UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 15904
WALTER C. MEHLENBACHER,
Respondent.

August 19, 1976

Appearances:

Francis V. LaRuffa, Regional Solicitor United States Department of Labor

1515 Broadway, Room 3555

New York, New York 10036

Attorney for complainant by Barnett Silverstein, Esq., of counsel

Walter C. Mehlenbacher

R.D. 1 Castile, New York

For the respondent

DECISION AND ORDER

Ditore, J.

PRELIMINARY STATEMENT

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651, et seq., hereinafter called the Act), contesting a citation for nonserious violations of occupational safety and health standards, issued by complainant against respondent under the authority vested in the complainant by section 9(a) of the Act (29 U.S.C. § 658(a)).

The citation alleges that as a result of an inspection on October 15, 1975, of a workplace located at Murphy Road in the Town of Pike, New York, and described as ‘The Scholes temporary labor camp for migrant workers,’ the respondent violated section 5(a)(2) of the Act (29 U.S.C. § 654(a)(2)) by failing to comply with occupational safety and health standards promulgated by the Secretary by publication in the Federal Register on June 27, 1974 (39 F.R. 23502) and codified in 29 CFR §§ 1910.142(b)(1), 1910.142(b)(8), 1910.142(d)(4), 1910.142(h)(1) and 1910.142(k)(2).[5]

The description of the violations and the standards as promulgated by the Secretary are as follows:

Item 4 of citation:

Description: Every shelter was not constructed to provide protection against the elements in that windows were broken in apartments 11, 20, 21, & 24; thereby creating a potential health hazard.

Standard as promulgated

§ 1910.142 Temporary labor camps

(a) . . ..

(b) Shelter. (1) Every shelter in the camp shall be constructed in a manner which will provide protection against the elements.

Item 5 of citation

Description

All exterior openings were not effectively screened and all doors were not self-closing; thereby creating a potential health hazard.

EXAMPLE:

1. Screens on apartments 2, 11 & 20 and doors on all of the apartments were not self-closing.

Standard as promulgated

§ 1910.142(b) . . ..

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

Item 6 of citation

Description The toilet facilities were not distinctly marked for ‘Men’ and for ‘Women’ by signs printed in English or with easily understood pictures or symbols.

Standard as promulgated

§ 1910.142 . . ..

(d) Toilet facilities . . ..

(4) Where the toilet rooms are shared, such as in multifamily shelters and in barracks type facilities, separate toilet rooms shall be provided for each sex. There rooms shall be distinctly marked ‘for men’ and ‘for women’ by signs printed in English and in the native language of the persons occupying the camp, or marked with easily understood pictures or symbols. If the facilities for each sex are in the same building, they shall be separated by solid walls or partitions extending from the floor to the roof or ceiling.

Item 8 of citation

Description There was not one refuse disposal container for each family shelter and the containers provided were not fly-tight or rodent-tight and when located in the yard, were not located on a wooden, metal, or concrete stand; thereby creating a potential health hazard.

Standard as promulgated

§ 1910.142 . . ..

(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.

Item 10 of citation

Description: The temporary labor camp did not have a person suitably trained and readily accessible to administer first aid at all times; thereby exposing employees to potential hazards of delay in first aid treatment and other emergency care.

Standard as promulgated

§ 1910.142 . . ..

(k) First aid (1) . . ..

(2) Such [first aid] facilities shall be in charge of a person trained to administer first aid and shall be readily accessible for use at all times.

Pursuant to the enforcement procedure set forth in section 10(a) of the Act (29 U.S.C. § 659(a)), the respondent was notified by letter dated November 4, 1975, from the area director of the Rochester, New York, area that the Occupational Safety and Health Administration proposed to assess no penalty for the nonserious violations set forth in items 4, 5, 6, 8 and 10 of the citation.

ISSUES

1. Whether any constitutional rights of the respondent under the Fourth Amendment were violated by the compliance officers in inspecting respondent’s temporary farm labor camp.

2. Whether the Secretary of Labor, pursuant to the Occupational Safety and Health Act of 1970, in adopting Section 1910.142 and the subsection thereunder considered whether the ‘National Consensus Standard’ from which section 1910.142 was derived, was adopted and promulgated by the American National Standards Institute (formerly the United States of American Standards Institute) according to the conditions set forth in Section 3 (9) of the Act.

3. Whether the relationship between respondent and the migrant farm laborers at respondent’s camp was one of landlord and tenant or one of employer and employee.

