automobile accident in upstate New York in which three migrant farm workers were killed and several others seriously injured. The Division determined that the MSPA's transportation and housing standards had been violated by the Respondents in this case:

• James R. Zappala, John R. Zappala and Samuel C. Zappala (collectively, "Zappala"), the owners of the farm where the laborers worked;

• Nemias Perez, a crew leader/farm labor contractor who had recruited the laborers; and

• Clifford DeMay, a second farm labor contractor with business ties to Zappala and Perez.

The Division assessed civil money penalties ("CMPs") against each of the Respondents because of the violations.

   The Respondents objected to the penalties and requested that the matter be referred to an Administrative Law Judge ("ALJ"). After holding a hearing, the ALJ issued a "Preliminary Decision and Order on Partial Findings -- Modifying in Part and Reversing" ("PD&O"), in which the ALJ affirmed the CMP assessments against Perez, modified the assessments against Zappala and reversed entirely the assessments against DeMay. James R. Zappala, ALJ No. 1997-MSPA-9-P (Apr. 3, 2001).

See Notice of Intent to Modify (May 3, 2001). The Administrator subsequently advised the Board that it would not pursue the third issue, i.e., whether the ALJ erred in partially

dismissing the CMP assessments against Zappala. Acting Administrator's Brief at n.1. Thus, the issues argued to the Board involved only the ALJ's decision not to assess penalties against DeMay.

   Briefs were received from the Administrator, DeMay and Zappala. For the reasons set forth below, we conclude that it is unnecessary to modify or vacate the PD&O, and therefore we affirm the ALJ's order regarding penalties. See PD&O at 58.

   The MSPA requires that all farm labor contractors be registered by the Secretary of Labor, with the Secretary specifying the range of activities the farm labor contractor is authorized to perform. 29 U.S.C.A. §1811(a). The "activity" of transporting migrant or seasonal agricultural workers explicitly is recognized under the MSPA regulations, and a farm labor contractor who seeks to transport workers specifically must apply for certification to provide transportation, supporting the application with documentation concerning vehicles, insurance, etc. See, e.g., 29 C.F.R. §500.48.

   The MSPA also provides that:

(1) When using, or causing to be used, any vehicle for providing transportation . . . each agricultural employer, agricultural association and farm labor contractor shall --

(A) ensure that such vehicle conforms to the standards prescribed by the Secretary [of Labor] under paragraph (2) of this subsection and other applicable Federal and state safety standards.

29 U.S.C.A. §1841(b)(1) (emphasis added). The statute does not define the terms "using" or "causing to be used." Under the MSPA regulations, carpooling that is arranged by migrant farm workers themselves ordinarily does not impose vehicle safety obligations on employers or farm labor contractors; however, "any transportation arrangement in which a farm labor contractor participates" is considered to fall within the "using or causing to be used" formulation, and therefore subject to the Act's

transportation standards. 29 C.F.R. §§500.100(c), 500.103(c). See generally 29 C.F.R. §500 Subpart D. These standards include minimum qualifications for drivers and vehicles, including specifically fixed seating for all passengers. 29 C.F.R. §500.104.

   In addition, the MSPA requires that facilities used to house migrant farm workers be inspected and certified for compliance with health and safety standards. 29 U.S.C.A. §1823; 29 C.F.R. §§500.130-500.135.

   Most of the workers recruited by Perez to work for Zappala did not own vehicles or have driver's licenses, and there was no public transportation available for them to get to Zappala's fields. Perez decided that he would provide transportation for the workers, and went to DeMay for assistance in filling out an application for a Federal Farm Labor Contractor Automobile Liability Certificate so that he lawfully could transport the workers in his van. However, when DeMay observed the poor condition of the van Perez intended to use, he discontinued helping Perez with the application. Although DeMay advised Perez not to transport the workers, Perez ignored that advice because he knew the workers had no other way to get to the fields.

   Perez also decided to move closer to the work site so he rented a trailer from Zappala. Although Perez's certification did not authorize him to provide housing to migrant farm workers, and the trailer itself had not been certified (see 29 C.F.R. §500.135), Perez allowed eight migrant workers to move in with him. Zappala advised Perez that the trailer was not authorized to house migrant farm workers. When Perez did nothing to correct the situation, Zappala increased Perez's rent by $5 for each worker in an effort to force him to evict them.

