UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

|                                    |
|------------------------------------|
| SECRETARY OF LABOR,                |
| Complainant,                       |
| v.                                 |
| POINSETT HUTTERIAN BRETHREN, INC., |
| Respondent.                        |

DOCKET NO.21-0295

Appearances:

Javier Diaz, Esq.,Officeof the Solicitor, U.S. Dept.of Labor,Denver, CO

For Complainant

Reed Rasmussen, Esq.,Siegel, Barnett & Schultz, LLP, Aberdeen, SD

For Respondent

Before: Administrative Law JudgeBrian A. Duncan

DECISION AND ORDER

Procedural History

Thismatteris before theUnited StatesOccupational Safety and Health Review Commission (“Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §651et seq.(“the Act”). OnSeptember 14, 2020, the Occupational Safety and Health Administration (“OSHA”)conducted an inspectionat46527 189thStreet, Estelline, South Dakotadue toa fatal accident on afarm.(Stips. 3, 4).As a result of that investigation, OSHA issuedaCitation and Notification of Penalty(“Citation”)to Respondent. TheCitationallegestwo violations of the Act, oneseriousandone other-than-serious, withtotalproposedpenaltiesof $7,802.00. Respondent timely contestedtheCitation. 

A trial was conducted inVermillion, South DakotaonSeptember 27, 2022. The partieseachsubmitted post-trial briefs for consideration. At trial, the parties stipulated to the withdrawal of Citation 2, Item 1.(Tr. 8;Stip.1). Therefore, only Citation 1, Item 1 remains in dispute.

Threewitnesses testified at trial: (1)Levi Tschetter, Respondent’s President and Minister; (2)Daniel Wollman, Respondent’s Farm Manager andamember of Respondent’s Board of Directors;and(3)[redacted], a fifteen-year-old colony member and resident who works in Respondent’s turkey operations.(Tr. 29, 75, 85). Complainant chose nottocall the investigating OSHA Compliance Officer, nor any other OSHA employees, to testify at trial.(Tr. 6, 9, 14-15, 90). The Court notes that Complainant’s entire presentation of evidence at trial lasted less than two hours.1(Tr. 5, 92).

Jurisdiction

TheCommission has jurisdictionover this proceedingpursuant to Section 10(c) of the Act. Respondentproducesagricultural products which are soldtonationalcompanies in interstate commerce. (Tr.27, 34, 36, 38).See Slingluff v. OSHRC, 425 F.3d 861 (10th Cir. 2005).

Background

It is important to note at the outset thatRespondent isnotone of the commonly encountered(alleged)employersin cases before the Commission. It is aregistered domestic, religious,nonprofit corporation underbothSouth Dakotastatelawand Section 501(d) of the IRS tax code. (Stips. 12, 15). Respondent is a religious, agricultural,communal colony locatednearEstelline, South Dakota.(Stip. 14).The colony was founded in 1968 and incorporated in 1981.(Stip.16).Respondent’sHutterianfaith requires thatcolony/churchmembers liveonRespondent’sland,and “devote their labors in harmony with the dictates of God’s teachings.”(Stip. 18).The colonyoperates as acommunalfarm and ranch, with houses and other facilities for its member families. (Tr. 31-32;Stips. 18, 66).None of the colony/church members receive any type of monetary wages, and none of the colony/church membersown any real or personal property. (Stip. 66, 68). Respondent’s colony/churchmembers attendreligious servicesevery day, do not work on Sundays, and“work together”in an agricultural communal lifestyle“to make ends meet and have a peaceful life.”(Stip. 74). 

Unfortunately, on September 10, 2020, a church/colony member was killed while working inside one of Respondent’s grain bins. (Tr. 16). OSHA’s Sioux Falls, South DakotaArea Office received a media report abouttheaccident andopenedan investigation.(Stip.4).Compliance Safety and Health Officer (“CSHO”)Jason Mundt2traveled toRespondent’s farmon September 14, 2020,to conduct an onsite inspection. (Stip. 5). CSHOMundt learned that twocolony/church memberswere removing corn from a grain bin to prepare for the seasonalchangeover to asoybean harvest.(Stip.6).The workers entered the grain bin without taking steps to de-energize the conveyor.(Stip.7).The workers began “walking down the grain” to clear corn away from the lower access door.(Stip.8).While walking down the grain, one of the workers became entrapped and ultimately suffocated to death.(Stip.9).The other worker managed to escapethe grain binand notifiedthe farm manager,who shut the system down and called 911 when he could not locate the victiminside the grain bin.(Stip.10).First responders arrived and found the deceased worker in the grain bin.(Stip. 11).

