North Carolina Growers Association Case ID: 1169138

North Carolina Growers Association, Inc.
200 Alma Street
P. O. Box 417
Vass, N. C. 28394
H2-a Narrative
History: Subject has been investigated many times under the H-2a provisions of the INA in the past.
Subject was investigated in 1994 and 1995 as a joint employer, with sixteen of it's associated members,
of H2-a guest workers and other domestic agricultural employees. The most significant findings were in
1994 at which time 21 association member employers were investigated. That investigation resulted in
a consent agreement dated August 27, 1996 whereby the subject and sixteen grower members agreed to
the payment of $7500 in backwages and $7400 in CMPs. The subject also agreed to comply in the
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future with the H2-a provisions. (
A 1996 investigation of the subject and concurrent
investigations of three joint employer Christmas tree growers under the H2-a provisions and under the
FLSA was conducted. Those investigations found that the NCGA, in it's joint employer capacity, owed
backwages in the amount of $31,744.97 to 176 employees. Suit has been filed by the Secretary as a
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result of those investigations. (
)
Limits: The investigation is limited primarily to the subject's activities in it's capacity as an association
EX 4
and with respect to
member growers in 2001. Those growers and their respective concurrent case file
numbers are:

7C/6

The assessment of civil money penalties was made in nine of the grower investigations with assessment
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in the Clay Strickland case pending. The status of those assessments is listed in

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 North Carolina Growers Association Case ID: 1169138

Note: The number of growers here is a small sample of the total number of NCGA grower members
which exceeds 900 and on whose farms are employed approximately guest workers.

-). Each of the above named owers was included in ETA certi?cation case numbers
20401006, 20401217 or 20101317. 

File Organization: Most of the original exhibits are contained in the various individual grower ?le
folders. The organization of the current ?le deviates from standard organization. Inasmuch as most
exhibits herein are documents copies from the concurrent grower ?les, those exhibits are labeled as
exhibits except for copies of the ETA certi?cation documents. This was done in order to keep the
documents from each individual grower's ?le together within the current ?le.

Coverage: Subject is a North Carolina corporation the president of which is Crai Stan  A Moore

annual dollar volume is estimated to exceed .
Subject is engaged in the recruitment, hiring, transporting, furnishing and

paying of H2-a guest workers and occasionally domestic workers engaged in corresponding
employment. Subject prepares and submits job orders and certi?cation requests on behalf of agricultural
employers. Subject and association member agricultural employers, including those listed above, were
certi?ed via ETA labor certi?cation case numbers 20401215, 20401317, 21401006. Subject is an
employer as de?ned at USC 20 CFR 655.100. Subject is covered by the H2-a provisions of the INA and

all of the H2-a guest workers and domestic workers en a ed in corresponding employment are entitled
to the  provisions. 

Joint employment: In 2001 the subject was found to be a joint employer with the above named grower
members with respect to all of the guest workers and domestic workers engaged in corresponding
employment at the farms of those grower members. The NCGA constructed the job orders and
certi?cation requests for the above listed growers and many other growers listed on the three
certi?cation requests. Signatory to the job orders was Craig Stan Eury, president of the
NCGA. The fees charged to the growers includes monies to be paid to the workers for inbound and
outbound transportation and subsistence. The NCGA makes payment of those monies to
the workers by check. A completes necessary employment related
documents including the form I-9. The NCGA dictates that domestic workers
who wish to apply for job orders must be referred to the NCGA rather than
directly to the farms. W) The NCGA is res nsible for the recruitment of guest
workers in Mexico and domestic workers in the U. S. ?The NCGA
determines on which farm the workers will be placed. The NCGA
provides work related training for guest workers including training relating to the agricultural use of
pesticides. The association may transfer workers from one member farm to another member farm. The
association has sole discretion in making such transfers. The NCGA transfers workers from
one grower member farm to another and keeps records of such transfers. The NCGA makes rules of work

  
 
 
   
 
 

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North Carolina Growers Association Case ID: 1169138

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and conduct by which the workers must abide
The NCGA states on the form
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ETA 790 Clearance Order that it is a joint employer with it's association members.
The NCGA informs members and potential members that it "provides labor via the H-2 program
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in a joint employer format".
The certifications were granted to the NCGA and it's grower
members listed on the respective certification requests. The NCGA shares employer indicia with it's
grower members inasmuch as both may hire, fire and control the work of the employees. As a result of
the joint employment relationship which is shared with the subject's member farmers, all of the H2-a
violations which were found on the member farms are attributable to the subject and the individual
member farm where the violations were discovered.
Exemptions: There are no exemptions available.

