*1 time, (1) stage, at to free of order as some itself insofar refused to find a internal, continuing, unproductive, violation' the Act for the Companies’ ____ improper To harassment.’ ascribe failure disclose its financial records to discharges motive to these other (2) the Union a found violation of the long a than overdue intolerance of [the Act for the Compa- failure four of the discharged employees’] dis- offensive and nies to disclose to the Union information ruptive indulge acts would be to un- pertaining to their involvement non-un- speculation. warranted operations. ion expressed For the reasons Id. V, deny in Parts IV and we enforcement as portions to those of the Board's order re- case, In this we conclude that the quiring the reinstatement of Johnson and support record does not finding im Winter. proper motive. Dissatisfaction with Win attitude, poor job performance,
ter’s PART, ENFORCED IN DENIED IN widespread among manage behavior was PART. ment, customers, employees. and his fellow Moreover, admission, by his own Winter nothing during
did the strike to him set
apart from striking employees. Sig other
nificantly, striking employee no other en
gaging activity in the type same discharged. showing Winter was Absent MONTELONGO, al., Antonia et partic that Winter was a more active union Plaintiffs-Appellees ipant than the other striking employees, Cross-Appellants, finding there is no basis for a that he was a v. potential target or actual of discriminatory or that discharge treatment retali MEESE, III, General, Attorney Edwin atory. Chevrolet, Inc., Appletree NLRB v. al., Defendants, et (4th Cir.1979); 608 F.2d Fire NLRB, Martin, al., stone Tire & Rubber Co. v. et Glen (4th Cir.1976); Torrington Defendants-Appellants NLRB, Company v. Cross-Appellees.
(4th Cir.1974). No. 85-2412. In Firestone Tire & Rubber Co. v. of Appeals, United States Court NLRB, supra we held that: Fifth Circuit. good When cause for criticism or dis- charge appears, the burden which Nov. simply the Board is not to discover some Rehearing Rehearing En Banc improper motive, evidence of but to find 17, 1986. Dec. Denied an affirmative persuasive reason why employer rejected good
cause chose a bad one. NLRB,
Firestone Tire & Rubber Co.
supra at 1337. conclude that in
case the Board failed to sustain its burden showing improper Accordingly, motive. deny portion
we enforcement as
the order Maloney which finds violation refusing Act for to reinstate Winter.
VI.
For the reasons stated in Parts II and III opinion,
of this
enforce the
Board’s
*2
also,
Cir.,
Thomas J. Rob- Guerra, McAllen, Tex., for defen- L. ert cross-appellees. dants-appellants, Tex., Herrmann, Harlingen, A. James cross-appellants. plaintiffs-appellees, BROWN, REAVLEY and Before JONES, Judges. Circuit REAVLEY, Judge: Circuit This case arises defendant out of Glen plaintiff Martin’s recruitment of the class migrant farm harvest workers to cantel- opes Valleys in the Presidio and Redford (Presidio) in June Defendants Mar- McAllen, (G tin, Griffen & Brand of Inc. & B), Valley Presidio Farmers Association (PVFA) Farms, Valley and Presidio Inc. (PVF) holding appeal judgment them for violations of liable Registration Farm Labor Contractor Act (FLCRA), (repealed seq. 7 U.S.C. 2041 et §§ 1983).1 cross-appeal, Plaintiffs contesting alleged court’s denial of certain the district part, affirm in class members’ claims. We part and remand for further reverse proceedings.
