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June 28, 1994

MARGARITA AVILA, et al., Plaintiff,
A. SAM & SONS, et al., Defendants.


The opinion of the court was delivered by: CAROL E. HECKMAN

The parties have consented to trial before the undersigned pursuant to 28 U.S.C. § 636(c). A non-jury trial was held from February 28 through March 3, 1994. Following the trial, the parties submitted proposed findings of fact and conclusions of law. After these pleadings were filed, the parties presented closing arguments to the court on April 15, 1994. What follows below is the court's findings of fact and conclusions of law.


 In this case, ten Haitian Creole farm workers challenge the labor practices of defendants during the 1987 tomato and cucumber harvest. Seven of the ten plaintiffs *fn1" testified at trial using a Haitian Creole interpreter to translate their testimony. Depositions from the three remaining plaintiffs *fn2" were admitted into evidence.

 The parties stipulated that A. Sam and Sons Produce Company, Inc. is an agricultural employer for all time periods relevant to the trial. In 1987, Esau Sam was the president of the board of directors. He was in charge of deciding how many workers were needed to harvest the crops, and he recruited farm labor contractors and their crews to work on the farm.

 Esau Sam's son, Robert Sam, hired workers to plant and cultivate the fields and assigned crews to pick different fields at harvest time. Esau Sam's sister, Helen Sam, was the corporate secretary and supervised the payroll of the farm.

 A. Sam and Sons normally hires between 40 and 70 migrant farm workers for the harvest season. The harvest season starts in late July or August and runs through October, depending on weather.

 According to documents filed with the New York State Department of Labor, A. Sam and Sons used several crew leaders in the summer of 1987 to supply harvest workers. These included the crews of Hector Martinez (Ex. 5B), Faustino Hernandez (Ex. 5A), Rigoberto Rivas (Ex. 14A) and Lionel Losolla (Ex. 14B). Each of these crew leaders signed an "Application for Farm Labor Contractor Certificate of Registration." This form was co-signed in each case either by Helen Sam or Esau Sam on behalf of the corporation and filed with the State Department of Labor. Each of these forms indicate the number of workers to be provided, the home state of the workers, the date work was to begin and end, the rate of pay, the housing arrangements for the workers and the policy numbers of the corporate workers compensation and disability policies. Also on file with the State Department of Labor is an "Application for Migrant Labor Registration Certificate" signed by Helen Sam in May of 1987 on behalf of A. Sam and Sons. It states that the farm planned to hire 20 migrant workers from Puerto Rico between May and October of 1987 to harvest tomatoes, cucumbers and cabbages, and that the laborers would reside in a labor camp provided on the farm at no charge (Ex. 5C).

 The Isaac Crew

 The testimony at trial established that eight of the plaintiffs (Merzee Edouard, Bethany Isaac, Wilbert Val, Nathan Metelus, Nerestin Labonte, Lometace Holland, Gracile Jean and Yolande Isaac) were migrant agricultural workers who worked for crew leader Mompremier Isaac. In 1987, Isaac invited them to work at A. Sam & Sons in Dunkirk, New York picking tomatoes. He promised them that there was work available for several months, that housing would be provided, and that they would be paid $ 2.10 per bucket of cherry tomatoes and $ 0.40 per bucket of regular tomatoes. These agricultural workers resided in Florida and were driven to Dunkirk, New York in Isaac's van.

 In August of 1987, on their way to New York, Mompremier Isaac got lost in Pennsylvania. He located a taxi driver who called the farm and obtained directions to the farm from Esau Sam. Isaac then followed the taxi to the farm.

 When Isaac arrived at the farm with the crew, there was a dispute over the taxi driver's fee. Mompremier Isaac refused to pay the taxi driver and the police were called. Esau Sam advanced the cab fare to the taxi driver.

