“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15904 WALTER C. MEHLENBACHER, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 24, 1978DECISIONBefore CLEARY, Chairman;BARNAKO, and COTTINE, Commissioners.[*]BY THE COMMISSION:??????????? On August 19, 1976, Administrative Law Judge Jerome C.Ditore issued a decision ruling on several violations alleged by the Secretaryto have been present at respondent?s temporary labor camp. Respondentpetitioned for review of the Judge?s decision, raising, with one exception,[2] the same issues that hadbeen considered and decided by the Judge. Having reviewed Judge Ditore?sdecision, we conclude that his findings of fact and conclusions of law aresupported by the evidence and comport with Commission precedent. His decisionwith respect to the existence of an employer-employee relationship is in accordwith our recently issued decision in Griffin & Brand of McAllen, Inc.,78 OSAHRC 48\/C13, 6 BNA OSHC 1702, 1977-78 CCH OSHD para. 22,829 (No. 14801,1978).??????????? We note also that the decision of the U.S. Supreme Courtin Marshall v. Barlow?s, Inc., 98 S.Ct. 1816 (1978), even ifretroactively applied to the facts of this case, would not affect the result.The Judge properly ruled that the inspection in this case was conducted afterthe compliance officers received voluntary consent both from respondent and theoccupants of particular dwelling units at the labor camp. See Marshall v.Western Waterproofing Co., Inc., 560 F.2d 947 (8th Cir. 1977).??????????? We commend Judge Ditore on his well-reasoned decisionand, as modified, adopt it as the decision of the Commission.?So ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: AUG 24, 1976\u00a0??????????? CommissionerCOTTINE took no part in the consideration or decision of this case for thereasons set forth in his separate opinion.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 I expressno 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)[3]. In United thecourt indicated that, where a member voting with the majority without hearingoral argument ?had the record before him and the benefit of briefs?, there wasno abuse of discretion in his participation, 281 F.2d at 56. There are numerousother cases supporting this holding. The clearest statement of law is set forthin 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.[4] See Au 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 authority to participate inall 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 Commission hasdetermined that a violation of the Act exists. That result would beinconsistent with the statutory purpose to assure so far as possible safe andhealthful working 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??????????? My decision not to participate in pending cases whichhave reached a unanimous decision by my colleagues, but to participate in thosecases with unresolved issues, promotes the prompt adjudication of cases. Italso assures the parties and the public of the full benefit of Commissionreview. Both of these results are essential in deciding cases affecting thelives, health and safety of American workers, the operation of Americanbusiness, and the effective adjudication of cases by the administrative lawjudges.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15904 WALTER C. MEHLENBACHER, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 19, 1976Appearances:Francis V.LaRuffa, Regional Solicitor United States Department of Labor1515 Broadway,Room 3555New York, New York10036Attorney forcomplainant by Barnett Silverstein, Esq., of counsel\u00a0Walter C.MehlenbacherR.D. 1 Castile,New YorkFor the respondent?DECISIONAND ORDERDitore, J.PRELIMINARYSTATEMENT??????????? This is a proceeding pursuant to section 10 of theOccupational Safety and Health Act of 1970 (29 U.S.C. ? 651, et seq.,hereinafter called the Act), contesting a citation for nonserious violations ofoccupational safety and health standards, issued by complainant against respondentunder the authority vested in the complainant by section 9(a) of the Act (29U.S.C. ? 658(a)).??????????? The citation alleges that as a result of an inspection onOctober 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 migrantworkers,? 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 standardspromulgated 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 aspromulgated by the Secretary are as follows:Item 4 of citation: ?Description: Every shelter was notconstructed to provide protection against the elements in that windows werebroken in apartments 11, 20, 21, & 24; thereby creating a potential healthhazard.?Standard as promulgated? 1910.142 Temporary labor camps(a) . . ..(b) Shelter. (1) Every shelter in the campshall be constructed in a manner which will provide protection against theelements.? Item 5 of citationDescriptionAll exterior openings were not effectivelyscreened and all doors were not self-closing; thereby creating a potentialhealth hazard.?EXAMPLE:1. Screens on apartments 2, 11 & 20and doors on all of the apartments were not self-closing.