FACTS agricultural Presidio is remote enclave Texas, along the Rio in Southwest Grande See, repealed replaced e.g., 1. The FLCRA was v. Presidio vive. Val Salazar-Calderon Association, Migrant Agricultural ley and Seasonal Pro- Workers Farmers 1346 n. 6 --- Act, ---, (1982). (5th Cir.1985), denied, tection cert. U.S. §§ U.S.C. however, FLCRA, arising (1986). Claims under the sur- S.Ct. L.Ed.2d 353 city Ojina- adjacent help people. to the Mexican him find additional River As the mid-June, growers begin ga. regularly Presidio work was to these Until Ojinaga from leaders were told to return undocumented workers between June hired departure onion, cantelope 13 for exact pep- instructions. to harvest their May through July crops from or Au- per Meanwhile, negoti- PVFA had also been 1977, however, gust. spring In the ating Department with INS and the of La- Immigration and Naturalization Service (DOL) throughout spring bor for 809 border, (INS) cutting to enforce the decided (H-2) temporary worker for the visas Mexi- off the Mexican workers. Thus flow previously can employed. workers had guaranteed supply with no of work- faced hesitation, suddenly After much INS issued harvests, upcoming ers for their Presidio the visas June 9 or 10. growers joined together form the Presi- adequate supply With an of workers Valley dio Farmers Association. PVFA’s border, growers from across the Presidio main, objective short-term was to secure longer Thus, needed domestic crews. workers, enough domestically either or appeared agreed when the crew leaders Mexico, to harvest its members’ departure instructions, Martin informed crops. off, leaving plain- them that the deal was president Billy Bishop, Joe and co-owner tiffs without work for most of June. Mar- Farms, Valley B of with G & Presidio July tin did offer work Fort Stock- president PVFA. On behalf of named ton/Pecos; accept- Martinez and Camacho PVFA, help PVF both he enlisted although ed most of their crews drifted off *5 B, registered of G & a farm labor contrac- jobs to other that time. before tor, finding Upon workers for Presidio.2 brought Several crew members the crunch, learning presi- & B of the labor G thereafter, present seeking suit soon dam- Brand in dent Othal turn contacted Glen ages against these defendants4 for breach Martin, principal G & B’s farm worker re- employment agreements of the and FLORA “do cruiter.3 Brand told Martin to whatev- Following delays, violations. various a necessary” find er was domestic farm of class the recruited farm workers was workers Presidio. a certified and bench trial held June, May
In early spoke and Martin 1982. leaders, orally crew offering numerous The district court found that Martin had them work in Presidio for themselves and FLORA, provisions violated three housing available, their crews. No was and awarded $500 however, and crew leaders would not each class member for each violation. go place where there was no to live. Then, applying agency principles, it held G Finally, housing severally Martin jointly added to the B and PVFA & liable Thereafter, plaintiffs terms the offer. with Martin for these The violations. court Sanchez, Martinez, Crispin Juanita further found that Santia- PVF had violated anoth- go Quintero accept- provision, and Florencio Camacho er per FLORA and awarded $500 that, crews; began assembling addition, ed and Camacho member for In violation. it plaintiffs also asked crew member Jose Flores to attorney’s awarded costs and large here, produce growing, packing G B is 2. & a 4. In addition to defendants sales concern based the lower Rio Grande government sued INS and several administra- Texas, Valley throughout with business interests creating the tors for labor crisis in Presidio and including co-ownership packing PVF and bungling process. the visa The court awarded agreements with sales other Presidio and/or attorney’s plaintiffs equitable relief and fees growers. defendants, against government who have appealed. description H-2 For visa large part A Martin’s duties as director of case, Salazar-Calderon, process in this see harvest consisted of the recruitment of farm 1338-39, 1341-43. operations, & B workers for G and its associated hiring by independent crew leaders who came seeking to his office work for their crews. partly de- bility of the defendants fees, art. 2226 other under Tex.Rev.Civ.Stat.Ann. by findings concerning 1971), replaced on the (Vernon repealed pends & court’s 38.001- Martin, begin by examining Rem.Code Ann. their Tex.Civ.Prac. & we will §§ 1986), (Vernon and interest as of him. contentions as to liability court also order. The date crew four found liable Martin A. claims, but of contract leaders breach argue Martin first Defendants had failed later determined coverage, exempt the statute’s damages. prove contract 2042(b)(6), employee aas full-time under § potential then sent to all Notice was This registered of a farm labor contractor. and three Two hundred class members. argument provision nullified clear challenged