4. If the above issues are decided adversely to respondent, whether one or more or all of the nonserious violations existed at respondent’s camp, and if they existed whether respondent was responsible for the violations.

STATEMENT OF THE EVIDENCE

On October 15, 1975, compliance officers William Wager and Paul Hanover were assigned the duty of inspecting temporary labor camps. In the course of that assignment, the officers inspected the Mehlenbacher Scholes Camp located on Murphy Road, Pike Township County of Wyoming, State of New York (T.[6] 34, 35, 36, 38, 39).

Upon arriving at the camp about 1:30 p.m. on October 15, 1975, they were given the name and address of the owner of the camp and driving directions to the owner’s home. The officers went to the home of Mr. Walter Mehlenbacher, the owner, and after a short discussion with Mrs. Mehlenbacher met Mr. Mehlenbacher. The officers identified themselves and told Mr. Mehlenbacher that the purpose of their visit was to inspect the Mehlenbacher Scholes Labor Camp (T. 36, 41).

Mr. Mehlenbacher after questioning the authority and right of the officers to inspect the labor camp, drove off, followed by the officers to the camp site which was about 5 to 10 minutes away (T. 40–44, 108–109). Upon arrival at the camp, Mr. Mehlenbacher introduced the officers to a Mr. Smith, the camp’s migrant labor crew chief. Another discussion was held as to the officer’s authority to enter the camp’s area where the migrant farm laborers lived (T. 44, 109, 110, 113; complainant’s admission no.60).

Mr. Mehlenbacher and Mr. Smith did not deny the officers entry to the camp to inspect the general or common areas of the camp. i.e., the kitchen, sanitary facilities, etc., but would not give the officers consent to inspect the rooms in which the migrant farm laborers resided (T. 45, 47–49, 113, 159–160).

The officers accompanied by Mr. Mehlenbacher and Mr. Smith, inspected the kitchen and the sanitary facilities. They found no violations in either area, except that the doors leading to the separate toilet facilities were not designated with words or signs indicating which was the male side and which was the female side. Mr. Mehlenbacher stated to the officers that painting work was not completed because the migrant farm laborers arrived sooner than expected (T. 49–53). The two areas were found to be exceptionally clean (T. 50, 55).

The compliance officers believed the lack of ‘male’ and ‘female’ designations at the toilet facilities created a mental or psychological health hazard (T. 53).

The camp itself consisted of a cinder block building formed in a T shape. The building was about 60 x 80 feet long and 30 to 40 feet wide and occupied about an acre of land. The farm laborers living quarters were located on the east and west side of the leg of the T. The kitchen was on the north side (T. 53, 54, 128, 130).

There were about 22 rooms or living quarters for the migrant farm laborers. The officers, after identifying themselves and securing permission from the rooms’ occupants, entered and inspected about 15 rooms (T. 57, 59–65).

Each room had a large window with an upper and lower section, with the upper section screened (T. 69). Of the 22 rooms, 15 of which were inspected, four were found to have broken windows, in that part of the window glass was either broken or missing. Three of the rooms were occupied (T. 66, 67, 70, 73). Respondent in his answers to complainant’s request for admissions, admitted that rooms numbered 11, 20, 21 and 24, as designated in the citation and complaint, and broken glass windows. Room 21 was the boiler room and complainant admits that the broken glass in the window of this rooms was not a violation of standard 29 CFR § 1910.142(b)(1) (T. 150, 153: Exh. C–3).

The officers believed that the broken glass windows in 3 of the 22 rooms, violated a health hazard by failing to protect the occupants against the elements, i.e., wind, rain, etc.

The officers further observed that three rooms numbered 2, 11, and 20, which included one of the rooms with a broken window glass (no. 20), had window screens which were ripped or torn; one of the windows and its screening missing (T. 67, 68, 71, citation, complaint.) These three rooms were occupied (T. 70). Respondent in his answer to complaint’s request for admissions (No.24), admitted that rooms 2, 11 and 20 were inadequately screened. Although they observed no insect problem, the officers believed that the inadequate screening of the three rooms created a health problem in that it allowed flies and other insects to enter these rooms (T. 76, 135, 162). Complainant admits that the citation and complaint erroneously stated that the rooms’ doors had to be self-closing. This requirement only applied to screen doors of which there were none at the camp (T. 130).

