“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14801 GRIFFIN & BRAND OF McALLEN, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 9, 1978DECISIONBefore CLEARY, Chairman; and BARNAKO, Commissioner.CLEARY, Chairman:??????????? Followingan inspection of a farm at which a migrant worker crew picked melons and livedduring the 1975 season, the Secretary of Labor issued two citations chargingrespondent, Griffin and Brand of McAllen, Inc., which had hired the crew, withviolating the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651 etseq. [hereinafter ?the Act? or ?O.S.H.A.?]. Citation No. 1 alleges thatrespondent failed to comply with six standards requiring the posting ofinformation and maintenance of certain records pertaining to safety and health.Citation No. 2 alleges a failure to comply with fourteen standards pertainingto the condition of housing used by the migrant workers.? Respondent timely contested the citations.??????????? Thecase was heard by Administrative Law Judge Harold A. Kennedy, who vacated thecitations on the ground that respondent was not the employer of the migrantworkers because their crew leader was an independent contractor. The Secretaryof Labor took exception to the vacation and petitioned for review. The petitionwas granted and review of the Judge?s decision was ordered by me pursuant tothe authority granted by section 12(j) of the Act. We believe that the Judgeerred in failing to hold that respondent was the employer of the migrantworkers.I. Facts??????????? Respondentcultivates, harvests, and markets fruits and vegetables in southern Texas. Itharvested and marketed the 1975 cantaloupe crop grown by Mike A. Burkholder onland he had leased. Respondent?s top field representative, Red Martin,supervised the harvesting, but the picking was done by a migrant farm workercrew of eighteen men, none of whom was listed on respondent?s employee payroll.[1] On several occasions,respondent supplied conveyors to lift melons into trucks, but respondent?spayroll employees operated the conveyors. The trucks used to haul the melonswere owned and operated by the migrant crew?s chief, Humberto Bazan.??????????? Bazanand his crew were not obligated to work exclusively for respondent, and hadworked for other harvesters. The crew nonetheless had picked onions, peppers,and melons for respondent at various farms between March and September eachyear since 1969. In the late spring of 1975, Bazan was told by Red Martin thatwork picking melons was available near Presidio and Pecos, Texas. Bazanpreferred to work on the farm near Pecos because he knew that housing wasavailable on the farm.[2] He and his crew were hiredto work on the farm near Pecos. They drove to the farm in Bazan?s trucks andmoved into the houses on the farm several days before work began.??????????? Respondenthad no direct dealings with crew members during the harvesting. Martin toldBazan where and when to pick melons, and what quality and size of melons shouldbe picked.[3] Bazan in turn relatedthese instructions to crew members. Bazan alone had the authority to hire,fire, discipline, and direct the work of individual workers. Martin testifiedthat he would not discipline a crew member for misconduct or improper work, butwould bring such conduct to Bazan?s attention. Martin also testified, however,that the entire crew would be fired if Bazan failed to correct a problem asMartin requested.??????????? Respondentpaid Bazan and his crew at the same rate and in the same manner as it paid allother crews picking melons. There was no negotiation over pay rates. Bazan waspaid for hauling melons in his trucks to the packing shed.[4] Based on daily reportsfiled by respondent?s field men and weekly reports filed by Bazan, Bazan alsowas paid $2 per hour for each crew member. Each crew member?s gross pay of$1.80, the prevailing minimum wage, came out of the $2 paid to Bazan. Bazan andthe other crew leaders working for respondent near Pecos hired an accountant tohandle social security and income tax records and withholding for their crews.Respondent received copies of Bazan?s payroll records in order to assure thatBazan properly paid his crew.[5]II. Discussion and Conclusion??????????? Thereis no single criterion for determining the existence of an employer?employeerelationship. The primary test at common law is known as the right of control.If an alleged employer controls both the results of work and the means by whichworkers accomplish the result, the workers are considered to be his employees.The National Labor Relations Board uses this test, although it is applied inlight of the economic realities of each employment relationship. DeatonTruck Lines, Inc., 143 NLRB 1372, 53 LRRM 1496 (1963), pet. for rev.dismissed, 337 F.2d 697 (5th Cir. 1964). A variety of factors aresignificant under this test. See, e.g., Standard Oil Co. 230 NLRB No.137, 96 LRRM 1294 (1977).??????????? Theso-called economic realities test, considered in light of a statute?s purposes,is used in applying remedial legislation that Congress did not intend to belimited to employment relationships defined by common law principles. RutherfordFood Corp. v. McComb, 331 U.S. 722 (1947). This test is used in casesarising under the Fair Labor Standards Act, 29 U.S.C. ?\u00a0201 et seq. (id.);the Social Security Act, 42 U.S.C. ? 301 et seq. (United States v. Silk,331 U.S. 704 (1947)); and the Occupational Safety and Health Act[6] (Wheeling-PittsburghSteel Corp., 4 O.S.H. Cas. (BNA) 1578, 1976-77 CCH OSHD para. 20,968 (No.7390, 1976)).??????????? Whetherrespondent is an employer of the migrant workers does not depend on isolatedfactors. The Commission has considered the following questions whileidentifying an employer: (1) whom do the workers consider their employer; (2)who pays the workers? wages; and (3) who has the responsibility to control theworkers. Weicker Transfer and Storage Co., 75 OSAHRC 29\/A2, 2 BNA OSHC1493, 1974-75 CCH OSHD para. 19,215 (Nos. 1362 & 1373, 1975). Otherrelevant inquiries under the economic realities test include: (1) does thealleged employer have the power to control the workers; (2) does the allegedemployer have the power to fire, hire, or modify the employment condition ofworkers; (3) does the workers? ability to increase their income depend onefficiency rather than initiative, judgment, and foresight; and (4) how are theworkers? wages established. See Hodgson v. Griffin and Brand of McAllen,471 F.2d 235 (5th Cir. 1973), cert. denied, 414 U.S. 819 (1973).??????????? Thecrew leader alone contracted with respondent, or other harvesters, for the workof the crew and alone had the right to