DATE: May 28, 1992
CASE NO. 86-MSP-60
IN THE MATTER OF
U.S DEPARTMENT OF LABOR,
PLAINTIFF,
v.
OLIVIO MEDRANO,
DEFENDANT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This matter is before me pursuant to the Migrant and
Seasonal Agricultural Worker Protection Act, as amended (MSPA
or the Act), 29 U.S.C. §§ 1801-1872 (1988), and
regulations at
29 C.F.R. Part 500 (1991). A Notice of Intent to Modify or
Vacate the Decision and Order (D. and O.) of the Administrative
Law Judge (ALJ) was timely issued. 29 U.S.C. §§
1813(b)(2), 1853(b)(2); 29 C.F.R. § 500.265.
An investigation conducted by the Wage and Hour Division
(the Department) concluded that Respondent Olivio Medrano had
violated several provisions of the Act during the period from
April 1 through September 30, 1985. As a result, Respondent
was assessed $2,750.00 in civil money penalties. [1] 29 U.S.C.
§ 1853(a)(1). Respondent requested a hearing before an ALJ
[2] who listed the following issues for resolution:
1. Whether [Respondent] was operating as a farm labor
contractor during the period from April 1, 1985 -
September 30, 1985;
2. If [Respondent] was operating as a farm labor
contractor, whether he did so in violation of the
Act and the applicable regulations;
[PAGE 2]
3. If [Respondnet] was in violation if the Act,
whether $2,750 is an appropriate penalty.
D. and O. at 2. The ALJ found that Respondent had engaged in
certain statutorily enumerated farm labor contracting activities,
D. and O. at 6, but he denied the Department's request to impose
penalties because he concluded that Respondent had acted out of
friendship, had not profited financially from the prohibited
activities and, as a result, was not a farm labor contractor as
defined by the Act. Id.
On review, the briefing order directed the parties to
address whether the ALJ erred in finding Respondent not to be a
farm labor contractor solely because the fees he charged for his
services could not be construed to be money or other valuable
consideration under the Act "since [he] did not make a profit in
collecting such fees." Additionally, the parties were asked to
brief the appropriateness of the civil money penalty assessment
in the event of a finding by the Secretary that Respondent was a
covered farm labor contractor. Counsel for the Department has
addressed these issues but Respondent has not filed any response.
DISCUSSION
The Act is silent as to the profitability of farm labor
contracting activity. Rather, it simply states that:
The term "farm labor contractor" means 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.
29 U.S.C. § 1802(7). Despite clear record evidence that
Respondent, who did not register as a farm labor contractor,
performed specific farm labor contracting activities, see
29 U.S.C. § 1802(6), and 29 C.F.R. § 500.20(i), [3]
for which he received monetary payment, Hearing Transcript (Tr.)
54-57, D. and O. at 5, the ALJ held that:
1) "[I]n order for a person to be considered
a farm labor contractor, he must engage in
the enumerated activities for the purpose of
receiving money or some other type of
consideration. In the instant case the
record indicates that Mr. Medrano was not
paid to recruit workers and that he did not
receive any type of benefit for furnishing
workers to the farmers." D. and O. at 5.
[PAGE 3]
2) "In using the phrase 'for any money or
other valuable consideration paid or promised
to be paid,' Congress clearly intended to
require the contemplation of profit on the
part of the person performing the farm labor
contracting activity." D. and O. at 6.
I disagree. Respondent was first informed of his
obligations under the MSPA, including registration, in the summer
of 1984. Tr. 11-12, 77. At that time the Department's
compliance officer provided him with materials on the Act and a
thorough explanation of it in Spanish, his native language. Tr.
12. Respondent admitted, Tr. 43-63, that in 1985 he engaged in
certain activities which the Act defines as "farm labor
contracting activities". Tr. 44, 51-52, 54-55. Specifically, he
received $30-$40 per week (at the rate of $10 per week from each
worker) to transport workers he had solicited to their job sites.
Tr. 56-57. Because it is undisputed that Respondent engaged in
these activities and was paid for them, I find that he met the
statutory test. 29 U.S.C. § 1802(7).
While the ALJ cites the Congressional statement of purpose,
29 U.S.C. § 1801, in support of his conclusion that the
Act's "express purpose" is the protection of migrant and
seasonal agricultural workers, D. and O. at 6, another "express
purpose" is "to require farm labor contractors to register under
this chapter." 29 U.S.C. § 1801; See also, 29 C.F.R.
