Richard Kenda, 2001-MSP-6 (ALJ Oct. 25, 2002)

May 9, 2009

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Richard Kenda, 2001-MSP-6 (ALJ Oct. 25, 2002)

U.S. Department of Labor Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002 DOL Seal

Issue Date: 25 October 2002

Case No.: 2001-MSP-00006

In The Matter of

RICHARD KENDA
Respondent

Conrad Bishop, Esq.
Perry, FL
For the Respondent

Rafael Batine, Esq.
Atlanta, GA
For the Secretary

Before: JEFFREY TURECK
Administrative Law Judge

DECISION AND ORDER

This is a case for civil penalties arising under the Migrant and Seasonal Agricultural Workers? Protection Act, 29 U.S.C. 1801 et. seq. (hereinafter "the Act"), and the applicable regulations at 29 C.F.R. §500.200 et seq. A formal hearing was held in Jacksonville, Florida on November 15, 2001¹

The Secretary seeks a total of $9,875 in civil penalties for nine alleged violations of the Act and the regulations. Primarily, the Secretary alleges that Respondent failed to pay all wages due to his migrant farm workers and provided unsafe and unhealthy housing for them. Respondent agrees that he failed to keep payroll records on prescribed Department of Labor forms and that his workers did not receive wage statements.² However, Respondent denies all the other allegations.

As a preliminary matter, it must be pointed out that the investigation conducted by the Wage and Hour Division was shabby beyond belief (see infra), and the case put together by the Secretary either did not recognize the defects in the investigation or chose to ignore them. No people, particularly those of modest means, should be forced to go to the expense of retaining counsel and defending allegations which the Secretary does not have credible evidence to back up.

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This is far from the first time I have chastised Wage and Hour investigators for slipshod practices.³ Rather, it is the unusual case in which I find that Wage and Hour investigators have performed well. What saddens me is that, in the course of the 23 years I have been an Administrative Law Judge at the Department of Labor, I have not seen any improvement in the quality of its Wage and Hour investigations nor in the cases based on these investigations brought by the Department. It is incumbent on this Department to do a better job, both to avoid undeserved harassment of employers and to provide workers with the protection they deserve.

It also must be pointed out that the evidence and the testimony presented in this case by both parties is sorely lacking. The Wage and Hour investigator's glaringly deficient investigation and his inconsistent statements made throughout his testimony erode his credibility, and absent corroboration his testimony cannot be given significant weight. The exhibits offered by both parties also leave a lot to be desired. I will give more weight to the testimony of Respondent, his wife and daughter not because their testimony is free of contradiction but because they voluntarily made several admissions which were against their interests (see infra). If not for these admissions, the Secretary would have failed to meet her burden on any of the violations assessed.

FINDINGS OF FACT AND CONCLUSIONS OF LAW ⁴

Respondent runs a family farm on approximately 120 acres in Madison, Florida. He harvests twenty-one types of vegetables (TR 98). Respondent owns some of the land and leases some of it from Richard Guidinger (TR 98). His wife, Beverly Kenda, and his daughter, Virginia Oro, assist him in running the farm. Mrs. Kenda does the payroll and bookkeeping and Mrs. Oro helps with sales and paperwork. Respondent's son-in-law, Fidencio Oro, also helps out on the farm (TR 98). The family hires different people to work on the farm, some of whom are migrant workers from Mexico and Guatemala (TR 159).

In April 1999, Charles Baker, an investigator with the Wage and Hour Division of the Department of Labor (TR 33), investigated Respondent after receiving complaints from migrant workers that they were not paid for their last week of work (TR 34). At that time, he determined that the small business exemption set forth in §4(a)(2) of the Act applied to Respondent and therefore Respondent was not subject to the Act.