\u00a0Standard as promulgated? 1910.142(b) . . ..(8) All exterior openings shall beeffectively screened with 16-mesh material. All screen doors shall be equippedwith self-closing devices.?Item 6 of citationDescription The toilet facilities were notdistinctly marked for ?Men? and for ?Women? by signs printed in English or witheasily understood pictures or symbols.\u00a0Standard as promulgated? 1910.142 . . ..\u00a0(d) Toilet facilities . . ..(4) Where the toilet rooms are shared,such as in multifamily shelters and in barracks type facilities, separatetoilet rooms shall be provided for each sex. There rooms shall be distinctlymarked ?for men? and ?for women? by signs printed in English and in the nativelanguage of the persons occupying the camp, or marked with easily understoodpictures 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 floorto the roof or ceiling.\u00a0Item 8 of citationDescription There was not one refusedisposal container for each family shelter and the containers provided were notfly-tight or rodent-tight and when located in the yard, were not located on awooden, metal, or concrete stand; thereby creating a potential health hazard.?Standard as promulgated\u00a0? 1910.142 . . ..(h) Refuse disposal. (1) Fly-tight,rodent-tight, impervious, cleanable or single service containers, approved bythe appropriate health authority shall be provided for the storage of garbage.At least one such container shall be provided for each family shelter and shallbe located within 100 feet of each shelter on a wooden, metal or concretestand.?Item 10 of citationDescription:? The temporary labor camp did not have aperson suitably trained and readily accessible to administer first aid at alltimes; thereby exposing employees to potential hazards of delay in first aidtreatment and other emergency care.?Standard as promulgated? 1910.142 . . ..(k) First aid (1) . . ..(2) Such [first aid] facilities shall bein charge of a person trained to administer first aid and shall be readily accessiblefor use at all times.\u00a0??????????? Pursuant to the enforcement procedure set forth insection 10(a) of the Act (29 U.S.C. ?\u00a0659(a)), the respondent was notifiedby letter dated November 4, 1975, from the area director of the Rochester, NewYork, area that the Occupational Safety and Health Administration proposed toassess no penalty for the nonserious violations set forth in items 4, 5, 6, 8and 10 of the citation.ISSUES??????????? 1. Whether any constitutional rights of the respondentunder the Fourth Amendment were violated by the compliance officers ininspecting respondent?s temporary farm labor camp.??????????? 2. Whether the Secretary of Labor, pursuant to theOccupational Safety and Health Act of 1970, in adopting Section 1910.142 andthe subsection thereunder considered whether the ?National Consensus Standard?from which section 1910.142 was derived, was adopted and promulgated by theAmerican National Standards Institute (formerly the United States of AmericanStandards Institute) according to the conditions set forth in Section 3 (9) ofthe Act.??????????? 3. Whether the relationship between respondent and themigrant farm laborers at respondent?s camp was one of landlord and tenant orone of employer and employee.??????????? 4. If the above issues are decided adversely torespondent, whether one or more or all of the nonserious violations existed atrespondent?s camp, and if they existed whether respondent was responsible forthe violations.STATEMENTOF THE EVIDENCE??????????? On October 15, 1975, compliance officers William Wagerand Paul Hanover were assigned the duty of inspecting temporary labor camps. Inthe course of that assignment, the officers inspected the Mehlenbacher ScholesCamp 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 drivingdirections to the owner?s home. The officers went to the home of Mr. WalterMehlenbacher, the owner, and after a short discussion with Mrs. Mehlenbachermet Mr. Mehlenbacher. The officers identified themselves and told Mr.Mehlenbacher that the purpose of their visit was to inspect the MehlenbacherScholes Labor Camp (T. 36, 41).??????????? Mr. Mehlenbacher after questioning the authority andright of the officers to inspect the labor camp, drove off, followed by theofficers 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 toa Mr. Smith, the camp?s migrant labor crew chief. Another discussion was heldas to the officer?s authority to enter the camp?s area where the migrant farmlaborers lived (T. 44, 109, 110, 113; complainant?s admission no.60).??????????? Mr. Mehlenbacher and Mr. Smith did not deny the officersentry to the camp to inspect the general or common areas of the camp. i.e., thekitchen, sanitary facilities, etc., but would not give the officers consent toinspect 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 noviolations in either area, except that the doors leading to the separate toiletfacilities were not designated with words or signs indicating which