Colunga v. Young

• Decision Date: 07 September 1989
• Docket Number: No. G86-740 CA6.,G86-740 CA6.
• Citation: 722 F. Supp. 1479
• Parties: Jesus COLUNGA, et al., Plaintiffs, v. William G. YOUNG and William G. Young's Evergreens, Defendants.
• Court: U.S. District Court — Western District of Michigan

722 F. Supp. 1479

Jesus COLUNGA, et al., Plaintiffs, v. William G. YOUNG and William G. Young's Evergreens, Defendants.

No. G86-740 CA6.

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

June 9, 1989.

Opinion on Prejudgment Interest, Costs and Attorney's Fees July 24, 1989.

Opinion on Motion for New Trial August 1, 1989.

Opinion on Post-Trial Motions September 7, 1989.

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Deborah L. McNabb, Gary Gershon, Michigan Migrant Legal Assistance Project, Grand Rapids, Mich., for plaintiffs.

William G. Young, in pro per.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HILLMAN, Chief Judge.

This cause came on for trial of plaintiffs' complaint for damages and equitable relief under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., the Migrant and Seasonal Agricultural Worker Protection Act ("MSAWPA"), 29 U.S.C. § 1801 et seq., the Federal Insurance Contribution Act ("FICA"), 26 U.S.C. § 3101 et seq., and Michigan common law, and of defendant's counter-complaint for breach of contract. The action was tried upon the facts without a jury. The parties have submitted post-trial briefs. The court has duly considered all the evidence and arguments of record, and makes the following findings of fact and conclusions of law. Fed.R.Civ.P. 52(a).

I. Findings of Fact

1. Plaintiffs Julian, Anastasia, Jesus, Meliton, Cecilio, Veronica, Francisco, Rosa Maria, Mary Lou, and Juan Colunga, and Claudio, Sr., Guadalupe, Elba, Claudio, Jr., Ruth, and Lorena Juarez, are migrant farm workers from Texas. Plaintiffs worked cutting, gathering, tying, and loading evergreen boughs for defendant William G. Young in Oceana County, Michigan at various times between October 2 and November 21, 1985.

2. At all relevant times Young was the sole proprietor of an evergreen bough production and marketing business headquartered in Monroe County, Michigan.

3. Young's business consisted of finding and identifying uncultivated evergreens of desirable species throughout northern Michigan, purchasing cutting rights from landowners, hiring laborers to cut, gather, tie and load boughs from designated trees, trucking rough-cut boughs to other locations for processing, and selling and delivering processed boughs to customers, primarily for re-sale to the Christmas market.

4. Plaintiffs were unemployed before they met Young in 1985. Earlier in the year they had been picking apples, but voluntarily left that job before beginning negotiations with Young.

5. Young negotiated his relationship with plaintiffs through their spokesperson Jesus Colunga on October 1, 1985. The purported agreement between the parties was not reduced to writing.

6. Plaintiffs understood that Young would pay them $60 per ton of boughs cut and gathered, plus transportation and housing costs of ten cents per mile and $5 per worker per day, plus a $20 per ton bonus if they worked until November 21. Plaintiffs also understood they would make an additional $4-$6 per hour when Young asked them to clean bough gathering sites, and $6 per hour subject to a $175 ceiling per load when Young asked them to load boughs from the gathering site onto his truck.

7. Young understood that he would pay plaintiffs $60 per ton of boughs for approximately ten days if plaintiffs would cut and gather ten tons or more per day. If plaintiffs successfully met this requirement, Young would pay an additional $60 per ton for tying the boughs in Lambertville, Michigan. After completion of the tying in Lambertville, Young would pay a bonus of $5 per worker per day, plus ten cents per mile transportation costs. Young does not dispute that at various times he agreed to pay plaintiffs around $4-$6 per hour for loading and cleaning. He claims, however, that all loading and cleaning wages were paid.

8. At the time he recruited plaintiffs, Young did not give to each plaintiff a written statement of the terms and conditions of employment. During the relationship, Young did not make, keep, and preserve records of each plaintiff's wages and hours, nor did he provide each plaintiff an itemized wages and hours record of each pay period worked. Similarly, Young did not withhold Social Security tax from plaintiffs' pay, nor did he pay any amount of Social Security tax to the United States.

9. At all relevant times, Young was unaware of the specific requirements of the federal labor and tax statutes, and acted in a good faith belief that they did not apply to his business.

10. In regard to cutting and gathering work, to the extent that plaintiffs' records and testimony of wages received and hours worked contradict Young's records and testimony, plaintiffs' presentation is more credible.

11. In regard to cleaning and loading work, to the extent that Young's records and testimony of wages received and hours worked conflicts with plaintiffs' records and testimony, Young's presentation is more credible.

