Frank Diehl Farms v. Secretary of Labor

• Decision Date: 03 February 1983
• Docket Number: No. 81-7229,81-7229
• Citation: 696 F.2d 1325
• Parties: 11 O.S.H. Cas.(BNA) 1129, 1983 O.S.H.D. (CCH) P 26,422 FRANK DIEHL FARMS, Diehl & Lee, MLC, Villemaire Farms, Inc., and V.V. Vogel & Sons Farms, Inc., Petitioners, v. SECRETARY OF LABOR and Occupational Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1325

696 F.2d 1325

11 O.S.H. Cas.(BNA) 1129, 1983 O.S.H.D. (CCH)

P 26,422

FRANK DIEHL FARMS, Diehl & Lee, MLC, Villemaire Farms, Inc., and V.V. Vogel & Sons Farms, Inc., Petitioners, v. SECRETARY OF LABOR and Occupational Safety and Health Review

Commission, Respondents.

No. 81-7229.

United States Court of Appeals, Eleventh Circuit.

Feb. 3, 1983.

Charles Kelso, Ann Margaret Pointer, Atlanta, Ga., for petitioners.

Edward G. Hoban, John A. Bryson, Attys., Dept. of Labor, Occupational Safety & Health Review Com'n, Andrea C. Casson, Anthony J. Steinmeyer, Marleigh D. Dover, Dept. of Justice, Washington, D.C., for respondents.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before VANCE and JOHNSON, Circuit Judges, and ALLGOOD ^*, District Judge.

VANCE, Circuit Judge:

This petition to review an order of the Occupational Safety and Health Review Commission challenges the Commission's and the Secretary of Labor's new interpretation of the statutory workplace as it relates to housing, provided in this case to seasonal farm workers.

The facts are not in dispute. Petitioners are four Hillsborough County, Florida farmers ¹ each of whom employs seasonal workers and each of whom provides housing that is made available to the seasonal workers on a voluntary basis at little or no cost. ² The workers are not required, either implicitly or explicitly, to live in the housing. Although petitioners presumably perceive the housing to be in their interest as an aid in maintaining a stable labor force, such housing is not essential to support such a labor pool. During the periods in question there has been a more than ample labor supply. The housing is not filled to capacity even during the peak of the harvest season. Some workers choose not to live in the housing provided. When work is available, the housed workers are required to work on the farm which provides the housing. At other times, however, they may continue to use the housing while working for other employers.

The issue raised on appeal is whether OSHA may regulate this housing. The evaluation of the OSHA regulations of housing provides the context for resolution of this issue. In 1971 acting under the authority of section 6(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. Sec. 655(a) (the Act), the Secretary of Labor adopted Standard Z4.4-1968 of the American National Standards Institution (ANSI) as a consensus standard for temporary labor camps. 36 Fed.Reg. 10,466 (1971). The ANSI standard had a scope provision, but the scope provision was not incorporated into the standard as adopted by the Secretary. See 29 C.F.R. Sec. 1910.142.

Despite this initial silence on scope of jurisdiction, the Secretary in 1974 moved to clarify the issue. On September 23, 1974 the Secretary published a proposed new standard covering housing. 39 Fed.Reg. 34,057 (1974). The new standard contained many substantive revisions but stated that, insofar as the jurisdictional scope of the standard was concerned, its purpose was only "to more accurately describe the subject of the standard." Id. The proposed rule stated that the Act applies "to housing furnished by employers to employees, to the extent that such housing constitutes a condition of employment." Id. (emphasis added). ³ In 1976, after hearings the Secretary withdrew the proposed new standard stating that "[u]ntil such time as a single Departmental standard on employment related housing is promulgated, OSHA will continue to inspect temporary labor camps and enforce its existing standard, 29 C.F.R. Sec. 1910.142." 41 Fed.Reg. 18,430 (1976) (emphasis added). Ten days after the proposed regulation was withdrawn, the Secretary issued Field Information Memorandum No. 76-17 entitled "Clarification of Procedures for Inspection of Migrant Housing Facilities." This memorandum instructed field inspectors to apply a condition of employment test. ⁴ Cases brought by the Secretary have been decided consistently with the condition of employment test. See, e.g., Secretary of Labor v. Dryden Farms, Inc., [1977-1978] O.S.H.Dec. (CCH) p 22,422 (1977); Secretary of Labor v. Perres, [1977-1978] O.S.H.Dec. (CCH) p 21,783, aff'd, [1977-1978] O.S.H.Dec. (CCH) p 22,117 (1977). But see Secretary of Labor v. Mehlenbacher, 6 O.S.H.Cas. (BNA) 1927 (1978) (applying but not articulating a directly related to employment test).

