Marshall v. BUNTINGS'NURSERIES OF SELBYVILLE, Civ. No. HM77-2027.

• Decision Date: 27 July 1978
• Docket Number: Civ. No. HM77-2027.
• Citation: 459 F. Supp. 92
• Parties: Ray MARSHALL, Secretary of Labor, United States Department of Labor, v. BUNTINGS' NURSERIES OF SELBYVILLE, INC., and Francisco B. Mireles, Individually, Shingle Landing Road, Showell, Worcester County, Maryland.
• Court: U.S. District Court — District of Maryland

459 F. Supp. 92

Ray MARSHALL, Secretary of Labor, United States Department of Labor, v. BUNTINGS' NURSERIES OF SELBYVILLE, INC., and Francisco B. Mireles, Individually, Shingle Landing Road, Showell, Worcester County, Maryland.

Civ. No. HM77-2027.

United States District Court, D. Maryland.

July 27, 1978.

Carin Ann Clauss, Sol. of Labor, Washington, D. C., Marshall H. Harris, Regional Sol., Mark D. Newberger, Atty., Dept. of Labor, Philadelphia, Pa., Russell T. Baker, Jr., U. S. Atty., Catherine C. Blake, Asst. U. S. Atty., D. Maryland, Baltimore, Md., for plaintiff.

John H. Skeen, Jr., David W. Skeen, Baltimore, Md., for Buntings' Nurseries.

Michael S. Libowitz, Baltimore, Md., for Francisco Mireles.

HERBERT F. MURRAY, District Judge.

This is an action brought by the Secretary of Labor pursuant to the Farm Labor Contractor Registration Act of 1963, as amended, 7 U.S.C. § 2041, et seq. (hereinafter the Act).

Defendant Buntings is a Delaware corporation with its headquarters located in Selbyville, Delaware, and with its principal places of business at various farm locations in Delaware and Maryland. At all of these locations, defendant engages in the growing of horticultural commodities such as trees, bushes, shrubs, and strawberry and tomato plants. Defendant Mireles is employed full-time by defendant Buntings, working at its various farm locations in Maryland.

The Secretary contends that defendant Buntings' Nurseries of Selbyville, Inc. (hereinafter Buntings) has violated 7 U.S.C. § 2043(c) by employing a farm labor contractor, Francisco B. Mireles, the individual defendant in this case, without determining that Mr. Mireles was registered as required by the Act. The Secretary further contends that defendant Mireles during calendar year 1977 was a farm labor contractor as that term is defined in 7 U.S.C. § 2042(b) and as such was required to register with the Secretary under the terms of 7 U.S.C. § 2043(a) before engaging in the activities of a farm labor contractor. Defendant Mireles also is charged with failure to comply with the terms of 7 U.S.C. §§ 2044(a)(2), (b)(5), (d) and 2045(a) through (e). Although these final violations are quite detailed, plaintiff contends in summary that defendant Mireles failed to have appropriate evidence of proper insurance for vehicles used to transport workers, improperly failed to carry and display to the employees a contractor's registration, and failed to provide the employees with and to post notice of required information on wages, hours, living and working conditions.

Defendants have admitted these underlying facts of noncompliance with the aforementioned provisions of the Act, but have contended by way of a defense that they were under no duty to obey these provisions of the Act because defendant Mireles was not a farm labor contractor within the meaning of the Act during calendar year 1977. Defendants' further defense lies in their contention that the exemptions provided under 7 U.S.C. § 2042(b)(2) and (3) are applicable to the facts of this case.

The Secretary seeks a permanent injunction to prevent any future violations of the provisions of the Act, and the award of costs in his favor. The court has jurisdiction of this action under 7 U.S.C. § 2050a(c), which provides:

If upon investigation the Secretary determines that the provisions of this chapter have been violated, he may petition any appropriate district court of the United States for temporary or permanent injunctive relief.

Before proceeding with the merits of the case, it might be well to refer to the purpose of the legislation as enunciated by Congress in the legislative history, first of the original Act, and then of the 1974 amendments.