people claims. Defendants filed exemption applies only The statute. hearing in claimants; after a numerous Al registration requirements. to the identified 1984 at which each leader register need to as a though Martin did not crew, 159 claims were the members of contractor, he was all farm labor bound entered in approved. judgment Final provisions the other of the Act. See appeal May and this followed. 2043(b). DISCUSSION They he received next contend that aspect virtually every appeal Defendants argument no “fee” for This his services. addition, rulings. In of the trial court’s equally unmeritorious. Act defines of cer- plaintiffs cross-appeal treatment money “any “fee” to include or other valu gen- tain claims. The issues fall into three promised paid or to be able consideration damages; categories: eral person to a as a farm paid for services claims; and interest class certification 2042(c). The district labor contractor.” § attorney’s fees. salary correctly found that Martin’s I. Liability-Related Issues “fee,” 2042(c)purposes. constituted for § defendants, According the court com- Givens, See Castillo v. legal imposing factual errors in mitted (5th Cir.) (finding wage that crew leader’s *6 any liability upon them. The court held denied, 850, fee), cert. 464 U.S. constituted Martin, B PVFA for violat- G & and liable 160, (1983). 104 S.Ct. 78 L.Ed.2d (1) failing ing provisions, by three FLORA Defendants then claim that Martin writing, inform in of the cor- plaintiffs, to plaintiff 2044(b)(2) is not liable to the crew members & employment, rect terms of §§ 2045(b); he contact the (2) provide promised because had direct with and to argument work, This runs con 2044(b)(4). It also held liable leaders. PVF § unreg- trary person may 2043(c), dealing an to our case law. under for with § “[A] provisions lia- istered farm contractor.5 As the insulate himself from of labor 1974, Enacted in The Act "farm labor contractor” as in 1963 amended defines who, fee, "any person, eliminating for either for himself FLORA at the abusive was aimed recruits, solicits, person, contractors, or on behalf another practices the "middle- of farm labor hires, furnishes, transports migrant workers or migrant men” between the farmer-users 2042(b). agricultural employment.” ... for § 202, Cong., S.Rep. farm workers. See No. 88th persons register Such con- must farm labor 1, Cong. & reprinted 2d Sess. in 1964 U.S.Code comply requirements, tractors and with other 3691-93; 1295, S.Rep. Ad.News No. 93d including furnishing recruited workers with Cong., reprinted 2d U.S.Code Sess. in 1974 terms, copies employment written 6441-45; Note, Cong. generally A & Ad.News see 2045(b); terms, correctly stating § those Registra- the Farm Labor Contractor Defense 2044(b)(2); actually providing prom- § Act, (1981). be tion It should 59 Tex.L.Rev. terms, employment promised ised on the pur- broadly construed its remedial to effectuate 2044(b)(4). may Farmer-users also incur lia- § Co., poses. v. Barrett-Fisher Almendarez they bility if contractor deal with a farm labor (5th Cir.1985); F.2d v. Soliz prop- ascertaining without that the contractor is Plunkett, (5th Cir.1980). 2043(c). registered. erly that, simply conducting Act activities position, onstrates due to his Martin’s through underlings more directly who deal authority word carried the to send workers Plunkett, Soliz v. workers." out the fields to into work either for BG & (5th Cir.1980). or, upon request, growers other for who expected to pay were for that work. last
Defendants contend that two findings unsupported by critical factual are all Plaintiffs testified that Martin had any “credible” evidence. We review them and pick recruited their crews can- findings district court’s factual under a telopes addition, in Presidio. In Martin “clearly erroneous” standard. Fed.R. himself, explaining sys- his recruitment 52(a). Civ.P. This standard tem, up testified that he lined willing work- recognizes upon unique and rests ers from the lower Rio Valley Grande opportunity go afforded the trial then “[t]hey to Presidio and contact credibility evaluate the they witnesses them out there take care of [the weigh the evidence. Because Depo. 22; of G. Martin at see details].” due the trial judge, 17-22, 43-44; deference unless also id. at Bishop [we T.R. 483. left with the ‘definite and firm con are] B testified that G & officers had told him viction that a mistake has been commit that “if there was a need for people [in ted,’ accept must the trial court’s Presidio], [we] let them they know and that findings. people would tell these job there was a come,” out if they there Depo. wanted Laboratories, Inwood Inc. v. Ives Labora- 55; B. Bishop fact, the three tories, Inc., 844, 855, domestic 456 U.S. 102 S.Ct. 2182, 2189, regularly crews McAllen who (1982) worked L.Ed.2d 606 (quoting through PVF had contracted B G & United States United Gypsum States Furthermore, 364, 395, coming, before id. 333 U.S. 68 S.Ct. Martinez testified, (1948)) and Camacho (citation omitted). L.Ed. 746 without contra- diction, that jobs Martin offered them First, challenge the court’s Fort in July Stockton offer alone suf- finding actually plain- that Martin —the recruited ficed; there no they evidence that testified, out, point tiffs. Martin required growers to contact Fort Stockton authority he lacked enter into “con- advance, simply up but to show there tracts” with crew leaders. light evidence, work. In of this find We need not decide whether Martin’s error in the court’s plain- decision to credit plaintiffs’ acceptance offer and constituted tiffs’ testimony their recruitment merely a “contract” or an enforceable Presidio.6 promise under a promissory estoppel theo- system may finding, recruitment Based on be sui the court