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Status of Compliance:
– none. This investigation was done as part of the August 2001 H2-a
7E notifications are required. The
agricultural initiative conducted from Greenville, N. C. No
ETA should be notified of the findings herein.
Violations:
Item 1, Failed to Provide Copy of Work Contract, 20 CFR 655.102(B)(14): Copies of work contracts
were not provided to domestic workers engaged in corresponding employment. The violation occurred
on farms including Allen Farms, the Jerry Jones farm, the Carl Moye farm, the Clay Strickland farm and
the Harold Jones farm, The violations were substantiated by employees Antonio Martinez and Ollie
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Price and was admitted at final conference by Randy Allen and Mrs. Harold Jones.
. Two domestic workers at the Jerry Jones farm were engaged in corresponding
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employment and were not given a copy of the work contract.
. Three domestic
workers at the Carl Moye farm did not receive a copy of the work contract. This was admitted by Mrs.
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Carl Moye.
. Three domestic workers at the Harold Jones farm did not get copies
of the contract. At the Clay Strickland farm, EX 4 domestic workers were employed in corresponding
employment and were not provided a copy of the work contract. A total of 138 workers were impacted.

7C/6
Item 2, Failed to Make/Keep Employer Records, 20 CFR 655.102(B)(14):
stated that he
kept records of hours worked and piece rate earnings for only a few weeks after which he threw them
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away if there had been no
Allen employed one person in corresponding employment and
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eight guest workers.
Harold Jones failed to keep a record of the worker's start and
stop times and had no record of the employee's rate of pay. Violations are substantiated by farmer's
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statements and by payroll records.
) The violation at the Jones
farm effected 16 workers. The hours worked by H2-a guest workers at Harold Jones's farm were not
recorded correctly. The violation at the Allen farm affected nine workers. Jerry Jones (unrelated to
7C/6
Harold Jones) admitted that he had not kept hours worked on two domestic workers,

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 North Carolina Growers Association Case ID: 1169138

7C/6
and
, engaged in corresponding employment. (
of 27 workers were impacted.

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A total

Item 3, Failed to Provide Wage Statement, 20 CFR 655.102(B)(10): Wage statements given to
workers at the Harold Jones farm did not have the rate of pay or the type of work being performed. This
was admitted by Mrs. Harold Jones, documented by pay records and supported by employee statements.
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(
The violation at the Jones farm impacted upon 16 workers. Jerry Jones
admitted that he had only provided a check in the net amount of pay to two domestic workers engaged
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in corresponding employment.
). A total of 18 workers were impacted.
Item 4, Failed to Pay Wages When Due, 20 CFR 655.102(B)(10): Upon arrival in N. C. the H2-a guest
workers attended an orientation and training session in Vass, N.. C. at the offices of the NCGA. The
session included training regarding pesticide use on farms. The workers had not been paid for the
session in Vass. The payment was due in the workers first pay period but had not been paid even
though many of the workers had been employed for months. Prior to the investigation it was estimated
that such training and orientation took about one hour. The subject agreed to the payment to the guest
workers for the one hour and instructed all grower members to make such payment. Payments were made
to the workers by each of the grower members investigated. (Note – it was agreed prior to the conduct
of these investigations that if the training/orientation sessions were retroactively paid for, no penalties
would be assessed with respect to this issue. This was agreed to because prior to this time no mention
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had been made to the NCGA that the time was compensible. )
Association members Walter Bynum and Jerry Jones failed to pay for all hours worked inasmuch as they
failed to pay for 15 to 20 minute breaks. Bynum's violation effected five workers and was admitted by
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Bynum.
Bynum computed and paid backwages of $280.25 to the five workers
. Jerry Jones also admitted that employees were not always compensated for travel time between
fields. The violation at the Jerry Jones farm impacted 15 workers and was substantiated by employer
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records, employee statements and information provided by Jones.
. Jerry Jones computed and paid 15 workers a total of $1767.70 as a result of
7E ) Based on employee statements it was found that workers at the Harold
the violation here.
Jones Farm were not paid for all of their hours worked. Seven guest workers were found to be owed a
total of $615.81 because they were not paid for two hours of work per week during their period of
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employment. (
A total of 27 workers were impacted.
Item 5, Failed to Pay Proper Rate: 20 CFR 655.102(B)(9): After 8-1-01 the AWER went from $6.98 to
$7.06. Association member Bobby Beamon failed to raise the rate of pay to reflect the change. The
violation was admitted by Beamon and was reflected in payroll records. The violation impacted seven
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workers.
) Three domestic workers engaged in corresponding
7C/6
employment at the Harold Jones farm,
were paid

