Richard Kenda Farms

Plain-English summary

Richard Kenda Farms used seasonal workers to hand harvest vegetables in Florida fields. The judge found that potable water was sometimes not brought to workers until one to four hours after harvesting began in hot conditions, so he affirmed that violation as serious. He vacated the single-use cup allegation because sworn hearing testimony showed that disposable cups were available. He also vacated the toilet and handwashing allegation because testimony showed facilities were in the fields and the Secretary did not prove they were more than one-quarter mile from workers. A $2,000 penalty was assessed for the potable-water violation.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1928.110(c)(1)(i), 1928.110(c)(1)(iii), and 1928.110(c)(2)(iii)
• Outcome: The potable-water item was affirmed as serious with a $2,000 penalty; the cup and toilet/handwashing items were vacated.
• Key point: Agricultural drinking water must be available throughout hand-harvesting work, not delivered only after employees have already worked for hours in hot fields.

Full text (OSHRC public release)

                 UNITED STATES OF AMERICA
     OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

)))))))))))))))))))))))))))),
Secretary of Labor, :
Complainant, :
:
v. : OSHRC Docket No. 03-1756
:
Richard Kenda Farms, : EZ
Respondent. :
)))))))))))))))))))))))))))))))-
Appearances:

      Sharon D. Calhoun, Esquire                                        Conrad C . Bishop, Jr., Esquire
         Office of the Solicitor                                            The B ishop Law F irm, P.A.
         U. S. Department of Labor                                          Perry, Florida
         Atlanta, Georgia                                                       For Respondent
               For Com plainant

Before: Administrative Law Judge Ken S. Welsch

                                        DECISION AND ORDER

      Richard Kenda Farms (Kenda Farms), a family-operated farm in Madison, Florida, utilizes

farm workers to hand harvest vegetables including peppers, squash and eggplant. Because of a
complaint from the Mexican Consulate regarding allegations of peonage and unsafe conditions, the
Employment Standards Administration, Wage and Hour Division (W&H) of the U. S. Department
of Labor initiated an investigation of Kenda Farms on June 12, 2003. The W&H investigation was
made pursuant to the Fair Labor Standards Act (29 U.S.C. § 201, et seq.), the Migrant and Seasonal
Agricultural Worker Protection Act (29 U.S.C. § 1801, et seq.), and the Occupational Safety and
Health Administration’s (OSHA) field sanitation standards for agriculture at 29 C.F.R. §1928.110.1
Based on W&H’s field sanitation inspection, Kenda Farms received three serious citations on
September 22, 2003. Kenda Farms timely contested the OSHA citations.

      1

     Pursuant to the Secretary of Labor’s Order 5-96, the Employment Standards Administration is given authority

to enforce OSHA’s field sanitation standards at 29 C.F.R . § 192 8.110 against agricultural emplo yers through inspec tions,
issuance of citations and the assessment of penalties under the Occupational Safety and Health Act (Act). 62 FR 107-111
(January 2, 1997).
 The serious citations allege that on June 12, June 13, June 17, and July 1, 2003, Kenda Farms
violated 29 C.F.R. § 1928.110(c)(1)(i) by failing to provide potable drinking water to farm workers
in the fields; 29 C.F.R. § 1928.110(c)(1)(iii) by failing to have single use cups or fountains to
dispense the potable water to the farm workers; and 29 C.F.R. § 1928.110(c)(2)(iii) by failing to
locate toilets and handwashing facilities within a one-quarter mile walk of each farm worker while
working in the fields. Each alleged serious violation proposes a penalty of $2,100.
The case proceeded under EZ Trial proceedings at 29 C.F.R. § 2200.200. The EZ Trial
hearing was held on March 9 to 10, 2004, in Madison, Florida. The parties stipulated jurisdiction
and coverage (Tr. 5-6). The parties filed post hearing statements of position.
Kenda Farms denies the alleged violations and asserts that its farm workers were provided
potable water, single use cups and the use of portable toilets and handwashing facilities while
working in the fields harvesting peppers, squash and eggplant.
For the following reasons discussed, the alleged violation regarding the lack of potable water
is affirmed as serious and a penalty of $2,000 assessed. The remaining alleged violations are vacated
as not supported by the record.
The Inspection
Kenda Farms is a family-operated farm in Madison, Florida, which grows and harvests
vegetables including peppers, squash and eggplant. In addition to owner Richard Kenda, his
daughters, Virginia Oro and Lynn Kenda, work for Kenda Farms (Tr. 319, 460-461). In June 2003,
Kenda Farms had approximately 48 employees, including foremen and farm workers to hand harvest
the vegetables (Tr. 70). Generally, the farm workers are apparently of South American descent who
speak Spanish and little or no English.
During June 2003, Kenda Farms operated four fields. The main farm property which is
owned by Kenda Farms, consists of the residence, a packing house, mechanics’ shed, a single-wide
trailer, other structures and a field, referred to for the purposes of this case as “Field A” (Exh. C-6).