hire, fire, and discipline members ofthe crew. The crew leader alone gave work instructions to the crew. Bazan alonehad the duties of paying his crew and handling the paperwork connected with thepayment. Thus, it appears from the formal structure of the employmentrelationship between respondent and the migrant workers? crew leader that theleader was an independent contractor, as respondent and the crew leadertestified that he was. Formal technicalities are not determinative, however, ifthey present a false image of the employment relationship. See e.g., EurekaNewspapers, Inc., 154 NLRB 1181, 60 LRRM 1119 (1965).??????????? Migrantfarm workers often receive insufficient income to permit the purchase ofvehicles necessary for moving from area to area as harvesting seasons change.This causes employment uncertainty for the workers and those harvesters whoneed the workers. The uncertainty has been relieved in part by the appearanceof ?middlemen? who, for a fee, recruit, furnish, and transport migrant workersand contract for their services. These middlemen are known as farm laborcontractors and must register as such with the Department of Labor. 7 U.S.C. ??2042(b) & 2043. Bazan was a registered farm labor contractor. Bazan?soccupation and rights as a labor contractor should not be confused with theharvesting work performed by him and his crew.??????????? Duringthe harvesting, Bazan was, in effect, respondent?s foreman, through whom workinstructions were given to the migrant workers. Picking cantaloupe is not acomplicated task and therefore it would not have been necessary to give thefarm crew detailed instructions, especially because the crew previously hadpicked melons for respondent. Martin nonetheless told Bazan where and when topick the melons. More importantly, Bazan was instructed as to the ripeness andsize of melons that should be picked. The giving of detailed work instructionsoften provides an indication of an employer-employee relationship, but wheredetailed instructions are inappropriate, possession of the ultimate power ofdirection and control also indicates the existence of such a relationship. Cf. RinglingBros.?Barnum & Bailey Combined Shows, Inc. v. Higgins, 189 F.2d 865 (2dCir. 1951). Respondent?s refusal to permit Bazan?s experienced crew to use itsdiscretion demonstrates respondent?s ability and interest in maintainingcontrol over the harvesting. The fact that respondent conveyed workinstructions to the migrant workers through their chief, rather than speakingto the workers directly, does not suggest otherwise. Work instructions,especially those concerning uncomplicated physical labor, often are given onlyto a foreman who must relate the instructions to the work crew.??????????? Theability to fire and discipline workers is important in assuring that thequality of their work will not decline. Consequently, possession of thatability is a strong indication of the existence of an employer-employeerelationship. Respondent did not possess the right to fire or discipline crewmembers, but it clearly had the power to achieve such ends. Martinunequivocally testified that he would fire the entire crew if Bazan did nottake whatever steps Martin requested to correct what he believed to be aproblem created by a crew member. Respondent argues that it is significant thatMartin would not discipline a migrant worker personally. This argument is notpersuasive in light of Martin?s testimony that neither would be disciplinerespondent?s payroll employees but would refer employee misconduct to theemployee?s supervisor.[7] It is not realistic toargue that Bazan?s right of control could deter respondent from exercising itspower of control.??????????? Respondenthad exclusive control over the wages paid to the migrant workers. Respondentdid not bargain over wages, it paid the prevailing minimum hourly wage of $1.80to all workers who picked melons during the 1975 seasons. Respondent?s controlwas not altered by arranging for Bazan to process the workers? pay.[8] Indeed, Martin testifiedthat respondent used the payroll records received from Bazan to monitor hispayments to the crew in order to assure that crew members received $1.80 perhour. The basic wage was not dependent upon profits from the harvest or uponthe efficiency of the workers. Bonuses of up to eight cents per hour weregranted, but, as Martin testified, they did not differ from bonuses cutomarilygiven to corporate employees for exceptional work. A worker?s inability toincrease his income through initiative, judgment, and foresight is anindication that the worker is an employee and not an independent contractor.See News-Journal Co. v. National Labor Relations Board, 447 F.2d 65 (3dCir. 1971), cert. denied, 404 U.S. 1016 (1972).??????????? Theimportant difference under the economic realities test between legal authorityand practical power is clearly exhibited by this case. While Bazan retained allthe rights typically possessed by an employer\/independent contractor,respondent effectively controlled the exercise of those rights. Indeed, thefacts of this case do not differ in any important respect from the facts of Hodgsonv. Griffin and Brand of McAllen, Inc., supra, in which the Fifth CircuitCourt of Appeals held respondent to be an employer of migrant workers for thepurposes of the Fair Labor Standards Act. The court reached this conclusionafter considering several factors, among which were that Griffin and Brand paidmigrant workers directly and withheld income tax and social security payments.After the decision in that case was issued, respondent shifted theresponsibility for processing the migrant workers pay to crew leaders. We donot find this shift in responsibility to be significant because respondentretained the ability to establish wage rates, which, as Martin testified,routinely were fixed at the prevailing legal minimum. A modification in thelegal or formal aspects of an employment relationship does not alter therelationship for the purposes of the Act if the practical or substantiveaspects of the relationship remain unchanged. Cf. Mednick v. AlbertEnterprises, Inc., 508 F.2d 297 (5th Cir. 1975).??????????? TheSecretary relies on Rutherford Food Corp. v. McComb, supra, to supportthe argument that cases arising under the Fair Labor Standards Act arepersuasive authority in cases arising under O.S.H.A. Respondent argues thatF.L.S.A. cases are irrelevant to the issue of an employment relationship underthe Act because the term employer is defined more broadly by F.L.S.A. than byO.S.H.A. It is not necessary to pass on the relative scope of the definition ofemployer under the two acts in order to disagree with respondent?s argument.The economic realities test is applied in cases arising under both acts toascertain the alleged employer?s actual ability to control the work of allegedemployees. In the case cited by the Secretary, the Supreme Court stated thatdecisions in cases defining the scope of the employee?employer relationship forthe purposes of one piece of remedial legislation are persuasive in theconsideration of a similar coverage under other remedial acts. The cases uponwhich the Court relied arose under the National Labor Relations Act of 1935 29U.S.C. ? 