Due to Judge Morin's subsequent retirement, I received this case and informed the parties on August 11, 1998 that the case had been reassigned (ALJ I). On December 19, 1998, U.S. District Court Judge Gustave J. DiBianco approved a settlement agreement resolving the civil lawsuit (ALJ II). Upon receiving notice of the settlement, I indicated my intention in early January 1999 to resume the hearing in March 1999 (ALJ III). Subsequently, due to the unavailability of counsel, I set the hearing for June 2, 1999 in Oswego, New York (ALJ IV).

   Prior to the June 1999 hearing, counsel for DeMay Labor submitted both a Motion to Dismiss and Motion for a Summary Judgment. In response to the motions, counsel for the Plaintiff objected on the basis that he had not presented all the evidence to support the Administrator's case. Consequently, on May 21, 1999 (ALJ V), I dismissed the Motion to Dismiss and deferred a decision on a summary judgment until the plaintiff had rested its case. I also expressed my intention to reconsider the Motion for Summary Judgment under the provisions of Rule 52 of the Federal Rules of Civil Procedure which permits a judgment on partial findings.

   In administrative proceedings under the MSPA, the rules of procedure and practice in 29 C.F.R. Part 18 are applicable. 29 C.F.R. §500.219. However, these procedural regulations do not contain provisions for a Motion for Summary Judgment or Judgments on Partial Findings. Instead, 29 C.F.R. §18.1 (a) indicates that in situations not covered by Part 18, the Federal Rules of Civil Procedure apply.

   In reaching a Judgment on Partial Findings on whether the Administrator has established by a preponderance of the evidence in the present record the violations set out in AD 43, AD

44, and AD 45, as subsequently amended, against Mr. Nemias Perez, Zappalla Farms, and/or DeMay Labor, respectively, I must determine:

1) Whether DeMay Labor and Mr. Nemias Perez were farm labor contractors within the meaning of the MSPA;

2) Whether Mr. Nemias Perez housed migrant farm workers without proper permits and authorization;

3) Whether Mr. Nemias Perez transported migrant farm workers without proper license and authorization;

4) Whether Mr. Nemias Perez engaged the services of Mr. Amilcar Roblero and Mr. Freddy Roblero without ensuring their proper registration and authorization;

5) Whether Mr. Nemias Perez failed to provide safe transport vehicles for migrant farm workers;

6) Whether Zappalla Farms and DeMay Labor "caused" migrant farm workers to be transported in the unsafe vehicles used by Mr. Nemias Perez;

7) Whether Zappalla Farms and DeMay Labor "utilized" Mr. Nemias Perez as an improperly registered farm labor contractor; and,

8) Whether Zappalla Farms violated MSPA housing regulations at the Pollard Road trailer.

   Counsel for the Administrator asserts that the safety and health violations under the Act against all three Respondents have been proven. In the summer of 1995, several individuals came to upstate New York as migrant farm workers to work in the onion fields owned and operated by Zappalla Farms. Both DeMay Labor and Mr. Nemias Perez solicited and recruited these workers to come to the Zappalla Farms. Consequently, both DeMay Labor and Mr. Perez were farm labor contractors. Upon investigation of the fatal July 5, 1995 van accident, the Administrator discovered that two vans used to transport these migrant farm workers violated the Act's safety standards because the vehicles did not have secure seats. As a result, the Respondents were cited for failing to ensure compliance with vehicle safety standards. In addition, the investigation revealed several housing and registration violations.

   Based on the Act's definition of "farm labor activity," both Mr. Nemias Perez and DeMay Labor were farm labor contractors. Mr. Perez recruited workers from Florida, transported migrant farm workers in New York for a fee, received a commission for his work and signed several documents as "farm labor contractor." DeMay Labor, at Zappalla Farms' request, solicited, recruited, and provided migrant farm workers to Zappalla Farms through Mr. Nemias Perez and his crew. DeMay Labor prepared the labor agreement and numerous related migrant farmer paperwork. In addition, the crew initially stayed on DeMay Labor's property upon its arrival in New York. For its services, DeMay Labor received a 3% commission of the gross weekly payroll of Mr. Perez's crew. Consequently, DeMay Labor's involvement with the workers did not cease with their recruitment. And, DeMay Labor had previously applied to be a farm labor contractor.

   The Act imposes joint responsibility among the agricultural employer and farm labor contractor for vehicle safety standards during the transportation of migrant farm workers. In civil sanction actions, the MSPA does not requires a showing of actual knowledge of a violation. Within the relationship between Zappalla Farms, DeMay Labor and Mr. Perez, the parties understood that Mr. Perez was responsible for getting the crew to work if they did not have their own transportation. Both Zappalla Farms and DeMay Labor suggested Mr. Perez obtain a van for transportation of his crew. Under the regulations, such a direction or request amounts to having "caused" the transportation. Since Mr. Perez provided a van as directed by DeMay Labor and Zappalla Farms, they caused the workers to be transported and were responsible for the vehicle's safety features. In addition, causation exists because transportation was an integral part of the farm workers' employment on Zappalla Farms. Zappalla Farms' offices, worker living quarters, and fields are geographically separated without any supporting public transportation. As a result, the workers could not do their jobs without van transportation. Zappalla Farms also directed the workers to various fields. And, Zappalla Farms was aware prior to the July 1995 accident that the workers were traveling in overcrowded vans. Finally, while workers' car pools generally are not covered by the Act, car pools involving a farm labor contractor or directed by the agricultural employer must comply with the Act's safety requirements. The workers for Zappalla Farms did not have a car pool. In fact, their transportation involved Mr. Perez, the farm labor contractor, and directed by Zappalla Farms. None of the workers had drivers licenses and generally only vehicles tied to Mr. Perez were used to transport the workers.

   Both DeMay Labor and Zappalla Farms used Mr. Perez as a farm labor contractor without ensuring that he was properly registered. Under the Act, any person who utilizes a farm labor contractor must determine whether that individual has a valid registration. Zappalla Farms requested DeMay Labor provide onion field crews; DeMay Labor asked Mr. Perez to find a crew; and, Mr. Perez recruited workers from Florida. They used Mr. Perez as a farm labor contractor and were responsible for ensuring proper registration. However, Mr. Perez did not have a valid certificate to transport workers.

   The trailer on Pollard Road was owned by Zappalla Farms and rented to Mr. Perez. Even though the trailer wasn't permitted, several migrant farm workers stayed in the trailer, which violates the housing provisions of the Act. In addition, Zappalla Farms charged the workers rent for their stay in the trailer.

   The Administrator did not conduct a "neutral" investigation in this case. Instead, it was allied with a migrant farm workers' advocacy group. The group eventually filed a $33,000,000 law suit against Zappalla Farms. As a result, any testimony offered by the Administrator must be considered in view of its advocacy position.

   To hold Zappalla Farms liable for any violations of the Act associated with the tragic van accident in July 1995, the Administrator must demonstrate that Zappalla Farms directed or requested a farm labor contractor to use the contractor's vehicle to carry out an agricultural task. Zappalla Farms had no affirmative duty to ensure migrant workers did not ride in unauthorized vehicles. The contract with Mr. Nemias Perez gave him the responsibility to provide transportation and required him, if necessary, to obtain a properly licensed vehicle for that transportation. In addition, the worker notification in Spanish indicated that transportation would not be provided. Transportation was not a necessary element for Zappalla Farms in obtaining the migrant farm workers. The fact that Mr. Perez may be liable for vehicle safety violations does not mean Zappalla Farms has the same liability. Mr. Perez's liability may be imputed to Zappalla Farms only if it was aware of the violation and did nothing. Specifically, there is no evidence that Zappalla Farms was aware that the blue van involved in the July 1995 accident was owned by Mr. Perez. Likewise, Zappalla Farms did not pay anyone to transport workers in that van. The agricultural employer is not responsible for private transportation agreements among workers. Although Mr. David Zappalla may have talked to Mr. Perez about the number of workers in the van, his conversation did not amount to a direction of the agricultural employer.

   When Mr. Perez indicated to Zappalla Farms and DeMay Labor that he was having difficulty getting the workers to the fields, a suggestion was made that he consider buying a vehicle at an auction. Neither Zappalla Farms nor DeMay Labor directed him to buy a vehicle. And, they did not direct Mr. Perez to use the blue van to transport the workers. Giving directions to specific onion fields to Mr. Perez did not constitute the requisite direction contemplated by the Act. Concerning the June 1995 accident involving the white van, its use at that time had no connection with employment in the Zappalla Farms fields.

   In summary, the Act permits migrant farm workers to arrange their own transportation. Zappalla Farms and DeMay Labor clearly indicated they were undertaking no obligation concerning the field workers' transportation.

   Mr. Perez was a properly registered farm labor contractor for the 1995 growing season. Zappalla Farms did not hire Mr. Perez to drive migrant workers, to provide vehicles for the workers, or to house the workers in a trailer. Those activities were not authorized by Zappalla Farms.

   Zappalla Farms did rent the trailer to Mr. Perez and his immediate family. The extent that other persons also occupied the vehicle is not the responsibility of Zappalla Farms. The company did not provide the trailer as a migrant farm worker camp. Once aware of the problem, Zappalla Farms objected and attempted to correct the situation with economic disincentive. In addition, the Administrator has not shown the trailer would not have otherwise qualified as suitable housing.

   Having worked numerous farms from 1991 to 1994, Mr. Nemias Perez knew several workers and wanted to become a crew leader. Due to language issues, he sought DeMay Labor's assistance in preparing, for a fee, the necessary paperwork for him. DeMay Labor completed the paperwork and DOL approved Mr. Perez's application to supply and supervise a work crew because he could legally work in the United States and did not have a felony conviction. The application did not authorize the transportation of workers.

   In March 1995, Mr. Perez, DeMay Labor, and Zappalla Farms met to discuss the upcoming harvesting season. The parties agreed that Mr. Perez would: (a) supply 20 workers for the harvest; (b) manage the workers; (c) follow the directions of Zappalla Farms; and, (d) and, if he supplied transportation, obtain the proper driver's license and ensure the vehicle was properly licensed. DeMay Labor agreed to draft the appropriate work disclosure forms for the workers, to obtain other necessary documents, including I-9s and withholding certificates, and to assist Mr. Perez in obtaining a license. The fee for these services was based on, but not taken out of, the workers' wages.

   In light of this arrangement, DeMay Labor was not a farm labor contractor because it did not conduct any farm labor contractor activities in this case. The company was not paid to recruit, solicit, hire, employ, furnish or transport farm workers. DeMay Labor had no contact with the migrant workers until they arrived in New York. Then, as Zappalla Farms' agent, DeMay Labor, assisted these workers with their paperwork. DeMay Labor neither employed Mr. Perez nor the migrant workers. Even though DeMay Labor helped Mr. Perez with the work disclosure forms, DeMay Labor did not use Mr. Perez as an agent to obtain workers for Zappalla Farms. In addition, Zappalla Farms paid DeMay Labor only for its administrative services. Zappalla Farms also paid the wages of both Mr. Perez and the migrant workers. Many of the workers never met with DeMay Labor, while other laborers recall DeMay Labor helping them with their employment documentation. The workers clearly believed they were employed by Zappalla Farms. Initially, when the workers arrived in New York and were unable to work right away in the Zappalla Farms' fields, they stayed a couple of days in a camp owned by DeMay Labor. At that time, DeMay Labor completed some necessary paperwork for the laborers and then they moved to Zappalla Farms to start the harvest. DeMay Labor had no control over those laborers in the fields.