                                               2

Field A is approximately 1100 feet by 800 feet2 and was used in 2003 to grow peppers (Exhs. C-13,
C-14, R-13; Tr. 64, 368). In addition to its own field, Kenda Farms leased farm land to grow
eggplant (Field B), squash (Field C), and zucchini (Field D) (Tr. 73-74, 77, 145, 376). Using an
automobile’s odometer, Field B was approximately 3/10 of a mile deep and 2/10 of a mile wide
(Exh. C-15; Tr. 71). During W&H’s investigation period in June through July 2003, only Fields A
and B were being hand harvested by farm workers (Complainant’s Brief, p. 8; Tr. 147, 245).3
After receiving a complaint from the Mexican Consulate alleging peonage and unsanitary
field conditions, W&H investigators Joan Prado (lead investigator), Luis Aponte, Charles Bryan and
Mercedes Herrara initiated an investigation of Kenda Farms on June 12, 2003 (Tr. 43-44, 53). The
investigators held an opening conference with Richard Kenda and his daughter, Virginia Oro, and
were than driven around Field A and Field B. The investigators were not allowed to go into the
fields or interview workers in the fields (Tr. 46-47, 61, 79, 147). On June 13, 2003, investigators
Prado and Aponte returned to interview some workers off Kenda Farms’ property. Prado also drove
around farms (Tr. 48, 80, 154-155). On June 17, 2003, the investigators interviewed more workers
who had been terminated for allegedly not signing immigration I-9 forms (Tr. 80, 157, 191). On
July 1, 2003, the W&H investigators returned to Kenda Farms to hold a closing conference. Richard
Kenda did not allow them to do an abatement inspection (Tr. 80, 159).
As a result of W&H’s investigation of Kenda Farms’ compliance with OSHA’s field
sanitation requirements, serious citations were issued for failing to provide potable drinking water,
single use drinking cups, portable toilets and handwashing facilities to farm workers harvesting
vegetables.
Discussion
The Secretary has the burden of proving a violation.

     2

     Using her automo bile’s od ome ter, investigator P rado measured Field A as 3/10 (1,584 feet) of a mile deep and

4/10 (2112 feet) of a mile wide (Tr. 64, 153).
3

     At the time of the investigation, no hand harvesting was being performed on Field C, which was newly prepared,

or Field D, which had already been harvested (Tr. 73-74, 77). Kenda Farm s also lea sed another farm in M adiso n Co unty
which grew sq uash, b ut it was unknown to W &H and w as not a part o f the investigation (T r. 45, 3 77, 3 79-3 80).

