Usery v. Golden Gem Growers, Inc.

• Decision Date: 15 July 1976
• Docket Number: No. 75-30-Civ-OC.,75-30-Civ-OC.
• Parties: W. J. USERY, Jr., Secretary of Labor, United States Department of Labor, Plaintiff, v. GOLDEN GEM GROWERS, INC. and Don Blocker, Defendants.
• Court: U.S. District Court — Middle District of Florida

417 F. Supp. 857

W. J. USERY, Jr., Secretary of Labor, United States Department of Labor, Plaintiff, v. GOLDEN GEM GROWERS, INC. and Don Blocker, Defendants.

No. 75-30-Civ-OC.

United States District Court, M. D. Florida, Ocala Division.

July 15, 1976.

Bobbye D. Spears, Regional Sol., U. S. Dept. of Labor, Atlanta, Ga., for plaintiff.

Norman F. Burke, Van Den Berg, Gay & Burke, Orlando, Fla., for defendant.

OPINION, FINAL JUDGMENT AND PERMANENT INJUNCTION

CHARLES R. SCOTT, District Judge.

This action by the Secretary of Labor, pursuant to 7 U.S.C. § 2041 et seq. (Supp. 1974), was tried by the Court sitting without a jury on April 26 and 27, 1976. The secretary contended that defendant Golden Gem Growers, Inc. (Golden Gem), employed farm labor contractors who did not possess certificates of registration from the Secretary of Labor, in violation of 7 U.S.C. § 2043(c); that defendant Don Blocker (Blocker) performed the services of a farm labor contractor without the requisite certificate of registration pursuant to 7 U.S.C. §§ 2043(a) and 2045(a); and that defendant Blocker failed to disclose, and post notices of, the terms and conditions of employment for each migrant worker, as required by 7 U.S.C. §§ 2045(b) and (c). The secretary sought a permanent injunction to prevent future violations of the Act. Defendants alternatively argued (1) that Blocker is not a person within the meaning of `farm labor contractor' as defined in Section 2042(b) of the Act; and (2) that, even if Blocker were a farm labor contractor, he is included within the exemption provided by Section 2042(b)(3) of the Act.

FINDINGS OF FACT

Golden Gem Growers, Inc., is a Florida corporation with its principal place of business in Umatilla, Lake County, Florida. Its business is the processing of citrus fruit into frozen concentrates, fresh fruit and by-products which are shipped to points outside of the State of Florida. The shareholders of Golden Gem Growers, Inc., are individual growers, and Golden Gem, the corporation, harvests and processes the citrus fruit of each shareholder-grower, in accordance with grower marketing agreements.

Don Blocker is a resident of Crescent City, Florida, where he is employed by Golden Growers, Inc. Blocker has been so employed for the last three seasons. He recruits, hires and furnishes migrant workers to pick citrus fruit for Golden Gem and he usually transports most of the workers to the groves daily. Each workday morning during the season Blocker leaves his home in Crescent City, driving a bus owned by Golden Gem, recruiting, hiring and transporting migrant workers for his crew. This takes about one hour per workday. While a work crew usually consists of 15 to 20 workers, the specific migrant workers who comprise a crew may vary from day to day. Golden Gem exercises no control over how Blocker recruits, hires, transports or otherwise furnishes migrant workers for his crews in the citrus groves. The groves in which Blocker and his crews have been working this season are located primarily around Umatilla, Florida, about 45 miles from Crescent City (where Blocker lives), thus requiring approximately one hour of driving time each way for him. At the groves Blocker's responsibility is to supervise his crews and operate a loading machine. He keeps records of the number of boxes of citrus picked by each of his workers. A supervisor for Golden Gem visits the groves daily to pick up his records and to check on the harvesting progess. The supervisor stays about 15 minutes at the groves and he is the only representative of Golden Gem, other than Blocker, who appears at the groves. Each day, after working in the groves, Blocker drives his crews back to Crescent City and to their homes. He does all this at least five days a week and sometimes on Saturday and Sunday. Altogether, Blocker spends an average of three to four hours per workday recruiting, hiring, furnishing and transporting workers to and from citrus groves for Golden Gem. He hires workers to pick citrus fruit only. The workers are employed during the season, from December to June. The migrant workers also pick citrus for other harvesters besides defendants Blocker and Golden Gem. Further, Blocker testified that many of the workers who comprise his crews travel north to pick apples, potatoes, cherries and beans during the off season in Florida.