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 North Carolina Growers Association Case ID: 1169138

 
  

  
 

at rates less than the applicable AWER . These three employees were found to be owed 1018.02. The
violation was substantiated by employee statements and by ones's pay records.
. Two domestic employees at the Jerry Jones farm,

-, were paid at $6 per hour for work done in corresponding employment. Backwa es for the
two workers was computed and totaled $592.50. Jones iaid these backwaies. 
Two domestic workers at the Audie Murphy farm, were paid at
rates less than the AWER. This was admitted Murphy who computed and paid a total of $630.55 to
the two workers  Domestic workers at the Clay Strickland farm who
worked in corresponding employment were paid at rates ranging ?'om $5.15 to $6.00. They did not
receive the AWER. The violation was substantiated by Strickland's records and admitted by Strickland.
Migrant workers who resided at the Strickland labor camps were charged $7 per week. The violations at
the Strickland farm resulted in the ?nding of $33,019.99 owed to 121 workers amounts in excess of
These backwages have been paid by One
domestic worker at the Bobby Nimmo farm, was engaged in corresponding emplo ent
totaled $670.82 and Nimmo agreed to pay. 

ackwages for
A total of 136 workers were impacted.

Item 8, Failed to Ensure Housing Safety and Health, 20 CFR Housing inspections were
done under the provisions at 29 CFR 1910.142. Such inspections were conducted at all housing
facilities owned or controlled by the above listed NCGA grower members. At the Carl Moye farm an
inspection was conducted at the housing located in Greene County on Howell Swamp Church Road by
WHIs on 8-8-01. Carl Moye shares control of the housing with association
member Johnny West and the two growers share the same ?ve guest workers workers who reside in the
house. Both Moye and West were found to be in violation of the housing provisions. The inspection
found substantive serious violations inasmuch as there was no kitchen trash can and trash was piled in

the yard 'ust outside the kitchen. Also the kitchen sink waste water ran directly onto the ?oor under the
sink. mtion was conducted of housing at the Ronald
Lancaster farm by WHIs on 8-7-01. It was discovered that the smoke
detectors did not work and the not operational. Twenty-eight
workers lived in the housing. An inspection of housing at the

Bobby Nimmo farm found two serious violations in that the ceiling had ho the
?oors had holes. The violation impacted on six occupants of the housing. A

total of 39 workers were impacted.

 

  
 
 
 
 
 

  

Item 9, Illegal Charges for Housing, 20CFR Domestic workers at the Clay Strickland
farm were housed by Strickland and charged $7 per week for the housin . The charge was substantiated
in part by the subject's form 521 which was posted. The violations was
admitted and was recorded as a deduction on Strickland's payroll records. Fifty-two workers were found

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North Carolina Growers Association Case ID: 1169138

to be owed a total of $2219. The backwages were paid by Strickland. (
Fifty-two workers were impacted.