On March 2, 2021, OSHA issued twoproposed regulatory violationsto Respondent based on: (Citation 1, Item 1)its failure to implement sufficient controls to de-energize the bin sweep auger system and floor sump conveyors prior to employees entering the bins, and (Citation 2, Item 1) itsfailure to report a fatalityaccidentto OSHA within eight hours.(Stip.12). Respondent filed a timely notice of contest on March 17, 2021.(Stip. 12). 

The parties acknowledgethat theonly issue remaining in dispute in this case is whether Respondentwas a covered employer under the OSH Actand therefore subject to OSHA regulations. More specifically, the parties agreed thatif the employer/employee relationshipwas proven, Respondent committed the violation alleged in Citation 1, Item 1 in that there was a condition that presented a hazard to Respondent’s employees; that Respondent recognized the hazard; that the hazard was likely to cause death or serious harm; that there was a feasible means to abate the hazard; that Respondent knew of the hazardous condition; and that Respondent’s employees were exposed to the condition. (Tr. 23-25; Stip. 1). Additionally, since Respondent stipulated to Citation 1, Item 1 “as written and assessed”, the Court deems that to include the proposedpenaltyof $3,901. (Stip. 1).

To analyze the question of an alleged employee/employer relationship between Respondent and the two farm workers involved in the accident, it is important tofirstdiscuss the facts and circumstances surrounding the colony, its members, and theiragricultural operation. At the time of the accident, therewere58church/colony membersliving on Respondent’s5,600acre property. (Stip. 33). Other than two families that moved to the Poinsett Hutterian colony from another colony, all the members of Respondent’s colonyare related in one way or another, and most havebeen church/colony members since birth. (Stip. 65). Colony/church members live and work on the farm, occasionally visiting other colonies for social gatherings. (Tr. 88).Although none of the church/colony members receive any money for their work, Respondent providesall colonymembers with everything they “need to survive,” including food, housing, medical care, education, and transportation.3(Tr.32,45; Stip. 66).The colony tries to be as self-sustaining as possible,butsupplemental food, clothing, and other necessities are purchasedfrom local storesfor colony/church membersas needed. (Tr. 32). Memberstestified that they choose lifein the colony to “practice religion, help each other, and be there for each other.” (Tr. 70; Stip. 17). 

The church/colony,andsome of itsadult malemembers,are engaged in averysuccessful agricultural endeavor, whichexclusivelybenefitsthe churchandthecolony. Respondent’s agriculturaloperation consistsof growing crops (soybeans and corn) and raising livestock (turkeys and hogs).(Tr. 49, 66;Stips. 18, 34).The cornis used primarily to feedcolonylivestock,andthe soybeansare sold into commerce.(Stip.35).In recent years, Respondent has typically sold approximately10,000 hogsannuallyto Prairieland Pork, and 100,000 turkeys toJennie-O Foods.(Stip.36, 38). Thereare no outside, non-colony workers on the farm - church/colony members perform all of the labor required. (Stip. 29, 70). Likewise, none of the church/colony members work outside of the colony. (Tr. 48).

Of the 58 colony membersliving and working on the farm, only 16 of the menwork in the agricultural operation.4 (Stip. 65,69, 82). The other church/colony members (e.g.,seniors,youngchildren, women) performvarious othertasksconsistent with their communal living arrangement. (Tr.59, 61, 82). Young children attend on-site school taught by a colony/church member. (Tr. 33, 82). 

The colony by-laws provide that “each member shall perform services and shall do such things as contribute to the welfare of the corporation and church to the extent of his ability, age, and physical condition.”(Tr. 57-58; Ex. J-2, p.9; Stip. 22). “We do not force anybody” to work, butthere is always something a member can do on the colony. (Tr. 40, 59). Church/colony members contribute because they want to- “nobody wants to sit around and do nothing.” (Tr. 40,59). “They all want to do theirshare, whatever they’re capable of.” (Tr. 59).

Colony members are free to leave the community at any time. (Tr. 61-62). Some, especially children raised in the colony, decide to leave thecolony once they reach adulthood. (Tr. 61-62).Manyof those young adults later decide to return to lifeinthe colony. (Tr. 71). No one has ever been expelled from the colony. (Tr.53,68).

Respondent is governed by a Board of Directors (“Board”) that consists of four members: Levi Tschetter (President/Minister), Carl Tschetter (Vice President, Treasurer/Secretary), Danny Wollman (Farm Manager), and Kenny Wurtz (Assistant Minister and schoolteacher). Board members are also church/colony members who serve as elders, religious leaders, and managers/workers in the agricultural operation. (Tr.36;Stips. 40-55).