The officers also observed 6 to 8 garbage containers in the camp yard. The containers were 55 gallon drums, one or two were 20 gallon containers. The containers contained among other items, organic food material. Some of the containers were covered or partially covered with solid sheet metal covers, and some were not covered. The containers’ covers were neither fly-tight nor rodent-tight and the containers were not on wooden, metal or concrete stands (T. 78, 79; admission no. 35 of respondent; Exh. C–4).

The officers further ascertained that the camp did not have a person trained to administer first aid at the camp. There was an ambulance corp located about 2 to 3 miles from the camp (T. 82–83).

There were about forty farm labor occupants at the camp. The camp was found by the officers to be in reasonably good condition (T. 90–91).

Officer Wager on cross-examination gave testimony as to Exhibit R–5. Exhibit R–5, a New York State Department of Labor application for ‘farm labor contractor certificate of registration’ and ‘application for permit to operate a farm labor camp,’ indicated that Robert Smith, Jr., was the labor contractor who recruited, transported, supplied and hired farm labor workers, to work at the farm of one Frank Zicari on Route 31, County of Orleans, Village on Albion. The work was to begin on August 18, 1975 and to end on November 18, 1975. The workers were to be housed at the Mehlenbacher Camp on Murphy Road. The farm laborers wages were to be paid by Smith. The farm laborers were to be charged room rent at the rate of $1.00 a day per person (T. 116–123).

Compliance officer Paul Hanover also corroborated the testimony of officer William Wager (T. 146–147).

Walter C. Mehlenbacher, co-owner with his wife of the Mehlenbacher Scholes Farm Labor Camp, gave the following testimony (T. 169–179).

He admitted that he met with compliance officers Wager and Hanover, on October 15, 1975 about 1:30 p.m., that he introduced the officers to Smith, the migrant farm laborers’ crew chief; that he challenged the right of the officers to inspect the camp; and that he reluctantly gave the officers permission to inspect the kitchen, and the toilet and bathing areas of the camp (T. 169–176).

Mr. Mehlenbacher stated that the migrant farm laborers at his camp reside there and pay rent; and that none of the laborers work directly for him or receive wages from him. He hires the services of crew chief Smith on a permanent basis to assist in harvesting part of his farm potato crop. He pays Smith for this service. Mr. Mehlenbacher does not have any direct control over the farm laborers although he does tell a worker sometimes that he is leaving too many potatoes on the ground. He does not hire, fire or otherwise direct the work of the migrant farm laborers and no farm laborers appear on his payroll (T.177–180).

He operates the farm labor camp as a convenience for the migrant farm laborers and for other farmers in the area. The laborers pay rent for the camp housing accommodations with the understanding that if Mr. Mehlenbacher needs them they will show him consideration by doing his farm work when needed. His agreement with the laborers crew chief Smith is a verbal one (T. 181–184, 209–210) and he usually gives Smith and his labor crew 4 to 6 weeks of work during the period from September to October (T.185). He paid Smith $50,000 for work performed on his farm by Smith and his farm laborers during the year 1975 (T. 201–203).

Mr. Mehlenbacher makes all needed repairs at his camp when the need for repairs is reported to him or called to his attention (T. 180–181, 205). Mr. Smith is responsible for window glass breakage at the camp and reimburses Mr. Mehlenbacher for the cost of the replacement glass (T. 203).

Respondent operates two farm labor camps and the migrant farm laborers reside at both camps. He charges rent at the rate of $1.00 per day per person which is collected and delivered to him by crew chief Smith. Mr. Mehlenbacher does waive the payment of rent on occasions (T. 190–192, 205). Mr. Mehlenbacher further stated that he had no control over where the migrant farm laborers wanted to live (T. 222).

Mr. Mehlenbacher has a valid New York State permit to operate a farm labor camp for the 1975 season (T. 195–197, 222; Exh. C–5). A further application of Robert Smith for a ‘farm labor contractor certificate of registration’ and ‘application for permit to operate a farm labor camp commissary’ for the period of September 1, 1975 to November 1, 1975, states that respondent is the farm owner; that the farm laborers are to work at the farm of Walter Mehlenbacher and are to be housed at the Mehlenbacher camp on Murphy Road, Castile New York; that the work to be done is the picking, harvesting and loading of potatoes; that Robert Smith is the crew leader; that the farm workers are covered by workmen’s compensation insurance and farmer’s liability insurance; and that the insurance policies are paid for by Walter C. Mehlenbacher, farm owner (T. 212–218, 224–226; Exh. C–7).