was themale side and which was the female side. Mr. Mehlenbacher stated to theofficers that painting work was not completed because the migrant farm laborersarrived sooner than expected (T. 49?53). The two areas were found to be exceptionallyclean (T. 50, 55).??????????? The compliance officers believed the lack of ?male? and?female? designations at the toilet facilities created a mental orpsychological health hazard (T. 53).??????????? The camp itself consisted of a cinder block buildingformed in a T shape. The building was about 60 x 80 feet long and 30 to 40 feetwide and occupied about an acre of land. The farm laborers living quarters werelocated on the east and west side of the leg of the T. The kitchen was on thenorth side (T. 53, 54, 128, 130).??????????? There were about 22 rooms or living quarters for themigrant farm laborers. The officers, after identifying themselves and securingpermission from the rooms? occupants, entered and inspected about 15 rooms (T.57, 59?65).??????????? Each room had a large window with an upper and lowersection, with the upper section screened (T. 69). Of the 22 rooms, 15 of whichwere inspected, four were found to have broken windows, in that part of thewindow 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 foradmissions, admitted that rooms numbered 11, 20, 21 and 24, as designated inthe citation and complaint, and broken glass windows. Room 21 was the boilerroom and complainant admits that the broken glass in the window of this roomswas 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 3of the 22 rooms, violated a health hazard by failing to protect the occupantsagainst the elements, i.e., wind, rain, etc.??????????? The officers further observed that three rooms numbered2, 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 itsscreening missing (T. 67, 68, 71, citation, complaint.) These three rooms wereoccupied (T. 70). Respondent in his answer to complaint?s request foradmissions (No.24), admitted that rooms 2, 11 and 20 were inadequatelyscreened. Although they observed no insect problem, the officers believed thatthe inadequate screening of the three rooms created a health problem in that itallowed flies and other insects to enter these rooms (T. 76, 135, 162).Complainant admits that the citation and complaint erroneously stated that therooms? doors had to be self-closing. This requirement only applied to screendoors of which there were none at the camp (T. 130).??????????? The officers also observed 6 to 8 garbage containers inthe camp yard. The containers were 55 gallon drums, one or two were 20 galloncontainers. The containers contained among other items, organic food material.Some of the containers were covered or partially covered with solid sheet metalcovers, and some were not covered. The containers? covers were neitherfly-tight nor rodent-tight and the containers were not on wooden, metal orconcrete stands (T. 78, 79; admission no. 35 of respondent; Exh. C?4).??????????? The officers further ascertained that the camp did nothave a person trained to administer first aid at the camp. There was anambulance 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 toExhibit R?5. Exhibit R?5, a New York State Department of Labor application for?farm labor contractor certificate of registration? and ?application for permitto operate a farm labor camp,? indicated that Robert Smith, Jr., was the laborcontractor who recruited, transported, supplied and hired farm labor workers,to work at the farm of one Frank Zicari on Route 31, County of Orleans, Villageon 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 becharged room rent at the rate of $1.00 a day per person (T. 116?123).??????????? Compliance officer Paul Hanover also corroborated thetestimony of officer William Wager (T. 146?147).??????????? Walter C. Mehlenbacher, co-owner with his wife of theMehlenbacher Scholes Farm Labor Camp, gave the following testimony (T.169?179).??????????? He admitted that he met with compliance officers Wagerand Hanover, on October 15, 1975 about 1:30 p.m., that he introduced theofficers to Smith, the migrant farm laborers? crew chief; that he challengedthe right of the officers to inspect the camp; and that he reluctantly gave theofficers permission to inspect the kitchen, and the toilet and bathing areas ofthe camp (T. 169?176).??????????? Mr. Mehlenbacher stated that the migrant farm laborers athis camp reside there and pay rent; and that none of the laborers work directlyfor him or receive wages from him. He hires the services of crew chief Smith ona permanent basis to assist in harvesting part of his farm potato crop. He paysSmith for this service. Mr. Mehlenbacher does not have any direct control overthe farm laborers although he does tell a worker sometimes that he is leavingtoo many potatoes on the ground. He does not hire, fire or otherwise direct thework 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 themigrant farm laborers and for other farmers in the area. The laborers pay rentfor the