JIMMY R. CARLSON

OSHRC Docket No. 14303

Occupational Safety and Health Review Commission

January 18, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Regional Solicitor, USDOL

Jimmy R. Carlson, for the employer

OPINION:

DECISION

This case is before the Commission pursuant to a sua sponte order for review. The parties have filed no objections to the Administrative Law Judge's decision, either by way of petitions for discretionary review or response to the order for review. Accordingly, there has been no appeal to the Commission, and no party had otherwise expressed dissatisfaction with the Administrative Law Judge's decision.

In these circumstances, the Commission declines, to pass upon, modify or change the Judge's decision in the absence of compelling public interest. Abbott-Sommer, Inc., 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976); Crane Co., 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976); see also Keystone Roofing Co., Inc., v. O.S.H.R.C., 539 F.2d 960, 964 (3d Cir. 1976). The order for review in this case describes no compelling public interest issue.

The Judge's decision is accorded the significance of an unreviewed Judge's decision. [*2] Leone Constr. Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).

It is ORDERED that the decision be affirmed.

CONCURBY: MORAN

CONCUR:

MORAN, Commissioner, Concurring:

I would affirm the Judge's decision for the reasons set forth in his decision which is attached hereto as Appendix A. For the reasons expressed in my separate opinion in Secretary v. Schultz Roof Truss, Inc., OSAHRC Docket No. 14046, Dec. 20, 1976, I disagree with the majority's view regarding the significance of decisions rendered by Review Commission Judges.

Appendix A

DECISION AND ORDER

Ann Noble, Office of Henry C. Mahlman, Associate Regional Solicitor, U.S. Department of Labor, for the Complainant

Jimmy R. Carlson, (Pro Se), for the Respondent

Morris, Judge: Citation 1 alleges violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter "Act"). Complainant asserts the violations occurred on July 16, 1975 and were observed when complainant's representative inspected a farm near Scottsbluff, Nebraska. The citation issued July 23, 1975. Respondent filed his notice of contest on July 30, 1975.

Citation 1 alleges nonserious violations of certain enumerated [*3] standards:

Item

number

Standard Allegedly Violated

Description of Alleged Violation

1

29 CFR 1910.142(a)(2)

(Housing site) Approximately

32 head of livestock are not kept

at least 500 feet from the kitchen

in which food is prepared and

where sleeping quarters are located.

2

29 CFR 1910.142(a)(3)

(Housing site) The grounds and

open area surrounding the

migrant house are not maintained

in a clean and sanitary condition,

(i.e. free from rubbish, debris,

waste paper, garbage and other

refuse).

3

29 CFR 1910.142(b)(2)

(Housing site) Three rooms used

for sleeping purposes by 12

people does not contain at

least 50 square feet of floor

area for each occupant.

4

29 CFR 1910.142(b)(7)

(Housing site) The northwest

window of the north bedroom

has been broken and subsequently

boarded up so that it cannot

be opened for purposes of

ventilation.

5

29 CFR 1910.142(b)(8)

(Housing site) The kitchen

door and the front room door

are not fitted with a screen

door nor are selfelosing

devices employed.

6

29 CFR 1910.142(c)(1)

(Housing site) An adequate

and convenient water supply,

approved by the appropriate

health authority, is not

provided for drinking, cooking,

bathing and laundry purposes.

7

29 CFR 1910.142(d)(3)

(Housing site) The privy is

located closer than 100 feet to

sleeping rooms and the kitchen.

8

29 CFR 1910.142(f)(1)

(Housing site) Laundry, hand-

washing and bathing facilities

are not provided in the following

ratio:

1. Hand-wash basin per family

shelter; 2. Shower head for

every 10 persons, (family of

persons).

9

29 CFR 1910.142(f)(3)

(Housing site) An adequate supply

of hot and cold running water is

not provided for bathing and

laundry purposes.

10

29 CFR 1910.142(g)

(Housing site) An electrical

convenience, wall type outlet

is not provided in each of the

three sleeping rooms and the

overhead light fixture in the

south sleeping/front room is

unserviceable.