While membership in the church colony is completely voluntary, members must agree to the colonybylaws. Those bylawsrequire, among other things,thatchurch/colony memberslive and work on the colony “without pay, wages or salary in the conduct of the business of [the] corporation for the support of the Hutterian Church . . .”.(Tr. 20; Ex.J-2, pp. 9-11). Colony/church members also agree that if they withdraw from the corporation (leave the colony), they have no claim to any of the corporation’s property or funds, and that“all labors and services done and performed up to that time shall be considered as compensation for the support and keep rendered to such member by [the] corporation and further as a contribution to the church for church purposes.”(Stip. 23; Ex. J-2, pp. 9-11).Members further agree to abide by church/colony rules and can be expelled from the colony“for refusing or neglecting to give and devote all of [their] time, labor, services, earnings, and energies to the corporation or failing and refusing to do the work, labor, services and things required of him or her to be done and performed by the Board of Directors.”(Stip. 24). However, Mr. Tschetter, who has been Respondent’s President and Minister for the past 28 years, testified that they have never expelled anyone from the colony (Tr. 29, 53, 68;Stip. 25). 

Complainant places particular emphasis on thechurch/colony memberbylaw commitment above, in arguing that since Respondent can expel a church/colony member for “refusing to do the work, labor, services, and things required of him,” this isanalogousto firing an employee forrefusingto perform his/her assigned duties. Thus, according to Complainant, there is an employer/employee relationship. During trial,variousquestions were askedon this topic.

Q: And what happens if a person refuses to do something in the colony, if they refuse to work?

A: We don’t have that problem.

Q: That’s not what I asked. I asked what happens if somebody doesn’t work?

A:We’ve never had to address it. I can’t answerit better than that. We’ve never had to address it. What would happen? I suppose me as the president and [sic] the board, if somebody would sit down here, we would go talk to them. What’s the problem? That’s what I’d do, but I’ve never had to.”

Q: Can you tell me what you mean by you say you would talk to them?

A: I’d go talk to them and see if he’s got a problem, if he’s handicapped or if there’s anything wrong, if something is bothering him. I don’t know. Find out what’s going on and just talk to him about it. That’s what I’d do. I’ve never had to.

Q: And if you talk to them and that person still doesn’t want to work, what would you do?

A: What would I do? I’d just leave him alone. I wouldn’t – I would just talk to him. All you can do with people in my experience, if you be nice to a person, talk reason to them, hey, give them time. Give them time, let them think about it or go talk to them again. I’d go talk to them again, but I wouldn’t do anything aggressive, if that’s what you’re getting at. No, never. I wouldn’t – I wouldn’t even think about it.

Q: So if somebody didn’twork, if somebody justrefused to work, you would talk to them and then what else would you do?

A: If it would happen, that’s what I would do. Go talk to them and then leave them alone. You don’t – what do you think I should do except talk to them...Show him that I appreciate him, I love him, be nice to him and just treat him as a human being.

(Tr. 40-42, 78-79).

...

A: ...When you grow up in the colony, you don’t have that issue. You do not have it that somebody refuses to work. We do not have it. (Tr. 43).

Complainant also pursued a line of questioningconcerning its argument that the non-monetorybenefits(food, clothing, shelter, medical care, etc.)givento church/colony memberswere specificallyprovidedin exchange fortheir work on the farm. Witnesses were asked about thetheoreticalconsequences to church/colony members if they refused to help with workactivities neededon the farm. (Tr. 45-46).

Q: And don’t your adult members have to work in order to receive food, clothing, shelter and all of those benefits?

A: Everybody that’s there, if they worked or not, he gets food, clothing, and necessities. Whatever he needs to survive and make a decent living he’ll be provided.

Q: So you’re saying that anyone will get his food, clothing, shelter and benefits, even if they don’t work?

A: Yes.

(Tr. 45-46)

...

Q:If a person is too young or old to work, or disabled, do they receive the same food, clothing, medical care that everybody else gets?

A: We don’t give the old people any work.

Q: They get food and clothing and everything, right?

A: Oh, yes. Oh, yes.

Q:And the same thing for an old person that can’t work?

A: If they can’t work, that’s that. They getfood the same way. They get clothing. We take them to the doctor. They get their medication. We help them as much as we can.

(Tr. 66).

...

Q: Would you agree that the benefits received by the colony members are based solely on the person’s status as a member of the colony?

A: Yes.