camp housing accommodations with the understanding that if Mr.Mehlenbacher needs them they will show him consideration by doing his farm workwhen 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 6weeks of work during the period from September to October (T.185). He paidSmith $50,000 for work performed on his farm by Smith and his farm laborersduring the year 1975 (T. 201?203).??????????? Mr. Mehlenbacher makes all needed repairs at his campwhen 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 campand reimburses Mr. Mehlenbacher for the cost of the replacement glass (T. 203).??????????? Respondent operates two farm labor camps and the migrantfarm laborers reside at both camps. He charges rent at the rate of $1.00 perday 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 farmlaborers wanted to live (T. 222).??????????? Mr. Mehlenbacher has a valid New York State permit tooperate a farm labor camp for the 1975 season (T. 195?197, 222; Exh. C?5). Afurther application of Robert Smith for a ?farm labor contractor certificate ofregistration? and ?application for permit to operate a farm labor campcommissary? for the period of September 1, 1975 to November 1, 1975, statesthat respondent is the farm owner; that the farm laborers are to work at thefarm of Walter Mehlenbacher and are to be housed at the Mehlenbacher camp onMurphy 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; thatthe farm workers are covered by workmen?s compensation insurance and farmer?sliability 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 threeaffirmative defenses which must be resolved before the merits of this actioncan be reached.[7]??????????? Respondent contends (1) that the compliance officersviolated his rights under the Fourth Amendment to the Constitution in that theyunlawfully entered and searched his migrant farm labor camp which was a placeof residence and not a workplace; (2) that American National StandardsInstitute standard Z 4.4?1968 (hereinafter called ANSI standard Z 4.4?1968) didnot meet the definition of a ?national consensus standard? as defined in theAct, and was therefore unlawfully adopted by the Secretary as OccupationalSafety and Health Standard 29 CFR ?\u00a01910.142 (including the subsectionsthereunder; and (3) that respondent was not the employer of the migrant farmlaborers 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 discussedseriatim.??????????? 1. Fourth Amendment defense.??????????? The evidence of record establishes that respondent onOctober 15, 1975, when he first met the compliance officers at his farm andlater on the same day at his migrant farm labor camp, questioned and challengedthe authority of the compliance officers to enter and inspect the camp. Therecord also establishes that the compliance officers properly identifiedthemselves to respondent and informed him of their authority under the Act toinspect the camp (T. 39?42, 44?49, 174?176; Exh. C?1).??????????? Respondent did not object to an inspection of the camp?sgeneral or common areas, i.e., the kitchen and the bathing and toiletfacilities, but properly told the officers that he could not give his consentto inspect the separate living rooms or quarters of the individual migrant farmlaborers (T. 44, 45, 47?49, 174?176).??????????? The compliance officers did inspect fifteen individualrooms where farm laborers resided. Complainant?s unrefuted evidence establishesthat before the compliance officers entered these rooms they first obtained thepermission and consent of the rooms? occupants. There is no evidence whichindicates that this permission and consent was obtained by coercion, duress orby any other unlawful form of pressure which would negate the voluntary natureof the consent. Nor is there any evidence that the reluctant consent given byMr. Mehlenbacher, the respondent herein, to inspect the camp?s common areas wasobtained by the compliance officers through duress or coercive means, or thatthe consent was not voluntarily and knowingly given.??????????? Respondent his failed to carry his burden of proof onthis issue.??????????? 2. Validity of ANSI standard Z 4.4?1968.??????????? Respondent further contends that ANSI standard Z 4.4?1968was improperly adopted and promulgated by the American National StandardsInstitute (formerly named the United States of America Standard Institute) andwas therefore unlawfully adopted and promulgated by the Secretary of Labor asOccupational Safety and Health Standard 29 CFR ? 