11

29 CFR 1910.142(h)(1)

(Housing site) Fly-tight, rodent-

tight, impervious, cleanable or

single service containers approved

by the appropriate health authority

are not provided for the storage

of garbage.

12

29 CFR 1910.142(h)(3)

(Housing site) The open type

garbage container located east

of the house is not emptied when

full.

[*4]

The above cited standards read:

1910.142 Temporary labor camps.

(a) Site.

(2) All sites shall be adequate in size to prevent overcrowding of necessary structures. The principal camp area in which food is prepared and served and where sleeping quarters are located shall be at least 500 feet from any area in which livestock is kept.

(3) The grounds and open areas surrounding the shelters shall be maintained in a clean and sanitary condition free from rubbish, debris, waste paper, garbage, or other refuse.

(b) Shelter.

(2) Each room used for sleeping purposes shall contain at least 50 square feet of floor space for each occupant. At least a 7-foot ceiling shall be provided.

(7) All living quarters shall be provided with windows the total of which shall be not less than one-tenth of the floor area. At least one-half of each window shall be so constructed that it can be opened for purposes of ventilation.

(8) All exterior openings shall be effectively screened with 16-mesh material. All screen doors shall be equipped with self-closing devices.

(c) Water supply. (1) An adequate and convenient water supply, approved by the appropriate health authority, shall be provided [*5] in each camp for drinking, cooking, bathing, and laundry purposes.

(d) Toilet facilities. (1) Toilet facilities adequate for the capacity of the camp shall be provided.

(3) A toilet room shall be located within 200 feet of the door of each sleeping room. No privy shall be closer than 100 feet to any sleeping room, dining room, lunch area, or kitchen.

(f) Laundry, handwashing, and bathing facilities. (1) Laundry, handwashing, and bathing facilities shall be provided in the following ratio:

(i) Handwash basin per family shelter or per six persons in shared facilities.

(ii) Shower head for every 10 persons.

(iii) Laundry tray or tub for every 30 persons.

(iv) Slop sink in each building used for laundry, hand washing, and bathing.

(3) An adequate supply of hot and cold running water shall be provided for bathing and laundry purposes. Facilities for heating water shall be provided.

(g) Lighting. Where electric service is available, each habitable room in a camp shall be provided with at least one ceiling-type light shall contain at least one ceiling- or wall-type fixture. Light levels is toilet and storage rooms shall be at least 20 foot-candles 30 inches from the floor. [*6] Other rooms, including kitchens and living quarters, shall be at least 30 foot-candles 30 inches from the floor.

(h) Refuse-disposal. (1) Fly-tight, rodent-tight, impervious, cleanable or single service containers, approved by the appropriate health authority shall be provided for the storage of garbage. At least one such container shall be provided for each family shelter and shall be located within 100 feet of each shelter on a wooden, metal, or concrete stand.

(3) Garbage containers shall be emptied when full, but not less than twice a week.

Complainant proposes no civil penalties.

The evidence: Cattle roam adjacent to a house provided by respondent for a single migrant worker family (Tr. 11-13, 15, 28, 37, 43-44; compl's. ex. 3, 4).

The house: The kitchen door and front door lack screens (Tr. 23-25; Compl's. ex's. 3, 4, 5). A boarded up window cuts off ventilation in a bedroom (Tr. 22, 49). An overhead electrical receptacle in a sleeping room hangs loose from the ceiling. Two bedrooms have no convenience receptacle (Tr. 35). It has no bathing, bathroom, or laundry facilities; a privy is within 100 feet (Tr. 3 31; compl's. ex. 6); 374 square feet of sleeping area is [*7] inadequate for its twelve occupants (Tr. 20-22, 43-44: compl's. ex. 1).

Adjacent area: A windmill powered cistern 300 to 400 feet away provides the only available water supply (Tr. 26-28; compl's. ex. 6). Abandoned furniture and overflowing garbage from a stock tank litter the yard: the area lacks any other garbage container (Tr. 15, 19, 20, 36-37, 48, 50, 52; compl's. ex. 3, 7, 6).