                                                        3

In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b)
the employer’s noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation (i.e., the employer either knew or, with the exercise of reasonable diligence
could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Kenda Farms does not dispute the application of OSHA’s field sanitation to its farm
operations. Kenda Farms is an agricultural employer within the meaning of § 1928.110(b) in that
it owns and operates a business as an agricultural establishment in Madison, Florida, which uses paid
employees in the production of food. The workers hired by Kenda Farms are engaged in agricultural
activities by hand harvesting vegetables including peppers, squash and eggplant (Tr. 47, 81).
Also, there is no dispute that Kenda Farms utilized more than 11 employees on any given day
in its hand harvesting operations in the fields. See § 1928.110(a). According to investigator Prado,
Kenda Farms’ payroll records showed approximately 48 employees during the period of W&H’s
investigation (Tr. 70). Richard Kenda identified the farm workers as employed by Kenda Farms
(Tr. 81). Investigator Prado counted approximately 15 to 25 farm workers in Field A on June 12 and
15 workers in Field B on July 1, 2003 (Tr. 132, 152, 159).
The citations issued by W&H allege the violations to have occurred on four specific dates:
June 12, June 13, June 17 and July 1, 2003. The record, based on the testimony of investigator Joan
Prado and Kenda’s daughter Virginia Oro, establishes that farm workers cut peppers in Field A on
June 12, June 13 and July 1, 2003 (Tr. 148, 400-401). In Field B, the farm workers harvested
eggplant on June 17 and July 1, 2003 (Tr. 149, 401).
If the alleged violations regarding the lack of potable water, single use cups, toilets, and
handwashing facilities are established, there is also no dispute regarding employees’ exposure and
Kenda Farms’ knowledge of the conditions. The farm workers began their work in the fields around
7:00 a.m. and worked until late afternoon or evening around 9:00 p.m. each day (Exhs. C-2, p. 6,
C-3 thru C-5, C-8, C-9; Tr. 84, 410, 465, 486, 499). Phoenix Roofing Inc., 17 BNA OSHC 1076,
1079 (No 90-2148, 1995) (either actual exposure or a showing that it was reasonably foreseeable that
employees would have access to the violative conditions is sufficient).

                                             4

With regard to employer’s knowledge, Richard Kenda or his field supervisors, including his
son-in-law Fidencio Oro, was regularly in the fields overseeing the work of the farm workers. They
were clearly aware of the conditions in the fields (Tr. 81-82, 89, 400). Dover Elevator Co., 16 BNA
OSHC 1281, 1286 (No. 91-862, 1993) (a supervisory employee’s actual or constructive knowledge
of the violative conditions is imputed to an employer).
Kenda Farms argues that the farm workers while in the fields were provided potable drinking
water, drinking cups, portable toilets and handwashing facilities as required by OSHA’s field
sanitation standards. It asserts that potable drinking water and individual cups were available and
readily accessible. It also claims that portable toilets and handwashing facilities were provided
within a reasonable distance from where the farm workers harvested vegetables in the fields.

                                      Alleged Violations
                          Potable Drinking Water - §1928.110(c)(1)(i)

      The citation alleges that Kenda Farms failed to provide on the dates cited potable drinking

water which was readily accessible to farm workers while in the fields harvesting vegetables.
Section 1928.110(c)(1)(i) provides that: “Potable water shall be provided and placed in locations
readily accessible to all employees.”
“Potable water” is defined as “water that meets the standards for drinking purposes of the
state or local authority having jurisdiction or water that meets the quality standards prescribed by the
U.S. Environmental Protection Agency’s National Interim Primary Drinking Water Regulations,
published in 40 C.F.R. Part 141.” § 1928.110(b).
There is no dispute that water was provided on the days cited. However, complainant argues
that according to some workers, the water tasted bad and had sand in it, was not cold, and was not
provided until the workers had been harvesting in the fields for several hours (Complainant’s Brief,
p. 20).
Despite complainant’s assertion as to the quality of the water and lack of ice, the record fails
to establish that the water provided to the farm workers was not potable water. Although some
worker statements indicate that the water was dirty, contained sand, had a bad taste, and smelled bad