de ry: testimony All of the dem- clearly termined generjs. Martin had violated *7 challenging plaintiffs’ amounts, credibility, diminishing 6. In defend- she crews led worked rely heavily payroll hours, ants G days & B only couple through records a some June n indicating that both Sanchez and Martinez had stop. the records when D.Exs. 17-18. working during been for & BG and the after testimony fully rest of their The corrobo- they they ready time testified were to leave for by the rated other crew leaders. To the extent found, however, implicitly Presidio. The court records, testimony their is inconsistent with the seriously impeach that the records did not these reasonably they the court could conclude that testimony. leaders’ due crew With deference to simply forgotten had the in about work the five opportunity the court’s credi- assess witness years between the events and the trial. It is not bility, finding clearly we conclude that the is not unlikely plaintiffs, upon discovering that that erroneous. plans through, their alternate had fallen would records, According to the Sanchez worked no they day-to- take whatever work could find on a days assembling he full while was his crew day growers basis. The that evidence indicated only a few hours with a of 12 the crew after in Valley the lower Rio Grande often hired departure scheduled date. D.Exs. 8-11. Mar- day-to-day in mid-June because their harvests 9th, only half-day tinez’ crew worked on June winding leaving were down and workers were day the she testified she went to receive her profitable for more areas. Thereafter, departure shifting instructions. housing, included T.R. to them comply prom- 2044(b)(4)(failure to § 25; (failure 343; F. Camacho at see also 2045(b) pro- Depo. terms); and ised § terms). 16; their Flores at because of copies Depo. of J. written vide crews, they agree. to their would responsibility the offer assur- accepted without have not clearly 2044(b)(4) follows violation The § available, housing e.g., would be that ances Martin recruited finding that addition, In Martin testi- 294-95. T.R. that, dispute do not defendants plaintiffs; recruiting that, first started he fied when issued, Presidio were H-2 visas once the inter- May, no crew leaders were early in need domestic workers did not growers they scarcity even if he told them about the provided work after have ested could not 2045(b) violation housing. The had come.7 § that Mar- testified Plaintiffs equally clear. Martin, Yet, according Bishop nothing writing, and Mar- gave tin them Brand, great pressure under Martin was gives he never tin himself admitted May late find workers for Presidio employ- copies of the leaders written 490, 508, 566, See, early e.g., June. T.R. ment terms. 616; Depo. of G. Martin at challenge Second, defendants item”); (finding “high priority workers was misrepresented Martin finding that court’s repeated- Brand at 25. He was Depo. of O. offering employment, the terms of get necessary to ly to do whatever was told housing Presidio.8 Mind plaintiffs free crops be- people out there harvest review, scope of our we limited ful of the they promise ruined. The fore clearly finding is not this conclude that concluded, a last- housing, the court erroneous. that, traveling all the gamble after ditch housing was almost no All admit that Presidio, agree to plaintiffs would way to Presidio; little for workers available supports this Ojinaga. live in evidence the river exist was across housing that did liability for Martin’s conclusion. Indeed, growers’ main dif- Ojinaga. 2044(b)(2) (misrepresentation of violation § securing H-2 visas had been ficulty in terms) plainly follows from employment housing in Presidio. DOL non-existence finding. applications approve the visa would not testing first the domestic labor without Liability B. Vicarious market, possible unless no test was but E.g., housing could be offered.9 suitable Applying agency principles, 14, 16, 20, 29, 32, 33. P.Exs. jointly liable held & B and PYFA G Martin’s violations.10 Both agreed that domestic farm It because, claim, holding contest go not to an area without will workers for “vicarious statute does allow con- housing. The crew leaders adequate liability.” June offer sistently testified that Martin’s testimony grow- light Bishop’s clearly In about hour. and G & B' knew 7. Both Martin necessary, willing pay if negotiations $2.20 over with INS ers were PVFA’s concurrent present dur- $2.50 the visas. Martin was did not DOL about conclude that offer meeting ing G & B officers knowing misrepresentation least one between constitute agent Employment Commission a Texas 2044(b)(2) purposes. pursuant to its ef- PVFA had contacted whom approval. See P.Ex. 22. visa forts to obtain regulations presume that do- DOL H-2 visa *8 Moreover, personally B President Brand G & will not work in an area mestic farm workers government to en- officials contacted several housing is available. unless E.g., Depo. of courage the visas. them to issue 10-23, 36-44; Bishop Depo. of B. at at O. Brand Although Liability only gen- Order refers 10. 72-73; Depo. Harris at 49-50. of W. 2, liability,” May erally to "vicarious at the hearing, explained the court that the term misrepre- arguable Martin also whether 8. It is liability.” "agency Transcript of Pro- meant wages, promising per hour $2.50 sented 2, 1983, ceedings May of at 20. standing per of $2.20 PVFA’s offer contrast to (Second) with the Act’s distinction In ment 409-14 (1965), accordance Torts §§ of Prosser, 71, farm labor contractors and farm- W. between Law Torts at § of (4th er-users, we have refused to hold farmer- 1971). 