   After holding a hearing, the ALJ concluded that both Perez and DeMay were farm labor contractors under the MSPA. PD&O at 42. The ALJ upheld the CMPs that had been assessed by the Administrator against Perez for:

• housing migrant farm workers in violation of his Farm Labor Contractor certification (which specifically did not authorize him to be a housing provider), and housing workers in facilities that had not been properly certified by a state or local housing authority (id. at 42);

• causing the transportation of migrant farm workers by a driver without a valid driver's license, and transporting migrant farm workers without a valid certification (id. at 43-44);

• engaging the services of Amilcar and Freddy Roblero to perform the farm labor contractor activity of transporting migrant farm workers without first determining whether they were registered either as farm labor contractors or farm labor contractor employees performing a function based on Perez's certificate of registration (id. at 45-46); and

• failing to provide safe transport vehicles in violation of the MSPA (id. at 46-47).

• causing the transportation of migrant farm workers in vehicles which did not comply with the MSPA vehicle safety regulations (id. at 49-55);

• using an improperly registered farm labor contractor (i.e., Perez) for the purposes of housing, transporting and driving migrant farm workers without determining whether he possessed a certificate of registration authorizing such activity (id. at 56-57); and

• owning a facility used to house migrant workers that did not comply with Federal and state safety and health standards (id. at 57-58).

   However, the ALJ did not uphold the CMPs that the Administrator had assessed against DeMay for (a) causing migrant farm workers to be transported in vehicles that did not meet safety standards, or (b) using an improperly registered farm labor contractor (Perez) to house, transport or drive migrant farm workers. Id. at 47-49, 54-55. In addition, the ALJ found that Zappala did not "utilize" Perez to house migrant farm workers and therefore denied this aspect of the CMPs assessed against Zappala.

   As noted above, all parties appealed to this Board seeking modification of various aspects of the ALJ's decision.

   We have jurisdiction over this appeal pursuant to the MSPA and its implementing regulations (see 29 C.F.R. §500.264), as well as Secretary's Order 2-96. 61 Fed. Reg. 19,978 §4(c)(25).

   Under the Administrative Procedure Act, we have plenary power to review an ALJ's factual and legal conclusions de novo. See 5 U.S.C.A. §557 (b) (West 1996); Masek v. Cadle Co., ARB No. 97-069, ALJ No. 95-WPC-1, slip op. at 7 (ARB Apr. 28, 2000).

   As noted above, the only two issues before the Board for review are:

(1) whether the ALJ erred in finding that DeMay did not "cause" migrant workers to be transported in unsafe vehicles in violation of 29 U.S.C.A. §1841(b)(1); and

(2) whether the ALJ erred in finding that DeMay did not "utilize" an improperly registered farm labor contractor in violation of 29 U.S.C.A. §1842.

1. Whether DeMay caused migrant workers to be transported in unsafe vehicles.

   In his Preliminary Decision and Order, the ALJ declined to find that DeMay caused the transportation of the workers, based on the following reasoning:

In their March 1995 meeting, DeMay Labor, Zappala Farms, and Mr. Nemias Perez agreed that the workers would be responsible for their own transportation and Mr. Perez would be responsible for getting the workers to the onion fields if they didn't have their own means of transportation. When the growing season started, the migrant workers met their transportation obligation through the use of Mr. Freddy Roblero's passenger van and Mr. Nemias Perez's Bronco. However, once the transportation situation deteriorated, Mr. Perez approached Mr. DeMay about the transportation difficulties. Mr. DeMay suggested Mr. Perez consider obtaining a van at an auction but did nothing further in regards to the workers' transportation shortfall.

* * *

Since no provision of the Act required either DeMay Labor or Zappala Farms to provide transportation for the workers, their March 1995 agreement with Mr. Perez that the workers provide their own transportation did not violate the Act or attempt to relieve them of any statutory responsibilities associated with their respective statuses. To the contrary, the three parties included a provision in the agreement that in the event the workers did not have vehicles and Mr. Perez had to furnish transportation, he would comply with the appropriate licensing and vehicle safety requirements under the Act. The March 1995 agreement did not cross any statutory boundaries; and, according to its terms, it did not amount to a direction or request by DeMay Labor sufficient to cause unsafe vehicles to be used by Mr. Perez for the transportation of migrant workers. Likewise, DeMay Labor's status as a party to the March 1995 agreement does not amount to DeMay Labor's participation in migrant workers' transportation arrangement.

DeMay Labor's subsequent suggestion to Mr. Perez about obtaining a vehicle at an auction also falls well short of being a direction to, or request of, Mr. Perez to use [a] van without sufficient seating for his crew's transportation. Similarly, the auction suggestion, standing alone, does rise to the level of "participation" by DeMay Labor in Mr. Perez's transportation arrangement. Despite its compensation arrangement with Zappala Farms, DeMay Labor did nothing further to resolve [the] transportation woes of the workers and Mr. Perez.