151 et seq., and the Social Security Act of 1935, 42 U.S.C. ? 301 et seq.At that time, the economic realities test was used to characterize employmentrelations at issue in cases arising under these acts. United States v. Silk,supra. Accordingly, we reject respondent?s argument.??????????? Ofcourse, decisions in cases arising under one act are not dispositive of casesarising under a different act if the purposes of the acts differ. The purposesof the Fair Labor Standards Act and the Occupational Safety and Health Act arenot identical, but they do overlap to some extent. One of the primary purposesof the former statute is to eliminate substandard wages and excessive hours ofwork in order to improve the health, efficiency, and general well-being ofworkers. 29 U.S.C. ? 202; Southland Gasoline Co. v. Bayley, 319 U.S. 44(1943). The purpose of the latter act is to promote the safety and health ofworkers by, among other things, eliminating or reducing hazardous workingconditions. Section 2(b) of the Act. Thus, both statutes have, as their design,improvement of working conditions and the well-being of employees. Both piecesof legislation impose duties on employers who, as a class, are more capablethan transient workers of assuring adequate wages and work free of hazardousconditions. See generally Mednick v. Albert Enterprises, Inc., supra,and cases cited therein.??????????? TheAdministrative Law Judge correctly noted that the Act is not to be given atechnical or narrow construction. Yet the Judge, apparently feeling constrainedto restrict the term ?employer? to what he called the term?s ?plain meaning,?[9] relied heavily onformalities, such as who withheld social security payments and who had theright rather than the power of control, in characterizing the employmentrelationship between respondent and the migrant workers. As the cases citedabove evidence, however, the term ?employer? is one of art in remediallegislation that is to be defined according to the statutory context in whichit is found and the practical realities of the employment relationship beingscrutinized. After careful analysis, we are persuaded that respondent was theworkers? employer for the purposes of the Act.??????????? Accordingly,it is ORDERED that the Judge?s decision is vacated and this case is remandedfor a decision on the merits of the two citations issued to respondent.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryBY: Gloria W. WhiteActing Executive SecretaryDATED: JUN 09, 1978\u00a0Commissioner COTTINE took no part in theconsideration or decision of this case for the reasons set forth in his separateopinion.SEPARATE OPINION??????????? Asa new member of the Commission, I must resolve the issue of my participation inpending cases. It is also necessary for me to set out the principles guiding mydecision on this important issue.??????????? Inthis case, Chairman Cleary and Commissioner Barnako reached a unanimousdecision on the merits before I received my commission on May 1, 1978. Adecision was already in preparation when I assumed office. I have concludedthat the wisest exercise of discretion is to decline to participate in thiscase even though a new Commission member has authority to participate inpending cases. It should be emphasized that by declining to participate Iexpress no opinion on the procedural or substantive issues in this case or on theappropriateness of the accompanying order.Discretion of Commission Members??????????? Asa matter of law, it is not necessary for all Commission members to participatefor an agency to take official action. In Drath v. FTC, 239 F.2d 452(D.C. Cir. 1956), cert. denied 353 U.S. 917 (1957), the Federal TradeCommission issued a cease-and-desist order with only three of its five membersparticipating. The Court of Appeals rejected petitioner?s contention that theFTC can act in its adjudicatory capacity only when all members participate,except when there is a vacancy. The court ruled that official action can betaken by the majority of the requisite quorum. Also Frisher & Co. v.Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930) cited approvingly in FTC v.Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f)of the Occupational Safety and Health Act, 29 U.S.C. ? 661(e), provides:Forthe purposes of carrying out its functions under this chapter, two members ofthe Commission shall constitute a quorum and official action can be taken onlyon the affirmative vote of at least two members.???????????? Thus,the unanimous decision already reached in this case satisfies the quorum andofficial action requirements of the Act and my participation is not necessaryfor the Commission to carry out its adjudicatory functions in this particularcase.??????????? However,it is also settled that a new member of an administrative agency mayparticipate in pending cases. For example, a new member of the CivilAeronautics Board who had not participated in previous proceedings was entitledto vote and break an existing tie where he had familiarized himself with therecord. Western Airlines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing UnitedAir Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960)[10]. InUnited the court indicated that, where a member voting with the majoritywithout hearing oral argument ?had the record before him and the benefit ofbriefs?, there was no abuse of discretion in his participation, 281 F.2d at 56.There are numerous other cases supporting this holding. The clearest statementof law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798(D.C. Cir. 1965):Thedecisions of numerous courts and administrative agencies establish that, evenwithout agreement of the parties, a member of an administrative agency who didnot hear oral argument may nevertheless participate in the decision where hehas the benefit of the record before him. [footnotes omitted] \u00a0348 F.2d at 802.