Subsequently, Mr. Baker received more complaints from workers about not getting paid, so another investigation ensued. During his second investigation, Mr. Baker determined that Respondent was no longer exempt under the small business exemption because Respondent's man-days, i.e., a day in which an agricultural worker puts in at least one hour of work, exceeded 500 (see 29 C.F.R.. §500.30(b)).⁵ On August 4, 1999, Mr. Baker, along with several other government officials, visited Respondent's farm and identified nine alleged violations of the Act. Those alleged violations and civil money penalties assessed for those alleged violations are as follows:

1. Breach of working arrangements with workers in violation of § 202(c) of the Act - - $200;
2. Failure to make/keep employer records in accordance with §201(d)(1) of the Act - - $200;
3. Failure to provide wage statements to workers in accordance with §201(d)(2) of the Act - - $50;
4. Failure to pay wages when due in accordance with §202(a) of the Act - - $2,400;
5. Failure to post housing conditions in accordance with §201(c) of the Act - - $25;
6. Failure to ensure housing safety and health in accordance with §203(a) of the Act - - $6,200;
7. Failure to provide safe transportation vehicles in accordance with §401(b)(1)(A) of the Act - - $200;
8. Failure to ensure driver has valid license in accordance with §401(b)(1)(B) of the Act - - $100; and
9. Failure to obtain prescribed insurance coverage in accordance with §401(b)(1)(C) of the Act - - $500.

[Page 3]

Respondent has conceded the violations of §§201(d)(1) and 201(d)(2) (TR 7-8); therefore, they are not at issue. The other seven alleged violations will be addressed below.

Failure to Pay Wages When Due, §202 (a) of the Act, and
Breach of Working Arrangements with Workers, §202(c) of the Act

Mr. Baker began investigating Respondent after receiving several complaints from migrant workers about not being paid for their last week of work. Based on those complaints, Mr. Baker found that 12 workers had not been paid for their last week of work, had not been paid on time (TR 39-40), or had not been paid the full amount due (TR 41). Eight of the workers were identified by the Secretary through a man named Juan Salinas. The remaining four workers were never identified by the Secretary.

Section 202(a) of the Act states:

Each farm labor contractor, agricultural employer, and agricultural association which employs any migrant agricultural worker shall pay the wages owed to such worker when due. 29 U.S.C. 1822(a)

Section 202(c) of the Act states:

No farm labor contractor, agricultural employer, or agricultural association shall, without justification, violate the terms of any working arrangement made by that contractor, employer, or association with any migrant agricultural worker. 29 U.S.C. 1822(c).

Mr. Baker allegedly based his determination that Respondent violated §§202(a) and 202(c) on statements taken from migrant workers (TR 41; GX 1, 1B) and on something Respondent allegedly told him during the August 4, 1999, investigation. Only two statements from migrant laborers are in evidence. One of the statements taken by Mr. Baker was from Juan Salinas. Mr. Salinas also testified at the hearing. Mr. Salinas testified that he and eight other workers worked for Respondent at the same time (TR 12). He considered himself the head of the group of workers (TR 21) and that the other workers worked for him (TR 20). He testified that he and the workers began working for Respondent in December 1999, although he was not certain of the year (TR 20). He stated that he drove the workers to the field and was paid for an extra hour of work for doing so (TR 12-13). He further testified that he and his crew stopped working for Respondent in January. Again he could not recall the year, but believed it was 2000 (TR 14). According to Mr. Salinas, he and his crew did not receive their checks for the last week of work (TR 14-15). Respondent allegedly required them to fill out some paperwork to receive their last paycheck, but they refused to do so (TR 18-19). Each was allegedly due an amount varying from $240 to $280 (TR 17).

[Page 4]

Mr. Salinas's testimony is questionable at best. Mr. Salinas could not remember the year he worked for the Respondent (TR 14, 16, 20). He also could not remember all the names of the workers working for him (TR 21). In addition, despite testifying that he and his crew were never paid for their last week of work (TR 14-15), Respondent produced eight cancelled checks allegedly bearing the signatures of Mr. Salinas and seven of the workers (RX A).⁶ Each check was dated either January 28 or 29, 1999, and each was cashed at the same location on October 7, 1999. Mr. Salinas acknowledged that it was his signature on the cancelled check made out to him, but paradoxically stated that he never saw the check, never received the money from the check and never had been to the location where the check was cashed (TR 28).