   Notably, the March 1995 agreement among the three Respondents required Mr. Perez to ensure the workers had a means to get to the Zappalla Farms' fields. In the event Mr. Perez had to provide transportation to met that contract requirement, both he and the vehicle needed to be properly licensed. While in a subsequent conversation, the Respondents discussed with Mr. Perez buying a van, he did not have the money to make such a purchase. He was also aware that the workers were responsible for their own transportation. Also, the disclosure forms sent to potential workers in Florida specifically indicated Zappalla Farms would not provide transportation. Instead, the workers were required to provide their own transportation. DeMay Labor never directed anyone to provide transportation in any vehicle for the workers. DeMay Labor did not have an obligation to provide transportation for the workers and did not "sub" any such responsibility to Mr. Perez.

   Eventually, several workers traveled to New York in an appropriately equipped van owned by Mr. Freddy Roblero. For the first month of work, they used that van for transportation. Then, in May 1995, Mr. Perez obtained a blue van and charged the workers gas money for transportation. A white van, driven by Mr. Perez's brother, Mr. Amilcar Roblero, was also used but went out of commission following an accident.

   The Act does not require either farm labor contractors or agricultural employers to provide transportation to migrant farm workers. However, if they use, or cause to be used, vehicles for workers transportation, they must register to do so and provide proof to DOL that the vehicles are insured and meet necessary safety standards. And, since the workers' car pools are exempt from the Act, neither the farm labor contractor nor the agricultural employer have the right to interfere with those car pool arrangements.

   Clearly, the regulatory provisions at 29 C.F.R.§500.70 (c) indicated neither a farm labor contractor, nor an agricultural employer, will be liable for transportation they do not specifically direct or control. Since DeMay Labor neither directed nor controlled the workers' transportation it is not responsible under the regulations for any transportation vehicle safety violations. In fact, DeMay Labor advised Mr. Perez not to provide transportation. And, since DeMay Labor was not involved in the day-to-day operation of Zappalla Farms, the company would not know about any potential vehicle violations.

   Although the regulations do impose responsibility on a farm labor contractor to ensure employees acting on its behalf are properly registered, DeMay Labor was not a farm labor contractor in this case, and Mr. Perez certainly was not acting on its behalf. In addition, under the regulations, that employee can not also be an individual required under the Act to register in his or her own right as an independent farm labor contractor. Again, Mr. Perez did not receive any compensation from DeMay Labor and DeMay Labor was not part of any joint venture with Zappalla Farms. Mr. Perez was a farm labor contractor in his own right. He worked directly for Zappalla Farms. DeMay Labor neither directed nor controlled Mr. Perez's work. Consequently, DeMay Labor did not utilize Mr. Perez as an improperly registered farm labor contractor.

   While in Indiantown, Florida, Mr. Perez paid "Freddy" $150 to transport him to New York. Freddy eventually worked as part of Mr. Perez's crew at Zappalla Farms. After arriving in New York in May, Mr. Perez planted onions at Zappalla Farms. Prior to going to work, he went to a house where a man speaking English helped with the employment paperwork. That man filled out the paperwork.

   Initially, Mr. Perez stayed in a house with Nemias, who is not a relative. But, when he worked at Zappalla Farms, he resided in a Zappalla camp house, named Campo de los Coyotes. He rode to work at the Zappalla Farms in a light blue van driven by either Mr. Nemias Perez or his brother, Amilcar. After working the whole day in a field, he returned home in the van. The trip took about 25 minutes. Another brother, Leobardo, had a white van, which did have seats. Leobardo also worked for Zappalla. Mr. Perez rode around in the white van a couple of times, but it broke down. Mr. Nemias Perez also had a pinkish colored van that wasn't working. Mr. Aldolfo Perez didn't have a driver's license. All the workers agreed to go to work in Mr. Nemias Perez's van. The blue van did not have any seats in the back. The passengers sat on upside-down buckets. He traveled to work in the van every day.

   Mr. Nemias Perez was his supervisor and Mr. Perez received instructions from Mr. Zappalla. Mr. Zappalla, the father, was always there so he probably saw Mr. Aldolfo Perez entering and exiting the van. Mr. Perez didn't complain to either Mr. Jim Zappalla or Mr. Sam Zappalla about his transportation. Likewise, he never complained about his housing.

   When the blue van crashed into a tree, there were 17 workers in the van. He sustained injuries to his head, legs and waist. Mr. Amilcar Perez was driving. He paid either Nemias or Amilcar about $7 a week to ride in the van. On the day of the accident, Mr. Perez had been harvesting onions.

   Mr. Gonzalez was in Indiantown, Florida when Freddy, Nemias' cousin, told him that Nemias had a labor contract for a New York farm. Freddy drove him and a group of workers to New York where they planted and harvested onions for Zappalla Farms. He paid Freddy about $120 for the trip. Initially, he stayed a couple of nights at Nemias' house trailer in Williamstown. Then, when working on the Zappalla Farm, he stayed in a house owned by Zappalla on Route 6.

   He did not have a driver's license; so, Mr. Gonzalez rode to work in a blue van, with windows in the back, that was owned by Nemias and driven by Nemias' brother, Amilcar. The van only had a driver's seat; the rest of the passengers sat on buckets. Between 15 to 18 workers used the van everyday to get to work and the trips took about 30 minutes. After Mr. Gonzalez got in the van, they would stop at another camp, Campos de los Coyotes. He paid Nemias about $15 a week for the transportation.

   Nemias worked in the fields with him and sometimes rode in the blue van. The owner of the fields, Mr. Zappalla, would tell Nemias the field in which to work. They either worked in one field all day, or rode to another field if they finished early. Mr. Zappalla, the owner, saw them get in and out of the van; he would be waiting for them to arrive. Mr. Zappalla would follow them in the field supervising their work. Mr. Jim Zappalla also observed them get in and out of the van. And, on the day of the accident, after it had rained, Mr. Sam Zappalla instructed Nemias to have the workers leave. Mr. Gonzalez worked at Zappalla Farms April to July.

   In the July accident, Mr. Gonzalez suffered multiple bone fractures in his ankles and knees. He also struggles with some memory problems. Because Nemias made the transportation arrangements, Mr. Gonzalez never complained directly to anyone at Zappalla.

   The only time he met Mr. DeMay was when he applied for employment. Nemias took them in Freddy's van to Mr. DeMay's house and they completed applications provided by Mr. DeMay. Since the documents were in English, Mr. Gonzalez couldn't read them. But, he knew he had to fill them out. He also watched a movie on safety. Mr. Gonzalez didn't know whether Nemias worked for Mr. DeMay.

   Mr. Gonzalez has filed suit against Zappalla Farms because he can no longer work like he use to. He is receiving workers' compensation.

   About 17 workers came from Florida to Oswego. Upon arriving in New York, he filled out a work application in Nemias' trailer. At that time, he did not speak English. His work at Zappalla Farms included weeding, treating the fields, and planting onions. Nemias worked in the fields with him because he was "the contractor" and would tell the workers when to go home. Mr. Diaz got to work in a blue van and traveled between fields in a van. The blue van had windows in the back. The trips to work took about 10 to 15 minutes. There were two other vans: Leobardo's white van and Nemias' red van. None of the vans had seats so the passenger sat on buckets. The white van had windows in the back also. Either Nemias or his brother, Amilcar drove the vans. Mr. Diaz paid $7 to $8 a week to Nemias' brother, Leobardo, for transportation. Mr. Diaz had neither a vehicle nor driver's license.

   Nemias would get his orders from Mr. Zappalla and then he would pass them on to the workers. Mr. Zappalla was always present when they arrived and departed. In the blue van accident, Mr. Diaz suffered a broken leg and abdominal and chest injuries. At the time of the accident, Nemias owned the blue van and the red van. Mr. Diaz never complained to any Zappalla family member about his transportation.

   Mr. Ravesi is an Oswego County Deputy Sheriff. On June 23, 1995, Deputy Ravesi investigated a traffic accident involving a white van owned by Mr. Amilcar Roblero, who lived in Williamson, New York (see AD 2 and AD 3). Deputy Ravesi was not able to determine who was driving the van at the time of the accident. After the collision, the van came to rest on its side with all its contents thrown to one side. The address for Mr. Roblero was obtained from a DMV computer.

   Mr. Ling is a criminal investigator for Oswego County. He took the photographs presented in AD 5 within one hour of the July 5, 1995 accident. Prior to his arrival, firemen had rescued people from the van. The van was carpeted with two seats in front.

   Mr. Reuel Todd is the Under-Sheriff for Oswego County. In that capacity, he supervised the accident scene on July 5, 1995 (See AD 4). The accident van had been operated by Mr. Amilcar Roblero. The accident report was prepared by Deputy Ellie Davis. The accident occurred about 40 miles from the town of Williamson.

   While in Florida, Mr. Lopez heard about a job opportunity in New York through a friend. The friend brought him to New York. Freddy also drove some workers to New York. Freddy also worked in the fields a few days and then left. After the accident, Freddy came back to Zappalla Farms. Mr. Lopez first met Freddy at Zappalla Farms. Mr. Lopez never rode to work in Freddy's van, which was green or blue and light blue. The van was big and had glass in the back doors and seats with seat belts. Freddy didn't drive people to work because he wasn't "responsible for anyone."

   Upon his arrival, Mr. Lopez stayed in Nemias' trailer. He is not related to Nemias. Later, when working in the fields, he lived in a barn-like house. The place was called Los Coyotes. Mr. Lopez worked on the Zappalla Farms weeding and planting onions starting the first of May.

   Initially, he alternately traveled to work in three separate vans. Nemias owned all three vehicles. Eventually, two of the vans, a red and white van and a black Bronco, broke down. The third van was blue and involved in the accident. The white van and the blue van did not have any seats. It usually carried about 17 people. Nemias' brother, Amilcar, usually drove the blue van. He also would drive the red and white van sometimes. Nemias drove the black Bronco. Mr. Lopez did not have a vehicle or driver's license. He paid under $12 to Nemias for the transportation.

    Mr. Lopez rode in a van to work every day and he labored in many different fields. The trips took 25 to 30 minutes. Mr. Sam Zappalla saw the workers many times arriving and departing in the van. Mr. Zappalla's son also observed the workers coming and going in the van. Usually, 17 people rode in the van, seating on buckets that were also used for weeding. Nemias provided the buckets. Mr. Zappalla gave Nemias instructions for the work crew.

   About the time he started working at Zappalla Farms, Mr. Lopez had his paperwork filled out by a man named Cliff and a woman at Nemias' trailer. Many workers were there and some lived in the trailer.