[11] SeeAu Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036,1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182& n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authorityto participate in all cases pending before the Commission on assuming office.??????????? Thougha new member may participate in all pending cases, particularly those involvingan impasse, the decision remains a matter of discretion since adjudicatorydecision may be upheld on a majority of a quorum. In FTC v. Flotill prod.,389 U.S. 179 (1967) rev?g 358 F.2d 224 (9th Cir. 1966), an FTC memberappointed to fill one of two vacancies, declined to participate because he hadnot heard the oral argument. Thus, three of the possible four Commissionersactually participated in the decision. As a result, the FTC issued acease-and-desist order based on the affirmative vote of only two members.Despite its obvious impact on the number of members constituting a majority,the Court did not review the exercise of discretion by the new member. Instead,the Court accepted the abstention at face value and upheld the action of thetwo members of the FTC. See also La Preyre v. FTC, 366 F.2d 117 (5thCir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965).In addition, administrative decisions involving two or more abstentions havebeen upheld by reviewing courts without question or comment on the grounds forthese abstentions. All that was necessary to sustain the agency decision was amajority of the required quorum. E.G., Greater Boston Television Corp. v.FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied 403 U.S.923 (1971).Decision Not to Participate??????????? Idecline to participate in this case because a majority of the Commission hasreached agreement on the merits and my vote would have no effect on theoutcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako havereached a unanimous decision, my participation would delay the issuance ofdecisions and conflict with the goal of a prompt and efficient decision-makingprocess. See generally Atlas Roofing Co. Inc. v. OSHRC, 430 U.S. 442, 97S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir.1975), citing 5 U.S.C. ? 555(b). Since abatement is stayed until the Commissionenters a final order, 29 U.S.C. ? 659(b), additional deliberations would delaythe control of hazardous working conditions in any case where the Commissionhas determined that a violation of the Act exists. That result would be inconsistentwith the statutory purpose to assure so far as possible safe and healthfulworking conditions for every working man and woman. 29 U.S.C. ? 651(b).??????????? Iwill, however, participate fully in all cases in which previous Commissiondeliberations have resulted in a one-to-one deadlock. Decisions by an equallydivided Commission are without precedential value, e.g., Life SciencesProducts Co., 77 OSAHRC 200\/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCHOSHD ?22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir.Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission?sadministrative law judges. Moreover, these decisions also promote needlesslitigation in the U.S. Courts of Appeals to decide issues which shouldinitially be determined by the Commission, because its members have specializedtraining, education, and experience in occupational safety and health. 29U.S.C. ? 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at1264, 1272; Keystone Roofing Co. Inc. v. OSHRC, supra at 963-964.Administrative resolution of pending issues also promotes a more uniformapplication and development of occupational safety and health law. Afterreading the record, I will participate in the consideration and decision ofthese cases.Conclusion??????????? Mydecision not to participate in pending cases which have reached a unanimousdecision by my colleagues, but to participate in those cases with unresolvedissues, promotes the prompt adjudication of cases. It also assures the partiesand the public of the full benefit of Commission review. Both of these resultsare essential in deciding cases affecting the lives, health and safety ofAmerican workers, the operation of American business, and the effectiveadjudication of cases by the administrative law judges.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 14801 GRIFFIN & BRAND OF McALLEN, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 28, 1978DECISION AND ORDERAppearances:James F. Gruben, Esq., and Heriberto deLeon, Esq., of Dallas, Texas, for the Secretary\u00a0H. Hollis Rankin, III, of McAllen, Texas, forthe Respondent.\u00a0Harold A. Kennedy, Judge, OSHRC:??????????? Followingan inspection of a place of employment described as ?Berkholders Farm, 7 milesnortheast of Coyanosa, Texas . . . produce farm labor housing,?[12] the Complainant Secretaryof Labor on August 13, 1975, issued two citations charging the RespondentEmployer with violating the Occupational Safety and Health Act of 1970 byfailing to comply with certain safety and health standards issued under the Act.The first citation, designated Citation No. 1 (Non-Serious), alleged thatRespondent had failed to comply with six standards requiring the posting ofinformation and maintenance of certain records pertaining to safety and health.The specific charges[13] read as follows:ItemStandard citedDescription\u00a0 Item Standard Cited Description 1 29 CFR 1903.2(a) \u00a0 Employer had not posted in a prominent place the standard poster informing employees of the job safety and health protection provided under the Occupational Safety and Health Act of 1970. \u00a0 \u00a0 2 29 CFR 1904.2(a) The employer was not maintaining the standard log of occupational injuries and illnesses, OSHA Form 100 as required by the Act. \u00a0 3 29 CFR 1904.4 The employer was not maintaining the supplementary record of occupational injuries and illnesses, OSHA Form 101 as required by the Act. \u00a0 4 29 CFR 1904.5(a) An annual summary of occupational injuries and illnesses had not been compiled for this establishment. \u00a0 5 29 CFR 1904.5(d) \u00a0 The employer did not post, and keep posted, a copy of the establishment?s annual summary of occupational injuries and illness, OSHA Form 102, during the period from February 1 until March 1 as required by the Act. \u00a0 6 29 CFR 1904.6 The employer did not retain records of occupational injuries and illnesses at the establishment as required by the Act. \u00a0 \u00a0??????????? Thesecond citation, designated Citation No. 2 (Serious), alleged that Respondentfailed to comply with 14 different standards pertaining to temporary laborcamps. Such charges, which were later reduced to nonserious ones (Para. III ofthe complaint), read as follows: Item Standard Cited Description 1A 29 CFR 1910.142(a)(1) \u00a0 Camp site around housing on east side was not adequately drained, due