1910.142 (and subsectionsthereunder).??????????? Respondent?s major thrust or stress is upon a portion ofthe Act?s definition of a ?national consensus standard?. Section 3 (9) of theAct defines a ?national consensus standard? as ?any occupational safety andhealth standard or modification thereof which (1) has been adopted andpromulgated by a nationally recognized standards-producing organization underprocedures whereby it can be determined by the Secretary that personsinterested and affected by the scope or provisions of the standard have reachedsubstantial agreement on its adoption, (2) was formulated in a manner whichafforded an opportunity for diverse views to be considered and (3) has beendesignated as such a standard by the Secretary, after consultation with otherappropriate Federal Agencies.? (Emphasis supplied by respondent; brief of May7, 1976).??????????? It is respondent?s position that the procedures followedby the American National Standards Institute (hereinafter called ANSI) wereinadequate in that no farm agency or organization and no migrant farm laboreror contractor were represented on the ANSI committee which considered ANSI standardZ 4.4?1968. Therefore there was no consensus or agreement from farm and migrantlaborer 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 adoptedand promulgated by ANSI because of the lack of representation of farm andmigrant farm laborers groups, the Secretary of Labor could not adopt andpromulgate 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 andfarm laborer groups) who were interested and affected had reached substantialagreement when ANSI standard Z 4.4?1968 was adopted and promulgated by ANSI.??????????? We start with the premise that the Secretary of Laborproperly discharged his official duty in adopting and promulgating ANSIstandard Z 4.4?1968 as an occupational safety and health standard and that thisofficial discharge of duty is clothed with a presumption of regularity whichcan 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 allthe material he requested from ANSI to support his position on this issue. Herequested permission to submit such material subsequent to the hearing. Noobjection to this procedure was raised by any party either during the hearing orsubsequent thereto. The material submitted by respondent will be considered inthe determination of this issue.??????????? The material consists of a copy of the ?OperatingProcedure of the United States of America Standards Institute (now named theAmerican National Standards Institute), a copy of ANSI standard Z 4.4?1968entitled ?Minimum Requirements for Sanitation in Temporary Labor Camps? (ItemJ?16 of file) and letters and copies of letters between respondent and ANSI(Item J?22 of file).??????????? The material supplied by respondent particularly theletter 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 offile), reveal that various farm and farmers organizations were contacted andasked to provide representation on ANSI?s Z 4.4?1968 committee but theseorganizations indicated no interest in participating on the committeeconsidering ANSI standard Z 4.4?1968. The letters further reveal that a draftof ANSI standard Z 4.4?1968 was advertised in several trade publications.??????????? There is no evidence that the Secretary in adopting andpromulgating ANSI standard Z 4.4?1968 as an occupational safety and healthstandard did not determine that those persons interested and affected by thescope or provisions of the standard (here the representative members of theANSI Z 4.4 committee) reached substantial agreement on the standard?s adoptionand promulgation.??????????? What respondent is really arguing is that farm and farmlaborer organizations or groups were not represented on the ANSI Z 4.4?1968committee and therefore the views of these absent groups were not considered.Respondent?s evidence establishes that such groups (farm organizations) weregiven the opportunity to be represented on, and to participate with, the ANSI Z4.4?1968 committee but declined to avail themselves of that opportunity andevinced no interest in the committee?s activities.??????????? There is no evidence that the groups represented on theANSI Z 4.4?1968 committee were not competent to determine suitable safety andhealth standards for migrant farm laborers, or that their work on the committeesubstantially prejudiced respondent.??????????? Respondent failed to carry his burden of proof toestablish that the Secretary of Labor did not substantially comply with section3 (9) of the Act in promulgating 29 CFR ? 1910.142 pursuant to section 6(a) ofthe Act. See National Roofing Contractors Association v. Brennan, 495F.2d 1294, 1296 (7th Cir., 1974); Secretary of Labor v. Tobacco River LumberCompany, 17 OSAHRC 235 (1975); BNA 3 OSHC 1059.??????????? 3. Relationship of respondent vis-a-vis the migrant farmlaborers.??????????? Respondent states that his relationship with the migrantfarm laborers housed and fed at his temporary farm labor camp is one oflandlord and tenant and not one of employer and employee; and that standard 29CFR ? 