   On the day of the accident, Mr. Lopez only saw the blue van and Mr. Sam Zappalla's Blazer in the onion field. In the accident, Mr. Lopez suffered severe injuries, including a punctured stomach, and was in a coma for a week. He also suffered a loss of memory. (Mr. Lopez is also a plaintiff in a federal civil action against Zappalla Farms).

   Mr. Perez was born in Guatemala. He came to the United States in 1990 as a migrant farm worker. In that capacity, he worked in vegetable fields and as a poultry worker. On occasions, he did have crew leaders. In 1991 he came to New York to work and met Mr. Clifford DeMay once. He then left New York around September and did not return until 1994. Upon his return, he asked Mr. DeMay for work. Consequently, he lived and worked in the fields owned by Mr. DeMay. The house he lived in was only 200 to 300 feet from Mr. DeMay's house. He stayed in that work situation until starting to work for Zappalla Farms. Up to that time, he had never been a crew leader or a farm labor contractor. By 1995, he spoke a little English, yet at the 1997 hearing, he could not read English.

   In 1994, Mr. Perez came to Mr. DeMay and told him that he wanted to be a crew leader. Mr. Perez recognized his signatures on both AD 14 and AD 15. Mr. Perez wanted to be "in charge of the rest or like a supervisor, but that was it." At the same time, because he didn't understand the law, he really didn't know what the documents meant. In completing the form, someone from DeMay Labor asked him questions about his prior work and he provided the answers. He signed the document in Mr. DeMay's office without reading it. The house and phone number he put down belonged to Mr. DeMay. He had been using Mr. DeMay's address. The handwritten portions of the document were completed by Mr. DeMay's secretary. An incorrect country of birth, Mexico, is listed.

The fingerprints accompanying the application belong to Mr. Perez. Mr. DeMay spoke to Mr. Perez in both English and Spanish. He tried to talk very slowly so Mr. Perez would understand what he was trying to say; but, Mr. Perez still didn't always understand him. At the same time, Mr. Perez didn't tell Mr. DeMay about communication problems because he didn't want to "bother" him. Mr. Perez also wanted to work and be in charge of a crew.

   Eventually, in March, Mr. DeMay and Mr. Perez met with Mr. Jim Zappalla. Mr. Perez agreed with Mr. DeMay that he was going to work for Zappalla Farms. Mr. Perez didn't think he had a contract with Mr. Zappalla because Mr. DeMay had brought him to the meeting. Mr. DeMay told Mr. Perez that "everyone had to have their own transportation." But, Mr. Perez knew no one could drive. In most places, the farmers provide transportation. At the end of the meeting, Mr. Perez did understand: 1) Mr. Zappalla would be Mr. Perez's supervisor; 2) Mr. Perez would be the crew leader; 3) workers were responsible for their own transportation; 4) the work would start the first part of April, weather permitting; 5) the worker's hourly wage would be $4.50; and, 6) Mr. DeMay would do the paperwork. The work disclosure form in Spanish (AD 25) said about the same thing.    Mr. DeMay also indicated he should try to find some workers. So, Mr. Perez contacted his friend from Guatemala, Mr. Freddy Roblero (or Perez), in Florida and asked him to find workers for Zappalla Farms. He also called other workers in Florida. Mr. Perez sent some forms down to Florida in Spanish. AD 25 is one of those forms. The form states the hourly wage will be $4.50. In addition, each worker is responsible for his own transportation and costs. The employer is not responsible for transportation accidents.

   Several of the individuals from Florida eventually were involved in the July 1995 van accident. When the workers arrived in New York, they stayed two or three days in DeMay's field camp, which was very nice, because the weather was bad and they couldn't start right away. No one was charged for that housing. During that time, the workers completed paperwork in Mr. DeMay Labor's office and saw a safety video. Later, other laborers, who went directly to Zappalla Farms, also completed documents with DeMay Labor's assistance. The documents were in English and the workers just signed the papers. It's the same practice all over the country with migrant farm workers. After a couple of days, the workers moved to Zappalla Farms' camps. From that time on, they never stayed in his house. Mr. Perez never charged any of the workers rent. Mr. Perez was staying in a trailer on Route 3, provided by Zappalla Farms, and paid rent.

   In January or March, Mr. Perez had a brown van, with six or seven seats, but it died prior to the start of the work at Zappalla Farms. His brother Leobardo owned a small black Dodge and Mr. Perez also at one time drove a black Bronco. Because no one could drive, Freddy, who was just one of the workers, drove the other laborers to work the whole month of April and one week in May. Mr. Perez gave him directions to the appropriate fields. Mr. Perez recognized the photographs of Freddy's van (PX 1 and PX 2). The van had seats and seat belts and could hold 13 to 14 people. Freddy then had to return to Florida.

   When Mr. Perez told Mr. DeMay and Mr. Zappalla about the crew's transportation problems, they told him to try to buy something at an auction. On another occasion, when Mr. Perez explained his difficulties in getting workers to the fields, neither Mr. Zappalla nor Mr. DeMay responded. Then, about the middle of May, Mr. Perez and his two brothers, Amilcar Roblero and Leobardo, bought a blue van, although not at an auction. Mr. Perez's share of the cost was about ,500 and he registered the van in his name. His brother, Leobardo, also had a white van in Delaware which he had owned since 1992. Sometimes, the workers rode in the white van. Mr. Perez gave the workers a ride in his van "because they needed it as much" as he did. Mr. Perez charged them for gas money. On the day of the accident, he was a passenger in the van. His brother, Amilcar, who was driving, only had "half a license" or learner's permit. He got out of the van at his home just before the accident. Freddy did return to Zappalla Farms sometime in May, but he no longer wanted other workers riding with him.

   Mr. Perez worked in the fields with the other laborers. He was paid weekly on a 13% commission and earned about the same as the other workers. Based on instructions from Zappalla Farms, Mr. Perez told the other workers where to work. Sometimes, he received those instructions in Spanish from Mr. Zappalla. In fact, Mr. Sam Zappalla spoke in Spanish most of the time. At other times, Mr. Perez would do basic translation from English to Spanish to pass on the farming instructions. On occasions, the workers followed Mr. Sam Zappalla to different fields in a van. Sometimes they used two vans; but, one eventually broke down. Mr. Jim Zappalla speaks only a little Spanish, but Mr. Perez didn't deal with him much.

   Mr. Perez recorded each worker's daily hours so they could get paid each week. Pages three to six of ZX 2 are the daily time sheets that he filled out during the week of July 2, 1995. It shows that Freddy's last name is Roblero. In addition, the time sheet shows Mr. Freddy Roblero worked on July 5th, so he drove his van to the fields that day. He left that day about the same time as the other workers but did not take any workers with him.

   In the first week in May, about four people, including his brothers, Amilcar and Leobardo, and uncle, Felix, were staying in his trailer. He didn't charge any rent. However, Mr. Jim Zappalla did deduct some money from Mr. Perez's wages for the few days a couple of other workers stayed in the trailer.

   Mr. Perez recognized his signature on AD 29.

   While in Florida, Mr. Mendoza received word from Mr. Nemias Perez about work in New York. Mr. Mendoza paid someone $150 to bring him to New York. He initially stayed in Nemias' house at Zappalla Farms and rode to and from work each day in one of Nemias' vans. The blue and white vans didn't have any seats so they used buckets. The trips took 15 to 30 minutes. The white van was also involved in an accident. Mr. Jim Zappalla saw the workers getting into and out of the vans.

   Mr. Mendoza did not have a vehicle or driver's license. None of the workers, other than Nemias, had a vehicle. He didn't receive any information about transportation. His hourly wage was $4.75. "A lady and a guy" helped him fill out paperwork at Nemias' house. In the fields, Mr. Perez supervised their work. Mr. Mendoza never talked to anyone with Zappalla Farms. Mr. Freddy Roblero was part of the crew for a while but he went to Florida. However, he also worked on July 5th.. Mr. Mendoza stated the van in the photographs, PX 1 and PX 2, belonged to Mr. Freddy Roblero.

   In the blue van accident, Mr. Mendoza broke his back and suffered injuries to his head, arms and legs. Mr. Mendoza has lost his memory too.

   In Florida, Mr. Perez heard from Freddy that work was available in New York. For $150, Freddy drove him to New York where he worked at the Zappalla Farms planting and cleaning onions. Mr. Perez lived in one of two Zappalla field camps. One camp was called Los Bombilla; the other camp was named Los Coyotes. Mr. Perez went to, and returned from, work in Nemias' van. The trip took about 35 minutes. Sometimes, Amilcar drove him home from the fields. If the workers had to move to another field during the day, they would travel in the van. The blue van didn't have any seats. It usually carried 17 people. Mr. Perez paid about $8 or $9 a week for the transportation. Nemias owned three vans, white, orange and blue; but, the first two vans usually broke down. Freddy has his own van but he didn't take any of the workers in it. Mr. Perez does not have a car or driver's license. PX 1 and PX 2 are pictures of Freddy Roblero's van.

   Mr. Perez recognized his signatures on AD 46, pages 15 and 16. When he signed the documents, a man explained their purpose relating to taxes and working in the United States.

   In the field, after getting instructions from Zappalla, Nemias would tell the workers what to do. Mr. Perez earned $4.75 an hour. While in the fields, he occasionally saw Mr. Jim Zappalla and Mr. Sam Zappalla. They saw the workers get in and out of the vans. About three days after arriving from Florida, some man named DeMay, in his office, helped fill out the employment paperwork.    In the blue van accident, Mr. Perez hurt his head and was in a coma for over two months. As a result, he suffers memory loss.

   During a break in the proceedings, Mr. Ford, a DOL investigator, stopped Mr. David Perez from going with Mr. Nemias Perez's attorney, Mr. Williams, to talk.

   Mr. Ford is an investigator with the Wage and Hour Division of the U.S. Department of Labor. He has worked in DOL for 24 years and conducted 50 to 60 investigations a year, including 10 inquiries a year involving the MSPA. From July 6, 1995 through August 1995, he investigated the circumstances surrounding the fatal van accident that occurred on July 5, 1995 on Route 104, west of Oswego, New York. Accompanied by Mr. Joe O'Connor, a farm labor specialist, Mr. Ford went to the sheriff's office, received a partial accident report and examined the van. The next day, they interviewed some of the injured workers at the hospital. Next, he telephoned one of the Zappalla brothers, Mr. David Zappalla. Although not part of the Zappalla Farms partnership, Mr. David Zappalla does work for Zappalla Farms, taking care of equipment and running the daily operations of the farm.

   At the time of phone call, Mr. Zappalla sounded "agitated and upset." He told Mr. Ford that his father, Mr. Sam Zappalla, had warned Mr. Nemias Perez and the workers that they were putting too many people in the van. It was overcrowded and unsafe. Previously, Zappalla Farms had always provided the transportation. However, they engaged DeMay Labor because it could guarantee a constant work force. In the past, they had lost work crews part way into the season. Mr. Ford recognizes AD 17 as his near-contemporaneous written commemoration of his conversation with Mr. David Zappalla. The document is not signed by Mr. David Zappalla and Mr. Ford did not ask Mr. Zappalla to verify the accuracy of its contents.