to pool of standing water approximately 35 feet from house. \u00a0 1B 29 CFR 1910.142(a)(3) \u00a0 Grounds and open areas surrounding the shelters were not maintained in a clean and sanitary condition free from rubbish, debris, waste paper, garbage, or other refuse. \u00a0 1C 29 CFR 1910.142(b)(2) \u00a0 Rooms used for sleeping purposes did not contain at least 50 square feet of floor space for each occupant. \u00a0 1D 29 CFR 1910.142(b)(3) \u00a0 Beds or similar facilities were not spaced 36 inches both laterally and end to end and were not elevated at least 12 inches from the floor. (No beds were provided for any of the 4 apartments in the east side building.) \u00a0 1E 29 CFR 1910.142(b)(8) \u00a0 All exterior openings were not effectively screened with 16?mesh material, and screen doors were not equipped with self-closing devices. \u00a0 1F 29 CFR 1910.142(b)(10) \u00a0 Sanitary facilities were not provided for storing and preparing food, (only two refrigerators on east side building which had four occupied apartments.) \u00a0 1G 29 CFR 1910.142(c)(1) An adequate and convenient water supply, approved by the appropriate health authority was not provided. \u00a0 1H 29 CFR 1910.142(d)(9) An adequate supply of toilet paper was not provided in each privy. \u00a0 1I 29 CFR 1910.142(d)(10) Privies and toilet rooms were not kept in a sanitary condition, they were not cleaned at least daily. \u00a0 1J 29 CFR 1910.142(f)(3) An adequate supply of hot and cold running water was not provided for bathing and laundry purposes, nor were containers for heating water provided. \u00a0 1K 29 CFR 1910.142(h)(1) \u00a0 Fly-tight, rodent-tight, impervious cleanable or single service containers, approved by appropriate health authority were not provided for the storage of garbage. \u00a0 1L 29 CFR 1910.142(i)(2) Sleeping quarters of any of the workers or their families were not separate from kitchen and dining area. \u00a0 1M 29 CFR 1910.142(j) \u00a0 No effective measure was taken to prevent infestation by and harborage of animal or insect vectors or pests. \u00a0 1N 29 CFR 1910.142(k) Adequate first aid facilities approved by a health authority was not maintained or made available for the members of the labor camp for the emergency treatment of injured persons. \u00a0 \u00a0??????????? Theabove alleged violations of standards or regulations when viewed together inrelationship to each other constitute a hazard of higher gravity and result inan alleged serious violation.??????????? Nopenalty was proposed for Citation No. 1. A penalty of $550 was originallyproposed for Citation No. 2, but it was later reduced to $350 (Para. VI of thecomplaint). Respondent timely contested all of the charges and the penaltyproposed.??????????? Afterpleadings were filed, the case was heard on January 13 and 15, 1976, in Pecosand Brownsville, Texas, respectively. The Secretary called the following aswitnesses: Mike A. Burkholder, who leases and operates a 3700 acre farm nearCoyanosa, Texas; Jose Candia, Mr. Burkholder?s farm foreman; Humberto Bazan, amigrant labor crew leader; Mrs. Humberto Bazan; David Garcia, an ?OSHA?Compliance Officer; and Edmundo Gonzales, a United, States Department of Laborwage and hour ?compliance specialist.? Respondent called one defense witness,Glen R. ?Red? Martin, Respondent?s ?head field man.???????????? Thepleadings establish that Respondent?s business affects commerce and that it isan ?employer? within the meaning of the Act (Tr. 13). Respondent has, however,raised constitutional and a number of other objections with respect to theSecretary?s actions, many of which I am not empowered to pass on.[14] Respondent asserts thatthe Act authorizes regulation of a ?workplace,? not ?temporary housing.? Healso argues that the temporary housing regulations are vague and, in fact,conflict with other regulations of the Secretary. Respondent?s principalcontentions are, however, that the Secretary has neither established thatRespondent was the employer of the harvest workers who utilized the housing onthe Burkholder Farm nor that Respondent furnished housing, directly orindirectly, to such workers. The evidence bearing on these issues will beexamined.??????????? Mr.Burkholder, who owns a wholesale-retail seed business known as ?3 B SeedCompany? (Tr. 32), made an agreement with the Respondent for the growing andharvesting of 300?400 acres of cantaloupes during the 1975 season. Burkholder,referred to as the ?grower? in the written agreement, was to be responsible forthe growing of the melon crop. Respondent, referred to as the ?shipper,? was tobe responsible for selling of the melons. While the agreement recited that theharvesting and packing was to be the joint responsibility of both the growerand the shipper, Mr. Burkholder and his employees did not assist with theharvesting of the melon crop except on certain occasions when Mr. Burkholder,on request, had sent tractors and drivers into the field to ?pull trucks out ofthe mud? (Tr. 44?5, also 78?84).??????????? Mr.Burkholder summed up the arrangement in these words (Tr. 35):They put up half of the money for growinga crop, then I furnish the management, the machinery for growing the crop. Thenthey harvest and pack the crop. We share the expenses and share the profits.[15]???????????? Theproceeding focuses upon five buildings, referred to as ?housing units,? locatedon the farm. They were built some years before for farm tenants. Some units hadtwo rooms and some had three. All had kitchens and bathrooms. They had been?real nice? but allowed to fall into a state of disrepair (Tr. 22, 34, 67).Four of the units were houses, identified by square boxes labeled #1, #2, #3,and #4 on a map drawn by Witness Burkholder, and the fifth, marked ?A? on themap, was an apartment building. Approximately 35 persons occupied the fourhouses and the apartment house between July 10 and August 5, 1975, the dayafter the Secretary?s inspection (Tr. 23, 29, 120). Persons occupying thehousing units were workers in the Bazan work crew or family members of suchworkers. Such persons included Humberto Bazan, three of his sons, his wife, andtwo grandchildren, and all were transported from Mission, Texas, to theBurkholder farm in trucks owned by Mr. Bazan (Tr. 92?6, 108). Fourteen personsoccupied House #2, the largest unit, but apparently seven of these (men) wentto another unit for sleeping (Tr. 101?07, 147). As the map indicates, the fourhouses are situated along the north side of a road and south of a concreteirrigation ditch (Tr. 76). The houses are approximately 15 yards apart (Tr.21). The apartment building is located some distance away from the houses andon the south side of the road and a dirt irrigation ditch (Tr. 76).??????????? Mr.Humberto Bazan had worked as a crew leader for Respondent for a number of yearsprior to 1975 but not in the Pecos area.