§ 500.1(a). Indeed, a full and fair reading of the MSPA and
its legislative history demonstrates that the Act's registration
requirement is the pivotal provision for ensuring the overriding
goal that migrant and seasonal workers are protected in their
employment. The purpose of the registration provision in MSPA,
as with its predecessor, the Farm Labor Contractor Registration
Act of 1963, as amended (FLCRA), 7 U.S.C. §§ 2041-2053
(repealed in 1983),
was to aid the enforcement of the regulatory provisions
against traditional "crew leaders" or "crew pushers" who
recruited crews of migrant and seasonal workers and moved
them from job to job. Although these "crew leaders" or
"crew pushers" were regarded as the primary offenders
against migrant and seasonal workers, they were "usually
transient, and hard to find. . . ., and even harder to
locate and control." 128 Cong. Rec. S11838-39 (daily ed.
Sept. 20, 1982)(statement of Sen. Quayle); see
also 128 Cong. Rec. S11738-39 (daily ed. Sept.
17, 1982) (statement of Sen. Hatch).
Mendoza v. Wright Vineyard Mgt., 783 F.2d 941, 944 (9th
Cir. 1986).
[PAGE 4]
Significantly, neither the repealed FLCRA [4] nor the MSPA
mentions "profit" in the statutory definition of the
consideration which a farm labor contractor must receive to be
subject to their respective registration requirements. Moreover,
the federal courts in the judicial circuit where this case arises
have analyzed the "fee" requirement in litigation under FLCRA and
have squarely rejected the proposition that consideration means
profitable consideration. SeeEl Comite' De Campesinos
De SP Growers v. SP Growers Assn., 81 Lab. Cas.(CCH) ¶
33,490 (C.D. Cal. 1976); Usery v. Coastal Growers Assn.,
418 F. Supp. 99 (C.D. Cal. 1976), aff'd sub. nomMarshall v. Coastal Growers Assn., 598 F.2d 521 (9th Cir.
1979). [5]
Thus, I find the ALJ's conclusions that Respondent received
no benefit for furnishing workers and that Congress intended to
require a contemplation of profit on the part of those performing
farm labor contracting activity to bring them within the Act's
purview, D. and O. at 5, 6, are without support in the record or
the law.
Accordingly, the ALJ's holding that Respondent Olivio
Medrano was not a covered farm labor contractor under the Act is
VACATED. 29 C.F.R. § 500.268. The $2,750.00 assessed by
the Department in civil money penalties under the Act were
unrebutted and uncontroverted by any evidence of record, and I
find them to be reasonable under the circumstances. The civil
money penalties are hereby REINSTATED and Respondent Medrano is
ORDERED TO PAY $2,750.00 to the Wage and Hour Division.
SO ORDERED. [6]
_____________________________
Secretary of Labor
Washington, D.C.
OAA:WLAUDERDALE:kmp:4-23-92S-4309:FPB:523-9728
[ENDNOTES]
[1] The penalties were assessed as follows: ,000 for failure
to register as a farm labor contractor, $100 for failure to
disclose conditions of employment to workers, $50 for failure
to properly display an informational poster required by the Act,
,000 for failure to obtain required automobile insurance, $500
for recordkeeping violations and $100 for failure to provide wage
statements to workers. Plaintiff's Ex. 4.
[2] Respondent appeared prose but with the aid
of a Spanish speaking interpreter.
[3] Defined to include recruiting, soliciting, hiring,
employing, furnishing, or transporting any migrant or seasonal
agricultural worker. 29 U.S.C. § 1802(6).
[4] FLCRA defined a farm labor contractor as a person who, "for
a fee" performed farm labor contracting activity and defined a
fee as, "any money or other valuable consideration paid or
promised to be paid to a person for services as a farm labor
contractor." 7 U.S.C. § 2042(b) and (c) (emphasis
supplied).
[5] In Coastal Growers, the employers seeking exemption
from the registration requirement contended that they did not
offer their services "for a fee" since they were nonprofit
cooperative associations, owned and operated at cost by their
grower-members. The court noted the futility, under FLCRA
section 2042(c), of defining the terms fee and profit
synonymously since that provision excluded from FLCRA coverage
only certain enumerated nonprofit entities and would have been
rendered meaningless by the necessary exclusion of all nonprofit
entities that such a definition would have entailed. 598 F.2d at
523-24.
[6] In accordance with the applicable regulation, this decision
is forwarded to the Chief Administrative Law Judge for immediate
service on all parties listed on the attached certificate of
service. 29 C.F.R. § 500.268.