   Eventually, Mr. Ford conducted an initial conference with Mr. Sam Zappalla, Mr. Jim Zappalla, and Mr. David Zappalla. Mr. Jim Zappalla indicated this was the first time they had used DeMay Labor and they had previously gotten their own workers and relied on their own transportation and vehicles. Mr. DeMay told them that vehicle registration checks had been run on the workers' vehicles, including the black Bronco. And, up until June 23, two vehicles had been in use, but after an accident with the white van, only one vehicle was used.

   Around July 11, 1995, when Mr. Ford asked Mr. Jim Zappalla for a copy of Mr. Nemias Perez's farm labor contractor registration, he produced a New York registration (AD 28). Mr. Zappalla had not asked Mr. Perez for a copy of his Federal registration because he didn't know Mr. Perez needed one. Instead, he relied on Mr. DeMay to provide the records and Mr. DeMay had given him a photocopy of AD 28. At the same time, Mr. Ford acknowledged that Mr. Zappalla was not required to have a copy of Mr. Perez's registration card. Mr. Zappalla also produced a copy of the contract between Zappalla Farms and DeMay Labor (AD 23). Mr. Ford also received pay records between Zappalla Farms and DeMay Labor (AD 18 and AD 31), the pay records for Mr. Nemias Perez and his crew (AD 19, AD 20, and AD 21) and housing permits (AD 33). Based on the total earnings and the number of hours, Mr. Ford believes the hourly rate for a worker was about $4.50. The I-9s are immigration forms for various workers (AD 22). And, when he asked for a copy of the Zappalla Farms work disclosure form, he received a copy of AD 24. Eventually, Mr. Ford did obtain a copy of Mr. Perez's DOL farm labor contractor certification (AD 27), as well as the application for the certification (AD 14), from Mr. DeMay. And, he reviewed the original farm labor contractor certification provided by Mr. Perez (AD 27).

   After his receipt of various documents, Mr. Ford inspected the workers' housing, including the Pollard Road trailer used by Mr. Nemias Perez. Zappalla Farms also had certificates for two camps, one southwest of Oswego and the other located on Gardinier Road. These locations were separated by many miles. Most of Zappalla Farms' fields are not connected; rather "[t]hey're scattered over at least three counties." There is no public transportation in this area.

   Mr. Ford also received some documents from Mr. Clifford DeMay in his initial conference concerning transportation. According to Mr. DeMay, they started paperwork to register Mr. Perez as a farm labor contractor authorized to provide transportation (AD 32). But, upon viewing the poor condition of Mr. Perez's brown van, they stopped. All the annotations on the paperwork were present when Mr. Ford received the documents.

   Mr. Ford also examined the three labor camps within a week after the accident. Two of the locations at Route 104 and Gardinier Road had received the requisite permits and certifications and were in good condition. The trailer at Pollard Road did not have any permits.

   At the Pollard Road trailer, Mr. Ford observed a brown van, a red and white van, a black Bronco, and a blue Chevette. The brown van was on blocks and didn't have any wheels. The Chevette was full of clothes and boxes. And, the red and white van was in "disrepair" with flat tires. Only the Bronco appeared operational. Based on his conversations with Mr. Zappalla and Mr. DeMay, Mr. Ford believed Mr. Nemias Perez owned the black Bronco. They had been checking registrations to be sure Mr. Perez didn't use his own vehicle to transport workers. Once they saw he didn't own the vehicle, they didn't check any further. Mr. Ford did not on his own ascertain who owned the brown van. Likewise, he did not inquire about the ownership of the red and white van and doesn't know who owned the Chevette. Mr. Ford had observed Mr. Freddy Roblero's large van. He believes Mr. Roblero worked the day of the accident. He had also seen Mr. Roblero's van parked at the Gardinier Road camp.

   Mr. Ford acknowledged that car pooling, "if done correctly," was a permitted activity under the Act. If workers get together and decide on their own, without involvement of a crew leader or farmer, then the car pooling is "done correctly."

   As part of his investigation, on July 10, 1995, Mr. Ford interviewed Mr. Leobardo Perez when he came to the door of the trailer at Pollard Road (AD 35). Although Mr. Leobardo Perez spoke some English, Mr. Ford terminated the interview due to language problems. Mr. Ford only recorded responses to questions that Mr. Perez indicated he understood. Based on what he understood from the witness, there appeared to be a housing violation. Mr. Ford made multiple trips to the trailer but never saw anyone other than Mr. Leobardo Perez. In light of the migrant workers' usual workday of ten hours, most of the workers would have been in the fields. He did find some of the injured workers at the camps and interviewed them.

   At the Route 104 camp owned by Zappalla Farms, Mr. Ford interviewed both Mr. Jose Velasquez and Mr. Adon Ramirez (AD 36). Mr. Ford also drove from the Gardinier Road camp to various locations and recorded the mileage (AD 39).

   At a final conference on July 13, 1995, Mr. Ford discussed his investigation findings with Mr. Jim Zappalla. They discussed the housing situation at the Pollard Road trailer. Mr. Zappalla indicated that he was aware other workers, besides members of Mr. Nemias Perez's immediate family, were living in the trailer. He had warned Nemias the workers couldn't live in the trailer and told them to get out. Mr. Zappalla also complained to Mr. DeMay who stated he would get the workers out of the trailer. But, nothing happened. So, Mr. Zappalla charged Mr. Perez $5 per person per day to encourage Mr. Perez to get the other workers out of the trailer.

   Based on a fair reading of the disclosure form, a migrant worker would not expect Zappalla Farms to provide transportation.

   Mr. Freddy Roblero was not a farm labor contractor and Mr. Ford never discovered any contractual documentation between him and Mr. Nemias Perez.

   Mr. Amilcar Roblero, Nemias' brother, owned a white van while working at Zappalla Farms and that van was involved in the June 1995 accident and destroyed. As crew members, there were no prohibitions against Mr. Amilcar Roblero and Mr. Freddy Roblero driving migrant farm workers.    The vehicle involved in the July 1995 accident was a 1985 or 1987 cargo van. Registration relates to license plates but does not necessarily show ownership. The van was put into operation after the white van crash.

   No violation of the Act occurs if migrant workers themselves arrange transportation which happens to be unsafe.

   Due to the July 1995, accident, Zappalla Farms was the "center of attention."

   Mr. Ford believes he heard from Mr. Jim Zappalla that Mr. Nemias Perez had been fired.

   Mr. O'Connor is a farm labor specialist with DOL. He works in part to facilitate application of the MSPA. Prior to his current assignment, Mr. O'Connor had been a DOL investigator. While in DOL, he has participated in hundreds of investigations. He has taken several language courses including studies in Spanish. And, he uses foreign languages in his investigations.

   On July 6, 1995, Mr. O'Connor joined Mr. Ford to start an investigation about the July 5, 1995 fatal van accident. They proceeded to the sheriff's office and then went to the office of Rural Opportunities to speak to several workers concerning the accident. Rural Opportunities is a migrant and seasonal farmers advocacy group. At the group's office, they gathered some basic information. Mr. Nemias Perez was present too. Next, they proceeded to a wrecking garage and the accident site to take pictures (AD 6). The wrecked blue van had no rear seats. DOL safety standards require a seat for all passengers.

   The following day, Mr. O'Connor and Mr. Ford went to the Oswego Hospital and talked to some of the injured van passengers. Present during these interviews most of the time were Mr. Ford and Mr. David Sweeny, a clergyman, who they met at Rural Opportunities and is an advocate for migrant workers. Mr. O.'Connor spoke primarily Spanish with each worker, starting with Mr. Porfidio Gonzalez-Ramirez (a/k/a Porfidio Gonzalez), who was not seriously injured or under heavy medication. Because Mr. Sweeney is a native Spanish speaker, he assisted in the translations. Mr. O'Connor transcribed the conversation at that time and had Mr. Gonzalez sign the statement after Mr. O'Connor read it to him in Spanish (AD 7). Mr. O'Connor then went through the same process with Mr. Jose Velasquez and Mr. Meliton Velasquez (AD 8 and AD 9), except Mr. Sweeney was present for the entire interview and acted as the translator.

   Mr. O'Connor conducted an interview in Spanish of Mr. Freddy Roblero on July 28, 1995 in the Rural Opportunities office (AD 10). The director of Rural Opportunities, Ms. Carmen Rebeur, and Mr. Ford were also present. As the interview proceeded, Mr. O'Connor wrote it down. He then repeated the statement to Mr. Roblero in Spanish. Then, Mr. Roblero signed it. Ms. Rebeur helped with the translation. Mr. Roblero was located through Rural Opportunities. Taking an interview in the headquarters of an organization is not a routine practice. In an early meeting on July 7, 1995 at Rural Opportunities, Mr. Daley, an attorney, was present. However, Mr. O'Connor did not seek his permission before interviewing Mr. Roblero. Mr. O'Connor has no doubts about the accuracy of the translation.

   On July 24, 1995, Mr. O'Connor took a statement from Mr. Nemias Perez at the Rural Opportunities office (AD 11). A DOL investigator, Ms. Nancy Nolan, and the organization's director, Ms. Carmen Rebeur, were also present. The conversation was conducted in "mostly" Spanish. Mr. Perez described how he obtained workers from Florida through Mr. Roblero. Early on, Mr. Roblero provided transportation for the workers because Mr. Perez had problems with his Bronco and another van owned by Mr. Amilcar Roblero was involved in an accident. Mr. Freddy Roblero left his employment as Zappalla Farms about that time. Mr. Perez approached both Mr. DeMay and Mr. Zappalla about his transportation problem. Eventually, Mr. Perez bought a blue Chevy van that he used to transport the workers.

   Mr. O'Connor's contact with representatives of Rural Opportunities was limited to the workers' interviews and some telephone conversations. He also had one contact with Farm Workers Legal Services when he and Mr. Ford decided Mr. Perez was too emotional to interview on July 7th. He is aware that Mr. Peter Dellinger is an attorney with Farm Workers Legal Services and represented the workers in the Federal civil lawsuit. DOL does take complaints from Farm Workers Legal Services.

   During his investigation, Mr. O'Connor did not discover any written, contractual arrangement between Mr. Perez and Mr. Amilcar Roblero or Mr. Freddy Roblero. Also, his investigation disclosed that in addition to the blue van, the black Bronco, and the white van, other vehicles had been used in transporting workers, including a brown van, a red and white van, and a Chevy Citation. The sheriff's investigation of the June 23rd white van accident showed the vehicle belonged to Mr. Amilcar Roblero. Mr. Freddy Roblero had a two tone blue van. If that van had sufficient seats to accommodate all passengers, an inspection may have been approved.

   Under the MSPA, the workers must be provided a disclosure form. The form contains information about the terms and conditions of employment, including transportation.