 As to plaintiffs' recruitment by Isaac, neither of the two crew leaders was available to testify at trial. However, each of the plaintiffs in the Isaac crew provided similar testimony as to the representations Isaac had made to them regarding the availability of work at the A. Sam and Sons farm in Dunkirk, New York, the pay to be provided, the housing arrangements and the type of work, i.e., picking cherry tomatoes. In addition, plaintiff Merzee Edouard testified that she was in Florida at Mr. Isaac's residence in 1987 when the telephone rang. She answered the phone and testified that the man on the other end of the line was looking for Mompremier Isaac. In broken English, she told him that Isaac was not present. The man stated that his name was "A. Sam." She testified that the same person called Isaac two or three times in July of 1987, gave her his name and asked her to have Isaac call him back. She was present when Isaac returned A. Sam's call. After the conversation, Isaac told her that the "bossman" called and there was no work in Virginia but there was work in Dunkirk, New York. Isaac then told her that the caller was A. Sam and that there was good work available. As a result of these representations, she agreed to go with Isaac to the A. Sam and Sons farm in New York.

 Defendants admit that they employed the Isaac crew in 1987, both in the fields and in the packing house (see Exs. 4A, 4B, 4C, 7E and 7F). However, defendants deny that they recruited Isaac, claiming instead that he simply showed up at the farm with his crew and requested work. It is undisputed that defendants had a farming operation in Virginia and that Esau Sam had met Isaac while he was working in Virginia in previous years. According to Esau Sam, he did not speak to Mompremier Isaac about work in 1987 until Isaac had the taxi cab driver call him from Pennsylvania on his way to the farm. At that time, Esau Sam provided the taxi driver with directions to the farm. When Mompremier Isaac arrived at the farm, he asked whether work was available and Esau Sam told him that work was slow. Esau Sam testified that he felt sorry for Isaac and his crew. He knew that they needed to work and he wanted Isaac to repay the debt for the taxi cab, so he told Isaac to look for work in the packing house. He also gave Isaac the names of several other farms in the area that he thought would need crews. According to Esau Sam, he believed that Isaac was going to work at a neighboring farm in the area. He knew that Isaac had worked in previous years for one of the farmers known as Girardo Rizzo in Fredonia, New York.

 The defendants admit that they did not create or keep their normal business records for the Isaac crew. The workers were not required to fill out employment applications. They were not paid directly for their labor but rather were paid through the crew leader Isaac. According to Esau Sam, normal business records were not kept because he had no plan to employ Isaac and his crew for the season. Esau Sam also claims that at least two of the checks issued to Mompremier Isaac were for harvesting work performed by Isaac's crew at other farms in the area. A. Sam and Sons purchased the produce picked by these farms and agreed to pay the crew leader for the work. The A. Sam and Sons labor camp was already filled to capacity and no housing was provided to the members of Isaac's crew.

 The remaining two plaintiffs (Delorme Corrier and Yvonne Corrier) were migrant agricultural workers who worked for crew leader Lionel Losolla. Losolla himself did not testify at trial. Delorme Corrier testified that he and his wife were recruited to go to New York in 1987 by Lionel Losolla. Corrier previously worked for A. Sam and Sons in 1984 and had been brought there by farm labor contractor Isaac. In 1987, before going to New York, he asked about lodging because he was bringing his wife and child. Losolla assured him that both good work and housing were available.

 As already noted, plaintiffs introduced into evidence an "Application for Farm Labor Contractor Certificate of Registration" for Lionel Losolla filed with the State Department of Labor. This indicates that Losolla would be providing up to forty farm workers in August through October of 1987 and that he would be recruiting and transporting workers. It is signed by both Lionel Losolla and Helen Sam on behalf of the corporation.

 Defendants deny recruiting Losolla for the 1987 harvest season. According to Esau Sam, Losolla had previously worked as a farm labor contractor for A. Sam and Sons. Losolla and Esau Sam talked on the telephone sometime during the winter of 1987. Losolla asked Esau Sam if his crew was needed for 1987. According to Esau Sam, he told Losolla not to come and that arrangements had been made for the hiring of other workers. Esau Sam was not satisfied with Losolla's work, and he believed that Losolla's son had stolen tools during the 1986 harvest season.