OPINION

At the hearing and in his brief, respondent raised three affirmative defenses which must be resolved before the merits of this action can be reached.[7]

Respondent contends (1) that the compliance officers violated his rights under the Fourth Amendment to the Constitution in that they unlawfully entered and searched his migrant farm labor camp which was a place of residence and not a workplace; (2) that American National Standards Institute standard Z 4.4–1968 (hereinafter called ANSI standard Z 4.4–1968) did not meet the definition of a ‘national consensus standard’ as defined in the Act, and was therefore unlawfully adopted by the Secretary as Occupational Safety and Health Standard 29 CFR § 1910.142 (including the subsections thereunder; and (3) that respondent was not the employer of the migrant farm laborers at his camp but was their landlord in a landlord-tenant relationship (respondent’s brief of May 7, 1976 and May 31, 1976; T. 8, 15, 16).

The three affirmative defenses will be discussed seriatim.

1. Fourth Amendment defense.

The evidence of record establishes that respondent on October 15, 1975, when he first met the compliance officers at his farm and later on the same day at his migrant farm labor camp, questioned and challenged the authority of the compliance officers to enter and inspect the camp. The record also establishes that the compliance officers properly identified themselves to respondent and informed him of their authority under the Act to inspect the camp (T. 39–42, 44–49, 174–176; Exh. C–1).

Respondent did not object to an inspection of the camp’s general or common areas, i.e., the kitchen and the bathing and toilet facilities, but properly told the officers that he could not give his consent to inspect the separate living rooms or quarters of the individual migrant farm laborers (T. 44, 45, 47–49, 174–176).

The compliance officers did inspect fifteen individual rooms where farm laborers resided. Complainant’s unrefuted evidence establishes that before the compliance officers entered these rooms they first obtained the permission and consent of the rooms’ occupants. There is no evidence which indicates that this permission and consent was obtained by coercion, duress or by any other unlawful form of pressure which would negate the voluntary nature of the consent. Nor is there any evidence that the reluctant consent given by Mr. Mehlenbacher, the respondent herein, to inspect the camp’s common areas was obtained by the compliance officers through duress or coercive means, or that the consent was not voluntarily and knowingly given.

Respondent his failed to carry his burden of proof on this issue.

2. Validity of ANSI standard Z 4.4–1968.

Respondent further contends that ANSI standard Z 4.4–1968 was improperly adopted and promulgated by the American National Standards Institute (formerly named the United States of America Standard Institute) and was therefore unlawfully adopted and promulgated by the Secretary of Labor as Occupational Safety and Health Standard 29 CFR § 1910.142 (and subsections thereunder).

Respondent’s major thrust or stress is upon a portion of the Act’s definition of a ‘national consensus standard’. Section 3 (9) of the Act defines a ‘national consensus standard’ as ‘any occupational safety and health standard or modification thereof which (1) has been adopted and promulgated by a nationally recognized standards-producing organization under procedures whereby it can be determined by the Secretary that persons interested and affected by the scope or provisions of the standard have reached substantial agreement on its adoption, (2) was formulated in a manner which afforded an opportunity for diverse views to be considered and (3) has been designated as such a standard by the Secretary, after consultation with other appropriate Federal Agencies.’ (Emphasis supplied by respondent; brief of May 7, 1976).

It is respondent’s position that the procedures followed by the American National Standards Institute (hereinafter called ANSI) were inadequate in that no farm agency or organization and no migrant farm laborer or contractor were represented on the ANSI committee which considered ANSI standard Z 4.4–1968. Therefore there was no consensus or agreement from farm and migrant laborer organizations as to the adoption of ANSI standard Z 4.4–1968 (entitled ‘Minimum Requirements for Sanitation in Temporary Labor Camps’).

Since ANSI standard Z 4.4–1968 was not properly adopted and promulgated by ANSI because of the lack of representation of farm and migrant farm laborers groups, the Secretary of Labor could not adopt and promulgate ANSI Z 4.4–1968 as an occupational safety and health standard (29 CFR § 1910.142) as the ANSI standard did not meet the requirements of section 3 (9) of the Act. In short, the Secretary could not determine that persons (farm and farm laborer groups) who were interested and affected had reached substantial agreement when ANSI standard Z 4.4–1968 was adopted and promulgated by ANSI.