Q:What is the purpose of providingfood, clothing, medical care, etc., to the members? Why do you do that?

A: Because we live in a colony. People have got to eat. You want to give them whatever they need...

(Tr. 69).

...

Q: Do you live in the colony so you can practice your religion?

A: Practice religion, help each other, be there for each other. My family is there. It’s always been there. They are always very helpful and willing to do anything they can. 

(Tr. 70).

...

Q:Okay. So the labor and services are considered as compensation for the food, the clothing, the shelter you provide right?

A: You work and then you eat. It’s like a family. It’s just a big family is all we are. We eat together. We have one dininghall. Everybody eats there. We go to one church. Everybody goes to church. We don’t force anybody. It’s voluntary. If you’re here, you want to work. People – if you’ve ever been there with the colony, you feel it. They are willing to do whatever has to be done.

(Tr. 60-61).

Allchurch/colony members, whether or not they are able and willing to work, receive the same benefits from thecolony.(Tr. 66, 80;Stip. 76). The benefits received bychurch/colony members are based solely on a person’s status as a member of thecolony.(Tr. 69;Stip. 77). Young children, seniors, and disabled still get the same food, clothing, medical care, etc.,as everyone else. (Tr. 66). Nor is there any increase in non-monetary benefits to church/colony members who work harder or longer than others, as is often the case in traditional employment settings.

Q: Now, I’m sure there are some people in the colony that work harder than others.

A: Always. There are always people that are a little more ambitious.

Q: Do the people that have a little more ambition and work harder, do they get extra food?

A: No.

Q: Or extra clothing?

A: No. No.

(Tr.67-68,84;Stip. 79).

Itis important to note that Respondent’s agricultural operation is not small, the colony is financially successful. For example, in2020, Respondent reported more than $6 million in income from its farming and livestock operations.(Stip. 27).All of Respondent’s income is derived from its agricultural activities. (Tr.28). Respondent uses that income to provide for the needs ofitsmembers, costs of the operation, and “for the common benefit of the members in carrying out and practicing their Hutterian religious faith.” (Stip. 75).Respondent spends approximately $150-200,000 per year for supplemental foodfor church/colony members; $400,000 per year for medical costs;and $8,000 per year for colony/church member clothing.(Tr. 32).Respondent also purchases and provides church/colony members with all the tools and equipment necessary to work the farm, including but not limited to vehicles,gas, insurance, tractors, combines, a planter,drills, chisel plow, cultivator, wagons, and a disk.(Stips.31, 32). Respondent also performs most maintenance and repairs onsite, including blacksmithing, electrical work, milling, and welding. (Tr. 49-50, 67-68).

Church/colony members’ typical day depends on their responsibilities within the community. (Tr. 88;Stip. 56). Respondent’sfarmworkers typically begin the workday around 7:45 a.m. after eating a communal breakfast at 7:00 a.m.(Tr. 68, 88; Stip. 57).Some of thecolony workers take a morning break at 9:00 a.m., and an afternoon break at 3:00 p.m.(Tr. 88;Stip. 58).Lunch takes place at 11:45 a.m.(Stip. 58).Workers finish work around 5:30 p.m. for adailychurch service andcommunaldinner.Some return to work after the church service in the summer.(Tr. 88;Stips. 59, 74).

While there maybeschedule changes due to the nature of operating a farm,based onweather and/orseasonal needs, workers cannot simply leave work on a whim, and they must seek permission to take time off.(Stip. 60).If workers are sick, they notify theircolonysupervisor who is responsible for finding a replacement.(Stip. 61).There are no time records maintained for the work performed by church/colony members, nor is there any established system for vacation or sick leave. (Tr. 68;Stips. 78, 80).Workers in the colony typically continue to perform some type of work on the colony from childhood to late adulthood, until they are no longer physically able. (Tr. 39,66;Stip. 63). If a church/colony member wants to try a different job on the farm, they are usually allowed an opportunity to try it. (Tr. 83).

Respondentbegins exposingitsyoung men to farm workaround the ages of 8-14years old.(Tr. 39; Stip. 62). Male children are often taught a job on the farm by going to work with their fathers or older brothers. (Tr. 38-39).[Redacted], for example, testified that he works with Respondent’s turkeys, started learning when he was about 11 years old (he was 15 at the time of trial), and was taught the job duties in the turkey operation by his older brother. (Tr. 86-88).

The Court must decide whether, in the religious, communal, agricultural setting described above, the OSH Act and implementing regulations applied to Respondent as the employer of the individuals working in the grain bin on September 10, 2020.