Mr. Baker testified that on August 4, 1999, he questioned Respondent about the workers who allegedly were not paid for their last week of work. He said Respondent acknowledged that they had not been paid and said it was because he did not have the money (TR 38). But Respondent denied telling Mr. Baker that he could not pay the workers (TR 107). Instead, Respondent testified that he showed Mr. Baker color copies of the checks given to the workers (TR 107). He also made it abundantly clear that he does not hand out the checks, does not do the payroll nor the bookkeeping and that his wife and daughter handle it all (TR 110).

Mrs. Kenda, Respondent's wife, testified that she does the payroll and bookkeeping for the farm (TR 123). She stated that Juan Salinas along with 6 guys and a girl showed up in November 1998 looking for work. Mr. Salinas told her he was their spokesman. Respondent hired them and they worked until mid-January 1999 (TR 124). She remembered Juan Salinas coming by two or three times to pick up the checks for him and his crew after they quit and then one day they were given to him. However, she has no independent recollection of actually giving the checks to Mr. Salinas (TR 127). She also testified that she dates the checks the same day as they are written. She has no explanation as to why the checks given to Juan Salinas and his crew were not cashed until October 7, 1999 (TR 127). Mrs. Kenda further testified that she gave copies of the checks to Mr. Baker in April 1999, and told him that the checks had not been cashed (TR 129).

While the Secretary also alleged that Respondent did not pay four other workers, she failed to present any evidence concerning the identity of these workers. No names were given and no statements were provided. In addition, the only testimony presented by the Secretary regarding whether the four workers were paid was that of Mr. Baker. Respondent allegedly told Mr. Baker that the four workers refused their checks (TR 38). This testimony contradicts the evidence submitted by Respondent. Respondent presented a payroll ledger for four workers and submitted sets of cancelled checks for three of the four workers (RX B). The first set of cancelled checks was dated May 15, 1999, the second set was dated May 22, 1999 and the third set was dated May 29, 1999. All were cashed within a week or two of the date the checks were written (RX B). While Respondent submitted the cancelled checks and the ledger, there is nothing to indicate that the four workers in the ledger are the same four workers Mr. Baker alleges were not paid. In addition, if these workers are the same workers Mr. Baker says refused their checks, then obviously three of the four workers did not refuse their checks because copies of the cancelled checks were provided.

[Page 5]

While the evidence for both parties is inconsistent, the Secretary bears the burden of proving its case. She clearly has not met that burden. Other than the testimony of Mr. Baker and Mr. Salinas, the Secretary failed to present any evidence to contradict Respondent's claim that the checks were written when dated and were for the full amounts due. Since Mr. Salinas admitted that the signature on the back of his check was his, his testimony that he did not receive the check lacks credibility. Mr. Baker's testimony is also not persuasive because it is based mainly on unsubstantiated hearsay from unidentified sources. Based on the foregoing, I find that the Secretary has not proven that Respondent violated §§202(a) and 202(c) of the Act, and no civil money penalties will be assessed.

Failure to post housing conditions in accordance with §201(c) of the Act, and
Failure to ensure housing safety and health in accordance with §203(a) of the Act

During Mr. Baker's August 4, 1999, investigation, he inspected a house on Respondent's land, and a labor camp on Mr. Guidinger's land (TR 44). He determined that migrant workers working for Respondent were being housed in both locations. He allegedly found several OSHA violations regarding the house and labor camp and assessed $6,200 in civil money penalties against Respondent for violation of §203(a). He also allegedly did not see a statement of the terms and conditions of the house posted in the house and labor camp in violation of §201(c) and assessed a $25 civil money penalty.

Section 201(c) of the Act states:

Each farm labor contractor, agricultural employer, and agricultural association which provides housing for any migrant agricultural work shall post in a conspicuous place or present to such worker a statement of the terms and conditions, if any, of occupancy of such housing. 29 U.S.C. 1821(c)

Section 203(a) of the Act states:

Except as provided in subsection (c), each person who owns or controls a facility or real property which is used as housing for migrant agricultural workers shall be responsible for ensuring that the facility or real property complies with substantive Federal and State safety and health standards applicable to that housing. 29 U.S.C. 1823(a).

