Donovan v. Brandel

• Decision Date: 15 June 1984
• Docket Number: No. 83-1228,83-1228
• Citation: 736 F.2d 1114
• Parties: 26 Wage & Hour Cas. (BN 1309, 101 Lab.Cas. P 34,555 Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Jerry BRANDEL, Individually, and d/b/a Jerry Brandel Farms, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1114

736 F.2d 1114

26 Wage & Hour Cas. (BN 1309, 101 Lab.Cas. P 34,555

Raymond J. DONOVAN, Secretary of Labor, United States

Department of Labor, Plaintiff-Appellant, v. Jerry BRANDEL, Individually, and d/b/a Jerry Brandel Farms,

et al., Defendants-Appellees.

No. 83-1228.

United States Court of Appeals, Sixth Circuit.

Argued March 29, 1984.

Decided June 15, 1984.

Paula W. Coleman, Joseph M. Woodward, U.S. Dept. of Labor, Linda Jan S. Pack, Claire White (argued), Washington, D.C., Michael A. Alaimo, U.S. Dept. of Labor, Cleveland, Ohio, for plaintiff-appellant.

Walter Urick, Urick & Monton, Hart, Mich., Richard M. Van Orden (argued), Tolley, Fisher & Verwys, Grand Rapids, Mich., for defendants-appellees.

Before KENNEDY and JONES, Circuit Judges, and CHURCHILL, District Judge. ^*

CHURCHILL, District Judge.

This is an appeal from an order denying the Secretary of Labor's ("Secretary") complaint for an injunction against violations of the Fair Labor Standards Act of 1938, 29 U.S.C. Sec. 201-219 ("FLSA"). The Secretary claimed that the defendant Jerry Brandel, individually and doing business as Jerry Brandel Farms ("Brandel"), had since 1974 continually violated the child labor ¹ and recordkeeping ² provisions of FLSA in connection with harvesting of his pickle crops.

A single issue of whether the migrant pickle harvesters were the "employees" of Brandel so as to trigger the provisions of the FLSA was tried by the Honorable Benjamin F. Gibson of the Western District of Michigan. The trial judge concluded that the migrant workers were independent contractors and not employees of Brandel. The Secretary claims error in such determination.

The FLSA defines "employee" as "any individual employed by an employer". 29 U.S.C. Sec. 203(e)(1). The term "employ" is defined as "to suffer or permit to work". 29 U.S.C. 203(g). This Court has previously addressed these broad definitions as requiring a judicial interpretation of the boundaries of the Act's applicability: In Dunlop v. Carriage Carpet Co., 548 F.2d 139, 143-45 (6th Cir.1977):

The Fair Labor Standards Act of 1938 was enacted by Congress to be a broadly remedial and humanitarian statute. The Act was designed to correct "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers ..."

In interpreting [the FLSA] the courts have construed the Act's definitions liberally to effectuate the broad policies and intentions of Congress ...

... "The terms 'independent contractor', 'employee', and 'employer' are not to be construed in their common law senses when used in federal social welfare legislation ... Rather, their meaning is to be determined in light of the purposes of the legislation in which they were used." [I]n the application of such legislation employees are those who as a matter of economic reality are dependent upon the business to which they render service. (Citations omitted).

According to Carriage Carpet Co., economic dependence may be the ultimate controlling factor in a given situation for finding an employment relationship. Another panel of this Court has emphasized that in examining a particular factual setting the total relationship must be examined, rather than isolated factors. Dunlop v. Dr. Pepper-Pepsi Bottling Co., 529 F.2d 298 (6th Cir.1976). The issue of the employment relationship does not lend itself to a precise test, but is to be determined on a case-by-case basis upon the circumstances of the whole business activity. Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947).

Moreover, the determination of whether a particular factual setting gives rise to coverage under the FLSA is a matter of law. Castillo v. Givens, 704 F.2d 181 (5th Cir.1983). The trial court here made findings of fact which are, for the most part, undisputed. The Secretary challenges the conclusion that such facts did not give rise to an employment relationship as a matter of law.