1910.142 (and the subdivisions thereunder) is limited to occupationalwork places and does not cover housing (brief pp 9?11; T. 8). This contentionof respondent also permeates the two affirmative defenses discussed above, andif valid, would support those contentions.??????????? The question presented is whether a temporary migrantfarm labor camp is a place of employment as contemplated by the Act. Respondentto support his position testified that he, by oral agreement, hires theservices of Robert Smith, the migrant farm labor contractor and crew chief, toassist in harvesting part of his potato crop; that he pays Smith for thisservice which amounted at $50,000 in the year 1975; that he does not hire orfire the migrant farm laborers; that he does tell a migrant farm laborerworking at his farm that he is not doing his job and does speak to Smith aboutit but does not otherwise directly control the migrant farm laborers; that noneof the migrant farm laborers appear or are carried on his payroll; that heoperates the farm labor camp as a convenience for himself, for other farmers inthe area, and for the migrant farm laborers; that the migrant farm laborers payone dollar a day per person as room rent which is collected by Smith and givento respondent; that he expects the farm laborers to show him consideration bydoing his farm work when needed; that he can and does waive the laborers? renton occasion; that he applied for and received a valid New York State permit tooperate a farm labor camp for the 1975 season; that he uses the services of thefarm laborers on his farm from September to November; that the farm laborersare to be housed at his camp although they are free to live elsewhere; and thatthe migrant farm laborers are covered by Workmen?s Compensation insurance andFarmer?s Liability insurance which is paid for by respondent.??????????? In determining whether the migrant farm laborers areemployees of respondent and whether the relationship between respondent and thelaborers is one of employer-employee, technical or contractual interpretationsdo 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 RockyNorby, 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.2d965 (10th Cir., 1973) where the Court examined the relationship in a Fair LaborStandards case between migrant farm laborers and farm owner and found the farmowners to be the employers of the migrant farm laborers.??????????? In the Okada case the farmers did not hire of fireany farm laborers and did not pay wages to the farm laborers. They superviseddirectly, or indirectly through the labor contractor, the farm laborers, anddirected where the daily farm work was to be performed. The farm ownerssuffered if the farm crops were not harvested on time or properly.??????????? In addition to above similar factors between the Okadacase and the instant case, respondent could and expected the farm rent paymentsfrom the farm laborers and expected the farm laborers as a consideration forthe labor camp accommodations and convenience to work at his farm when neededto harvest his crop. Respondent paid $50,000 for the services of the laborersand their crew chief for the 1975 seasonal period, and paid for workmen?scompensation insurance which covered the farm laborers as his employees.Respondent also applied for and received a valid State permit to operation afarm labor camp, not motel or other commercial transient housing facility.??????????? The above indicia reflect an employer-employeerelationship and not a landlord-tenant relationship. Respondent is an employerunder 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 toestablish that he is not an employer but only a landlord of the migrant farmlaborers at his camp.??????????? Although no farm laborer is compelled to live at a farmlabor camp, the needs of the agricultural farm community and of the migrantfarm laborers arising from the remoteness of farm field and living facilitiesfrom the mainstream of commercial transient accommodations and transportation,the economic considerations both for laborer and farm owner, the uncertaintiesof weather and other agricultural factors at harvest time and the need of aready available labor source close at hand, and the general convenience of allconcerned, inextricably weaves the migrant labor camp and the farm field intoone fabric?the workplace.??????????? The migrant farm laborer, in a sense, is a captive of hisoccupational environment, and is entitled under the Act to the minimum benefitsof safety and health not only when working in the fields but when on the farmlabor camp.??????????? Remaining for resolution are the five nonseriousviolations 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 createda potential health hazard from inclement weather.??????????? Standard 1910.142(b)(1) states that ?[e]very shelter inthe camp shall be constructed in a manner which will provide protection againstthe elements?.??????????? There is no evidence that the camp was not constructed toprovide protection against the elements. The nature of the camp?s constructionwas not an issue. What was established was that three broken glass windowsneeded repairs. Section 1910.142(b)(1) does not apply to routine repairs but tothe intrinsic construction of the camp shelters. Complainant failed to carryits 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 exterioropenings shall be effectively screened with 16-mesh material; and that allscreen doors shall be equipped with self-closing devices.??????????? The evidence established that rooms numbered 2, 11 and 20had rips or tears in their window screening large enough for insects to enter.The hazard was a possible insect health problem. Complainant carried his burdenon this issue. Complainant admits that this standard does not apply to regulardoors leading to the outside but only to screen doors of which there were noneat the camp (T. 130). The citation will be amended to delete the phrase ?alldoors were not self closing?.??????????? Item 6 of Citation?29 CFR ? 