   Mr. O'Connor assisted in the preparation of the fine assessment letter. While Mr. Perez was an authorized farm labor contractor, he was not approved for transportation or housing. He is aware that Zappalla Farms had workers' compensation insurance which paid the injured workers' medical expenses. The camp on Route 104 was appropriate migrant housing. The paperwork for both Zappalla Farms camps at Gardinier Road and Route 104 was in order. Mr. Perez moved into the Zappalla trailer around early April. There's nothing improper in renting a residence to a crew leader and his family. A visiting migrant worker who stayed overnight would not violate the regulation. If a farmer is faced with someone not complying with the Act's housing provision, he or she may either apply for a proper permit or evict the occupant.

   When DOL processes a farm labor contractor application, it checks, through fingerprints, for a criminal record. Also, the person must be authorized to work in the United States.

   Ms. Quinn has worked in DOL as an Assistant District Director for 12 years. In that capacity, she supervises investigators and prepares assessments, including the assessments against the Respondents (AD 43, AD 44, and AD 45).

   In Mr. Perez's assessment, the maximum penalty for housing workers in areas without proper health and safety permits is $1000. However, they imposed only $200 because there were no serious injuries or problems. Concerning the unsafe vehicle citation, the fine was $1000 per violation on a per worker basis. Neither van had proper seating for the workers and the blue van was operated beyond its weight limit. The maximum penalty was assessed in light of the fatalities and serious injuries and the number of workers involved. Since the driver, Mr. Amilcar Roblero, was Mr. Perez's brother, he's not considered a migrant worker. So, since there were 16 workers, besides Mr. Amilcar Roblero, transported at the time of the accident, the revised fine was 16 x ,000 ($16,000). She considered $200 the appropriate fine for the offenses of failing to ensure a proper driver's license. Likewise, an assessment

of $600 was warranted due to his failure to register his brother and Mr. Freddy Roblero. Considering circumstances surrounding the accident, they imposed the maximum fine of $1000 for Mr. Perez's failure to obtain proper transportation authorization. Finally, they imposed $400 for housing workers without proper certification, based on the suggested amount on a Form 518.

   The medical records of Mr. Adolfo Perez, Mr. Salvador Gonzalez, and Mr. Flavio Diaz chronicle their treatments at University Hospital for their injuries, ranging from a broken leg to closed head trauma, related to the July 5, 1995 accident.

   On June 23, 1995 a van registered to Mr. Amilcar Roblero failed to yield at an intersection and struck another car. Photographs of the van's interior show only a driver's seat and a front passenger seat. The remaining portion of the van does not have any seats. The rear doors of the white van have windows.

   On July 5, 1995, Mr. Amilcar Roblero, while operating a van registered to Mr. Nemias Perez, lost control of the vehicle on State Road 104 and struck a tree. The cause of the accident is listed as unsafe weight load due to too many people in the van. The report lists the names of 17 occupants, including Mr. Adolfo Perez, Mr. Salvador Gonzalez, Flavio Diaz, and Mr. Ufrano Lopez.

   Numerous color photographs of an accident scene on July 5, 1995, showing a dark blue cargo van wrapped around a tree. Apparently, the van had only two front seats. The rear doors had windows.

   Photos taken July 6, 1995 by Mr. O'Connor at a wrecking company show a bent-in-half blue cargo van with several buckets in the back and no apparent rear seats. The accident scene shows scrap marks on the pavement and road shoulder leading up to a tall tree with bark damage.

   The three death certificates document Mr. Alberto Gonzalez, 25 years old, Mr. Andres Escalante, 24 years old, and Mr. Dagoberto Roblero-Vasquez, 44 years old, as fatalities in the July 5, 1995 van accident.

   In a signed statement, dated July 7, 1995, Mr. Gonzalez stated he came to New York from Florida after Freddy told him about work and an hourly wage of $4.50. He paid $150 to come to New York with several other workers. He went to work each day in the blue van, driven by Amilcar, that had the accident. He paid some money each week for gas. In the last week, they all traveled in the blue van. Mr. Sam Zappalla, Mr. David Zappalla, and Mr. Jim Zappalla saw them arrive and depart in the van. Mr. Sam Zappalla was in the fields each day and directed the work which involved weeding the onion crop. The witness/translator was Mr. O'Connor.

   In a signed statement, dated July 7, 1995, Mr. Velasquez indicated he came to New York from Florida with several other people. He paid $150 for the trip and was attracted by the cooler climate, free housing, and the hourly wage. He met Nemias in the trailer. On the day of the accident, all the workers traveled in one van. They had been going to and from work in that blue van for about two weeks. Mr. Amilcar Roblero was usually the driver. Mr. Sam Zappalla, Mr. David Zappalla, and Mr. Jim Zappalla saw the workers arrive and depart in that van. He paid about $9 a week for the transportation. On the day of the accident, they left the field with about 20 people in the van. Then, they dropped off Mr. Nemias Perez and two other workers at the trailer on Pollard Road. There had been three vans. They used the white van but it was involved in an accident two weeks earlier. The white van did not have any rear seats. They used buckets as seats because the van floor was hot. Mr. Sweeney translated the conversation and Mr. O'Connor served as a witness.

   In a signed statement, dated July 7, 1995, Mr. Velasquez indicated that after hearing from Freddy about the terms of employment in New York, Mr. Velasquez paid $150 to travel to New York with 13 other workers. He met Nemias in Williamson. Two workers, plus Mr. Nemias Perez's uncle and two brothers, were staying in his trailer. Nemias was a good crew leader and took them wherever they needed to go. In the two weeks after an accident, all the workers rode in the blue van to and from work. Amilcar drove the van each day. Mr. Velasquez paid Nemias $9 a week in gas money. There were no seats in the back of the van. The passengers sat on buckets, and Mr. Velasquez was sitting on the spare tire when the accident occurred. Freddy drove his own van and did not travel with them. Sam saw them coming and going each day. On the day of the accident, Sam came over to talk to the workers in the van and told them not to go to another field because of the rain. The Zappallas would tell Nemias where the crew should work. The statement was witnessed by Mr. O'Connor. Mr. Sweeney was the translator.

   In a signed statement, dated July 28, 1995, Mr. Roblero stated that after receiving a call from Nemias telling him about work in New York and asking him to bring workers, Mr. Roblero drove 12 workers from Indiantown, Florida. He stayed in the DeMay camp for three days and then started to work at Zappalla Farms. On April 4, 1995, he took all the workers in his van to Mr. DeMay's office to fill out paperwork and watch a film on pesticides. Nemias drove his Bronco to the office. Mr. DeMay saw the workers get in and out of his van. They started work at Zappalla Farms on Saturday, April 8, 1995. For the next four weeks, Mr. Roblero's van was the only vehicle in the group, other than Nemias' Bronco, to transport the workers. Jim and Sam saw him driving the workers; the Zappallas never spoke

to him about his van. Mr. Zappalla told Nemias where to send the workers and then Nemias told Mr. Roblero. In early May, Mr. Roblero returned to Florida. When he returned to Oswego in early June, the workers were using a white van and a blue van for transportation. Although Nemias drove sometimes, Leobardo and Amilcar usually were the drivers. Mr. Roblero did not use his van then to transport workers. Mr. O'Connor witnessed the statement and assisted in the translation. Ms. Carmen Rebeur also translated.

   In a signed statement, dated July 29, 1995, Mr. Perez said he was first introduced to Mr. Clifford DeMay in 1991 and knew he was a person to seek out for work. He met Mr. DeMay again in June 1994 when he came to work in New York as an apple picker and onion field worker. After expressing his desire to be a crew leader to Mr. DeMay, Mr. DeMay advised that he obtain a crew leader card which he'd need to be a farm labor contractor.

   Cliff took Mr. Perez to Mr. Zappalla and explained that Mr. Zappalla would tell him what to do. Mr. Perez was to recruit and furnish 20 workers for Zappalla Farms. He would tell the workers what to do and take care of them. Mr. Perez called his friend, Freddy, in Florida and described the work situation in New York, as presented by Mr. DeMay and Mr. Zappalla. The farm needed about 20 workers and Freddy drove the workers to New York. The passengers paid Freddy for the trip. Cliff and Zappalla stated Mr. Perez would receive 13% of the workers' wages as his fee. Jim told him that he was responsible for transporting the workers to and from work. Freddy provided the transportation in his two-tone blue van. Mr. Perez sometimes paid Freddy gas money.

   Mr. Perez lived in a trailer with his two brothers, Leobardo and Amilcar. At the start of the onion planting season, there were eight other workers living in the trailer. Mr. Zappalla knew about the workers because he charged Mr. Perez $5 per person. Mr. Zappalla took out $140 for one month from Mr. Perez's pay, in addition to his usual rent of $75 a week, when the workers lived there.

   Cliff told Mr. Perez not to drive workers in his car. Cliff wanted all the workers to use their own cars. Mr. Perez's conversations were in English. He understood spoken English better than the written version. At the start of the planting season, there were 16 workers on his crew and three vehicles: his Bronco, Freddy's van, and his brother's car. Because he did not use his Bronco to transport anyone, the workers came to and from work in the other two vehicles. Mr. Perez would tell Freddy and his brother which fields the laborers had to work. About the time Freddy returned to Florida, Mr. Perez's brother's car transmission failed. As a result, his brother went to Delaware to get a white van that he also owned. In addition, Mr. Perez's Bronco broke down.

   When he discussed his transportation problems with Mr. Jim Zappalla, Mr. Zappalla stated it was Mr. Perez's problem. Mr. Perez asked if Mr. Zappalla could send someone to pick up the workers. Mr. Zappalla replied he'd have to be paid for gas. Mr. Perez then asked how he could pay if they were Mr. Zappalla's field workers. Mr. Zappalla was interested in getting the workers to the fields; "not how they got there." In May, Mr. Perez told Mr. DeMay that his Bronco was broken, his brother's car wasn't working, and the white van was also broken. "Cliff didn't say

anything." In May and part of June, the workers only had one van. Then, Mr. Perez purchased a blue Chevrolet van. However, around June 23, 1995, his brother wrecked his white van. So, from that time until July 5, 1995, the workers only had the blue van for transportation. Mr. Perez's brother usually drove the van. Mr. Perez did not pay his brother for driving. All three Zappallas knew they were only using one van. Around 6:00 p.m. on the day of the accident, Mr. Sam Zappalla drove to the field to tell to stop work for the day. He parked behind the van. At that moment, all 19 workers were in the van. Mr. O'Connor and Ms. Nolan witnessed the statement. Ms. Carmen Rebeur provided the translation.

   The report shows a blue Chevy van, with license plate number 35755AE, registered to Mr. Nemias Perez who lived on Pollard Road.

   On March 10, 1994, Mr. Clifford DeMay submitted an application to become a farm labor contractor authorized to recruit and provide workers, transport and drive workers, and house workers. He attached the requisite vehicle insurance and inspection documents and the appropriate State housing permit.

   The farm labor contractor application (AD 14), dated August 18, 1994, was submitted by DeMay Labor on behalf of Mr. Nemias Perez. In the application, Mr. Perez indicates the largest number in his crew will be 20. He intended only to recruit, solicit, hire, employ, furnish, and pay the workers. He would not be involved in transportation. Instead, the workers would use "their own vehicles." Mr. Perez asserted he would not drive the workers. Mr. Perez's signature was notarized by Ms. Janet DeMay. The fingerprint card does show Mexico for country of birth, but the citizenship is listed correctly as Guatemala and the application in two locations indicates Guatemala as place of birth.