The foregoing alleged violations constitute health hazards (Tr. 29-30, 59-64, 66).

Since the migrants started about six years ago respondent has not directed their work activities in any manner. Pay is calculated on a per acre basis (Tr. 24, 42-43, 67-69).

ISSUES

Respondent contends federal jurisdiction terminated with the expiration of the Sugar Beet Act (7 U.S.C.A. 1100 et seq.).

The above cited Act regulates the marketing of sugar. The authority of complainant to regulate in areas of occupational safety and health arises from the provisions of 29 U.S.C. 651 et seq. The Sugar Act in no manner relates to the Occupational Safety and Health Act. This contention is denied.

Respondent further argues that the furnishing of one house for members of a single family unit over a period of [*8] years does not constitute such quarters as a "temporary labor camp" within the meaning of the regulations.

While the standards do not define "temporary labor camp", such issues can be determined in an adjudicatory process. The American Standards Institute (ANSI) enumerates certain definitions relating to temporary labor camps. Relevant to the instant case are the following U.S.A.S. Z44-1968 definitions:

Camp. Any shelter, or shelters, together with the tract of land appertaining thereto, established for the housing accommodation of persons engaged in any occupation or work for which a labor force is maintained in temporary quarters.

Shelter. Any conventional or unconventional building of one or more rooms, tent, trailer, railroad car, or any other enclosure used for sleeping or living purposes.

Temporary. The length of the use of the facility at the site being contingent upon the labor project, which may be seasonal or of limited or intermittent duration.

To sustain respondent's argument would directly clash with the congressional mandate "to assure so far as possible every working man and woman in the nation safe and healthful working conditions. . . ." 29 U.S.C. [*9] 651(b). Respondent's argument is denied.

Even through payment is on a per acre basis and even though respondent does not supervise the workers they are nonetheless his employees.

The term "employee" and the employment relationship itself is not restricted to a technical or contractual interpretation. Economic reality prevails over technical concept, Goldberg v. Whitaker House Cooperative 366 U.S. 28, 81 S.Ct. 933 (1961): Walling v. Portland Terminal Company 330 U.S. 148, 67 S.Ct. 639 (1947). As noted by the Tenth Circuit Court of Appeals in Frohlick Crane Service, Inc. v. OSAHRC and Brennan 521 F.2d 628 (1975) "the [Occupational Safety and Health] Act should not be given a narrow or technical construction. . . ."

In Hodgson v. Okada, 472 F.2d 965, the Tenth Circuit Court of Appeals in a Fair Labor standards case examined the relationship between migrant laborers and farm owners. The Court ruled the farm owners were employers of the cucumber pickers though the farm owner spoke to them only once or twice in four weeks; the owners never fired any of them: the owners never hired anyone except through a labor contractor. As stated by the Court, at 472:

". . . the [*10] only regular supervision of the workers came from the [farm owners] and they benefited from the work performed. They . . . had the right to direct daily labor on the farm. They . . . suffered if the cucumbers were not harvested or if they did not meet specifications."

To like effect see Fahs v. Tree-gold Co-op Growers of Florida, 166 F.2d 40, (C.A. 5, 1948); Hodgson v. Griffin and Brand of McAllen, Inc., 471 F.2d 235 (C.A. 5, 1973).

At the trial the parties suggested that if complainant prevails respondent should be granted an extension of the abatement date until such time as migrant workers occupy these premises. Such proposal should be granted.

Respondent admits he is an employer engaged in a business affecting commerce (Tr. 6-9). Accordingly, based on the uncontroverted evidence, the undersigned enters the following

ORDER

1. Citation 1 and all items thereof are AFFIRMED.

2. No penalty is assessed.

3. The abatement date is extended until such time as the premises are occupied by migrant workers.

So ordered in the City and County of Denver, Colorado.

John J. Morris, Judge, OSAHRC

Dated: March 18, 1976