The facts as found by the trial court may be summarized as follows:

Brandel operates a diversified farming operation and employs full-time and seasonal workers for most aspects thereof. With respect to the harvesting of his pickle crop, however, he has contracted with the heads of migrant families ³. A migrant family contracts to harvest a particular field of pickles, although Brandel supplies irrigation and pesticides as he determines to be necessary upon notification of the need for such by the migrants ⁴. The harvesting period spans 30-40 days. The migrants receive 50% of the proceeds from the sale of such pickles to commercial processors. The price for the pickles is set unilaterally by the processors in advance of the harvest season. Most of the migrants are paid weekly their share of the proceeds.

This method of "subcontracting" was found to have been implemented because of the unique aspects of pickle marketing. Unlike most other crops, the market price of the pickles does not increase proportionately with their size, i.e., there are seven specific size grades, and the smaller pickles bring a higher price per pound than larger pickles. Paying harvesters on a piecework basis had proved to be less profitable because of the extensive and ineffective supervision it required.

The migrant workers are assisted to some extent by their children in the fields, although it was found that the younger children spend more of their time playing than working. Training of the children by the adults begins with their helping carry containers for the pickles and furnishing drinking water, and they progress gradually to an active role in the harvesting of the fruit from the vine. The Court found that the migrants' primary purpose in bringing their children to Brandel's fields was the opportunity to develop basic skills and family unity.

The trial court went on to make specific findings with respect to various factors which the parties agree should be considered in making the determination of employee status. These factors are 1) the permanency of the relationship between the parties; 2) the degree of skill required for the rendering of the services; 3) the worker's investment in equipment or materials for the task; 4) the worker's opportunity for profit or loss, depending upon his skill; and 5) the degree of the alleged employer's right to control the manner in which the work is performed ⁵. See Real v. Driscoll Strawberries Associates, Inc., 603 F.2d 748 (9th Cir.1979).

We examine each of these findings in turn, along with the parties' contentions as to their propriety and their import to the trial court's determination that the migrant farm workers were not proven to be employees under FLSA.

1) Permanency of the relationship

The trial court found that the vast majority of harvesters have only a temporary relationship with Brandel. Within the 30-40 day harvest season, the contracting worker determines how long he will participate in the harvest. "While a pickle crop can be harvested seven or more times, some contractors remain only through the fifth picking. Although approximately 40-50% of the harvesters return to Brandel annually, this factor is no more indicative of the employment relationship than when a businessman repeatedly uses the same subcontractors due to satisfaction with past performance". The court concluded that the relationship between Brandel and the workers was not one of a permanent nature.

The Secretary cites cases which have found other farm laborers to be employees, but none which have presented a finding of lack of a permanent relationship. Furthermore, the record fully supports such finding in this case. Brandel testified that some of the migrant workers would contact him in advance of the harvest season to inquire about securing a commitment to harvest that year, while others would simply arrive in the area and visit his farms to negotiate for a plot of land. The testimony of the intervening defendants ⁶ indicates that several of them held full-time jobs elsewhere and considered their jobs as migrant farm workers to be opportunities for supplementing their income if their family situation allowed.

A pretrial stipulation also established that of the 36 family units which had both contracted for harvesting pickles (as independent contractors) and picked strawberries (as employees) for Brandel in the years 1977-80, 24 had harvested pickles for only one year.

The record supports the trial judge's conclusion that the annual return of migrant families to Brandel's fields was a product of a mutually satisfactory arrangement rather than the permanent relationship between them.

2) The degree of skill required

The trial court found that an experienced harvester possesses a degree of skill in both the care of the pickle plants and judgment in the picking of the fruit itself. The Secretary argues that this finding is erroneous inasmuch as it is based upon testimony to the effect that the greater the harvester's experience, the greater the yield from the field. He further contends that the testimony that such work is skilled was not entitled to weight.

The Secretary does not dispute that the harvesters engage in three basic operations: 1) rowing the vines, which involves laying the vines parallel to the row of plants and tucking them to the base of the plant, thereby exposing the fruit on one side of the plant for picking; 2) blocking the vines, which involves weeding between the plants and thinning them so as to allow adequate spacing; and 3) the picking, which requires the harvester to distinguish between seven different grades of size, as well as ripeness. The defendants presented testimony that the contracting of the harvesting phase of the pickle farming process has had the effect of delegating to the migrant workers the responsibility of supervising their own field labor, i.e., the migrant workers assume responsibility for the day-to-day...