[16] (Respondent apparentlyhad harvested crops in the Pecos area in the 1950?s but not after that until1975, Tr. 192.) Mr. Bazan knew of the housing at the Burkholder Farm as he hadworked in the area for others (Tr. 96, 109, 112, 122).??????????? Respondent?shead field man, Red Martin, advised Mr. Bazan that there were crops to beharvested at either Presidio or Pecos, Texas, and that housing would not beavailable at either place. Mr. Bazan chose to go to Pecos because of thehousing units on the Burkholder Farm. Mr. Bazan made a trip to the BurkholderFarm in advance of the harvest and supposedly obtained Burkholder Farm ForemanCandia?s ?okay? (Tr.117) to use the housing there. See Tr. 112?17, 123?25; alsoTr. 97; 196?7.??????????? Mr.Candia could not remember that anyone inquired about use of the housing on theBurkholder Farm, although he did recall seeing Mr. Bazan once when the latterwas cleaning some of the housing units (Tr. 20, 26?7). He testified that hesupervised three full time employees and sometimes other workers for Mr.Burkholder, but he and the farm employees had nothing to do with harvesting ofthe melon crop (Tr. 18?19; also 79 (Burkholder)).??????????? Mr.Burkholder, who apparently first leased the farm near Coyanosa in 1975, paidall farm utilities, which included electricity as well as natural gas forpumping water and heating of the housing units (Tr. 33?39, 41?2).[17] Mr. Burkholder thoughtthe housing on the farm had little, if any, rental value, but he indicated thatharvest hands (and even others, Tr. 40) could use them if they wished to (Tr.36). They were not locked (Tr. 26). Mr. Burkholder said he knew there was aBazan crew that harvested his crop, but he did not know they were staying athis farm until he saw some people there (Tr. 42, 58). He added that he was ?notparticularly happy about it . . . [b]ut they were already there, so I left themthere? (Tr. 79?80).??????????? Mr.Martin testified that Respondent did not furnish Mr. Bazan?s crew or anyharvest hands with housing or transportation (Tr. 195?97). He, and thusRespondent, first learned that there were housing units on the Burkholder Farmonly after the workers and their families had moved into them. He consideredthe housing inadequate and recommended that they move elsewhere. They did notdo so until Compliance Officer Garcia arrived and inspected the housing onAugust 5, 1975. At that time, Mr. Martin told Mr. Bazan that the workers wouldhave to move if they were to work for Respondent (Tr. 200):He wasn?t willing to move. I told him thathe couldn?t work for me if he didn?t move off that farm. Now, I don?t care ifthe man lives there, but his work would be terminated with me. There was no wayhe could live there and work for the company.???????????? Respondentconsidered its crew leader as an ?independent contractor? and so did Mr. Bazan.Both Respondent and Mr. Bazan considered the workers in the Bazan crew asBazan?s employees, not Respondent?s (Tr. 193; 126?7).??????????? Respondentdid not carry Mr. Bazan or any of his crew on its payroll. A bookkeeper wasused by Mr. Bazan and other farm labor contractors to prepare social securityand other government reports. A copy of such reports were supplied toRespondent. Respondent has seen to it that a minimum wage is paid to eachharvest hand?a requirement reportedly imposed upon it by the United StatesDepartment of Labor under the Farm Labor Contractors Act (Tr. 222). The methodof payment for harvesting was to pay the crew leader so much for carrying aload to the produce shed plus a certain amount for each worker. A bonus mightalso be paid, on a piece basis, for quality work. Mr. Martin testified that$6.00 was paid for each truck load carried to Respondent?s shed in nearby FortStockton (actually owned by a Mr. Weinacht, Tr. 193).[18] In addition, $2.00 anhour was paid to the crew leader for each worker on the harvesting crew; thecrew leader retained 20? and remitted $1.80 to the harvest hand.??????????? Thecrew leader was told which field and the kind of produce to harvest. Respondentdid not attempt to supervise the hiring or discharge of a harvest hand anddealt only with the crew leader (Tr. 193?5).??????????? TheSecretary contends that the question of employment relation was settled by Hodgsonv. Griffin and Brand of McAllen, Inc., 471 F.2d 235 (5th Cir. 1973), cert.denied, 414 U. S. 819 (1973) and Hodgson v. Okada, 472 F.2d 965(10th Cir. 1973). I am unable to agree. Cf. Jimmy R. Carlson, OSAHRCDocket No. 14303 (Judge?s decision of March 18, 1976, pending on review).??????????? Firstof all, these were wage and hour cases arising under the Fair Labor StandardsAct (FLSA), which, as the Secretary?s counsel points out, defines employmentterms more ?precisely.? No doubt the terms ?employer? and ?employee? are to bebroadly construed under both the Occupational Safety and Health Act and theFair Labor Standards Act, but the words do not necessarily mean the same undereach. The FLSA defines ?employer? to include (29 U.S.C. 703(d)) ?any personacting directly or indirectly in the interest of an employer in relation to anemployee. . . .? Further, the FLSA defines ?employ? in the broadest possibleterms (29 U.S.C. 203 (g)): ??Employ? includes to suffer or permit to work.???????????? Thereare, of course, similarities in the case at bar and the Fifth Circuit?s Griffinand Brand?s wage and hour decision. In each, Griffin and Branddealt with crew leaders in harvesting produce. Crew leaders used trucks totransport workers to the field and haul harvest from the field to the shed.Griffin and Brand paid crew leaders who, in turn, paid harvest hands ?on alower basis? (on a ?piece rate? as determined by Griffin and Brand in the FLSAcase, primarily on an hourly basis here). But there are factual differences inthe cases too. In the FLSA action, contrary to the case at bar, Griffin andBrand withheld and paid social security taxes on the harvest hands. An ?outsidebookkeeper? had been employed by Griffin and Brand ?to do the ?crew leader?s?social security computations.? Here, however, the crew leader had his ownbookkeeper to keep track of the payroll and file necessary social security reports(copies of which were furnished to the Respondent to insure payment of aminimum wage per government regulations, Tr.207?12, 219?28. It is also apparentthat Griffin and Brand had previously exercised considerable more control overits crew leaders