468-70 ed. Yet the court made vicariously recruiting for liable specific findings concerning users no PVFA’s independent of farm labor con- participation violations in or knowledge of Martin’s 2044(b) See Beliz v. McLeod & tractors. W.H. 2045(b) violations. Unless §§ 1317, Packing 765 F.2d 1333-34 Sons PVFA contributed to or had reason to (5th Cir.1985); v. & see also Jenkins S. A. misconduct, of know Martin’s the blanket Sons, Inc., F.Supp. & Chaissan imposition joint of and several liability (S.D.N.Y.1978). 226-28 G B and PYFA & against PVFA cannot stand. We therefore farmer-users, are not however. Their lia- judgment against vacate PVFA and instead, bility premised, finding on the remand to the trial court for further find- that are contractors. farm labor ings.12 case law itself Neither nor statute remand, On may also conclude abrogates ordinary respondeat superior that PVFA independently violated the employer, & B principles. As Martin’s G example, Act. For already court has responsible for of was all Martin’s actions found that recruiting PVFA’s domestic ac- scope employment. E.g., of within tivities, including B the G & connection Inc., Stokely-Van Camp,
De la Fuente v. plaintiffs’ recruitment, that led to made (C.D.Ill.1981), F.Supp. modified PVFA farm labor contractor within the (7th grounds, on other 713 F.2d Cir. meaning 2042(b);13 finding is not § 1983); Soliz, 615 B F.2d at 277-78. G & erroneous, clearly 30-31, e.g., 38-43, cf. P.Exs. argue does not that Martin exceeded that 48; T.R. 610-16. PVFA admittedly scope recruiting plaintiffs; its liability registered, not possible violation of directly flows from Martin’s.11 2043(a). may The court find other viola- § tions; way attempt we in no to substitute no support We find for the court’s judgment our for the trial court. PVFA, application agency principles to however. The record that PVFA indicates C. PVF independent enlisted G & B’s services as an
contractor; as & employer, G B’s PVFA is The court concluded that PVF vio 2043(c), not for & B’s by relying liable G actions without some lated on PVFA to wrongful 2043(c) conduct of its own. See Restate- meet its 1977 labor needs. Section argues Bishop appeared 11. G & B also that It received no for B. 67. "fee" at Brand at one of argument directly meetings Martin’s services. This con PVFA’s June with INS and even of- $250,000 testimony, tradicts Othal Brand’s however. & fered PVFA out of G B’s coffers to that, paid company housing Brand testified while build 558, 561-2; for workers in the future. T.R. salary, always Depo. Martin’s some received form of of Brand O. at 23-24. Brand compensation supplied when Martin crews to a told Martin find workers for the whole 571, 491-92, area, 566; grower. (testimo e.g. Depo. See T.R. T.R. of G. Martin at Martin). ny Stokely-Van plaintiffs only De la Fuente and Martin told that the work Cf. Inc., 1983); Presidio, Camp, 339-40, 527-28; e.g., Cir. be would T.R. Arc, Inc., Depo. Although v. Joan 658 F.2d of F. Camacho at Bish- Alvarez (7th Cir.1981). op request, no doubt included he PVF in his clearly acting primarily president of PVFA. Fuente, (for laDe 236 n. 8 12. There no merit in PVFA’s contention Cf. purposes liability, defendant contractor’s Bishop’s contacts with G & B were in his distinction between capacity president, thereby relieving recruited de- as PVF operations fendant’s and those recruited oth- PVFA of for his acts. All of the evi- ers). dence, including testimony, own in- defendants’ recruiting arrangement dicates between Bishop encompassed correctly growers’ and G & B the labor needs 13. The court found that the growers. According of all Presidio both Bish- dues constituted a "fee” for PVFA’srecruitment Brand, op Bishop on the their discussions focused services. testified that the dues were Presidio, merely defray labor recruiting expenses. E.g., in all at PVF. crisis used PVFA’s 490, 508, 566, 616; 22; Depo. See T.R. T.R. P.Ex. 629-30. *9 1350 cally plagued migrant farm mar- utilizing the labor
prohibits farmer-users
Beliz,
F.2d at 1332. Under
con ket.”
765
farm labor
unregistered
services of an
2050a(b),
court has discretion to
through Bishop, acted as a
PVFA,
tractor.
damages “up
including
to and
an
award
recruiting plain
in
farm
contractor
labor
equal to the amount of actual dam-
amount
tiffs;
PVFA was not
undisputed
$500,
equitable relief” for
ages, or
or other
judg
To affirm the
registered.
properly
fixing
In
the amount of the
each violation.
however,
liability,
would
ment of PVF’s
award, the court should consider numerous
Bishop’s contacts
to find that
also have
factors, including the nature of the viola-
capacity
exclusively
G & B were
with
tions,
culpa-
the defendant’s
the extent of
Compare Presidio
president.
as PVFA
award,
bility, the total amount of the
Brock,
v.
Association
Valley Farmers
substantive or technical nature
viola-
Cir.1985)(individu
(5th
all senses—to the
tions and the cost—in
for PVFA’s violations
growers
al
not liable
denied,
Beliz,
bringing
plaintiffs of
the suit. See
status),
unincorporated
cert.
despite
-
Salazar-Calderon,
1333;
F.2d at
---,
106 S.Ct.
U.S.
--
L.Ed.2d 804
F.2d at 1346-49.