We start with the premise that the Secretary of Labor properly discharged his official duty in adopting and promulgating ANSI standard Z 4.4–1968 as an occupational safety and health standard and that this official discharge of duty is clothed with a presumption of regularity which can only be rebutted by clear evidence to the contrary. United States v. Chemical Foundation, Inc., (1926) 272 U.S. 1, 14; 475 S.Ct. 1.

At the time of the hearing, respondent did not have all the material he requested from ANSI to support his position on this issue. He requested permission to submit such material subsequent to the hearing. No objection to this procedure was raised by any party either during the hearing or subsequent thereto. The material submitted by respondent will be considered in the determination of this issue.

The material consists of a copy of the ‘Operating Procedure of the United States of America Standards Institute (now named the American National Standards Institute), a copy of ANSI standard Z 4.4–1968 entitled ‘Minimum Requirements for Sanitation in Temporary Labor Camps’ (Item J–16 of file) and letters and copies of letters between respondent and ANSI (Item J–22 of file).

The material supplied by respondent particularly the letter of May 24, 1976 from Nixon de Tarnowsky, Program Administrator of ANSI, and a copy of respondent’s answering letter of May 31, 1976 (Item J–22 of file), reveal that various farm and farmers organizations were contacted and asked to provide representation on ANSI’s Z 4.4–1968 committee but these organizations indicated no interest in participating on the committee considering ANSI standard Z 4.4–1968. The letters further reveal that a draft of ANSI standard Z 4.4–1968 was advertised in several trade publications.

There is no evidence that the Secretary in adopting and promulgating ANSI standard Z 4.4–1968 as an occupational safety and health standard did not determine that those persons interested and affected by the scope or provisions of the standard (here the representative members of the ANSI Z 4.4 committee) reached substantial agreement on the standard’s adoption and promulgation.

What respondent is really arguing is that farm and farm laborer organizations or groups were not represented on the ANSI Z 4.4–1968 committee and therefore the views of these absent groups were not considered. Respondent’s evidence establishes that such groups (farm organizations) were given the opportunity to be represented on, and to participate with, the ANSI Z 4.4–1968 committee but declined to avail themselves of that opportunity and evinced no interest in the committee’s activities.

There is no evidence that the groups represented on the ANSI Z 4.4–1968 committee were not competent to determine suitable safety and health standards for migrant farm laborers, or that their work on the committee substantially prejudiced respondent.

Respondent failed to carry his burden of proof to establish that the Secretary of Labor did not substantially comply with section 3 (9) of the Act in promulgating 29 CFR § 1910.142 pursuant to section 6(a) of the Act. See National Roofing Contractors Association v. Brennan, 495 F.2d 1294, 1296 (7th Cir., 1974); Secretary of Labor v. Tobacco River Lumber Company, 17 OSAHRC 235 (1975); BNA 3 OSHC 1059.

3. Relationship of respondent vis-a-vis the migrant farm laborers.

Respondent states that his relationship with the migrant farm laborers housed and fed at his temporary farm labor camp is one of landlord and tenant and not one of employer and employee; and that standard 29 CFR § 1910.142 (and the subdivisions thereunder) is limited to occupational work places and does not cover housing (brief pp 9–11; T. 8). This contention of respondent also permeates the two affirmative defenses discussed above, and if valid, would support those contentions.

The question presented is whether a temporary migrant farm labor camp is a place of employment as contemplated by the Act. Respondent to support his position testified that he, by oral agreement, hires the services of Robert Smith, the migrant farm labor contractor and crew chief, to assist in harvesting part of his potato crop; that he pays Smith for this service which amounted at $50,000 in the year 1975; that he does not hire or fire the migrant farm laborers; that he does tell a migrant farm laborer working at his farm that he is not doing his job and does speak to Smith about it but does not otherwise directly control the migrant farm laborers; that none of the migrant farm laborers appear or are carried on his payroll; that he operates the farm labor camp as a convenience for himself, for other farmers in the area, and for the migrant farm laborers; that the migrant farm laborers pay one dollar a day per person as room rent which is collected by Smith and given to respondent; that he expects the farm laborers to show him consideration by doing his farm work when needed; that he can and does waive the laborers’ rent on occasion; that he applied for and received a valid New York State permit to operate a farm labor camp for the 1975 season; that he uses the services of the farm laborers on his farm from September to November; that the farm laborers are to be housed at his camp although they are free to live elsewhere; and that the migrant farm laborers are covered by Workmen’s Compensation insurance and Farmer’s Liability insurance which is paid for by respondent.