and the harvest workers. In the wage and hour case, Griffinand Brand had given rather detailed directions for harvesting crops?which rowsto pick, the rate of pay, and how to pay it. In any event, the court only heldin Griffin and Brand, supra, that the District Court had not erred in holdingthat the Respondent on the facts there presented was at least a joint employerof a crew leader?s harvest hands for wage and hour purposes. The gist of theCircuit Court?s decision is contained in the following paragraph (471 F.2d at238):We do not think the district court?sconclusion in this case that appellant was a joint employer was clearlyerroneous; on the contrary, we find that it was amply supported by theevidence. Of course, the work necessarily took place on appellant?s premises.The testimony that appellant?s field supervisors supervised the harvest worktends to indicate an employment relationship. The fact that appellant effectedthe supervision by speaking to the crew leaders, who in turn spoke to theharvest workers, rather than speaking directly to the harvest workers does notnegate a degree of apparent on-the-job control over the harvest workers. Thefact that appellant set the rate of pay of the harvest workers, decided whethercrew leaders would pay a piece rate or an hourly rate in a given instance, andhandled the social security contributions for the harvest workers also tend toindicate an employment relationship. Viewing the total work arrangement, weagree with the district court that appellant was a joint employer and thusresponsible for the violations of the Fair Labor Standards Act.[19]???????????? Certainlythe Occupational Safety and Health Act is not to be given a technical or narrowconstruction, and the declared purpose of such remedial legislation?to providea safe place to work for every working man and woman in the Nation?is to begiven effect. Frohlick Crane Service Inc. v. OSAHRC and Brennan, 521F.2d 628 (10th Cir. 1975). However, these rules of construction cannot berelied upon to stretch employment terms beyond their plain meaning and deem aperson an ?employer? of others who are in fact independent contractors oremployees of them. See Allied Chemical & Alkali Workers of America,Local Union No. 1, v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S.Ct.383 (1971).??????????? Viewingthe total work arrangement as disclosed by the record in this proceeding, I amunable to find that the Secretary established that Respondent is an employer,joint or otherwise, of Crew Leader Bazan or any members of his work crew.Significantly, Mr. Bazan regarded himself as an independent contractor and theemployer of the harvest workers. Respondent did so as well. The harvest workerswere on Mr. Bazan?s payroll, not Respondent?s. Mr. Bazan, through hisbookkeeper, deducted social security taxes and filed reports on them. He hiredand fired the harvest workers and, even more important, exercised right ofcontrol over them. See Gilles & Cotting, Inc., 4 OSAHRC 1080 (1973)affirmed (but remanded) Brennan v. Gilles & Cotting, Inc., 504 F.2d1255 (4th Cir. 1974); Southeast Contractors, Inc., v. Dunlop 512 F.2d675 (5th Cir. 1975).[20] To hold Respondent to bethe employer of the harvest workers would, in my view, be unrealistic andinvolve a strained interpretation of the term.[21]??????????? Havingdetermined that Respondent is not the employer of Mr. Bazan or any members ofhis harvesting crew, it is unnecessary to consider the evidence bearing on thecharges or any other issue in the proceeding. It is to be noted that theCommission has recently stated that it will hold a general contractor in theconstruction industry responsible for violation of safety and health standardseven if his own employees were not exposed to the violative conditions. GrossmanSteel & Aluminum Corp., OSAHRC Docket No. 12775, decided May 12, 1976; Anning-JohnsonCompany, OSAHRC Docket Nos. 3694 and 4409, decided May 12, 1976; and BeattyEquipment Leasing, Inc., OSAHRC Docket No. 3901, decided May 13, 1976. Butit stressed that ?our rule is limited in applicability to multi-employer sitesin the construction industry? (Beatty Equipment Leasing, supra). And,thus, ?[t]he rule we have announced constitutes an exception to the generalrule that an employer is liable only when its own employees have access to theviolative conditions? (Grossman Steel & Aluminum Corp., supra). Theinstant matter in no way involves the construction industry.[22]??????????? It isalso to be noted that the decision herein does not hold that the harvestworkers are outside of the protection of the Occupational Safety and HealthAct. It simply holds that the Secretary of Labor cannot hold a party liableunder the Act except as Congress has directed and under principles enunciatedby the Review Commission and the reviewing courts.[23]??????????? Basedon the foregoing, and the whole record, I make the following conclusions oflaw:??????????? 1.Respondent is now, and at all times mentioned herein, an ?employer? within themeaning of section 3 (5) of the Occupational Safety and Health Act of 1970, andthe Commission has jurisdiction of the parties and the subject matter.??????????? 2. Itwas not established that Respondent was an ?employer? of Crew Leader Bazan orany of the harvest workers who occupied the housing units situated on theBurkholder Farm during the 1975 cantaloupe harvesting season.ORDER??????????? Basedon the foregoing, and the whole record, it is ordered that Citation No. 1 andCitation No. 2 issued against Respondent on August 13, 1975, and the relatedproposed penalties, be, and the same are, VACATED.?Harold A. KennedyJudge, OSHRCDated: June 28, 1978[1] It is unclearfrom the record whether more than one crew worked the Burkholder farm. It is clear,however, that respondent hired more than one crew to pick cantaloupe during1975.[2] Respondent didnot learn of the existence of the housing until several days after the migrantworkers began picking melons.[3] Martin was notalways present during the picking, but two other field men employed byrespondent were present.[4] This payment wasmade for the rental of Bazan?s trucks and for Bazan?s services as a driver; itwas not part of the melon picking contract and was not shared with the crew.[5] Respondent wasobligated to do this by ? 211(c) of the Fair Labor Standards Act, 29 U.S.C.?\u00a0201 et seq., and ? 2050c of the Farm Labor Contractor?s RegistrationAct, 7 U.S.C. ? 2041 et seq.[6] Application ofthe Act is not restricted to common law employer?employee relationships. FrohlickCrane Service, Inc. v. O.S.H.R.C., 521 F.2d 628 (10th Cir. 1975); Brennanv. Gilles & Cotting, Inc., 503 F.2d 1255 (4th Cir. 1974).