At issue is whether or not the defendant is a Fair Labor Contractor within the meaning of 7 U.S.C. § 2042(b) of the Act. Under the Act a Fair Labor Contractor is one who (1) recruits, solicits, hires, furnishes or transports, (2) for a fee, (3) migrant workers, (4) for agricultural employment. There is no dispute concerning items (1) and (2). The resolution of the controversy depends on the definitions of "migrant workers" and "agricultural employment" as they are applied to the particular facts of this case.
These particular facts are set forth in a "Stipulation of Facts" which was agreed upon by the parties. The Stipulation of Facts is quoted in its entirety and is adopted and approved as the factual findings in this proceeding.
I. "STIPULATION OF FACTS"
1. This action arises under the Farm Labor Contractor Registration Act of 1963, as amended 7 U.S.C. § 2041 et seq. (hereafter the "Act" or "FLCRA").
2. Plaintiff is the Secretary of Labor, United States Department of Labor, who is authorized by Section 12(c) of the Act, 7 U.S.C. § 2050a(c), to seek injunctive relief to remedy violations of the Act.
3. Defendant Felix Marrero is an individual who resides at 185 Edgewood Avenue, Temple, Berks County, Pennsylvania, within the jurisdiction of this Court.
4. Defendant Marrero, in partnership with Dario Sepulveda and trading and doing business as Green Grass Conveyor Service, engaged at all times relevant to this action in the performing of certain services for mushroom growers in Berks County, Pennsylvania. The services performed by Mr. Marrero are more completely described below.
5. Defendant Marrero is engaged in the removal of used compost from mushroom house beds. In performing this function he employs employees as more fully described in proposed finding number 6 below.
Mushrooms are grown in compost, a soil like substance produced from a mixture of horse manure, gypsum, chicken manure, corn cobs and other chemical additives. Mushrooms are grown in mushroom houses called "doubles" on racks arranged in layers from floor to ceiling, each rack covered with a bed of compost.
Mr. Marrero's business is to "take out" the used compost from the compost bed after the mushroom harvest has been completed. After Mr. Marrero and his employees remove the used compost from the mushroom bed, they dispose of the spent compost away from the premises of the mushroom growers.
6. The removal of the spent compost from the mushroom growing houses is accomplished by the use of electrically operated portable conveyor belts which convey the spent compost into waiting trucks. The trucks then remove the spent compost to a disposal site. Employees that Mr. Marrero has hired shovel the compost from the mushroom house beds onto the conveyor belts, operate the conveyor belts which convey the used compost into the trucks, and drive the trucks. The entire "take out" operation is performed by a crew of men that varies in size, the average being 6.
7. All of the employees of the Defendant, Felix Marrero, are domiciled and reside in the area of employment and do not move from place to place seeking employment.
8. The services rendered by the Defendant are performed throughout the entire year (12 months of the year) and the employees, if they desire, have steady full employment.
9. The Defendant does not provide transportation for the employees but said employees find their own transportation to or from the job.
10. The Defendant is not an employee of any of the mushroom growers to whom he renders services, but is an independent contractor employing his own employees to perform the services described above.
11. Defendant, Marrero, renders the service to the mushroom growers on a contract basis, for which he receives a fixed sum. Out of the sum received, he pays his employees. He has no employees other than those whose services are required in the "take-out" business.
12. All the employees employed by the Defendant in rendering the "take-out" services described above are the separate employees of Defendant, Felix Marrero, and are not the employees of the mushroom growers.
13. The services rendered by Defendant to a mushroom grower occur only one time per growing crop of mushrooms and the average grower has two such crops per year. There are those who may have three crops per year.
14. Defendant, Marrero, has never obtained a certificate of Registration from the Secretary of Labor under Section 5(a) of the FLCRA.
15. Defendant, Marrero, does not withhold Federal income tax from the wages of his employees, although he does withhold Social Security payroll tax monies (F.I.C.A.).
After a review of the language and legislative history of the statute as well as its interpretation by the courts, I find that the defendant is a Farm Labor Contractor and is thus subject to the provisions of the Act. Like my former colleague, The Honorable Edward R. Becker, in Kaolin Mushroom Farms, Inc. v. United States of America, 79-2 U.S. Tax Cas. (CCH) P 9652, No. 77-4379, bench op. (E.D.Pa. Sept. 21, 1979), I find some discomfiture with the result, but I believe that my decision is the only one compatible with the words of the statute and with prior judicial interpretations. Although I have found this case much less malodorous than that of Judge Becker's, (his case was tried in an "aromatic setting" by conducting a view at the location of the compost pile) I have reached the conclusion that defendant's activities bring him within the definition of a farm labor contractor who, for a fee, hired migrant workers for agricultural employment.
The Farm Labor Contractor Registration Act is remedial legislation. As such, it should be liberally construed. See Peyton v. Rowe, 391 U.S. 54, 65, 88 S. Ct. 1549, 1555, 20 L. Ed. 2d 426 (1968). With that direction in mind, I consider the definitions of "migrant workers" and "agricultural employment".
As stated in Marshall v. Coastal Growers Ass'n, 598 F.2d 521, 524 (9th Cir. 1979),
"(Migrant) worker" means an individual whose primary employment is in agricultural, ... or who performs agricultural labor ... on a seasonal or other temporary basis.
The court went on to hold in that case (p. 524), "We affirm the district court's definition of "migrant workers' as including, for purposes of the Act, both those "whose primary employment is in agriculture' and those who perform agricultural labor "on a seasonal or other temporary basis'. See Usery v. Coastal Growers Assn., 418 F. Supp. 99 at 101 (C.D.Calif.1976)." In Usery v. Coastal Growers Ass'n, 418 F. Supp. 99, 101 (C.D.Cal.1976), the court held:
The court construes the term "migrant worker' to include all persons whose principal or main occupation is in agriculture and all persons who perform agricultural labor on a seasonal or temporary basis. See 29 C.F.R. § 41.13. This broad construction comports with the Act's humanitarian purpose to protect all those hired by middlemen to toil in our nation's fields, vineyards, and orchards. (Emphasis supplied).