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Item 17, Preferential Treatment of H2-a workers, 20 CFR 655.102(A): As discussed above, three
domestic workers at the Harold Jones and two domestic workers at the Jerry Jones farm were paid at a
rate less than that of the H2-a guest workers. The guest workers were therefore the beneficiary of
preferential treatment. Five workers were impacted.
Item 24, Failed to Comply with Employment Related Law, 20 CFR 655.103(b): At the Ricky Joe
Moore farm, H2-a guest workers were provided a Mazda pick up truck to drive. The truck, provided by
7C/6
Ricky Joe Moore, was driven by H2-a guest workers
was used to transport
another H2-a guest workers. 7C/6 did not possess a valid driver's license. This was a violation of N. C.
State law and was employment related inasmuch as 7C/6 transported himself and guest worker, 7C/6
. The violation was substantiated by employee statements and information provided by Ricky
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Moore. (
). Two workers were impacted.

Disposition: Individual final conferences were held with each of the grower members listed above.
Each agreed to future compliance. All backwages have been paid.
On 12-4-01 a final conference was held at the main office of the subject in Vass, N. C. Representing the
7C/6
subject were Stan Eury, Ken White and Lee Wicker. The Division was represented by FLS
said that the findings involved the subject's joint employment relationships with approximately
24 of it's member growers. Findings at each location were discussed. 7C/6 said that each of the
growers had paid for the one hour of training time upon the arrival of the workers in Vass, N. C. 7C/6
said payment for one hour would continue to be acceptable as long at the training did not exceed that
amount of time. 7C/6 said travel time after the training would not be considered compensable as long
as the workers did not perform any work after their arrival at the farms on the same day as their training.
7C/6 discussed exit interviews. Eury said that there really wasn't any interview involved beyond
making sure that workers were given their return transportation money. He said that was done on the
bus most of the time. 7C/6 agreed that this would not create any hours worked issue. Each of the
violation items was discussed. A copy of form 587 was provided. 7C/6 said that housing violations
had happened at some of the farms and that the violations appeared to be the result of individual
growers not maintaining the housing after the initial inspections. Eury said that it did not seem fair to
assert that the association was in violation for problems with housing at the individual farms. 7C/6
said the violation was a result of the joint employment condition. 7C/6 said several violations had
happened because domestic workers had not been paid the AWER for corresponding employment. Eury
said that all of the growers were notified every year of their obligation to pay the AWER to domestic
workers. Eury said that in the case of Clay Strickland, the farm was notified of this obligation. Eury

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 North Carolina Growers Association Case ID: 1169138

asked if all of the growers had paid backwages that were computed. 7C/6 said the backwages had been
paid. Eury said that every NCGA member is provided a compliance questionaire to follow and that
that questionaire was developed from one provided by Wage Hour. Eury said the NCGA had reworded
it to make it more easily understood. A copy was provided and is included in the file. Eury said that the
association would continue to provide information to it's members to promote compliance with the
regulations. He said that this was demonstrated by correspondence to the growers notifying them that
the AWER had gone up. Eury said that when it was discovered that a member was seriously
disregarding the regulations, the member would be terminated from the NCGA. 7C/6 said that he
believed CMPs would be assessed. Eury said that he was aware of the appeal process. 7C/6 said that
W/H staff would be available to discuss the regulations with growers either on an individual basis or in
presentations to groups. Eury said that the NCGA annual meeting this year was not going to involve
any outside speakers. Additional issues were discussed. 7C/6 said that growers should be aware that
outreach workers were to be allowed access to the workers. Eury acknowledged this. 7C/6 said also
that any situation where a grower interfered with an investigation would be a serious violation. Eury
said he was aware of this and that the NCGA always told the growers to cooperate. 7C/6 thanked Lee
Wicker for having provided this type of guidance to grower Harold Jones specifically.
Recommendations: Civil money penalties in this investigation compute to $403,000 exclusive of
CMPs associated with housing safety and health violations. An additional $1650 is computed because
of the housing violations. (The amount is the total of amounts recommended with respect to individual
growers whose housing was in violation.) It is recommended that the RO be consulted with respect to
the findings here and regarding the amount of CMPs computed. It is believed that the assessment of a
substantial CMP is necessary in this case. The subject has history of violation as described above.
Subject is very aware of the provisions of the regulations. A large number of workers were impacted by
the violations found. The impact on low paid domestic workers was significant both in terms of the
number of workers involved and backwages found owed to them. The CMP amount computed is
excessive however and should be reduced substantially.

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