In determining whether the migrant farm laborers are employees of respondent and whether the relationship between respondent and the laborers is one of employer-employee, technical or contractual interpretations do not prevail and must give way to the economic realities that actually exist. Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1261 (4the Cir., 1974) and cases cited therein; Secretary of Labor v. Richard Norby and Rocky Norby, partners, OSHRC Docket No. 14502 (January 29, 1976), CCH E.S.H.G. para 20,468 (1976).

This case is similar to Hodgson v. Okada, 472 F.2d 965 (10th Cir., 1973) where the Court examined the relationship in a Fair Labor Standards case between migrant farm laborers and farm owner and found the farm owners to be the employers of the migrant farm laborers.

In the Okada case the farmers did not hire of fire any farm laborers and did not pay wages to the farm laborers. They supervised directly, or indirectly through the labor contractor, the farm laborers, and directed where the daily farm work was to be performed. The farm owners suffered if the farm crops were not harvested on time or properly.

In addition to above similar factors between the Okada case and the instant case, respondent could and expected the farm rent payments from the farm laborers and expected the farm laborers as a consideration for the labor camp accommodations and convenience to work at his farm when needed to harvest his crop. Respondent paid $50,000 for the services of the laborers and their crew chief for the 1975 seasonal period, and paid for workmen’s compensation insurance which covered the farm laborers as his employees. Respondent also applied for and received a valid State permit to operation a farm labor camp, not motel or other commercial transient housing facility.

The above indicia reflect an employer-employee relationship and not a landlord-tenant relationship. Respondent is an employer under the Act of the migrant farm laborers at his camp and standard 29 CFR § 1910.142 applies to the camp. Respondent failed to carry his burden of proof to establish that he is not an employer but only a landlord of the migrant farm laborers at his camp.

Although no farm laborer is compelled to live at a farm labor camp, the needs of the agricultural farm community and of the migrant farm laborers arising from the remoteness of farm field and living facilities from the mainstream of commercial transient accommodations and transportation, the economic considerations both for laborer and farm owner, the uncertainties of weather and other agricultural factors at harvest time and the need of a ready available labor source close at hand, and the general convenience of all concerned, inextricably weaves the migrant labor camp and the farm field into one fabric—the workplace.

The migrant farm laborer, in a sense, is a captive of his occupational environment, and is entitled under the Act to the minimum benefits of safety and health not only when working in the fields but when on the farm labor camp.

Remaining for resolution are the five nonserious violations for which respondent was cited.

Item 4 of Citation—29 CFR § 1910.142(b)(1)

Respondent was charged with a violation of 29 CFR § 1910.142(b)(1) in that the windows in rooms 11, 20 and 24[8] were broken which created a potential health hazard from inclement weather.

Standard 1910.142(b)(1) states that ‘[e]very shelter in the camp shall be constructed in a manner which will provide protection against the elements’.

There is no evidence that the camp was not constructed to provide protection against the elements. The nature of the camp’s construction was not an issue. What was established was that three broken glass windows needed repairs. Section 1910.142(b)(1) does not apply to routine repairs but to the intrinsic construction of the camp shelters. Complainant failed to carry its burden on this issue and the citation will be vacated.

Item 5 of Citation—29 CFR § 1910.142(b)(8)

Section 1910.142(b)(8) requires that all exterior openings shall be effectively screened with 16-mesh material; and that all screen doors shall be equipped with self-closing devices.

The evidence established that rooms numbered 2, 11 and 20 had rips or tears in their window screening large enough for insects to enter. The hazard was a possible insect health problem. Complainant carried his burden on this issue. Complainant admits that this standard does not apply to regular doors leading to the outside but only to screen doors of which there were none at the camp (T. 130). The citation will be amended to delete the phrase ‘all doors were not self closing’.

Item 6 of Citation—29 CFR § 1910.142(a)(4)

This standard requires that toilet rooms be distinctly marked ‘for men’ and ‘for women’ by signs or with easily understood pictures or symbols.

The facilities at respondent’s labor camp lacked these designations which the compliance officers believed created a mental or psychological health hazard for the farm laborers at the camp.

Complainant sustained its burden of proof on this issue.

The above two violations are essentially of a repair and maintenance nature and are so low in gravity in relation to the health hazards suggested as to border on but not quite reach a de minimis status. Respondent is required to correct the violative conditions.