Citation 1, Item 1

Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows:

OSH Act of 1970 Section 5(a)(1): The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to struck-by and caught-in hazards:

(a)PoinsettHutterianBrethren, Inc. at 46527 189thStreet, Estelline, SD 57234: On or about and at times prior to September 10, 2020, the employer did not ensure that employees entering grain bins to perform grain removal and cleaning were protected from caught-in hazards associated with bin sweeps and unguarded floor sump conveyors.The employer did not have sufficient controls implemented to effectively de-energize the bin sweep auger system and floor sump conveyors prior to employees entering the bins. This condition exposed employees to caught-in hazards associated with the bin sweep auger and floor sump conveyors.

(b)PoinsettHutterianBrethren, Inc. at 46527 189thStreet, Estelline, SD 57234: On or about and at times prior to September 11, 2020, the employer did not ensure that employees entering grain bins to perform grain removal and cleaning were protected from caught-in hazards associated with unguarded floor sump conveyors. The employer did not have sufficient controls implemented to effectively de-energize the floor sump conveyors prior to employees entering the bins. This condition exposed employees to caught-in hazards associated with the floor sump conveyors.

Abatement Note: Among other methods, one feasible and acceptable method to correct this hazard is to ensure that all mechanical, electrical, hydraulic, and pneumatic equipment which presents a danger to employees inside grain storage structures shall be de-energized and shall be disconnected, locked-out and tagged, blocked-off, or otherwise prevented from operating by other equally effective means or methods as in 29 CFR 1910.272(g)(1)(ii).

Abatement Note: Among other methods, one feasible and acceptable method to correct this hazard are found in the 2013 National Grain and Feed Association (NGFA) “Guidance for Sweep Auger Operations in Grain Bins,” subsection, “Overview of the Ten Points in the OSHA Enforcement Memorandum.” Under number 2, the memorandum states, “Before entering the bin to set up or dig out thesweep auger, the subfloor auger and the grain entry points must be de-energized and locket out.”

Applicable Law

To prove a violation of the general duty clause, Complainant must show: (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; and (4) a feasible means existed to eliminate or materially reduce the hazard. K.E.R. Enters., 23 BNA OSHC 2241, 2242 (No. 08-1225, 2013);Pegasus Tower, 21 BNA OSHC 1190, 1191 (No. 01-0547, 2005). Complainant must also prove the employer knew or, with the exercise of reasonable diligence, could have known of the hazardous condition. CranesvilleBlock Co., Inc., 23 BNA OSHC 1977, 1985 (No. 08-0316, 2012) (consolidated);Burford’s Tree, Inc., 22 BNA OSHC 1948, 1950 (No. 07-1899, 2010).

A violation is “serious” if there was a substantial probability that death or serious physical harm couldhaveresultedfrom the violative condition. 29 U.S.C. §666(k). Complainant need not show that there was a substantial probability that an accident wouldactually occur;he need only show that if an accident occurred, serious physical harm could result. Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9thCir. 1984).As indicated earlier, if Respondent is found to be an employer under the Act the parties stipulated to all of the elements necessary to prove Citation 1, Item 1 “as written and assessed.” (Tr. 23-25; Stip. 1).

Discussion

“[T]he Secretary has the burden of proving that a cited respondent is the employer of the affected workers at the site.”Allstate Painting & Contracting Co., 21 BNA OSHC 1033, 1035 (No. 97-1631, 2005). In order to determine whether Complainant has satisfied this burden, the Commissiongenerallyapplies the factors laid out by the Supreme Court intheDardencase.Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992).SeealsoSharon & Walter Constr. Co., 23 BNA OSHC 1286, 1289 (No. 00-1402, 2010) (applyingDarden).TheSupremeCourt identified the following factorsto consider indetermining whether an employment relationship existed:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Dardenat 323(citingCommunity for Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989)).“While no single factor underDardenis determinative, the primary focus is whether the putative employer controls the workers.”Allstate Painting & Contracting, 21 BNA OSHC 1033, 1035 (No. 97-1631, 2005) (citingDon Davis, 19 BNA OSHC 1477 (No. 96-1378, 2001)).

