APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 80-1010).
Aldisert, Sloviter and Rosenn, Circuit Judges. Rosenn, Circuit Judge, Dissenting.
In this action brought by the Secretary of Labor, we must determine whether an independent contractor whose sole business is the removal of spent compost from mushroom houses is a "farm labor contractor" within the meaning of the Farm Labor Contractor Registration Act of 1963 as amended (FLCRA), 7 U.S.C. § 2041 et seq. The district court held that defendant Marrero was a "farm labor contractor," and granted summary judgment for the Secretary. Marshall v. Marrero, 536 F. Supp. 517 (E.D. Pa. 1982). We affirm.
The Secretary's complaint sought injunctive relief, alleging that defendant Marrero had failed to comply with the registration, disclosure, posting and recordkeeping requirements of the FLCRA, 7 U.S.C. §§ 2043(a), 2045(b), (c), (e). Marrero does not deny that he has failed to comply with these provisions, but contends that he is not required to do so since he is not a "farm labor contractor" within the meaning of the FLCRA.
The parties submitted the case to the district court on the basis of a stipulation of facts. As recited in the stipulation, defendant Marrero, doing business as Green Grass Conveyor Service in partnership with another individual, is engaged "in the performing of certain services for mushroom growers in Berks County, Pennsylvania." Specifically, Marrero operates a so-called "take-out" operation, removing used compost from mushroom house beds after the mushroom harvest has been completed.*fn1 The "take-out" operation is performed by a crew of approximately six workers, using electrically operated portable conveyor belts to transport the spent compost from the mushroom houses into waiting trucks. The crew shovels the compost from the mushroom house beds onto the conveyor belts, operates the conveyor belts, and drives the trucks to disposal sites outside the mushroom farm.
Neither Marrero nor the crews he employs to perform the "take-out" operation are employees of the mushroom growers. The crews are the separate employees of Marrero; Marrero is an independent contractor who provides the "take-out" service to the mushroom growers on a contract basis, receiving a fixed sum out of which he pays his employees. Marrero "has no employees other than those whose services are required in the 'take-out' business," all of whom "are domiciled and reside in the area of employment and do not move from place to place seeking employment." The employees provide their own transportation to and from work. The "take-out" operation occurs only once per mushroom crop and the average grower has two, or possibly three, crops per year. Nevertheless, "the services rendered by [Marrero] are performed throughout the entire year (12 months of the year) and the employees, if they desire, have steady full employment." Finally, the parties have stipulated that Marrero has never obtained a certificate of registration under the FLCRA.
Based on the stipulated facts, the district court concluded that Marrero was a "farm labor contractor" within the meaning of the FLCRA. Marrero appeals.
The Farm Labor Contractor Registration Act was enacted in 1964 as Congress' response to the problem of "certain irresponsible contractors for the services of the migrant agricultural laborers who exploit producers of agricultural products, migrant agricultural laborers, and the public generally." 7 U.S.C. § 2041(a). It was considerably strengthened by amendments in 1974 which extended its coverage and enforcement. In its present form the FLCRA requires that every "farm labor contractor" obtain a certificate of registration from the Secretary of Labor; file statements with the Secretary concerning the transportation and housing of migrant workers; disclose to the migrant workers various information concerning the conditions of their employment; and maintain payroll records and furnish the migrant workers with statements of all sums paid on account of their labor and all sums withheld. 7 U.S.C. §§ 2043-2045. The Act imposes criminal and civil penalties for violation of its provisions, and provides for both private damage actions and suits for injunctive relief brought by the Secretary. 7 U.S.C. §§ 2048, 2050(a), (c).
The FLCRA defines a "farm labor contractor" as
any person, who, for a fee, either for himself or on behalf of another person, recruits, solicits, hires, furnishes, or transports migrant workers (excluding members of his own family) for agricultural employment.
7 U.S.C. § 2042(b). There is no dispute in this case that Marrero "recruits, solicits, hires, furnishes, or transports" individuals "for a fee" as part of his "take-out" operation. He contends, however, that he is not a "farm labor contractor" since his employees are neither "migrant workers" nor engaged in "agricultural employment." Both "migrant ...