                                                 5

(Exhs. C-4, C-5, C-8 thru C-11; Tr. 83-84, 125-126), the Secretary did not have tests performed on
the water or show that it failed to meet local or state standards (Tr. 294). None of the workers stated
that they did not drink the water or that they became sick from drinking the water. There is no
showing that Kenda Farms failed to provide other than city/county tap water or acceptable well water
for drinking purposes.
Further, the worker interview statements taken by W&H were specifically contradicted by
complainant’s witnesses who were deposed for trial. E. Perez testified that the water was “clean”
and brought in a big thermos (Exh. C-1, p. 18). M. Perez testified that “it was clear water” (Exh.
C-2, p. 13). It is also noted that the farm workers who testified at the hearing for Kenda Farms were
not asked about the quality of the water. However, they did state that the water contained ice (Tr.
411, 498, 505). Lynn Kenda testified that she filled the water containers with water and ice each
morning (Exh. R-11; Tr. 466). There was an ice cooler in the shop which was regularly filled by an
ice company (Exh. R-10; Tr. 469).
The record shows that the drinking water was brought to the fields, usually in 10-gallon
Gatorade containers located on the packing trailer (Exhs. C-1, p. 18, R-11, R-13; Tr. 385, 424, 462).
The trailer was placed alongside the farm workers so that when they emptied a bucket of cut
vegetables at the trailer, the worker could get a drink of water (Tr. 340). The Secretary does not
dispute that the Gatorade containers of drinking water were readily accessible to the farm workers
as required by § 1928.110(c)(1)(i) (Tr. 83-84).
However, the record shows that potable water was not available and readily accessible to the
farm workers for all hours of hand harvesting in the fields. Section 1928.110(c)(1)(i) requires that
the potable water be provided and placed in locations readily accessible to all employees. The
purpose of the standard is to ensure that drinking water is provided to workers while hand harvesting.
If drinking water is not available for all hours of hand harvesting, it is not provided and readily
accessible as required.
Kenda Farms does not dispute that hand harvesting is hard, hot work particularly in north
Florida in June and July. As shown by the photographs, hand harvesting is physical labor performed
in an open field subject to direct sunlight with high temperatures and humidity. Section
1928.110(c)(4)(ii) requires employers to inform each farm worker to “drink water frequently and

                                              6

especially on hot days.” Investigator Prado recorded a 98-degree temperature at 1:35 p.m. on
July 1 at Field B. She also characterized June 12, 13 and 17 as hot days. Prado identified the
potential hazards associated with a lack of drinking water to include cramps, heat exhaustion and
heat stroke (Tr. 85, 87, 135-136).
The Secretary’s employee interview statements indicate that the drinking water was not
available in the fields until 10:00 a.m. or 11:00 a.m. The workers had been working since 7:00 a.m.
(Exhs. C-4, C-5, C-7, C-8, C-9).4 The workers’ statements are consistent with trial depositions of
two brothers (Exhs. C-1, p. 16-17, 35, C-2, p. 12-13). Also, the farm workers who testified for
Kenda Farms stated that drinking water was brought to the field one hour after they had started
harvesting activities, and sometimes there was not enough (Tr. 415, 434, 491, 501, 508).
Only Kenda’s daughters testified that the drinking water was taken to the fields before
7:00 a.m. because it was prepared at 6:00 a.m. to make sure that it was on the trailer when the
workers started harvesting (Tr. 384, 466). Because of the inconsistency with the testimony of other
witnesses and their obvious interest in the outcome of the case, the daughters’ testimony on this issue
is not given weight.
The failure to have the water available for all working hours violates the standard. Section
1928.110(c)(1)(i) specifically requires that drinking water “be provided” and “readily accessible”
to all employees. This is to ensure that drinking water is available throughout the workers’ hand
labor activities in the field and not waiting one to four hours before being able to drink water. In
Contractors Welding of Wester New York Inc., 15 BNA OSHC 1249 (No. 88-1847, 1991), remanded
due to settlement, 15 BNA OSHC 1874 (1992), the Review Commission concluded that the use of
the word “provide” in a standard was not ambiguous and that it was commonly understood to mean
“furnish” or “make available.” In this case, the water was not furnished or made available for several
hours after the farm workers began their hand harvesting activities.

     4

     Exhibits C-1 and C-2 are trial depositions of brothers and former farm workers of K enda Farms. Exhibits C-3,

C-4, C-5 and C-18 are considered admissions under Federal Rules of Evidence, Rule 801(d)(2). Exhibits C-7, C-8, C-9,
C-10, C-11 and C -19 were taken after the employees were no lo nger emplo yed by Kenda Farm s and, therefore, were
accepted as hearsay statements which are admissible under EZ Trial proc eedings, and are accord ed weight based on their
consistency with other evidence.