Respondent’s Right to Control Manner and Meansby Which the Product is Accomplished

There was very little evidence in the recordin general. The evidence that was presented byComplainantwasoften unconvincing, lacking any details regarding Respondent’s interaction with the two workers in the grain bin on September 10, 2020. The Court has very little informationconcerning thetwo purported employees, or even the generallevel of control Respondent hadover the manner and means of the production of crops and management of livestock on Respondent’s farm. Senior members of Respondent’s community serve as the “managers” ofthefarming and livestock operations, but also served as religious leaders, and community elders. (Tr. 76-77;Stips. 39, 43, 44, 46-52). They instruct the church/colony members who work in those enterprises onthe farm and ranch work whichneededto be done. (Tr. 77;Stips. 39, 43, 44, 46-52). However,there areveryfew details about church/colony members’ day-to-day work activities, or examples of direct supervision/instruction. 

The record does establish that there areno specific required hours, no time records,andnosystem forvacation or sick leave. (Tr.68,76-77;Stips. 57-60, 78, 80). If a worker is sick or needs to take time off for social activities, they tell the farm or livestock manager so that someone else can perform any necessary duties. (Tr. 78-79, 88;Stips. 60, 61). No one is forced to work,eachcan work at their own pace, and they can try other jobs on the colony if they wish. (Tr. 40-41, 45, 60, 68, 78-79, 83). The Court finds thatComplainant failed to introduce sufficient evidence to weighthisDardenfactorin favor ofan employer/employee relationship between Respondentand thetwo church/colony members in the grain bin on September 10, 2020.

The Court also rejects Complainant’s argument that theStahlcase is controlling.Stahl v. U.S., 626 F.3d 520 (9thCir. 2010). While many of the factsappear to besimilar, withStahlalso involving employment allegations in a Hutterian farming colony, there are several that are distinguishable. First, theStahldecision was issued in the 9thCircuit. This case arose in the 8thCircuit.5Second,the structure of the Hutterian colony inStahlhad significant organizational differences.Stahlinvolved the President of a Hutterian colony claiming that his expenses for colony members’ (which he considered to be his employees) food and medical expenses should be deductible from his personal income tax liability as a business expense. Third,non-colony workers were hired inStahlon an as needed basis to help with farming operations. Fourth, farm managers inStahlwere elected through a vote which factored in an evaluation of theirworkperformance. Fifth, theStahlcolonymaintained aformalleave system in whichmembersaccruedvacation time of 3-4 weeks per year, and the President of the colony was required to approve theirrequests to usethatvacation leave. For these reasons, the Court findsStahlto be jurisdictionally and factually distinguishable from the present case.

Skill Required

The record has virtually no information concerning the skills required of the two church/colony members working in the grain bin on September 10, 2020. Therefore,due to a lack of evidence submitted by Complainant,the Courtweighsthis factoragainst finding an employer/employee relationship betweenRespondentand the two church/colony members in the grain bin on September 10, 2020.

Source of Instrumentalities and Tools

Providing tools to workers is typically an indication that an employment relationship exists. See Loomis Cabinet v. Occupational Safety and Health Review Comm’n, 20 F.3d 938, 942 (9th Cir. 1994) (holding Commission’s findings of employment relationship supported by substantial evidence, including provision of tools).Since membership in the colony requires that each person forgo owning any real or personal property, and none of the church/colony members are paid any wages,it would seem to be an impossibility that church/colony members provide their own equipment or tools. (Stip. 21, 68; Ex. J-2, p.9). And, in fact,the record established thatRespondentpurchasedall of the necessary tools, vehicles, and equipment necessary for church/colony members to operate the farm and ranch. (Stips. 31, 32). The Court finds that thisDardenfactor does tend to support the finding of an employment relationship, although to a lesser degree than Complainant urges. 

Location of the Work

All of the work at issue in this case is performed on Respondent’s farm land. (Stip. 29). The location of the work also happens to bethe sameland upon which church/colony memberslive –somesince birth,for 60, 70, or even 90 years. (Tr.66-67,Stips. 16-17, 65). Based on this limited record, Respondent’s farm and ranch, and the church/colony members life-long home, appear to be one-in-the-same. The Court finds that Complainant failed to introduce sufficient evidence to weighthisDardenfactorin favor of anemployer/employee relationship between Respondentand the two church/colony members in the grain bin on September 10, 2020.

Duration of the Relationship

As stated previously, the duration of the relationship between Respondent and church/colony membersis oftendecadesold, with many members living in the colony since birth. However, Complainant failed to introduce any evidence regarding the duration of the relationship between Respondent and the two church/colony members working in the grain bin on September 10, 2020.Therefore, due to a lack of evidence submitted by Complainant,the Courtweighsthis factoragainst finding an employer/employee relationship.