As compensation for these activities, Blocker is paid by Golden Gem a specific amount (presently 8¢) per box of citrus picked by his crews. Roy V. Knowles, vice-president in charge of harvesting, Golden Gem Growers, Inc., explained that the rate paid to Blocker is for (1) furnishing crews of pickers to the groves, (2) supervising the crews and (3) preparing the payroll records for each migrant worker who is a member of the crews. For three seasons Blocker has provided crews of migrant workers solely for Golden Gem. He is termed `a field foreman.' He is paid directly by Golden Gem, who deducts social security and withholding taxes from his pay. He receives equipment, health, accident and life insurance and other benefits without cost to him.

Blocker is not now, and never has been, registered as a farm labor contractor with the United States Department of Labor. Consequently, he does not have a certificate of registration issued by the Secretary of Labor. Golden Gem has actually known during the entire time that it has employed Blocker that he has not been registered with the Secretary of Labor. Blocker has neither disclosed to each worker at the time of hiring, nor posted in a conspicuous place notices of, the terms and conditions of each migrant worker's employment.

CONCLUSIONS OF LAW

The Court has jurisdiction over the subject matter and parties of this action under 7 U.S.C. § 2041 et seq. The parties have agreed that the workers employed by defendants are engaged in an activity within the scope of `agricultural employment' as defined by 7 U.S.C. § 2042(d). 7 U.S.C. § 2042(g) provides:

The term "migrant worker" means an individual whose primary employment is an agriculture, as defined in section 203(f) of Title 29 the Fair Labor Standards Act of 1938, or who performs agricultural labor, as defined in section 3121(g) of Title 26 the Internal Revenue Code of 1954, on a seasonal or other temporary basis.

The 1974 amendment of Section 2042(g) contemplates two types of seasonal migrant workers (1) those who travel in interstate commerce from one state to another from one crop's season to another, and (2) those who reside permanently in the agricultural area where they work. Hence, the 1974 amendment expanded the definition of `migrant workers' to include those workers who travel intrastate only, working in a fairly constant geographical area, in a field of agricultural employment affecting interstate commerce, as specified by Section 2042(d).

7 U.S.C. § 2053 authorizes the Secretary of Labor to promulgate rules and regulations that he deems necessary to implement the purposes of the Act. Pursuant to that authorization, the secretary has further specified the definition of `migrant workers' by regulations. 29 C.F.R. §§ 41.13 and 41.14. Section 41.13 includes persons who perform agricultural work on a seasonal or otherwise temporary basis, regardless of their primary employment, and regardless of whether they are itinerants who travel across and throughout the state. Section 41.14 includes persons who travel from one seasonal activity to another performing agricultural work in different areas, on different crops, during different seasons, even though such employment may constitute a major portion of the calendar year. Such agricultural employment is still performed on a seasonal basis, as provided by 7 U.S.C. § 2042(g), because it is performed during distinct and discontinuous periods or seasons of the year. These interpretative regulations are a proper exercise of the secretary's discretion. Idaho Sheet Metal Works v. Wirtz, 383 U.S. 190, 208, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966), reh. den. 383 U.S. 963, 86 S.Ct. 1219, 16 L.Ed.2d 305 (1966). While they are not binding on the courts, Federal Maritime Commission v. Seatrains Lines, Inc., 411 U.S. 726, 745-46, 93 S.Ct. 1773, 36 L.Ed.2d 260 (1973); Skidmore v. Swift, 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), so long as they are neither legally untenable, Jewell Ridge Coal Corp. v. Local 6167, UMW, 325 U.S. 161, 169, 65 S.Ct. 1063, 89 L.Ed. 1534 (1945), nor inconsistent with the congressional purpose of the Act, Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974), the interpretations of the agency charged with administering an Act are entitled to great deference and to be regarded as expressing the will of the Congress that enacted the statute. United States v. Pennsylvania Industrial Chem. Corp., 411 U.S. 655, 674, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). They will not be set aside or disturbed lightly, and both the courts and litigants may properly look to them for guidance. Skidmore v. Swift, supra, 323 U.S. 134 at 140, 65 S.Ct. 161.

Blocker's testimony indicates that he recruits, hires and transports agricultural workers solely for picking citrus fruit between the months of December and June, the Florida citrus season. Furthermore, after the citrus season, many of those workers travel out of the state to pick other crops during their seasons. Clearly, such workers are employed in agriculture on a seasonal basis and are, therefore, within the definition of `migrant worker' in Section 2042(g).

In the face of denials by Blocker and Golden Gem that Blocker is a farm labor contractor, the initial burden of proof is on the secretary to show that the Act applies to both defendants. Corning Glass Works v. Brennan, 417 U.S. 188, 196, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). 7 U.S.C. § 2042(b) and (c) provide:

(b) The term "farm labor contractor" means any

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