Labor Contractor Registration Act was enacted in 1964 as Congress' response to the problem of "certain irresponsible contractors for the services of the migrant agricultural laborers who exploit producers of agricultural products, migrant agricultural laborers, and the public generally." 7 U.S.C. Sec. 2041(a). It was considerably strengthened by amendments in 1974 which extended its coverage and enforcement. In its present form the FLCRA requires that every "farm labor contractor" obtain a certificate of registration from the Secretary of Labor; file statements with the Secretary concerning the transportation and housing of migrant workers; disclose to the migrant workers various information concerning the conditions of their employment; and maintain payroll records and furnish the migrant workers with statements of all sums paid on account of their labor and all sums withheld. 7 U.S.C. Secs. 2043-2045. The Act imposes criminal and civil penalties for violation of its provisions, and provides for both private damage actions and suits for injunctive relief brought by the Secretary. 7 U.S.C. Secs. 2048, 2050(a), (c).

The FLCRA 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 own family) for agricultural employment.

7 U.S.C. Sec. 2042(b). There is no dispute in this case that Marrero "recruits, solicits, hires, furnishes, or transports" individuals "for a fee" as part of his "take-out" operation. He contends, however, that he is not a "farm labor contractor" since his employees are neither "migrant workers" nor engaged in "agricultural employment." Both "migrant worker" and "agricultural employment" are defined in the FLCRA by reference to other statutes.

A. Migrant Worker

The term "migrant worker" is defined by the FLCRA as

an individual whose primary employment is in agriculture, as defined in section 203(f) of title 29 [Fair Labor Standards Act], or who performs agricultural labor, as defined in section 3121(g) of title 26 [Internal Revenue Code], on a seasonal or other temporary basis.

7 U.S.C. Sec. 2042(g) (emphasis added). It is clear from the statutory language, legislative history, ² and judicial interpretation that the term "migrant worker" for purposes of this statute is not limited to a "migratory worker" as one might ordinarily expect. Because the definition is in the disjunctive, it covers not only the seasonal or temporary workers traditionally viewed as migrants but also those "whose primary employment is in agriculture." Marshall v. Coastal Growers Association, 598 F.2d 521, 524 (9th Cir.1979); Rodriguez v. Bennett, 540 F.Supp. 648, 649-50 (D.P.R.1982); Department of Labor, Wage-Hour Opinion Letter No. 1555 (WH-501), [1978-1981 Wages-Hours Transfer Binder] Lab.L.Rep. (CCH) p 31,341, at 43,437 (Dec. 4, 1979); see 29 C.F.R. Sec. 41.13. As the court in Coastal Growers Association stated, "This definition is obviously a term of art, having no reference to workers with migratory tendencies." 598 F.2d at 524. Therefore, as the district court recognized, its finding that "the persons employed by the defendant ... are not to be considered labor on a seasonal or temporary basis", 536 F.Supp. at 520, does not signify that defendant's employees are not "migrant workers". They can also be considered "migrant workers" if their primary employment is in "agriculture", as defined in the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 203(f). The district court found, based on the stipulated facts, that the "primary employment" of Marrero's employees was in the work they performed for him. Hence we focus on whether that work, removal of mushroom compost, is in "agriculture" within the meaning of the Fair Labor Standards Act.

The FLSA provides in pertinent part:

"Agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, and production, cultivation, growing and harvesting of any agricultural or horticultural commodities ... and any practices ... performed by a farmer or on a farm as an incident to or in conjunction with such farming operations ...

29 U.S.C. Sec. 203(f).

As we stated recently in Donovan v. Frezzo Brothers, Inc., 678 F.2d 1166, 1169 (3d Cir.1982), this definition of agriculture "is divided into two parts: 'primary' agriculture, which includes all activities which are actually farming, and 'secondary' agriculture, which includes activities incident to or in conjunction with the primary farming operation of a particular farmer." The issue before us in Frezzo was whether the production of mushroom compost was "agriculture" within the meaning of the agricultural exemption of the FLSA. In that case we focused only on "primary" agriculture and expressly declined to address whether the preparation of mushroom compost could constitute "secondary" agriculture. 678 F.2d at 1169 n. 3. We concluded that the preparation of mushroom compost was not "cultivation and tillage of the soil" because compost is not soil; that it was not the "production, cultivation, growing [or] harvesting of any agricultural commodit[y]" because compost, as distinguished from mushrooms themselves, is not an agricultural commodity but is more appropriately characterized as a manufactured product; and that it was not any other form of "farming in all its branches."

In this case we focus instead on the portion of the statutory definition not reached by the Frezzo court, and hold that the work performed by Marrero's employees constitutes "secondary" agriculture within 29 U.S.C. Sec. 203(f). "Secondary" agriculture under the FLSA includes "any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations." 29 U.S.C. Sec. 203(f) (emphasis added). Marrero's "take-out" operation, although not performed "by a farmer", is conducted "on a farm" since the shoveling of the spent compost from the mushroom beds onto the conveyor belts takes place in the mushroom houses, and Marrero has not suggested that mushroom houses should not be treated as farms. See Donovan v. Frezzo...