Respondent’s Right to Assign Additional Projects

Undoubtedly, based on this record, Respondent’s managing members could, and most likely did,requestthatchurch/colony membersperform additional projects on the farm/ranchas needed. However,the relationshipin this casedoes not appear to the Court as an employerreassigning an employee to a new project. In this case,rather,no church/colony memberswere ever forced to perform work. (Tr. 40). Each church/colony memberhas chosen, “for the benefit of the [c]olonyand for the common benefit of the members of the [c]olonyin carrying out and practicing their Hutterian religious faith,”to “contribute to the welfare of the [colony] and church to the extent of [their] ability, age, and physical condition” (Tr. 40, 60-61;Stip. 22,75). The Court declines to weigh this factor in favor of an employer/employeerelationship between Respondent and the two church/colony members in the grain bin on September 10, 2020.

Extent of Hired Party’s Discretion of When and How Long to Work

First, there is no evidence that thetwo church/colony members in the grain bin on September 10, 2020were “hired.” Instead, they were church/colony members working, as discussed above,to contribute to the agricultural operationoftheir religiouscommunity. Additionally, as also discussed above, there was no evidence ofanyestablished work hours,dictatedwork breaks,dictated work performance levels,dictated pace of work,or othersimilarcontrols. Although the record is sparse, it appears that churchmembers varied their work hours based upon the seasonal needs of the farm, the specific tasks each member was asked to performat any given time,variations in skills and abilities among colony members, scheduledgroupreligious worship, andtheir practice ofcommunal dining. (Tr. 88-89;Stips. 56-59, 74). Ultimately, the Court finds thatComplainant failed to establish that Respondentcontrolledwhen or how longthe two church/colony membersworkedin the grain bin on September 10, 2020. Accordingly, the Courtdeclines to weigh this factor in favor ofan employer/employee relationship.

Method of Payment

It is undisputed that church/colony membership is completely voluntary, and no member receivedany monetary wages for their work on the farm. (Stip. 20, 21). Church/colony members didreceive non-monetary benefits, such as food, housing, transportation, education, and medical care. (Stip. 66). All church/colony members, regardless of whether they workedin the farmandranch operation,6performedothertaskswithin the colony community, or didnot perform any work at all, still receivedthe same benefits. (Stips.63, 64, 76, 77, 79). Even among church/colony memberswho workedthe farm and ranch, no one receivedany additional benefits for working harder than another.(Stip. 79). Similarly, as discussed in detail above, church/colony memberscontinuedto receive those same benefits if they (theoretically) refused to work, or became unable to work. Complainant’s argument that the non-monetary benefits of food, housing, transportation, education, and medical careweredependent upon working the farmor ranchis REJECTED. The record clearly establishes the opposite. 

Respondent providedall 58 members of the colony these non-monetary benefits based solely upon their status as members of the community, not for their work in the farm and ranch operation. Accordingly, the Court weighs this factor against finding an employer/employee relationshipbetween Respondent and the two church/colony members in the grain bin on September 10, 2020.

Hired Party’s Role in Hiring and Paying Assistants

As stated earlier, therewasno “hired” partyin this record. On that basis alone, the Court would find this factor does not weigh in favor of an employer/employee relationship. However, the Court notes that the parties agree that church/colony members didnot have the ability to hire non-colony workers. Only Respondent’s Board of Directors could do that. (Stips. 30, 70).Therefore, analysis of thisDardenfactormayweighslightly in favor offinding an employer/employee relationship, though not as significantly as Complainant urges.

WhethertheWork is Part of the Regular Business of Respondent

Theworkat issue in this case was inside a grain bin on a farm. Respondent’s Articles of Incorporationfor their religious non-profitindicate that“[t]he purpose of this corporation is to promote the Hutterian religious faith and church. It is a central part of the beliefs of the Hutterian Church that members should live together in a farming community, without individual ownership of personal or real property and that they should devote their labors in harmony with the dictates of God’s teachings; and further, that this corporation shall provide the facilities and means to themembers of said Hutterian Church practice and observe their faith.” (Ex. J-1, pp. 1-2). The agricultural work at issuewas part of the regular business of Respondent, butwasalso the regular business of theindividualchurch/colony members. The Court declines to weigh this factor in favor of an employer/employee relationship. 

Provision of Employee Benefitsand Tax Treatment

The parties agree that Respondent did not providechurch/colony membersanywages, did not withholdnor contributeany taxes on their behalf, didnot require nor provide W-4 or W-2 forms, did not contribute to social security, and did not maintain worker’s compensation insurance.(Stips. 66, 71,72, 73). Respondent did, however,provide medical care for church/colony members.Respondent paid approximately $400,000 annuallyin medical expenses.As discussed earlier, this benefit was received by all colony members, whether they worked in the farm/ranch operation, worked in other aspects of the religious community, were young children, or were non-working seniors.In this situation, the Court finds that theevidence relevant to thisDardenfactor weighs against finding an employer/employee relationship between Respondentandthe two colony members working in the grain bins on September 10-11, 2020.