When the Act was originally introduced in 1963, the Senate report contained a section under the heading, "Need for Legislation" and the court feels a paragraph under that section is particularly applicable here. In the report, it is stated at page 3691,

Because of the circumstances of migratory farm workers' employment, farm labor contractors or `crew leaders' as they are frequently called, play a unique and important role in the farm labor market. The relationship between migratory workers and their farm employers is often temporary and impersonal. The labor contractor organizes groups of workers in areas in which they live, establishes contact between them and the growers who are often located in labor shortage areas in other States, and helps to provide continuity of employment. He usually provides the means of transportation for members of his crew, lends them money if necessary during the season, pays them their wages, handles all contacts with the grower and generally supervises the workers on the job. He is, therefore, the individual who has the most continuing relationship with these migrant workers.

When the Congress undertook to amend the Act in 1974, it had this to say in Senate Report Number 93-1295 with regard to the continuing evolution of the farm labor contractor. The language, while slightly different, harkens back to what was said in the 1963 legislative history. The Senate Report stated:

Although the specific functions of the farm labor contractor, often called a `crew leader' or `crew pusher', might vary from job to job, his role essentially remains the same — a bridge between the operator and the worker. In many instances, the contractor is not only the recruiter, hirer, and transporter, but acts as the supervisor, foreman and paymaster as well. In addition, the contractor frequently controls housing and other vital aspects of the workers' everyday needs.

FINDINGS OF FACT and CONCLUSIONS OF LAW

The first issue to be determined by the court is whether defendant Mireles was a farm labor contractor during calendar year 1977 as that term is defined in the Act. 7 U.S.C. § 2042(b) provides:

The term `farm labor contractor' means any person, who, for a fee, either for himself or on behalf of another person, recruits, solicits, hires, furnishes, or transports migrant workers (excluding his immediate family) for agricultural employment. . . .

Under this definition the court must decide whether defendant Mireles (1) recruited, solicited, hired, furnished, or transported, (2) for a fee, (3) migrant workers, (4) for agricultural employment.

The Act defines "agricultural employment" to mean "employment in any service or activity included within the provisions of section 203(f) of Title 29, or section 3121(g) of Title 26 and the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state." (Emphasis supplied) It appears clear to the court that the worker-employees of defendant Buntings in this case are engaged in agricultural employment, as their work involves the handling of various horticultural commodities such as trees, shrubs, and plants.

The parties are in dispute as to whether the workers in this case can be classified as "migrant workers." The Act defines the term "migrant worker" as follows:

The term "migrant worker" means an individual whose primary employment is in agriculture, as defined in section 203(f) of Title 29, or who performs agricultural labor, as defined in section 3121(g) of Title 26, on a seasonal or other temporary basis. 7 U.S.C. § 2042(g).

Although defendant Buntings concedes that all of its workers are employed in agriculture or perform agricultural labor, it contends that the workers are not employed on a seasonal or temporary basis and that this is a requirement of the Act. The court is in agreement with defendant Buntings as to the fact that the workers are engaged in agricultural labor; however, the court is of the opinion that the workers are also engaged in seasonal or temporary employment.

In Usery v. Coastal Growers Ass'n, 418 F.Supp. 99 (C.D.Cal.1976), the court dealt with the question of what meaning to give to the term "migrant worker" after noting that the parties were in agreement as to the fact that the employees in that case were engaged in agricultural labor. The court stated:

The court construes the term `migrant worker' to include all persons whose principal or main occupation is in agriculture and all persons who perform agricultural labor on a seasonal or temporary basis. See 29 C.F.R. § 41.13. This broad construction comports with the Act's humanitarian purpose to protect all those hired by middlemen to toil in our nation's fields, vineyards, and orchards. 418 F.Supp. at 101.

Thus, the court in Coastal Growers found that the definition of migrant worker did not require a finding that the workers were engaged on a seasonal or temporary basis, as long as their principal occupation was in agriculture.

In the instant case, the testimony of the workers makes it clear that as employees of Buntings, they were engaged principally in agricultural labor and that this work composed the greater portion of their employment for an entire year. As such, these workers come within the definition of migrant worker stated by the court in Coastal Growers. The testimony of many of the workers revealed that their work consisted of weeding plants and shrubs, pruning trees and shrubs, and various other types of labor in defendant's fields. Further, during the months that the workers were employed at Buntings, this was their full-time occupation for approximately eight and one-half hours each day. However, the court is of the opinion that it need not decide whether the broad definition given to migrant worker in the Coastal Growers case is correct as the court finds that the workers in the instant case were employed on a seasonal or temporary basis. It appears from the testimony that most of the workers reported to the camp at sometime in the spring of the year and that most left the camp and the employment of Buntings in the fall of the year. Although some of the employee witnesses...