(1986).
agree
with defend
support
does not
this
ants that the record
Here,
that the court
the record indicates
conclusion.
carefully considered these factors and de-
appropriate.
termined that
$500
no evidence that
Plaintiffs have offered
Cf.
Miller,
Washington v.
funnelled
requests were
PVF’s labor
(11th Cir.1983) (affirming maximum dam-
PVFA; indeed,
contrary
through
infer-
violations).
ages for nontechnical
Defend-
Bishop
strong.
B and
ence is
G &
ants have not shown this to be an abuse of
PVF,
compelling inter-
co-owners of
with
discretion.
being. This fact
est in the farm’s economic
suggests
they would not have
alone
II. Class-Related Issues
par
needs on a
treated PVF’s labor
litany of class-related issues
Defendants’
Find-
those of the other PVFA members.
They
groups.
into
main
raise
divides
two
ing
support
no
record for this viola-
pertaining
the certifica-
numerous issues
tion,
liability finding
we reverse
and, then, challenge the claims of
tion itself
damages against
corresponding award of
cross-ap-
.
claimants. Plaintiffs’
individual
PVF.
question.
peal also involves the claims
D. Damages
A. Class Certification
The court
$500
awarded
First,
argue
that suits
plaintiff
to each
for each statu-
brought
may
under the FLCRA
not be han
tory violation. Defendants now contend
contrary,
dled as class actions. On the
high
it ex-
that the award is too
because
however,
device has fre
the class action
ceeds the amount
could have
quently
approved
been
suits under the
actually gone
if
to Presi-
earned
had
E.g.,
FLORA.
Almandarez v. Barrett-
argument
dio.
has no merit.14
This
(5th Cir.1985);
1351
Second, they contend that certification in
Repression
Alliance to End
v. Rockford,
improper
975,
(7th Cir.1977) (common
this case is
because the claims 565 F.2d
979
alleged
misrepresenta-
arise out of
oral
predominate
issues
pattern-and-practice
tions.
claims have been found unsui-
Such
suit). Furthermore,
dam-
table for class treatment when individual
ages
awards obviated
need to resolve
questions,
damages,
such as reliance and
questions
individual
of reliance and dam-
See,
predominate
questions.
class
over
ages.
23(b)(3)
Advisory
1966
e.g., Fed.R.Civ.P.
Third,
argue
Committee Notes.
certify,
the decision to
years
made three
great
The district court has
discre
suit,
after institution of the
untimely.
certifying
managing
proposed
tion in
disagree. Although
the district court
Kilgo
Transpor
class action.
v. Bowman
ruling
should make its initial
on class certi
Inc.,
859,
(11th
tation,
789 F.2d
877
Cir.
practicable
fication
soon as
after the
“[a]s
1986);
Industries,
Raymark
Jenkins v.
action,”
commencement of an
Fed.R.Civ.P.
Inc.,
468,
(5th Cir.1986);
782 F.2d
471
see
23(c)(1),there is no set
deadline
which
Salazar-Calderon,
Defendants’ next con B. Claims and Claimants approval cerns the of awards to claimants forgotten who had either or never known challenge first individual
Defendants’
job
details
Presidio
offers.
leaders,
concerns two
Mar-
claimants
crew
claimants,
argue,
These
defendants
are not
Quintero,
and
and
members
tinez
crew
entitled to
could
they
because
could
in
legally
who
not
work
Presidio.
adequate expectations
have formed no
contend,
persons, they
are not in-
These
employment.
promised
about the
in the
class.
cluded
definition of the
argument,
misrep-
This
like their earlier
This contention
what the
overlooks
damage
arguments, sug-
resentation
authority
did under
court
its broad
rede
gests
misunderstanding
a fundamental
of
in
appropriate
response
fine
class “as
Their
statutory
the case.
rests on
progression
to the
of the case
asser
violations,
only
which
dam-
Byrd,
tion to facts.” Richardson v.
ages,
damages,
actual
1016,
(5th Cir.),
denied,
awarded.
cert.
Regardless of whether
ex-
members
L.Ed.2d
U.S.
S.Ct.
pected
of
wages
or
8-hour
(1983).
class,
certified,
$2.50
originally
$2.20
days
days
or 10-hour
in
or
Presidio
only
did exclude crew leaders and consist
Valley,
workers,”
lower Rio Grande
all shared
of “domestic farm
defined as
expectations:
two basic
lawfully
United States citizens-or
existence
aliens
housing.
admitted to
In work and the existence of
De-
work
the United States.16
primarily
conformance with the
as the suit
fendants
the Act
evidence
violated
because
however,
progressed,
periodically
first
their actions
created and then de-
expectations.
exercised its
stroyed
Any
discretion to restructure the
these
claimant
immigration
approved
16. The
claimant whose
status
court also
22. The
notice directed
expressly challenged
has been
“Agricultural
is Federico Meza.
field
to:
workers in the Rio
that, although
We note
his visa restricted him to
Valley of Texas
Grande
and Mexico who were
area,
in thé
work
Brownsville
he nevertheless
jobs May
offered
June 1977 to harvest
group
be
would
included in the
of those lawful-
Presidio, Texas,
melons in
but who were not
ly admitted to work in the
States.