[7] Martin raised twoexceptions to this policy; he would discipline payroll employees who were observeddestroying or were observed stealing respondent?s property, but the record doesnot indicate that the migrant workers were in a position to perform either ofthese actions.[8] Bazan retained 20cents of the $2 he was paid for each hour of work by a member of his crew. Itis unclear what this 20 cent payment was intended to cover. It may have beenremuneration for Bazan?s services as a labor contractor, or for acting ineffect as respondent?s foreman, or it may have been intended to cover the costof hiring an accountant Bazan needed to handle the workers? payroll. In anyevent, the payment did not alter respondent?s control over the wages paid tocrew members.[9] The Judge cites AlliedChemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh PlateGlass Co., 404 U.S. 157 (1971), a case arising under the National LaborRelations Act, to support his restrictive definition of employer. As theSupreme Court noted, however, Congress expressly rejected the Court?s initial,expansive definition of employer by amending the N.L.R.A. in order to restrictthe term to its common law underpinnings. Id at 167-168. The Act has not beenso restricted. Clarkson Construction Company v. O.S.A.H.R.C., 531 F.2d451 (10th Cir. 1976).[10] A Commissionermay vote simply to avoid an impasse. Public Service Commission of State ofN.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 inresult).[11] The Court distinguishedWIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.) cert. denied, sub nom. CrosleyBroadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oralargument was statutorily required if a party requested it. 348 F.2d 798, n. 14.[12] The transcriptindicates that the lessor of the farm near Coyanosa, Texas, is a Mr.Burkholder, not Berkholders (Tr. 32).[13] Because this caseis being disposed of without consideration of the merits, the cited standardswill not be set forth.[14] See HamiltonLumber Company, OSAHRC Docket No. 9764, decided May 4, 1976, and casescited therein. I am able to rule on Respondent?s contention that the citationwas not issued with ?reasonable promptness.? The citation was issued eight daysafter the inspection and Respondent did not show any prejudice resulted as aresult of any alleged delay. Respondent?s objection on this ground musttherefore be overruled. See Concrete Construction Corp., OSAHRC DocketNo. 2490, decided April 8, 1976. Respondent?s answer also raises questionsabout the Secretary?s inspection, pointing out that it had no ?chance toinspect the investigator?s credentials or to accompany the inspectors on theirinspection.? Respondent has not pressed this issue during trial or in hisbrief, and I must conclude that this objection has been abandoned.[15] The writtenagreement is dated February 17, 1975, and is in evidence as Respondent?sExhibit 1.[16] Mr. HumbertoBazan has been a migrant crew leader for a member of years and acted in suchcapacity in 1975. However, he was registered as an employee of a crew leader orfarm labor contractor with the United States Department of Labor in 1975. Hisson, Frederico Bazan, was listed as a crew leader in 1975. See Tr. 186?89,94?97; also Tr. 120?21. Mr. Humberto Bazan testified that he is teaching thebusiness to his son (Tr. 121).[17] Apparently therewas electrical service to the housing units during the melon harvesting season,although Farm Foreman Candia responded to the question on this point, ?Nowthere is? (Tr. 26). There was running water in the housing units although thewater in the tanks would sometimes get low and need to be replenished by anoccupant or other person. See Tr. 38, 54?5, 69?71, 98?100; 146.[18] Respondentemployed two or more field men to assist Mr. Martin in harvesting and packingthe 1975 melon crop (Tr. 45, 82, 191?2).[19] Okada,supra, was also a wage and hour case and easily distinguishable. Okada, who washeld to be a joint employer (along with the crew leader) of harvest workersworking on its premises, ?provided the only regular supervision of the worksand the workers were ?acting directly or indirectly in the interest of anemployer in relation to the employees? (472 F.2d at 968-9).[20] The mere factthat Respondent?s field men pointed out to the crew leader the type of melon tobe picked did not make Respondent the employer of the crew leader of any of hisharvest hands. See, for example, The Standard Oil Co. v. Anderson, 212U.S. 215 (1909); Frohlick Crane Service, Inc., v. OSAHRC and Brennan,supra.[21] The Supreme Courtin Allied Chemical & Alkali Workers, supra, after reviewing itsdecision in NLRB v. Hearst Publication, 322 U.S. 111 (1944) upholdingthe Labor Board?s determination that newsboys were ?employees,? quoted in partfrom a Congressional report as follows (404 U.S. at 167):?** * In the law, there always has been a difference, and a big difference,between ?employees? and ?independent contractors.? ?Employees? work for wagesor salaries under direct supervision. * * * It is inconceivable that Congress,when it passed the Act, authorized the Board to give to every work in the actwhatever meaning it wished. On the contrary, Congress intended then, and itintends now that the Board give to words not far-fetched meanings but ordinarymeanings.? * * *?Finding the ordinary meaning of?employee? not to include retired workers who ?have ceased to work for anotherfor hire,? the Supreme Court reversed the Labor Board?s determination to thecontrary.[22] Since theCommission has stated that it still adheres to the principle that there must bean employment relation between the cited employer and affected workers (exceptin multiple employer construction situations), it is not necessary to decidewhether Respondent could be held to have furnished the housing on theBurkholder Farm. See Gilles & Cotting, Inc., supra, SoutheastContractors, Inc., v. Dunlop, supra. It could be argued that Respondent didfurnish the housing only on the basis that its grower-partner, Mike Burkholder,ultimately assented to its use by the harvest hands and their families. Ofcourse, a partner?s action only for himself is not chargeable to thepartnership. See Caswell v. Maplewood Garage, 149 A. 746, 73 A.L.R. 433(N.H. 1930).[23] The Secretary canundoubtedly proceed against the farm labor contractor or crew leader as theemployer under the Occupational Safety and Health Act and under the Farm LaborContractors Registration Act in connection with the furnishing of substandardhousing to harvest workers (7 U.S.C. 2041 et seq.).It is not disputed that the housingfurnishing was largely substandard.”