 Esau Sam testified that Losolla later called him during the Virginia harvest season and asked him about work. Losolla told Esau Sam that he was bringing a crew to Peter Baker's farm in Ransomville and wanted to know if defendants needed extra workers. Again, Esau Sam told Losolla that he was not needed.

 In August of 1987, Losolla showed up at the farm. The defendants admit employing Losolla and his crew on a limited basis. The exhibits support this. Exhibit 1 is a check payable to the order of Delorme Corrier dated August 13, 1987. In addition, Exhibits 7A, 7B and 7C are all checks payable to Lionel Losolla. Helen Sam testified that these checks represented payment to Losolla for both his work and the work of his crew. Delorme Corrier's name also appears on a personnel record of the company (Ex. 8B).

 The testimony and evidence shows that despite employing plaintiffs, defendants did not keep employee earnings records or prepare wage statements for the plaintiffs. They also did not keep time cards for these and other plaintiffs. No written disclosures were provided to any of the plaintiffs.

 The evidence shows that when the plaintiffs arrived at A. Sam and Sons farm, they slept in the van or outside on the ground for several days. Several of the plaintiffs had infant children who slept outside on the ground with them. There were no bathroom or cooking facilities available to them while they lived on the farm. Plaintiffs eventually found housing in hotels for a period of time. Due to lack of work, they eventually moved to other farms or returned to their residences in Florida.


 I. Coverage under AWPA

 It is uncontested that the court has jurisdiction over the action under the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1844(a)("AWPA" or the "Act"). It is also undisputed that the plaintiffs worked on the defendants' farm in August of 1987, where they picked tomatoes and worked in the packing shed. These activities constitute "agricultural employment" under the AWPA. 29 U.S.C. § 1802(3).

 A. Migrant Worker Status

 Section 1802(8)(A) of the AWPA defines "migrant agricultural worker" as "an individual who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence." Defendants argue that several of the plaintiffs failed to establish the location of their permanent residences, and that therefore they failed to establish coverage under the Act. Defendants cite the testimony of Lometace Holland, Nathan Metelus and Delorme Corrier, all of whom in substance testified that in 1987 they had no permanent addresses because they migrated from place to place doing seasonal agricultural work.

 Defendants' argument must be rejected. All of the plaintiffs, including Holland, Metelus and Corrier, meet the definition of migrant agricultural worker. It is clear that in 1987 the workers came to New York from Florida in order to perform seasonal agricultural labor. Their work in New York was temporary and they were required to be absent from Florida overnight. The fact that a few of the plaintiffs, through an interpreter, disclaimed permanent addresses does not diminish their status as migrant agricultural workers.

 As plaintiffs' counsel points out, the plaintiffs resided on the farm property and in motels or other temporary housing while they worked at A. Sam and Sons. The AWPA legislative history and implementing regulations make clear that a labor camp or other temporary farm worker housing cannot be a permanent place of residence for purposes of AWPA. H.R. Rep. No. 97-885, 97th Cong., 2d Sess. 8 (Sept. 28, 1982), reprinted in 1982 U.S.C.C.A.N. 4554; 29 C.F.R. § 500.20(p)(2). It is also clear that all of the plaintiffs were domiciled in Florida. Furthermore, this court has already found, in a report and recommendation dated October 14, 1992 and adopted November 16, 1992, that plaintiffs Delorme Corrier, Nerestin LaBonte, Lometace Holland, Nathan Metelus, Wilbert Val and Gracile Jean are migrant agricultural workers protected by AWPA.

 Defendants argue that two of the plaintiffs, Bethany Isaac and Merzee Edouard, are related to crew leader Mompremier Isaac and therefore cannot qualify as "migrant agricultural workers." Section 1802(8)(B)(i) excludes from the definition of "migrant agricultural worker" "any immediate family member of . . . a farm labor contractor." Under the regulations, "immediate family" includes a "spouse" and a "brother." 29 C.F.R. § 500.20(o). The testimony introduced at trial showed that Bethany Isaac is a half brother of Mompremier Isaac, sharing the same father (Ex. 24 at 8). Merzee Edouard is not married to Mompremier Isaac but lived with him ...

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