   The second farm labor contractor application (AD 15), dated March 10, 1995, contains essentially the same information and declaration except the residence address is listed as 5632 Morse Hill Rd, Williamson, NY rather than the earlier 5565 Morse Hill Rd, Williamson, NY. And, the crew number has increased to 30.

   On July 7, 1995, Mr. Thomas Ford reported his conversation with Mr. David Zappalla. Mr. Zappalla indicated this was the first year they had used DeMay Labor. Previously, they had obtained their own workers, transportation, and insurance. But, they had lost crews during the season and DeMay promised a work force no matter what happened. The crew was responsible for their own transportation. Mr. Sam Zappalla had warned Mr. Nemias Perez and the other workers that the vehicle was overloaded and not safe. Zappalla Farms provided housing, payroll and supervision. He didn't know what arrangement existed with DeMay about workers compensation insurance and didn't know if a fee was paid to Nemias.

   This invoice indicates weekly payments from Zappalla Farms to DeMay Labor from April 9, 1995 to July 1, 1995 at a three percent rate for the subject Perez. The weekly payments ranged from $57.71 to $275.97.

   This multi-page document lists the payment histories of numerous workers, including Mr. Nemias Perez, Mr. Ufrano Lopez, and Mr. David Lopez, during the spring of 1995. AD 21 shows payments to Mr. Freddy Roblero from April 15, 1995 to May 5, 1995 and June 10, 1995 to July 8, 1995. The entries for Mr. Freddy Roblero are marked-over by an "X".

   The front side of several checks, payable to Mr. Nemias Perez, and issued between May 12, 1995 and June 23, 1995, are contained in this exhibit. His compensation rate was 13% of an unspecified number that yielded payments from $104.97 to $441.20.

   Employment Verification documents for several workers, completed by Mr. Clifford DeMay and Ms. Janette Nevlezer, between January 30, 1995 and May 9, 1995 and verified by Mr. DeMay and Ms. Nevlezer between April 4, 1994 and June 12, 1995.

   A document, dated March 9, 1995, signed by Mr. DeMay and Mr. Jim Zappalla, sets out the terms of employment of Mr. Perez, starting in April. Mr. Perez was responsible for making sure the workers had the means to get to work. And, if that responsibility required Mr. Perez to supply the transportation, he was required to obtain the necessary licenses for him and the vehicle. In return, Mr. Perez would receive 13% of the gross wages for his crew.

   DeMay Labor agreed to take care of disclosure statements, worker agreements, tax forms and documents, and Mr. Perez's licensing so that he could work for Zappalla Farms. DeMay Labor would also help Mr. Perez replace workers as necessary. Finally, DeMay Labor would keep Zappalla Farms aware of new law and any "potential problems that we are aware of." For these services, DeMay Labor received 3% of the gross wages for the crew, and 0% of Mr. Perez's wages.

   This preprinted, and unsigned, form sets out the contractual provisions associated with work on the Zappalla Farm. The filled-in dates for the contract season are April 10, 1995 to October 16, 1995. The annotated hourly rate of base bay is $4.50, which increases to $6.00 in September. The document indicates transportation to the work site is available but subject to review.

   This form in Spanish indicates Zappalla Farms is the employer and the dates of employment cover April 10, 1995 through October 20, 1995 at the rate of $4.50 per hour. The notice also indicates that each worker should have his own transportation and the employer is not responsible for accidents associated with transportation.

   On August 24, 1994, Ms. Wooten approved Mr. Nemias Perez's certificate of registration as a farm labor contractor. However, he was not authorized to drive, transport, or house migrant farm workers.

   This document records Mr. Nemias Perez's registration by the State of New York as a farm labor contractor on May 11, 1995. His address is listed as 5505 Morse Hill Road.

   On April 10, 1995, Mr. Perez signed a New York document indicating he didn't need workers' compensation coverage due to a Zappalla Farms' compensation insurance. He also claimed an agricultural exemption for disability coverage.

   On April 17, 1995, Zappalla Farms obtained insurance coverage for its farming operations.

   This worksheet sets out compensation to DeMay Labor of 3% of gross labor costs for the week of April 4, 1995. The document also lists several workers' names, including individuals injured in the July 5, 1995 van accident.

   The first document is undated form letter (purportedly signed by "Janetee - assistant to Mr. DeMay," and addressed to Mr. Wooten at DOL) forwarding a vehicle mechanical inspection certificate and vehicle insurance information for Mr. Perez. An annotation on the upper, right-hand corner reads, "never sent/brown van." The second document is also a form cover letter which is unsigned, addressed to Mr. Wooten, and dated April 6, 1995. The letter forwards an application for transportation authorization for Mr. Perez. An annotation states, "never sent."

   On April 10, 1995, both Mr. Nemias Perez and Mr. James Zappalla signed housing certificates for camps on Route 104 and Gardener Road indicating compliance with Federal housing standards. Another document indicates that both Mr. Zappalla and Mr. Perez were the persons in charge of the housing.

   According to Mr. Ford, on July 19, 1995, Mr. Leobardo Perez indicated that he lived in the trailer with his brothers Nemias and Amilcar, and his uncle and another worker. Everyone worked at Zappalla Farm. The Zappallas owned the trailer and Nemias paid them rent. Mr. Ford recorded "very difficult language barrier."

   On July 13, 1995, Mr. Ford documented his conversations with Mr. Jose Velasquez and Mr. Adon Ramirez. Mr. Freddy Roblero drove 11 workers from Indiantown, Florida, to New York for $150 pers person. Nemias hired them when they arrived and they made $4.50 per hour. The housing camp has sufficient food, hot water, and sleeping arrangements. Mr. Ford stated the interview was limited due to the "language barrier."

   On September 29, 1995, Mr. Amilcar Roblero was convicted of the charges of unlicenced operator, overweight vehicle, and speed. He was fined a total of $190.00, with two surcharges of $25.00 for "fine not paid."

   A handwritten list of locations with corresponding mileages indicated between the Gardinier Road camp and locations.

   On August 16, 1995, the District Director assessed a total fine of $21,400.00 against Mr. Nemias Perez as follows:

#12	$200	Housing workers at Pollard Road without a health and safety permit.
#26	$400	Housing workers at Pollard Road without proper authorization.
#14	$200	Transporting workers without proper license
#25	$1000	Transporting workers without proper authorization
#20	$600	Engaging the services of Mr. Amilcar Roblero and Mr. Freddy Roblero without proper registration and authorization.
#13	$19,000	Failing to provide safe transport vehicles through the use of a blue Chevy van and a white Chevy van without proper seating for workers.18

   On August 16, 1995, the District Director assessed a total fine of $20,200.00 against Mr. James R. Zappalla, Mr. John Zappalla, and Mr. Samuel Zappalla, as partners in Zappalla Farms, as follows:

#12	$200	Housing workers at Pollard Road without a health and safety permit.
#13	$19,000	Failing to provide safe transport vehicles through the use of a blue Chevy van and a white Chevy van without proper seating for workers.19
#16	$1000	Using Mr. Perez for unauthorized farm labor contractor activities.

   On August 16, 1995, the District Director assessed a total fine of $20,200.00 against Mr. Clifford DeMay, doing business as DeMay Labor, as follows:

#12	$200	Housing workers at Pollard Road without a health and safety permit.20
#13	$19,000	Failing to provide safe transport vehicles through the use of a blue Chevy van and a white Chevy van without proper seating for workers.21
#16	$1000	Using Mr. Perez for unauthorized farm labor contractor activities.

   This exhibit contains the withholding tax certificates and employment verification forms for sixteen workers, including Mr. Flavio Diaz, Mr. Remigo Tzoc, Mr. Amilcar Roblero, Mr. David Perez, Mr. Salvador Gonzalez, and Mr. Ufrano Lopez. On the I-9s, either Mr. Clifford DeMay or Ms. Janet Nevlezer signed as the preparer and/or translator and as the designated agent for the employer, Zappalla Farms. Most of the workers listed Indiantown, Florida as their residence. The documents are dated from January 30, 1995 to May 9, 1995.

   In a letter, dated January 2, 1995, Mr. James Zappalla, president of Zappalla Farms, informs Mr. DeMay that he will need a crew of 15 for the spring growing season. The rate of pay will be $4.50 an hour. A 7% crew leader charge to be paid by Zappalla Farms will cover transportation and crew supervision. DeMay Labor will receive a 3% to cover all paperwork.

   The form lists numerous violations of the Act, with corresponding suggested fines. For unsafe transport, the form suggests $400.

   The complaint, filed March 10, 1997, seeks compensation, cumulatively in millions of dollars, for the injuries suffered by numerous farm workers in a July 5, 1995 van accidents and the wrongful deaths of two workers in the vehicle due to the defendants' violations of the MSPA. The plaintiffs include Mr. Flavio Diaz, Mr. Salvador Gonzalez, Mr. Ufrano Lopez, Mr. David Lopez, and Mr. Remigio Tzoc. The plaintiffs also presented separate causes of action under New York law. The named defendants are Zappalla Farms, James, Samuel and John Zappalla, Long view Fruit Farms, DeMay Labor, Mr. Clifford DeMay, Mr. Nemias Perez, and Mr. Amilcar Roblero.

   This document records the work of Mr. Perez's crew at Zappalla Farms for the week of July 2, 1995. Mr. Perez received a 13% commission on the crew's gross pay of $4,095 in the amount of about $532. DeMay Labor's 3% commission amounted to $122. Throughout the week, Mr. Freddy Roblero worked with the crew and he received a paycheck, dated July 14, 1995, in the amount of $217.19, which he cashed on July 14, 1995.

   A side and rear view of a blue two tone Ford Club Wagon van. The van has tinted windows on the side and rear doors and carries a South Carolina license plate.

   At the second hearing, the parties stipulated that the trailer occupied by Mr. Nemias Perez was owned by Zappalla Farms (TR, pages 675 and 676).

   At the hearing, I over-ruled an objection to the admission of some workers' statements (AD 7 to AD 9, and TR, pages 820 to 836). The objection was based on the use of Mr. Sweeney, a person associated with the migrant farm labor advocacy group, as a translator. While over-ruling the objection, I indicated that I would consider his participation when evaluating the probative weight of the statements. At this time, in determining findings of fact, I specifically find Mr. Sweeney's participation had little adverse effect on the value of the statements. His translations were monitored by the DOL interviewer, Mr. O'Connor, who had some proficiency in Spanish. In addition, their statements reflecting employment conditions and the events leading up to the accident are corroborated by other credible testimony and evidence in the record.

   Following the March 8, 1995 meeting, a work conditions disclosure statement in Spanish was prepared (AD 25). The form sets out the hourly wage and indicates that each worker is responsible for his or her transportation. The form discloses that the employer is not responsible for transportation. In addition, the "ranchero," identified as Mr. Jim Zappalla, reserved the right to terminate a worker's employment.