I also note that rather than avoid its obligations as a farm labor contractor, DeMay Labor further demonstrated its sensitivity to the statutory transportation registration and safety requirements in other dealings with Mr. Perez. Just before the start of the growing season, after observing the poor condition of Mr. Perez's brown van, Mr. DeMay refused to assist Mr. Perez in obtaining authorization to transport migrant workers. In addition, he specifically instructed Mr. Perez not to transport workers in the brown van and told him that the workers should use their own vehicles for transportation.

DeMay Labor neither directed nor requested the transportation that Mr. Perez chose to provide to his crew. And, DeMay Labor, as a farm labor contractor, did not participate in any manner in the transportation arrangement for Mr. Perez's work crew. Absent any direction, request or participation by DeMay Labor in the travel arrangements, the preponderance of the evidence is insufficient to support the charge that DeMay Labor caused the unsafe vehicles to be used to transport the Zappala Farms migrant workers.

PD&O at 47-49 (footnotes and record citations omitted).

   The MSPA was enacted to better protect migrant and seasonal workers. As the court in Antenor v. D&S Farms, 88 F.3d 925, 930 (11th Cir. 1993) noted:

Previous legislative efforts to protect farmworkers had focused on regulating the crewleaders who recruited, managed and paid the farmworkers. Those efforts, however, had failed to "reverse the historical pattern of abuse of migrant and seasonal farmworkers," primarily because crew leaders were transient and often insolvent. Thus, in designing the MSPA, Congress took a completely new approach, making agricultural entities directly responsible for farmworkers who, as a matter of economic reality, depended upon them, even if the workers were hired or employed by a middleman or independent contractor.

(Citations to the legislative history omitted). As a remedial act, the MSPA must be construed broadly to effectuate its humanitarian and remedial purpose. Antenor, at 933.

The Administrator asserts that DeMay improperly "utilized" the services of Perez to transport migrant agricultural workers in violation of 29 U.S.C. §1842 because DeMay relied on Perez to transport, house and drive migrant farm workers without determining that he possessed a certificate of registration for these activities. The ALJ rejected this argument:

DeMay Labor is liable for the cited violation only if it in some manner utilized Mr. Perez to house, drive, and transport migrant workers. Since as a farm labor contractor for Zappala Farms, DeMay Labor agreed to furnish a work crew, an argument exists that it relied on Mr. Perez and his housing and transportation arrangements to meet its contractual obligation of providing a steady work force to the onion fields. And, DeMay's fee arrangement was tied to the number of hours the workers were employed.

On the other hand, I find more persuasive the fact that DeMay Labor's essential interaction with Mr. Perez occurred when Mr. Perez solicited and recruited the migrant workers. After Mr. Perez assembled his crew, DeMay Labor facilitated their ability to work on the Zappala Farm by completing the necessary paper work. Completion of the administrative processing and the assembly of a work crew for Zappala Farms at its labor camps by Mr. Perez, for which he had proper authorization, essentially met DeMay Labor's obligation under the contract for furnishing labor to Zappala Farms. Under the parties' agreement, DeMay Labor was not responsible for actually housing, delivering, and transporting the workers to the fields. While the fee arrangement was linked to the workers' pay, this arrangement made some sense [in] light of DeMay Labor's continuing commitment to assist Mr. Perez in replacing workers. And, over the course of the growing season, DeMay Labor did administratively process additional workers on Mr. Perez's crew. But, DeMay Labor had no involvement with the migrant workers in any other employment aspect, including housing and transportation, after they moved to the Zappala Farms labor camps.

PD&O at 55.

   In construing §1842, the Eleventh Circuit has determined that a person cannot be held liable for failing to verify a farm labor contractor's registration where he neither directed, controlled, or supervised the workers nor hired the contractor. Charles v. Burton, 169 F.3d 1322 (11th Cir.), reh'g denied, 182 F.3d 938 (11th Cir.), cert. denied, Burton v. Charles, 528 U.S. 879 (1999). We accept Charles as guidance in this matter. The record in this case does not demonstrate that DeMay directed, controlled, or supervised the workers, nor did DeMay "hire" Perez -- Zappala did. As with the transportation issue, supra, we find that the ALJ's conclusion is correct based on the record developed in this case. Therefore, we conclude that the Administrator has not proved that DeMay violated §1842.

   For the reasons stated, the ALJ's decision is AFFIRMED.

   SO ORDERED.

       PAUL GREENBERG
       Chair

       RICHARD A. BEVERLY
       Alternate Member