1910.142(a)(4)??????????? This standard requires that toilet rooms be distinctlymarked ?for men? and ?for women? by signs or with easily understood pictures orsymbols.??????????? The facilities at respondent?s labor camp lacked thesedesignations which the compliance officers believed created a mental orpsychological 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 andmaintenance nature and are so low in gravity in relation to the health hazardssuggested as to border on but not quite reach a de minimis status. Respondentis 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 beprovided for each family shelter and must be on a wooden, metal or concretestand.??????????? The evidence establishes that there was not one containerfor each family shelter; that the containers on the camp grounds were neitherfly-tight or rodent-tight, nor on wooden, metal or concrete stands, and thatthe containers contained garbage (organic foods).??????????? Although there was no discernible fly or rodent problemat the camp, the condition of the garbage cans at the camp site presented apossible health hazard to the occupants of the camp. Respondent must complywith the refuse disposal standard.??????????? Item 10 of Citation?29 CFR ? 1910.142(k)(2)??????????? This standard requires that first aid facilities at atemporary labor camp must be in the charge of a person trained to administerfirst aid.??????????? The evidence established that there was no person trainedin first aid available at the camp although an ambulance service was locatedabout 2 to 3 miles from the camp. The compliance officers believed that thelack of a first aid person deprived the migrant farm laborers of immediatefirst aid care for possible accidents befalling them at the camp.???????????? The wisdom of this standard as it applies to thecircumstances of the instant case, leaves much to be desired as to itsfeasibility and application. Is it more appropriate to have a first aid personat the camp where the farm laborers spend their off hours from work or shouldsuch a person be in the farm field area where the laborers are performing theirfarm labor work? Are accidents more likely to occur in the farm fields or atthe 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 isclear on its face and must be complied with. Complainant carried his burden onthis issue.FINDINGSOF FACT??????????? The credible evidence and the record as a wholeestablishes preponderant proof of the following specific findings of fact.??????????? 1. Respondent, Walter C. Mehlenbacher, is the co-ownerand operator of a temporary migrant farm labor camp known as the MehlenbacherScholes Camp located on Murphy Road, Pike Township, County of Wyoming, State ofNew York.??????????? 2. On October 15, 1975, compliance officers William Wagerand Paul Hanover inspected the camp.??????????? 3. Prior to the inspection, the compliance officersidentified themselves to Mr. Mehlenbacher and informed him of their authority toinspect the camp.??????????? 4. Mr. Mehlenbacher knowingly and voluntarily gave hisconsent to an inspection of the camp?s general or common areas, i.e., thekitchen and the toilet and bathing facilities.??????????? 5. Prior to any inspection of a farm laborer?s room orliving quarters, the compliance officers obtained the proper consent to enterand inspect from the room?s occupant.??????????? 6. Farm groups and organizations were given theopportunity to participate as committee members of the ANSI committeeconsidering ANSI standard Z 4.4?1968.??????????? 7. No farm group or organization availed themselves ofthe opportunity and showed no interest in participating on the ANSI committeeconsidering ANSI standard Z 4.4?1968.??????????? 8. There is no evidence that the Secretary of Labor inadopting and promulgating ANSI standard Z 4.4?1968 as an occupational safetyand 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 ofthe migrant laborers at his farm, and directed when the farm work was to beperformed.??????????? 10. Respondent did not hire or fire the migrant farmworkers living at his camp but did pay for workmen?s compensation insurancewhich covered the migrant laborers as his employees.??????????? 11. Respondent charged the migrant labor at his camp roomrent which he did on occasion waive.??????????? 12. Respondent in exchange for the migrant camp housingaccommodations and convenience expected the migrant farm laborers to work onhis farm when they were needed.13. Respondent paid$50,000 to the migrant farm laborers? crew chief or labor contractor forservices rendered by the farm laborers during the seasonal period of year 1975.??????????? 