   On March 10, 1995, Mr. Perez signed a second farm labor contract application (AD 15). Again, DeMay Labor assisted him. Also once again, Mr. Perez requested authority only to recruit, solicit, hire, employ, furnish and pay migrant workers. He indicated that he would not drive the workers or provide transportation. The application was eventually approved for September 1, 1995 to August 13, 1997.

   In accordance with Mr. DeMay's instructions, Mr. Nemias Perez then contacted several individuals, including Mr. Freddy Roblero (Perez) in Florida, and asked them to find workers for Zappalla Farms. At the same time, he sent the Spanish disclosure forms (AD 25) about the Zappalla Farms employment conditions to Florida. The disclosure form indicates that each worker must make his or her transportation arrangements.

   Around the beginning of April 1995, DeMay Labor started paperwork to register Mr. Nemias Perez as a farm labor contractor authorized to provide transportation (see AD 32). However, upon observing the poor condition of Mr. Perez's brown van, DeMay Labor decided not to submit the application. Mr. DeMay told Mr. Perez not to drive workers in his vehicle. Instead, the workers were to use their own cars. During this same time period, Mr. Nemias Perez moved into a trailer owned by Zappalla Farms.

   On April 10, 1995, Mr. Nemias Perez signed a New York document indicating that he did not need workers' compensation insurance because Zappalla Farms would provide coverage (AD 29). Under his signature, Mr. Nemias Perez's title is listed as "farm labor contractor."

   About the same time, also in Indiantown, Florida, Mr. Ufrano Lopez heard about a job opportunity in New York. He also traveled to New York and initially stayed in Mr. Nemias Perez's trailer. After he started working in the Zappalla Farms' opinion fields around May 1995, Mr. Lopez moved from the trailer to the Los Coyotes farm camp.

see AD 18) later in the growing season, Mr. Freddy Roblero did not transport his co-laborers to work.]

   Sometime, later in the season, Mr. Freddy Roblero did return to work at Zappalla Farms. However, he no longer drove other workers to and from the onion fields. Mr. Leobardo Roblero (Perez), a co-worker and Mr. Nemias Perez's brother, brought his white van from Delaware to New York. The white van did not have any rear seats.

   [Although Mr. Aldolfo Perez testified Mr. Leobardo Roblero's white van did have rear seats, I find his testimony is outweighed by the preponderance of the other witnesses familiar with that van, including Mr. Flavio Diaz, that it did not have any rear seats for passengers and pictures of the van showing no rear passenger seats (AD 3)]

   Typically, when the migrant workers arrived at an onion field, a Zappalla family member, including Mr. Sam Zappalla,. Mr. David Zappalla, and Mr. Jim Zappalla, would be waiting for them and see their arrival. The migrant farmers weeded and treated the fields and planted onions. If they finished work in one field early, they would travel to another field based on directions from Mr. Nemias Perez. And, on some occasions, they followed Mr. Sam Zappalla to another field. Many of the Zappalla Farms' fields were separated by many miles. In the fields, Mr. Nemias Perez served as the workers supervisor. However, he took directions from one of the Zappalla family members, who usually followed the workers around in the field, and relayed the instructions to the workers in Spanish or English. If English was used (Mr. Jim Zappalla speaks only a little Spanish), Mr. Perez would do basic translation and give the farming instructions to the workers in Spanish. Mr. Perez recorded each worker's daily hours only daily time sheets (ZX 2).

   Although Mr. Nemias Perez did not file a brief concerning his status as a farm labor contractor, he implied during his testimony that all he sought to be was a crew leader and did not know he was a farm labor contractor. He asserted a lack of understanding of the obligations and legal ramifications associated with farm labor contractor. In light of his presentation, a determination of whether the Administrator has proven that Mr. Perez was a farm labor contractor is appropriate.

   Numerous exhibits in the record establish Mr. Nemias Perez's documentary status as a farm labor contractor. On both August 18, 1994 and March 10, 1995, Mr. Nemias Perez signed applications to be registered as a farm labor contractor (AD 14 and AD 15). In both applications, Mr. Perez requested authority to recruit, solicit, hire, employ, furnish and pay migrant workers. Both applications were subsequently approved and Mr. Perez registration cards identify his status as a farm labor contractor (AD 27 and AD 28).

   Mr. Perez' primary defense against his official designation as a farm labor contractor is that he did not really understand the applications he signed and did not intend to become a farm labor contractor. I consider these representations an insufficient bases for relieving Mr. Perez of his obligations as a farm labor contractor. Concerning his professed lack of understanding of the farm labor contractor applications and registration cards, Mr. Perez had both the capacity to understand the forms himself and the opportunity to ask for help in interpreting the forms and clarifying their meaning. At the time he prepared the farm labor contractor registration paperwork with Mr. DeMay's assistance and signed the applications, Mr. Perez had been in the United States for four years. While he claimed not to understand English in the written form, he was proficient enough to converse with both Mr. DeMay and the Zappalla family members in English. In fact, as the crew leader in the Zappalla Farms' onion fields, he was called upon to translate the English instructions from Zappalla family members into Spanish instructions for the crew members. With a verbal command of English, Mr. Perez had the ability to ask clarifying questions about the forms' contents. Correspondingly, because Mr. DeMay assisted in the preparations of the applications, he was available to clarify the provisions for Mr. Perez. As a result, Mr. Perez did have the ability and opportunity to determine the full measure of the application. His decision to remain ignorant of the application's meaning and the impact of his official designation as a farm labor contractor is not an equitable nor valid reason to determine that he was not a farm labor contractor.

   Even if I accepted Mr. Perez's representation that he did not understand the farm labor contractor applications, he still meets the criteria for farm labor contractor under the Act and regulations due to his actual activities. The Act, 29 U.S.C. § 1802 (7), and implementing regulation, 29 C.F.R. §500.20 (j), defines the term "farm labor contractor" as "any person other than an agricultural employer, an agricultural association, or an employee of an agricultural employer or agricultural association who, for any money or other valuable consideration paid or promised to be paid, performs any farm labor contracting activity." Such activity is further defined at 29 C.F.R. §500.20 (i) as "recruiting, soliciting, hiring, employing, furnishing or transporting" migrant farm workers. His professed ignorance of these regulatory definitions and requirements does not relieve him of his responsibilities under the Act. See Stewart v. Everett, 804 F. Supp. 1494, 1498 (M.D. Fla. 1992).

   In his March 8, 1995 meeting with Mr. DeMay and Mr. James Zappalla, Mr. Perez agreed to "supply" a farming crew for Zappalla Farms. To meet his obligation under the agreement, Mr. Perez sent work disclosure forms, written in Spanish, to individuals in Florida. He also telephoned Mr. Freddy Roblero and other persons in Indiantown, Florida to encourage them to come to New York to work on the Zappalla Farm. His contacts with workers in Florida constituted the farm labor contractor activities of solicitation and recruiting of migrant farm workers.

   Although Mr. Clifford DeMay and DeMay Labor have been registered as farm labor contractors in the regards to other farming operations, DeMay Labor maintains it served only as an administrative facilitator in this case. In that regard, several factors support DeMay Labor's position that it was not a farm labor contractor. DeMay Labor did not pay Mr. Nemias Perez to solicit, recruit, or supervise any migrant farm workers. Instead, Mr. Perez performed those functions for Zappalla Farms. DeMay Labor's contact with most of the work crew was limited to the preparation and completion of requisite employment paperwork. DeMay Labor had no involvement with the crews' work in the fields and it did not supervise Mr. Nemias Perez. Similarly, DeMay Labor did not pay any compensation to Mr. Nemias Perez or any other migrant farm worker.

   On the other hand, the behavior of all the parties, prior to July 5, 1995 accident, point to DeMay Labor's role as a farm labor contractor. In January 1995, when seeking to obtain a work crew for the spring growing season, Zappalla Farms sought out Mr. Clifford DeMay and not Mr. Perez (AD 47). According to one of the Zappalla brothers, due to their past experiences with unpredictable work crews, they turned to DeMay Labor who promised a steady work force throughout the spring growing season. Then, notably, rather than simply refer Zappalla Farms to Mr. Perez, Mr. DeMay brought Mr. Perez to a meeting with Mr. James Zappalla in March 1995. At the meeting, and according to the provisions in their written agreement (AD23), DeMay Labor in part agreed to help Mr. Perez "replenish/replace workers when necessary." In fulfillment of that agreement, DeMay Labor encouraged Mr. Perez to find workers and assisted his efforts to obtain workers from Florida. Finally, the compensation scheme in the agreement implies DeMay Labor was receiving compensation for more than completing paperwork. Rather than

receiving a flat rate or a fee associated for each administrative service, DeMay Labor was paid a weekly 3% commission tied to the weekly gross pay of the migrant workers. This continuing payment affected by the number of workers reflects DeMay Labor's interest in ensuring a full work crew. In other words, the agreement gave DeMay Labor a weekly financial stake to ensure the availability of a work crew for Zappalla Farms.

   In considering all the factors associated with DeMay Labor's involvement with Mr. Perez and Zappalla Farms for the spring 1995 growing season, I believe DeMay Labor engaged in the farm labor contractor activity of furnishing migrant workers. Although DeMay Labor did not pay Mr. Perez or any other worker, its status of farm labor contractor is based on its relationship with Zappalla Farms and not Mr. Perez. Starting in January 1995, DeMay Labor rendered more than administrative assistance to Zappalla Farms. Notably, in response to Zappalla Farms' solicitation for a steady spring season work force, DeMay Labor provided Mr. Perez as a crew organizer and leader and stood behind him as a guarantor of a labor force. In particular, by promising to help Mr. Perez to replenish and replace workers if necessary, DeMay Labor assured Zappalla Farms would have its steady work force. In return for that promise and DeMay Labor's assistance to Mr. Perez, and to provide a financial incentive, Zappalla Farms paid DeMay Labor a fee based directly on the wages of workers DeMay Labor helped furnish. On balance, I find the actions of the parties according to their agreement sufficient to establish that DeMay Labor, for compensation, helped furnish the work force for Zappalla Farms. Consequently, DeMay Labor was a farm labor contractor for Zappalla Farms in this case.

   In his initial statement to DOL investigators, Mr. Perez admitted that up to eight workers, excluding his immediate family, had resided in his trailer on Pollard Road during portions of the growing season. Mr. Meliton Velasquez, Mr. Ufrano Lopez and Mr. Jim Zappalla corroborated Mr. Perez's admission. As the primary renter of the trailer at Pollard Road, Mr. Nemias Perez had control over who occupied the premises and he permitted some workers on his crew to live on the premises for a period of time.

   The record contains no evidence that Mr. Perez had his residence inspected or that he obtained the required health and safety permits. Likewise, in neither of Mr. Perez's applications for farm labor contractor status did he request authority to house workers. As result, he never received a certificate of authorization to conduct that activity. Although Mr. Perez's motives in housing the new migrant workers may have been benevolent, he nevertheless violated the regulatory requirements concerning safety and health permits and registration of farm labor contractor housing activity. Accordingly, there is a sufficient basis for the cited violations and respective fines.