On June 15, 1979 OSHA issued Instruction CPL 2.37. This instruction replaced Field Memorandum No. 76-17. The new instruction rejected the "condition of employment" test in favor of a "directly related to employment" standard: housing was deemed covered by the Act so long as it was in fact directly related to employment. ⁵ Following this new standard, the Occupational Health and Safety Commission (OSHRC) overturned the decision of an administrative law judge who had dismissed, for lack of jurisdiction, OSHA citations against migrant housing in a case factually similar to this one. Secretary of Labor v. C.R. Burnett & Sons, 9 O.S.H.Cas. (BNA) 1009 (1980).

The parties in this case agree that although the temporary workers' occupancy of the provided housing is not a "condition of employment," it is "directly related to employment." The administrative law judge determined that the latter was the correct test and accordingly held that the temporary housing was a "workplace" within the meaning of the Act, and subject to the requirements of 29 C.F.R. Secs. 1910.142f and 1903(1), for the violation of which petitioners were cited. Because no member of the commission directed review, the administrative law judge's decision is a final order for purposes of our review.

The dispositive question presented is whether the Act may be construed to apply to this sort of housing which is work-related but which is not a condition of employment. Regulations under the Act clearly embrace more than the actual physical area where employees perform their labor. Petitioner concedes that OSHA has the statutory authority to enforce standards upon some temporary labor camps but argues that the authority extends only to those where residency is a condition of employment. The Secretary argues that it is not material whether laborers are compelled to live in the camp as long as the camp is "directly beneficial, convenient, or advantageous to the employer." Secretary of Labor v. C.R. Burnett & Sons, 9 O.S.H.Cas. (BNA) 1009, 1018 (1980) citing Secretary of Labor v. Sugar Cane Growers Cooperative, O.S.H.Cas. (BNA) 1320 (1976). Therefore, the Secretary argues, any housing provided by the employer for the purpose of guaranteeing a stable supply of labor is a "workplace" within the scope of the Act.

The Secretary urges us to defer to OSHRC's current interpretation of the scope of "workplace" in the Act. He argues that the 1976 field memorandum and proposed standard setting forth the condition of employment test were not compelled by the Act, but that these previous limitations were merely exercises of prosecutorial discretion. He urges that because condition of employment never was a requirement binding on the agency, adoption of a related to employment test cannot be seen as a change in requirements. We reject this position and find that adoption of the related to employment standard would constitute a departure from the Secretary's previous longstanding interpretation and enforcement practice. We also reject the Secretary's further argument that, even if we regard the agency's previous actions as an interpretation of the Act's permissible scope, the fact that the agency subsequently changed its view is no reason to withhold the normal degree of deference this court would otherwise give the agency's interpretation. Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979). We conclude that as a matter of statutory construction, the agency was right the first time: the Act covers only housing that is a condition of employment.

(1)

The degree of deference due the agency's current interpretation.

We first note that an agency's interpretive rules are accorded less deference than its legislative rules. Shell Oil Co. v. Federal Power Commission, 491 F.2d 82, 88 (5th Cir.1974). Courts give great deference to agencys' statutory constructions that involve the agency's expertise and a lack of judicial expertise, Oilfield Safety and Machine Specialties, Inc. v. Harman Unlimited, Inc., 625 F.2d 1248, 1257 (5th Cir.1980), or where the agency's construction is contemporaneous with the legislation and the agency participated in the legislative process. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 556, 100 S.Ct. 790, 792, 63 L.Ed.2d 22 (1980); Zuber v. Allen, 396 U.S. 168, 192-93, 90 S.Ct. 314, 327-28, 24 L.Ed.2d 345 (1969). This deference is increased where the rule is made pursuant to an express delegation of legislative authority. See Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977). The weight given the interpretation by the reviewing court "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade ...." Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944).

While we do not totally dismiss the Secretary's recent interpretation we find that it does not fare well when judged by the standards summarized above. The agency's current interpretation was not contemporaneous with the legislation. In fact it marks a significant departure from the agency's original practice. We agree with the Secretary that he is not absolutely bound by his previous interpretation, see Modern Plastics Corp. v. McCulloch, 400 F.2d 14, 19 (6th Cir.1968), but disagree with him concerning the amount of deference due the new formulation. ⁶ We are more reluctant to defer to an agency's more recent...