                                                       7

A serious violation of § 1928.110(c)(1)(i) is established. To find a violation “serious” under
§ 17(k) of the Act, 29 U.S.C. §666(k), the Secretary must show that there was a substantial
probability of death or serious physical harm as a result of the violative condition and the employer
knew or should have known, with the exercise of reasonable diligence, of the presence of the
violative condition. In determining substantial probability, the likelihood of an accident is not an
issue. The Secretary need only show that an accident is possible, and the result of the accident would
likely be serious physical harm or possibly death. Spancrete Northeast, Inc., 15 BNA OSHC 1020,
1024 (No. 86-521, 1991).
Although water was eventually brought to the field, workers had already engaged in hard
physical labor under hot and humid conditions for one to four hours without access to drinking
water. The lack of water may cause cramps, dehydration, heat stroke or other serious health effects
(Tr. 87, 90). Kenda Farms supervisors were in the fields throughout the day and aware of the lack
of water. In fact, farm foreman/overseer Fidencio Oro, son-in-law to Richard Kenda, sold sodas to
the workers for 75 cents each (Tr. 375, 400).
A penalty of $2,000 is reasonable for a serious violation of § 1928.110(c)(1)(i).5 In excess
of 15 farm workers were exposed to the lack of water for one to four hours each day while
performing hard physical labor in direct sunlight and more than 90-degree temperatures. Kenda
Farms is given credit for size and history. Kenda Farms employs approximately 48 employees. The
harvesting work, however, is seasonal. In terms of history, Kenda Farms has no record of previous
OSHA violations during the preceding three years (Tr. 214). Kenda Farms is not entitled to credit
for good faith because it was uncooperative during the W&H inspection and made no showing of
a safety program.

     5

     Under § 17(j) of the Act, 29 U.S.C. § 666(j), the Review Commission has authority to assess civil penalties

“giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer
being charged, the gravity of the violation, the good faith of the emplo yer, and the history of previous violations.”

                                                        8

Single-Use Cups - §1928.110(c)(1)(iii)

    The citation alleges that Kenda Farms failed to provide single use cups or fountains to

dispense potable water to farm workers while in the fields harvesting vegetables. Section
1928.110(c)(1)(iii) provides that: “The water shall be dispensed in single-use drinking cups or by
fountains. The use of common drinking cups or dippers is prohibited.”
The record on this issue is fact specific and contradictory. W&H Investigators Prado and
Aponte testified that they did not observe individual cups or fountains for drinking water in the fields
(Tr. 92, 150, 158, 308-309). However, the investigators were not allowed to go into the fields
(Tr. 61, 200). From their interviews with farm workers, the investigators understood that cups were
provided on June 12, the first day of their inspection (Tr. 91, 253, 283). Other than on June 12, the
worker interview statements indicated that single use cups were not provided (Exhs. C-4, C-7, C-8,
C-11). The farm workers stated that they drank water from cut soda cans or cut out squash (Exhs.
C-5, C-8, C-11, C-18). The worker interview statements are supported by the trial depositions of
two brothers who also stated that cups were not provided (Exhs. C-1, p. 19, 28, C-2, p. 13-14).
Kenda Farms, however, asserts that single use cups were provided to the farm workers in the
fields. Richard Kenda’s daughters, Virginia Oro and Lynn Kenda, testified that paper/plastic cups
were in place next to the “Gatorade” water container (Tr. 356, 462, 465). Lynn Kenda who works
on the trailer in the fields testified that although paper cups were available, she has seen workers not
use the cups. Instead, the workers cut out a squash to use as a cup (Tr. 472).
The daughters’ testimony was supported by four farm workers (Garcia, Lopez-Perez,
Vaquero, Hermenegildo), who testified that paper/plastic cups were available during June 2003.
Garcia testified that disposable glasses/cups were provided and that she never drank from soda cans
or used a cut squash because it tasted “pretty bad” (Tr. 411, 415-416). Rosales testified that glasses
were provided, but sometimes they were not there because workers had thrown them away.
Therefore, she brought her own glass. Rosales stated that Fidencio sometimes did not bring cups,
and workers used soda cans or cut-out squash (Tr. 425, 434-435). However, Rosales only worked
on July 1, 2003, the last day of the investigation (Tr. 424). Lopez-Perez, who worked on June 12,
13, 17 and July 1, 2003, testified that glasses/cups were provided but some workers did not want to