United
Presidio,”
Transcript
R.
see
taken
22-23,
Proceedings May
1983 at
barred
2,May
hearing,
explicit-
At the
the court
immigration
peo-
inquiry
into
status of the
ly
going
Quintero:
included Martinez and
"I am
ple
responded.
who
to redefine
class to include
crew lead-
[the
Transcript
Proceedings May
ers].”
a result is entitled
explain
who suffered as
to the
basis
their claims. Similarly,
relief.18
clearly
Martinez
stated at trial that she
taking only
children,
three of her
none
Last,
challenge
grant
Pena;
of whom was Enedelia
cryptic
her
claims,
(1)
specifically:
certain
the Cama-
explanation
hearing
at the
sheds no real
crew,
members,
family
cho
some Camacho
light on the merits of Pena’s claim. With
Blanco,
Layda
Roberto
and Ramon
exception
people,
of these three
how-
Perez;
(2)
crew,
the Martinez
Rolan-
ever, we affirm the
approved
awards to the
According
do Palacios and Enedelia Pena.
plaintiffs’
claimants and turn now to
cross
magistrate
due deference to both the
appeal,
solely
which is directed
rejec-
at the
court,
the district
we find substantial evi-
persons
tion of certain
who claimed to be
(1)
support
findings
dence to
their
as to
*12
members of the class.
Camachos: We see no inconsistency be-
testimony
tween Camacho’s
and his fami-
self-proclaimed
Plaintiffs contend that no
ly’s
Although
object
claims.
crew member should be excluded from the
parents,
inclusion Camacho’s
for ex-
being given
class without
an opportunity to
ample,
expressly
he
testified at trial that
agree.20
substantiate
claim. We
they
going; (2)
were
Roberto Blanco: De- H. Newburg,
(1977);
Class Actions
spite
interpretation
defendants’
of Blanco’s
Greenhaw,
(no
George
Guadalupe
United
U.S.
Luis
Val-
68 S.Ct.
list);
(Quintero’s
(1947).
dez
A. Prejudgment Interest The plaintiffs attorney’s court awarded The “Liability court entered its Order” fees under Tex.Rev.Civ.Stat.Ann. art. 2226 1982, years judgment. three final before (Vernon 1971), repealed replaced by & time, At that the court ordered that a kind Tex.Civ.Prac. Rem.Code & 38.001-006 §§ per year of interim begin interest of 9% (Vernon 1986). Compare Williams v. Tri- Analogizing accrue on the awards. Inc., Growers, County 747 F.2d 137- (FLSA), Fair Labor Standards Act 29 (3d Cir.1984) (awarding 38 attorney’s fees (1982), U.S.C. 216 defendants now claim for both FLCRA and related state labor “prejudgment interest” is barred on law provid violations where state labor law any liquidated damages award. See award). ed for fee Defendants contest the Brooklyn O’Neil, Savings Bank v. legal basis for award. this 697, 715, 895, 906, U.S. 65 S.Ct. 89 L.Ed. (1945). agree that an ar award under by We are not persuaded defendants’ ticle 2226 inappropriate on the of facts analogy; the provision FLSA signif- differs this case. Article 2226 authorizes attor icantly from that of the FLCRA.22 Never- ney’s fees in suits common law breach theless, plaintiffs not are entitled to inter- Here, of an oral contract. the four est, prejudgment, on their award in this pursued crew leaders common law contract and, therefore, case reverse. we claims; majority attorney vast of time judgment may
Interest before final by not be covered statute. More generally compensate plain awarded to importantly, a we do find that the crew fully tiff monetary an actual “prevailed” loss he leaders on their contract has suffered as a result of a Despite defendant’s claims. finding, obligation. breach an court Rodgers v. concluded had not established birthday plaintiff partially 21. The of Jesusa Flores 22. A the FLSA under is entitled to both out, may compensatory damages crossed but it read “1966.” In that whereas case, course, plaintiff may ineligible an FLCRA receive either or she one file a claim. the other. Otherwise, any right judgment may to recover for these fees. be af- firmed. courts do not allow article claims. Texas plaintiff where the is not the 2226 awards in part, AFFIRMED REVERSED in party
prevailing
and has recovered no dam
an(j REMANDED,
part)
ages
claim.
Holmes En
on his
See James
terprises,
Inc. v.