Item 8 of Citation—29 CFR § 1910.142(b)(1)

This standard requires fly-tight, rodent-tight, impervious, cleanable containers for the storage of garbage. One such container must be provided for each family shelter and must be on a wooden, metal or concrete stand.

The evidence establishes that there was not one container for each family shelter; that the containers on the camp grounds were neither fly-tight or rodent-tight, nor on wooden, metal or concrete stands, and that the containers contained garbage (organic foods).

Although there was no discernible fly or rodent problem at the camp, the condition of the garbage cans at the camp site presented a possible health hazard to the occupants of the camp. Respondent must comply with the refuse disposal standard.

Item 10 of Citation—29 CFR § 1910.142(k)(2)

This standard requires that first aid facilities at a temporary labor camp must be in the charge of a person trained to administer first aid.

The evidence established that there was no person trained in first aid available at the camp although an ambulance service was located about 2 to 3 miles from the camp. The compliance officers believed that the lack of a first aid person deprived the migrant farm laborers of immediate first aid care for possible accidents befalling them at the camp.

The wisdom of this standard as it applies to the circumstances of the instant case, leaves much to be desired as to its feasibility and application. Is it more appropriate to have a first aid person at the camp where the farm laborers spend their off hours from work or should such a person be in the farm field area where the laborers are performing their farm labor work? Are accidents more likely to occur in the farm fields or at the camp? This Judge can speculate on these questions and others that come to mind, but cannot substitute his wisdom for that of the Secretary’s. The standard is clear on its face and must be complied with. Complainant carried his burden on this issue.

FINDINGS OF FACT

The credible evidence and the record as a whole establishes preponderant proof of the following specific findings of fact.

1. Respondent, Walter C. Mehlenbacher, is the co-owner and operator of a temporary migrant farm labor camp known as the Mehlenbacher Scholes Camp located on Murphy Road, Pike Township, County of Wyoming, State of New York.

2. On October 15, 1975, compliance officers William Wager and Paul Hanover inspected the camp.

3. Prior to the inspection, the compliance officers identified themselves to Mr. Mehlenbacher and informed him of their authority to inspect the camp.

4. Mr. Mehlenbacher knowingly and voluntarily gave his consent to an inspection of the camp’s general or common areas, i.e., the kitchen and the toilet and bathing facilities.

5. Prior to any inspection of a farm laborer’s room or living quarters, the compliance officers obtained the proper consent to enter and inspect from the room’s occupant.

6. Farm groups and organizations were given the opportunity to participate as committee members of the ANSI committee considering ANSI standard Z 4.4–1968.

7. No farm group or organization availed themselves of the opportunity and showed no interest in participating on the ANSI committee considering ANSI standard Z 4.4–1968.

8. There is no evidence that the Secretary of Labor in adopting and promulgating ANSI standard Z 4.4–1968 as an occupational safety and health standard failed to determine whether ANSI standard Z 4.4–1968 was a ‘national consensus’ standard as defined by section 3 (9) of the Act.

9. Respondent, Walter C. Mehlenbacher, either directly, or indirectly through the migrant laborer’s crew chief, supervised the work of the migrant laborers at his farm, and directed when the farm work was to be performed.

10. Respondent did not hire or fire the migrant farm workers living at his camp but did pay for workmen’s compensation insurance which covered the migrant laborers as his employees.

11. Respondent charged the migrant labor at his camp room rent which he did on occasion waive.

12. Respondent in exchange for the migrant camp housing accommodations and convenience expected the migrant farm laborers to work on his farm when they were needed.

13. Respondent paid $50,000 to the migrant farm laborers’ crew chief or labor contractor for services rendered by the farm laborers during the seasonal period of year 1975.

14. Respondent applied for and received a valid permit from the State of New York to operate a migrant farm labor camp, not a motel or other commercial transient lodging or housing facility.

15. Respondent was the employer of the migrant farm laborers.

16. Standard 29 CFR § 1910.142 and the subdivision thereunder apply to respondent’s migrant farm labor camp.

17. The camp is an occupational work place.

Item 4 of the citation—29 CFR § 1910.142(b)(1)

18. There is no evidence that respondent’s camp shelter for his migrant farm laborers was not constructed to provide protection against the elements.

Item 5 of the citation—29 CFR § 1910.142(b)(8)

19. The screens on three out of twenty two of the rooms occupied by farm laborers, were ripped or torn and permitted the entry of insects into the rooms.