                                               9

drink out of them so the glasses laid around (Tr. 486, 490-491). Vaquero, whose job included
bringing water to the fields, testified that glasses were furnished (Tr. 499, 503). Hermenegildo
testified that there were “throw-away” cups available, but sometimes they blew away and workers
drank water from cut soda cans (Tr. 505, 508-509).
The record fails to support the Secretary’s claim that Kenda Farms failed to provide single
use cups for drinking water in the fields. The W&H investigators were not permitted in the fields
and were not in a position to see if single use cups were available. The interview statements taken
by W&H are contradicted by the testimony of several workers called by Kenda Farms. Unlike the
interview statements, however, the workers who testified were sequestered, under oath, and subject
to cross-examination. The witnesses’ testimony is given more weight than the signed worker
interview statements taken by W&H which lacked specificity, were not verbatim, and were not
subject to cross-examination. The investigators agreed that the interview statements were general
and did not identify specific dates or field locations (Tr. 105, 150, 187). It is also noted that the
interview statements were taken by W&H on June 13 when it is undisputed that cups were provided
on June 12. A second group of interview statements were taken on June 17 after the workers were
terminated on June 16, 2003 (Tr. 91, 184, 166, 172, 191). The two trial depositions offered by the
Secretary were from brothers who had been terminated for not signing immigration Form I-9. Also,
their testimony is not specific as to dates or field locations (Exhs. C-1 p. 25, C-2 p. 5; Tr. 191).
The alleged violation is not established.
Portable Toilets and Handwashing Facilities
§1928.110(c)(2)(iii)

   The citation alleges that Kenda Farms failed to locate toilets and handwashing facilities

within a one-quarter mile walk from each farm worker while in the fields harvesting vegetables.
Section 1928.110(c)(2)(iii) provides that:
Toilet and handwashing facilities shall be accessibly located and in close proximity
to each other. The facilities shall be located within a one-quarter-mile walk of each
hand laborer’s place of work in the field.

   The standard requires that the toilet and handwashing facilities be located within a one-

quarter mile (1,320 feet) walk of each worker in the field hand harvesting. According to Oro, Field

                                               10

A’s rows of peppers were approximately 1,100 feet by 800 feet (Tr. 64, 368). Using her automobile
odometer, CO Prado measured Field A as 3/10 of a mile (1,584 feet) deep and 4/10 of a mile (2112
feet) wide (Tr. 64, 153). A meter reader for the electric cooperative estimated that Field A was 30
acres, or approximately three or four, 100-yard football fields (Tr. 457). Described as slightly
smaller, Field B, which was used for growing eggplants, was approximately 3/10 of a mile (1,584
feet) deep and 2/10 of a mile (1056 feet) wide according to Prado’s odometer (Tr. 71, 396).
There is no dispute that toilet and handwashing facilities needed to be accessibly located to
the farm workers in Fields A and B on June 12, 13, 17 and July 1, 2003. During their investigation,
Prado and Aponte did not see any portable bathrooms while driving around the perimeters of Fields
A and B (Tr. 97, 111, 158, 241, 243). However, from their interviews of farm workers, they
determined that portable bathrooms were available on June 12 in Field A (Tr. 97, 108, 283).
The worker interview statements taken by W&H indicated that portable bathrooms were not
available to workers except on June 12 (Exhs. C-3, C-5, C-8, C-10, C-18). As discussed, however,
the interview statements were taken only on June 13 and June 17 after the workers were terminated
on June 16, 2003 (Tr. 166, 172). Also, since portable bathrooms were available on June 12, the
worker statements do not necessarily indicate that portable bathrooms were removed for June 13,
June 17 and July 1, 2003 (Exhs. C-3, C-7, C-8, C-10). The workers stated that the bathrooms, when
available, were dirty and they never had soap, water or paper towels (Exhs. C-3, C-5, C-7, C-8, C-9,
C-10, C-18). The two brothers who were deposed stated there were no bathrooms in the fields to
use and there was no place to wash their hands (Exhs. C-1 p. 13, 16, C-2 p. 7). However, they also
said that bathrooms were available for approximately one week, but they did not use them because
they were dirty (Exhs. C-1, p. 37, C-2, p. 8). E. Perez stated the walk to the bathroom from the far
end of the field was over one-quarter mile (Exh. C-1, p. 16). However, M. Perez stated that he had
to walk 100 meters (327 feet) to the bathroom (Exh. C-2, p. 9).
Kenda Farms asserts that portable bathrooms and handwashing facilities were available to
the farm workers harvesting in the fields. Kenda Farms had purchased six portable toilets in 2002
for $2,400 (Exh. R-7; Tr. 330-331). Daughter Virginia Oro testified that two port-a-johns were
located at the bottom half of Field A, along with a barrel for hand washing on June 12, 13, 17 and
July 1, 2003 (Tr. 322). She also testified that a port-a-john and a barrel were in the center of