14. Respondent applied for and received a valid permitfrom the State of New York to operate a migrant farm labor camp, not a motel orother commercial transient lodging or housing facility.??????????? 15. Respondent was the employer of the migrant farmlaborers.??????????? 16. Standard 29 CFR ? 1910.142 and the subdivisionthereunder 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 shelterfor his migrant farm laborers was not constructed to provide protection againstthe elements.??????????? Item 5 of the citation?29 CFR ? 1910.142(b)(8)??????????? 19. The screens on three out of twenty two of the roomsoccupied by farm laborers, were ripped or torn and permitted the entry ofinsects into the rooms.??????????? 20. Although there was no insect problem at the camp, onOctober 15, 1975, the torn and ripped screens created a possible insect healthhazard.??????????? Item 6 of the citation?29 CFR ? 1910.142(d)(4)??????????? 21. The toilet facilities at the camp were not distinctlymarked either by sign, picture or symbol to indicate the male and femalefacilities.??????????? Item 8 of the citation?29 CFR ? 1910.142(H)(1)??????????? 22. The camp lacked the proper number, type and installationof fly-tight, rodent-tight, impervious, and cleanable refuse disposalcontainers 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 accessibleperson to administer first aid which presented a possible health hazard whenemergency first aid treatment was necessary.??????????? 24. Respondent is responsible for the four conditions setforth above in paragraphs 19 through 23.CONCLUSIONSOF LAW??????????? 1. Respondent is, and at all times material herein was,engaged in a business affecting commerce within the meaning of section 3 (5) ofthe Act (29 U.S.C. ? 652(5)).??????????? 2. The Occupational Safety and Health Review Commissionhas jurisdiction over the subject matter and parties to this action.??????????? 3. No constitutional right of respondent under the FourthAmendment of the Constitution was violated by the compliance officer?sinspection of his camp.??????????? 4. Standard 29 CFR ? 1910.142 and the subsectionthereunder were validly adopted and promulgated by the Secretary of Laborpursuant to section 6(a) of the Act.??????????? 5. Respondent is an employer of the migrant farm laborershoused at the Mehlenbacher Scholes farm labor camp.??????????? 6. Respondent?s migrant farm labor camp is an occupationalworkplace under the Act.??????????? 7. On October 15, 1975, respondent was not in violationof 29 CFR ? 1910.142(b)(1).??????????? 8. On October 15, 1975, respondent was in nonseriousviolation 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, itis hereby??????????? ORDERED that the motion of Program Funding, Inc., tosubmit 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 isgranted; it is further??????????? ORDERED that items 1, 2, 3 and 9 of the nonseriouscitation are vacated; it is further??????????? ORDERED that item 7 of the citation is amended to reflecta 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 deletereference to ?all doors were not self closing?, and as amended is affirmed; itis further??????????? ORDERED that items 6, 8 and 10 of the nonserious citationare affirmed.?JEROME C. DITOREJUDGE, OSHRCDated: August 19, 1976?New York, New York?\u00a0\u00a04\u00a0[*] CommissionerCOTTINE took no part in the consideration or decision of this case for thereasons set forth in his separate opinion.[2] The exceptionconcerns item 10 of the citation. Respondent contends that compliance with thestandard cited in this item would be impossible. Inasmuch as respondent raisesthis issue for the first time on review, it is not properly before theCommission. Gulf Stevedore Corporation, 77 OSAHRC 135\/E11, 5 BNA OSHC1625, 1977-78 CCH OSHD para. 21,975 (No. 76-926, 1977).[3] 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).[4] The Courtdistinguished 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. 348F.2d 798, n. 14.[5] Respondent wasalso cited with five other nonserious violations (items 1, 2, 3, 7 and 9 ofcitation). By undated motion received June 3, 1976, subsequent to the hearingherein, complainant seeks to withdraw items 1, 2, 3 and 9 and to reduce item 7to a de minimis violation. No party has objected to the motion. The motion isgranted. Issues raised by items 1, 2, 3, 7 and 9 are rendered moot and are notconsidered herein. The reduction of item 7 to a de minimis violation placesrespondent 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 defensesrelating to the Constitutionality of the Occupational Safety and Health Act of1970, i.e., right to trial by jury and the unlawful delegation of legislativepower to the Secretary of Labor, are beyond this Judge?s authority to determineor resolve.[8] Room 21 alsocited but this is a boiler room. Complainant admits the standard does not applyto the boiler room (T. 153).”