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
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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.
BACKGROUND
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
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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.
1 This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3, 1996).
2 DeMay's petition was docketed as ARB No. 01-054. The other appeals were not issued separate case numbers when they were received; this was an oversight. The Acting Administrator's appeal has now been designated ARB No. 01-096, Zappala's has been designated ARB No. 01-097, and Perez's has been designated ARB No. 01-098.
3 Perez's petition was untimely, and therefore was rejected based on timeliness.
4 With regard to issues #2 and #3, the text of our May 3 Order referred to "using" an improperly registered farm labor contractor, rather than the term "utilize" found in the MSPA. See 29 U.S.C.A. §1842. We do not find the difference in language to be material, and it is clear from the briefs that it created no confusion among the parties. In this decision, we revert to the terminology used in the statute.
5 The PD&O reviews the testimony of the witnesses at length, and includes detailed Findings of Fact. See particularly PD&O at 34-40.
7 There is no indication in the record that this contingency ever materialized.
8 We note that nowhere does the Administrator argue that Perez acted as DeMay's agent, which under the MSPA would be governed by common law agency principles. See Cardenas v. Benter Farms, 2000 WL 1372848 (S.D. Ind. 2000). Nor does the Administrator contend that Perez and DeMay somehow were in partnership or joint employers or alter egos.
9 On a different record showing substantial involvement by DeMay in Perez's operation, we might reach a different result. However, our task is to judge this case based on the evidence that is before us.