20. Although there was no insect problem at the camp, on October 15, 1975, the torn and ripped screens created a possible insect health hazard.

Item 6 of the citation—29 CFR § 1910.142(d)(4)

21. The toilet facilities at the camp were not distinctly marked either by sign, picture or symbol to indicate the male and female facilities.

Item 8 of the citation—29 CFR § 1910.142(H)(1)

22. The camp lacked the proper number, type and installation of fly-tight, rodent-tight, impervious, and cleanable refuse disposal containers which gave rise to possible health hazards from flies and rodents.

Item 10 of the citation—29 CFR § 1910.142(k)(1)

23. The camp did not have a qualified and readily accessible person to administer first aid which presented a possible health hazard when emergency first aid treatment was necessary.

24. Respondent is responsible for the four conditions set forth above in paragraphs 19 through 23.

CONCLUSIONS OF LAW

1. Respondent is, and at all times material herein was, engaged in a business affecting commerce within the meaning of section 3 (5) of the Act (29 U.S.C. § 652(5)).

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter and parties to this action.

3. No constitutional right of respondent under the Fourth Amendment of the Constitution was violated by the compliance officer’s inspection of his camp.

4. Standard 29 CFR § 1910.142 and the subsection thereunder were validly adopted and promulgated by the Secretary of Labor pursuant to section 6(a) of the Act.

5. Respondent is an employer of the migrant farm laborers housed at the Mehlenbacher Scholes farm labor camp.

6. Respondent’s migrant farm labor camp is an occupational workplace under the Act.

7. On October 15, 1975, respondent was not in violation of 29 CFR § 1910.142(b)(1).

8. On October 15, 1975, respondent was in nonserious violation of 29 CFR §§ 1910.142(b)(8) (item 5), 1910.142(d)(4) (item 6), 1910.142(h)(1) (item 8), and 1910.142(k)(1) (item 10).

ORDER

Due deliberation having been had on the whole record, it is hereby

ORDERED that the motion of Program Funding, Inc., to submit an Amicus Curiae brief is granted; it is further

ORDERED that complainant’s motion to withdraw items 1, 2, 3 and 9 of the citation, and to reduce item 7 to a de minimis violation is granted; it is further

ORDERED that items 1, 2, 3 and 9 of the nonserious citation are vacated; it is further

ORDERED that item 7 of the citation is amended to reflect a de minimis violation, and as amended is affirmed; it is further

ORDERED that item 4 of the citation (29 CFR § 1910.142(b)(1) is vacated; it is further

ORDERED that item 5 of the citation is amended to delete reference to ‘all doors were not self closing’, and as amended is affirmed; it is further

ORDERED that items 6, 8 and 10 of the nonserious citation are affirmed.

JEROME C. DITORE

JUDGE, OSHRC

Dated: August 19, 1976

New York, New York

[*] Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.

[2] The exception concerns item 10 of the citation. Respondent contends that compliance with the standard cited in this item would be impossible. Inasmuch as respondent raises this issue for the first time on review, it is not properly before the Commission. Gulf Stevedore Corporation, 77 OSAHRC 135/E11, 5 BNA OSHC 1625, 1977-78 CCH OSHD para. 21,975 (No. 76-926, 1977).

[3] A Commissioner may vote simply to avoid an impasse. Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

[4] The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.) cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily required if a party requested it. 348 F.2d 798, n. 14.

[5] Respondent was also cited with five other nonserious violations (items 1, 2, 3, 7 and 9 of citation). By undated motion received June 3, 1976, subsequent to the hearing herein, complainant seeks to withdraw items 1, 2, 3 and 9 and to reduce item 7 to a de minimis violation. No party has objected to the motion. The motion is granted. Issues raised by items 1, 2, 3, 7 and 9 are rendered moot and are not considered herein. The reduction of item 7 to a de minimis violation places respondent under no obligation to comply (see OSHA Field Operations Manual, p. VIII–5). No penalties were proposed for the above items of the citation.

[6] Reference key: T. refers to pages of hearing minutes.

[7] Other defenses relating to the Constitutionality of the Occupational Safety and Health Act of 1970, i.e., right to trial by jury and the unlawful delegation of legislative power to the Secretary of Labor, are beyond this Judge’s authority to determine or resolve.

[8] Room 21 also cited but this is a boiler room. Complainant admits the standard does not apply to the boiler room (T. 153).