Bankston Con
John
JONES,
EDITH HOLLAN
Judge,
Circuit
Rental, Inc.,
Equipment
&
struction
dissenting:
(Tex.App.
S.W.2d
---Beaumont
I
majority’s
While concur much of the
n.r.e.). Accordingly,
ref’d
we
writ
opinion,
compelled
I feel
dissent
two
vacate the award under article 2226.
points.
important point
The most
is the
judgment.
excessive nature of the
clearly prevailed
Plaintiffs
on their
opinion
majority neglects
report
claims,
Even in the
FLCRA
however.
ab
judgment
amount of
here awarded
statutory provision,23
sence
a
federal
against
judgment
the defendants. That
may
attorney’s
pre
courts
award
fees to a
$466,000
was in
excess
date
at the
party
if
has
vailing plaintiff
losing
been
entry
in April,
making
far
Pipeline
faith.
guilty
Alyeska
of bad
Ser
largest
judgment
against
ever awarded
Society, 421
vice Co. v. Wilderness
U.S.
farm labor contractors for violations of
240, 258-59,
95 S.Ct.
44 L.Ed.2d FLORA.1 The
this
standards used
(1975);
Longboy,
Alvarez v.
awards,
comparison
test FLCRA
(9th Cir.1983)(suggesting possi
awards in
cases
other
for FLCRA viola-
case).
bility
an award in FLCRA
of such
tions, and the context of defendants’ viola-
plaintiffs might
here hinted
The court
tions all overwhelmingly
indicate
to an
be entitled
award on
bad faith
district court exceeded
the bounds
rea-
it did
this
theory, but
not rule on
alternate
son in
of damages.
its award
ground.
opin
As we
our
cannot substitute
In Beliz v.
McLeod
W.H.
& Sons Pack
court’s,
ion for the trial
remand the
ing
Cir.1985),
*14
findings.
case for
further
Defendants
court noted several factors
should
be
not
the
previously
have
contested
amount
awarding
in
considered
FLCRA
awarded. Should the court determine that
damages:
justifies an
defendants’ conduct
award of
accomplishes
Whether an award
this [de-
fees,
issue,
attorney’s
well as the
in
purpose,
affording
addition to
terrent]
claims,
remaining
presumably
can
be re
compensation,
by
is determined
consider-
appeal.
solved without further
ing
not
amount
the
allowed
each
plaintiff
each
violation but
the
for
CONCLUSION
award,
total amount
the
the nature
of
violations,
persistence
and
of the
the
judgment against
the
reverse
Presi-
culpability,
extent of the
Farms, Inc.,
Valley
judgment
dio
the
in
defendant’s
cases,
damage
in
awards
similar
the
Pena, Layda
favor of Enedelia
Perez and
ability
prevent
Perez, and
prejudg-
Ramon
the award of
defendant’s
violations
future
act,
the
the
or
substantive
ment interest. We
the cause'
remand
for
of
violations,
technical
the
nature
reconsideration of the claims of the enu-
case____
the circumstances
each
persons
merated
and for further considera-
against
Valley
tion of the claim
Presidio
[damages],” 765 here has no articulated basis.
court’s award because, tested awards
Perhaps that is cases, justification. Dis it defies
in other abused, if particularly no
cretion can be exercise of
attempt explicate made one’s given palliative, no Beliz discretion. It is COMPANY, TEX-GOOBER Salazar-Calderon, to conclude that Plaintiff-Appellee, within its discretion the district court was when, from the for all that we know HOUSE, INC., ANGELES NUT LOS record, may made his award the court have Defendant-Appellant. the defendants or their he disliked because court’s failure to dis The district counsel. No. 85-2688. and failure even to articulate
criminate Appeals, United States Court cry for its award out for revi standards Fifth Circuit. sion. Nov. My disagreement majori- second scope in the of remand to reconsider ty lies liability. majority, correctly, The
PVFA’s support
finds no in the record for vicarious
liability wrongful some PVFA “without
conduct of its own.” Remand to obtain
findings to or whether PVFA contributed
had reason to know Martin’s violations appropriate. is therefore
of FLORA this, however, goes than
majority further opening question for remand the wheth- independently provi- violated the
er PVFA Quite simply, of FLORA. the district
sions
court found such FLORA violation
PVFA, party and no has raised that issue appeal. opinion The district court’s parties’ briefs discuss PVFA’s responsibility in terms of its vicarious
for the acts of Martin and/or Griffin Glen independent culpabili- Brand. PVFA’s
ty being sponte, is thus raised sua justification, by
without this court. per plain- legal gave $15 rise found no basis to sustain this award. It is Yet, Salazar-Calderon, nearly-identical penal- interesting violation was to note than in su- tiff. higher by register pra, 33 times the district *17 PVFA’sfailure to as a FLCRA con- ized at rate tractor was termed a technical violation that court in this case.