12. Young paid plaintiffs approximately $7,200. About $5,700 of this total amount was in exchange for plaintiffs' cutting and gathering work. About $1,500 was in exchange for cleaning and loading. Young paid all amounts owing to plaintiffs for cleaning and loading. Cleaning and loading hourly wages exceeded $3.35.

13. According to plaintiffs' Exhibits 2 and 5, plaintiffs worked a total of 389 person-days for Young cutting and gathering boughs. These exhibits do not reflect the number of persons and hours worked cleaning and loading. With an average eight hour day, the total person-hours worked cutting and gathering was 3,112. At the prevailing minimum wage of $3.35 per hour, Young owes plaintiffs a total minimum wage of $10,425.20. Young paid plaintiffs $5,700 for cutting and gathering work. The unpaid minimum wage thus amounts to $4,725.20.

14. Young located the land and obtained the cutting rights where plaintiffs worked. Young showed plaintiffs where to work and told them not to work outside specified boundaries. Young demonstrated to plaintiffs how to cut, gather, and tie boughs efficiently, and explained the distinguishing characteristics of desirable species. Plaintiffs themselves chose the days and hours worked. Young cut down particular pine and fir trees and instructed plaintiffs to cut boughs from the felled trees, although plaintiffs also cut boughs from unfelled trees selected by themselves. Young chose the piece rate paid to plaintiffs. Young transported boughs to distribution points for marketing purposes. Young was the only person who dealt with customers. Young periodically visited plaintiffs' work site and criticized their performance. Young reserved the power to reject unsuitable boughs tendered by plaintiffs.

15. Young exercised pervasive overall control of the bough production and marketing business, and he retained the right to significantly control the details of plaintiffs' harvesting activities.

16. Young provided plaintiffs with the shears, twine, and boxes used in cutting and gathering boughs. Plaintiffs at times cut boughs with their own machete. Young owned the tractor-trailer used to transport the boughs for processing and marketing. On one occasion, one of plaintiffs' pickup trucks was used to load boughs.

17. Plaintiffs had negligible capital invested in bough cutting and gathering. Young's investment was significantly greater.

18. Plaintiffs had no real opportunity to sell boughs they cut and gathered to anyone other than Young. Plaintiffs' profit or loss substantially depended only upon their rate of production, not their management of the cutting and gathering process.

19. Plaintiffs had no previous experience harvesting evergreen boughs before coming to work for Young. Although some experience and judgment is helpful in spotting desirable species and cutting efficiently, bough harvesting is essentially an uncomplicated, rote activity involving physical aptitude rather than learned and developed skill.

20. Plaintiffs' relationship with Young was temporary, but it was exclusive and encompassed the bulk of the 1985 bough harvesting season.

21. Plaintiffs' cutting, gathering, tying, and loading of boughs was an integral part of Young's bough production and marketing business.

22. Plaintiffs worked long hours for low wages. They had no choice but to sell their boughs to Young. They were economically dependent on Young's business.

II. Conclusions of Law

1. Plaintiffs did not prove at trial that they substantially relied upon Young's promise of employment by leaving or refusing other specific jobs in order to work harvesting boughs. Accordingly, plaintiffs have no cause of action for promissory estoppel under Michigan common law. Dumas v. Auto Club Ins. Assoc., 168 Mich. App. 619, 425 N.W.2d 480, 489-90 (1988) (per curiam).

2. In 1985, FLSA required "employers" to pay a minimum wage of $3.35 per hour to "employees," and to make, keep, and preserve certain payroll records. 29 U.S.C. §§ 206(a)(1), 211(c); 29 C.F.R. §§ 516.2(a)(7), 516.6(a)(1).

3. Certain employees employed in "agriculture" are exempt from the FLSA minimum wage provision. 29 U.S.C. § 213(a)(6).

4. Employers carry the burden of showing their entitlement to FLSA exemptions, which are narrowly construed against them. Usery v. Yates, 565 F.2d 93, 97 (6th Cir.1977).

5. Young did not prove at trial by a preponderance of the evidence that plaintiffs' cutting and gathering of uncultivated evergreen boughs was employment in "agriculture" within the meaning of the FLSA. 29 U.S.C. § 203(f); 29 C.F.R. §§ 780.114, 780.115. Young is not exempt from the FLSA.

6. In 1985 Young was an "employer" within the meaning of the FLSA. 29 U.S.C. § 203(d).

7. Similarly, under the totality of circumstances, plaintiffs were Young's "employees" within the meaning of the FLSA. Plaintiffs were not independent contractors. 29 U.S.C. § 203(e)(1); Donovan v. Brandel, 736 F.2d 1114, 1117-20 (6th Cir.1984). See also McLaughlin v. Seafood, Inc., 861 F.2d 450, 452-53 (1988), amended, 867 F.2d...