1995 accident, either Mr. Perez or his brother, Mr. Amilcar Roblero, drove or transported migrant workers to and from the Zappalla Farms onion fields. The record is more than sufficient to support the charge that Mr. Perez engaged in the farm labor contractor activity of transporting, or causing to be transported, in both a white van and a blue van, migrant farm workers without an appropriate certificate of registration.

   Mr. Perez was fined $600 under Form WH-518 #20 for violating Section 101 (b) (29 U.S.C. §1811 (b)) by engaging the services of Mr. Amilcar Roblero and Mr. Freddy Roblero to perform the farm labor contractor activity of transporting migrant farm workers, without determining whether they were registered either as a farm labor contractors or farm labor contractor employees performing a function based on Mr. Perez' certificate of registration. Under the cited statutory provision, Mr. Perez, as a farm labor contractor, was prohibited from using unregistered individuals to perform farm labor contracting activity, which under the statutory definition includes the transportation of migrant farm workers (29 U.S.C. § 1802 (6)).

   From the beginning of the onion growing season through the early part of June 1995, a good number of Mr. Perez's work crew rode in Mr. Freddy Roblero's passenger van to and from the Zappalla Farms onion fields. Since Mr. Roblero was also a member of the work crew, his decision to drive fellow workers initially resembles a migrant farm worker car pool. Since under the implementing regulations migrant worker car pools are exempt from the requisite safety standards for vehicles used by a farm labor contractor to transport migrant farm workers (29 C.F.R. §§ 500.100 (c) and 500.103 (b)), an argument exists that Mr. Perez bears no responsibility for Mr. Roblero's decision to car pool with other workers. However, Mr. Perez was not passive concerning this transportation arrangement. In his July 1995 statement (AD 11), Mr. Perez indicated that he sometimes paid Mr. Freddy Roblero gas money. In other words, Mr. Perez reimbursed Mr. Freddy Roblero for the cost associated with the transportation of members of Mr. Perez's work crew. This reimbursement is sufficient to find that Mr. Perez did engage Mr. Roblero to perform the farm labor activity of transporting migrant farm workers. And, since the record contains no evidence that Mr. Roblero was registered, either as a farm labor contractor or a farm labor contractor employee, the preponderance of the evidence supports the cited violation in regards to Mr. Freddy Roblero.

   After Mr. Freddy Roblero left New York for Florida, Mr. Nemias Perez purchased a blue van with his brothers, including Mr. Amilcar Roblero, to provide transportation for the work crew. Subsequently, according to numerous members of the work crew, including Mr. Velasquez, Mr. Lopez, Mr. Gonzalez, Mr. Aldolfo Perez and Mr. David Perez, Mr. Amilcar Roblero was a principal driver of the blue van.

   Under 29 C.F.R. § 500.104, a farm labor contractor providing transportation in a vehicle must comply with several vehicle safety standards. Notably, a vehicle must not be driven when loaded beyond the gross vehicle weight rating (29 C.F.R. § 500.104 (k)). And, each occupant of the vehicle must be provided with a seat securely fastened to the vehicle (29 C.F.R. § 500.104 (l)).

   As a partial solution to Mr. Perez' transportation crisis, his brother, Leobardo Roblero, brought a white van from Delaware to help transport the workers. Mr. Nemias Perez and his brothers used that white van to transport migrant farmers to work. Since many workers rode in the white van, the gross vehicle weight was probably exceeded. However, the record does not indicate the actual number of workers riding in the van so I am unable to make a specific finding that the gross vehicle weight of the white van was exceeded. Regardless, the white van only had seating for two individuals (AD 2). The workers riding in the rear of the white van did not have secured seats So, in regards to the white Chevy van, Mr. Nemias Perez violated the Act by using a vehicle to transport his crew members that did not have sufficient secured seating for every occupant.

   Mr. Perez also utilized a blue Chevy van to move his crew to and from the Zappalla Farms' onion fields. That van did not have secured seating for all its passengers (AD 5 and AD 6). In addition, on July 5, 1995, just prior to colliding with a tree, Mr. Amilcar Roblero was driving the van with 16 migrant farm workers, clearly exceeding the gross vehicle weight limit. Eventually, Mr. Amilcar Roblero was convicted of operating the overweight vehicle (AD 38). Consequently, Mr. Nemias Perez's use of the overloaded blue van without sufficient secured seating to transport his work crew violated the regulation's safety standards and the Act.

   The record provides more than sufficient evidence that the white Chevy van and the blue Chevy van used by Mr. Perez to transport his farm crew to and from work did not comply with the regulations' mandated vehicle safety standards for the transportation of migrant workers. Mr. Perez violated the Act by providing transport vehicles that both failed to meet the regulatory vehicle safety standards.

   In their March 1995 meeting, DeMay Labor, Zappalla 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.

   In light of these facts, counsel for the Administrator asserts that the contract provision that required Mr. Perez to ensure the workers' transportation, coupled with Mr. DeMay's subsequent suggestion about a van auction, amounted to DeMay Labor directing, and thus causing, the transportation of the workers in unsafe vehicles. While I have considered counsel's argument and the fact that DeMay Labor's compensation was tied in part to the number of workers present each week, I find the totality of the facts surrounding the parties' agreement and subsequent actions does not sufficiently support that position.

   In the case before me, considering the dearth of vehicles and driver's licenses among the workers, the absence of public transportation, and the distances between the workers' housing that was provided by Zappalla Farms and the onion fields, the rationale in Alviso-Medrano and Saintide support a finding that Zappalla Farms, by offering employment in its onions fields and housing the workers miles away from those fields, made transportation an integral part of the onion growing work. Without the provided transportation, the workers would not have been able to tend the onion fields. As a result, Zappalla Farms effectively "caused" transportation in unsafe vehicles to be provided to Mr. Perez's work crew for their transit to and from the Zappalla Farms' onion fields.

   The Administrator fined DeMay Labor ,000 under Form WH-518 #16 for violating Section 402 of the Act (29 U.S.C. § 1842) by utilizing Mr. Nemias Perez to perform the farm labor contractor activities of housing, transporting and driving migrant farm workers without determining whether he possessed a certificate of registration authorizing such activity.

   Under the Act, 29 U.S.C. § 1842, as implemented by the regulation, 29. C.F.R. §§ 500.41 and 500.71, no "person shall utilize the services of any farm labor contractor to supply any migrant or seasonal agricultural worker unless the person first takes reasonable steps to determine that the farm labor contractor" possesses the requisite certificate of registration for the activity. Although the Act and regulation do not define the term "utilize," the provision focuses on the "the activity for which the contractor is to be utilized." 29 C.F.R. §500.71. In light of this regulatory language, the violation in this citation consists of two parts. First, the person must utilize the farm labor contractor for one of the several farm labor contractor activities. And, second, the person must fail to take reasonable steps to confirm that the farm labor contractor possesses a valid certificate of registration to conduct the particular farm labor activity.

    So first, 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 Zappalla 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.

   The Administrator also fined Zappalla Farms $1000 for the same offense. Zappalla Farms was cited under Form WH-518 #16 for violating Section 402 of the Act (29 U.S.C. § 1842) by utilizing Mr. Nemias Perez to perform the farm labor contractor activities of housing, transporting and driving migrant farm workers without determining whether he possessed a certificate of registration authorizing such activities. Concerning the farm labor contractor activity of transportation, 29 C.F.R. §500.70 (c) concludes with the following language, "[i]n all cases a person using a farm labor contractor is required to take reasonable steps to determine that the vehicle used by the farm labor contractor is authorized to be used for transportation as prescribed in section 402 of the Act [29 U.S.C. § 1842] and § 500.71 of these regulations."

   For the housing portion of the citation, I conclude for the following reasons that Zappalla Farms did not utilize Mr. Perez to house members of his crew. Over the course of the growing season, Mr. Perez permitted co-workers, besides his family members, to reside for a period of time in the trailer he was renting from Zappalla Farms on Pollard Road. However, Zappalla Farms played no role in Mr. Perez's decision to let the co-workers stay with him. When Zappalla Farms learned of the unauthorized residents, it warned Mr. Perez that their presence was not authorized. Zappalla Farms even made an effort to remove the unauthorized residents from the trailer on Pollard Road by increasing Mr. Perez's rent. In addition, because Zappalla Farms provided two authorized labor camps for the members of Mr. Perez's work crew, it had no need to utilize Mr. Perez to house migrant workers in his trailer. Specifically, there is no evidence that the workers had to stay with Mr. Perez because there was no room at the labor camps. Therefore, considering that Zappalla Farms offered suitable housing for the workers and objected to the unauthorized residence of the workers, it did not utilize Mr. Perez to illegally house some workers in the Pollard Road trailer.

   In summary, the preponderance of the evidence supports the cited violations in regards to utilizing Mr. Perez for driving and transporting migrant workers without verifying his authority for the two activities. But, the record does not support a finding that Zappalla Farms also utilized Mr. Perez for housing. That portion of the citation under WH-518 #16 must be dismissed.

   The Administrator fined Zappalla Farms $200 under WH-518, #12 for violating Section 203 (a) of the Act (29 U.S.C. § 1823 (a)) by owning a facility at Pollard Road used to house migrant workers that did not comply with Federal safety and health standards. Section 203 (a) holds the owner of a facility used to house migrant farm workers responsible for the facility's compliance with "substantiative Federal and State safety and health requirements." The implementing provisions of the regulation, 29 C.F.R. §§ 500.130 to 500.135, further specify those standards. And, 29 C.F.R. § 500.70 (d) addresses an agricultural employer's responsibility as follows:

Any agricultural employer or agricultural association which has a farm labor contractor operate housing which it owns or control is responsible, as well as the farm labor contractor, for insuring compliance with the housing and safety provisions of these regulations.

   Based on the comments of the DOL investigators, the major problem with the Pollard Road trailer was that it did not have a certificate of occupancy based on a local, State, or Federal safety and health inspections. 29 C.F.R. § 500.135 (b). Since Zappalla Farms didn't intend for the trailer to house more than Mr. Nemias Perez and his immediate family, the absence of such a certificate of occupancy is understandable. The essential question that remains is whether Zappalla Farms, even though it did not intend nor authorize the use of trailer for housing other migrant workers, is still responsible for the absence of the occupancy certificate based solely on its status as owner of the trailer.

   In light of my findings of fact and conclusions of law and in accordance with 29 C.F.R. § 500.262 (e):

1. The Assessment of Civil Monetary Penalty, dated August 16, 1995, against the Respondent ZAPPALLA FARMS is MODIFIED IN PART as follows: the determination that ZAPPALLA FARMS violated the Act as stated in Violation #16 b ("the FLC housed workers in a dwelling not listed in his HA document") is REVERSED.

2. The Assessment of Civil Monetary Penalty, dated August 16, 1995, against DEMAY LABOR, and all the determinations that DEMAY LABOR violated the Act, and the corresponding civil monetary penalties set out in the assessment, are REVERSED.

SO ORDERED:

       RICHARD T. STANSELL-GAMM
       Administrative Law Judge

Washington D.C.