                                            11

Field B (Tr. 372-374). She stated that soap and paper towels were provided on June 12, 13, 17 and
July 1 (Tr. 345). Oro’s testimony was supported by her sister, Lynn Kenda (Tr. 467, 469, 471). A
meter reader for the electric cooperative, testified he observed the portable toilets in Field A during
the second week of June 2003. He has been reading the meters once a month for six years (Tr. 438-
439, 451-452, 456). The meter reader also observed a portable toilet in Field B (Tr. 448).
The farm workers who testified supported Kenda Farms’ assertions. Garcia testified that
portable bathrooms were provided in the fields she worked, as well as soap and towels (Tr. 410, 412,
416-417). She also testified that in Field A, she would use bathrooms in the mechanic shop or pack
house. She said the bathrooms were clean, but she seldom used them (Tr. 416-417). Rosales
testified that there were portable bathrooms and places to wash their hands, but there was no soap
or paper towels (Tr. 426). She stated the bathrooms were less than a quarter of a mile, which she
could walk to in less than five or ten minutes. She stated, however, that sometimes she was lazy and
would use the bushes (Tr. 428). Lopez-Perez testified that portable bathrooms and places to wash
hands were in the fields while he was working (Tr. 485, 488, 492). He said that it took him eight
to ten minutes to walk to the bathrooms (Tr. 492-493). Vaquero testified that in June 2003 when he
worked in the fields, there were portable bathrooms (Tr. 498). Hermenegildo also stated that clean
portable bathrooms were in the fields (Tr. 506).
The record fails to support the Secretary’s claim that farm workers did not have access to
bathroom and handwashing facilities while working in Fields A and B on June 12, 13, 17 and July
1, 2003. The W&H investigators could not go into the fields. The interview statements taken by
W&H are contradicted by the farm workers who testified. The farm workers testified that portable
toilets and handwashing facilities were in the fields. The record also fails to show that the workers
had to walk more than one-quarter mile to the facilities.6
More weight is afforded the testimony of the farm workers who were sequestered, testified
under oath, and were subject to cross-examination. The farm workers expressed no concern for their
jobs with Kenda Farms as a result of testifying (Tr. 417, 495, 504, 510). In comparison, the worker

     6

      Kenda Farms does not claim an exception under § 19 28.1 10(c)(2)(iv) where due to terrain, it is not feasible

to locate facilities within one-quarter mile. The facilities can be located at the point of closest vehicular access. The
record does not show that it was infeasible to locate the toilets within a one-quarter mile walk of workers in the field.

                                                       12

interview statements taken by W&H were not verbatim, did not allow for cross-examination, and
the individuals could not be judged on credibility
The alleged violation is not established.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.

                                         ORDER

   Based upon the foregoing decision, it is ORDERED:
   1. Serious Citation, alleging a violation of § 1928.110(c)(1)(i), is affirmed as serious and a

penalty of $2,000 is assessed.
2. Serious Citation, alleging a violation of § 1928.110(c)(1)(iii), is vacated and no penalty
is assessed.
3. Serious Citation, alleging a violation of § 1928.110(c)(2)(iii), is vacated and no penalty
is assessed.

                                                 /s/ Ken S. Welsch
                                          KEN S. WELSCH
                                          Judge

Date: April 20, 2004

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