In conclusion, weighing all of theDardenfactors discussed above, noting that none of the factors are singularly dispositive, the Court concludes that Complainant failed to present sufficient evidence to prove that Respondent was an employer of thetwo church/colony membersworkingin the grain bin on September 10, 2020.

AlternativeThreshold Remuneration TestUrged by Respondent

Respondent argues thatneithertheDardenanalysis, northeeconomic realities test(applied in other past cases), are appropriate in this case. See Loomis Cabinet Company, 1989 WL 223447(No. 88-2012, 1989).Respondent argues that those two tests/cases deal with thelegaldifferencebetween an employee and an independent contractor, which is not at issuehere. Instead, Respondent arguesthat the correct test for determining whether an employer/employee relationship existedin this particular case is thethreshold remuneration test, as colony memberswere more akin to volunteersthan employees.SeeGraves v. Women’s Professional Rodeo Association, 907 F.2d 71 (8thCir. 1990).7

Under this alternative analysisurged by Respondent, the Court would reach the same ultimate conclusionthat Complainant failed toprovethat the colony/church members working in the grain bin on September 10, 2020 were Respondent’s employees. The facts in this record reveal that there was no direct or indirect remunerationto church/colony members for their agricultural work. It is undisputed that church/colony members were paid no monetary wages of any kind, nor shared in the financial proceeds of Respondent’s operation. Complainant’s argument that the housing, food, clothing, medical care, etc., that Respondent provided to themwerenon-monetary, job-relatedbenefitsisREJECTED. The record is clear that those non-monetary benefitswere provided to all 58 church/colony members, regardless of whether they workedin the farming operation or not, regardless of age, regardless of status,regardless of productivity or effort,and regardless of their position. Simply stated, church/colony members did not receive food, clothing, shelter, etc., because of their workon the farm, but rather because they were members of this religious community.Accordingly, those non-monetary benefits were not remuneration for services provided.

“Compensation by the putative employer to the putative employeein exchange for servicesis not a sufficient condition, but it is anessentialcondition to the existence of an employer-employee relationship.” (emphasis added)Gravesat 73. Pursuant to thetest outlined inGraves,when there is no finding of direct or indirect remuneration, theanalysis need not proceed any further. No finding of an employer/employee relationship was established.

Conclusion

As noted above, it is Complainant’s burden to establish that an employment relationship existed between Respondent andthe two employees working in Respondent’s grain binon September 10, 2020. Considering the totality of thefacts andcircumstancesdiscussedabove,based on a very limited record,under both aDardenanalysis, and thethreshold remuneration testurged by Respondent,the Court finds that Complainant failed to meet its burden. Accordingly,the Act and implementing regulations did not apply to Respondentin this situation. The citation items proposed in this casewillbe VACATED.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED thatCitation 1, Item1,and Citation 2, Item 1,8areherebyVACATED.

SO ORDERED.

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| /s/ Brian A. Duncan |

Date:February 13, 2023Judge Brian A. Duncan

Denver, ColoradoU.S. Occupational Safety and Health Review Commission

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1 This includes Respondent’s cross-examination of Complainant’s three witnesses.

2 Mr. Mundt was promoted to Assistant Area Director of the Sioux Falls, SD OSHA office since this investigation. (Tr. 6).

3 It is also worth noting that church/colony members do not fill out W-4 forms,do notreceive W-2 forms,do nothave any taxeswithheld for/from them,do not contribute to social security, nor does Respondentpurchase any worker’s compensation insurance. (Stip. 71-73).

4 TheCourt understands that theonly allegation of an employer/employee relationship in this case concerns 2 of the 16 men who workedin the agricultural operationin 2020, not the activities of the other 42 church/colony members.

5 Where, notably,and discussed later in this decision, thethreshold remuneration testhas been applied to similar factual situations. SeeGraves v. Women’s Professional Rodeo Association, 907 F.2d 71 (8thCir. 1990).

6 The Court notes again that only 16 of the 58 church/colony members work in the farm and ranch operation.

7 The Court reiterates that this worksite was in South Dakota,within the geographic boundaries of the U.S. Court of Appeals for the Eighth Circuit.

8 Citation 2, Item 1 is vacated based upon the parties’ stipulation. (Tr. 8; Stip. 1).