The House

The house inspected by Mr. Baker was on Respondent's land. Upon inspecting the house, he allegedly found the following OSHA violations:

inadequate drainage from a pipe leading outside the house which caused standing water (TR 58) (See 29 C.F.R. 1910.142(a)(1)) (Checklist Item No. 1 on GX 9);
area around the house was not mowed and there was debris all around it (TR 58) (See 29 C.F.R. 1910.142(a)(3)) (Checklist Item No. 8 on GX 9);
holes in the floor and roof (TR 59) (See 29 C.F.R. 1910.142(b)(1)) (Checklist Item No. 12 on GX 9);
no wall lockers (TR 59) (See 29 C.F.R. 1910.142(b)(3)) (Checklist Item No. 12 on GX 9);

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mattresses on the floor (TR 59) (See C.F.R. 1910.142(b)(3)) (Checklist Item No.17 on GX 9);
floors in disrepair and rotting (TR 59)(See 29 C.F.R. 1910.142(b)(4)) (Checklist Item No. 22 on GX 9);
broken windows (TR 60) (See 29 C.F.R. 1910.142(b)(7)) (Checklist Item No. 26 on GX 9);
no screen doors or windows (TR 61) (See 29 C.F.R. 1910.1four2(b)(8)) (Checklist Item No. 27 on GX 9);
doors not equipped with self-closing devices (TR 61) (See 29 C.F.R. 1910.142(b)(8)) (Checklist Item No. 28 on GX 9);
laundry facilities not provided (TR 61) (See 29 C.F.R. 1910.142(f)(1) and (5)) (Checklist Item No. 57 on GX 9);
no shower head (TR 61) (See 29 C.F.R. 1910.142(f)(1)(ii)) (Checklist Item No. 68 on GX 9);
no hot water available; hot water heater inoperable (TR 62) (See 29 C.F.R. 1910.142(b)(11)) (Checklist Item No. 74 on GX 9);
electrical outlets not provided in every room, outlets exposed and inadequate lighting (TR 62) (See 29 C.F.R. 1910.142(g)) (Checklist Item No. 75 on GX 9);
kitchen area unclean (TR 63) (See 29 C.F.R. 1910.142(h)(1)) (Checklist Item No. 89 on GX 9);
leakproof garbage containers not provided in kitchen area (TR 63) (29 C.F.R.1910.142(h)(1) (Checklist Item No. 91 on GX 9);
infestation and harborage of insects or pests (TR 63) (See 29 C.F.R. 1910.142(j)) (Checklist Item No. 93 on GX 9).

On the day that Mr. Baker inspected the house, only one person was in the area, allegedly a migrant worker. According to Mr. Baker, the migrant worker told him that he worked for Respondent and lived in the labor camp, not the house. The worker also allegedly told him that other workers working for Respondent lived in the house (TR 47, 87, 118-19 ). As hard as it is to believe, Mr. Baker did not ask this worker his name, let alone procure a statement from him. Nor did he attempt to obtain documentary evidence regarding the ownership of the house, or even question Respondent and his family about it (TR 53, 70, 86, 87, 118).

Mr. Baker did manage to get a statement on July 29, 1999 (GX 1) from a man who allegedly worked for Respondent in May and June of 1999 and lived in the house. This statement says that the worker paid $14 per week to live in the house. However, this statement is not entitled to any weight. As is typical of Wage and Hour interview reports, the statement is hand-written by Mr. Baker, and is simply attested to by the witness. But the name at the top of the interview report which was written by Mr. Baker is not the same name as in the attestation. At the top of the first page, Mr. Baker wrote the worker's name as Sergio Rubio. However, the attestation is signed Sergio Robles. This presents two very serious credibility problems. First, it must be assumed that the worker's name is Robles, not Rubio, since he clearly signed his name Sergio Robles. If Mr. Baker did not even get the worker's name right, how can anything else he wrote purportedly representing his conversation with Mr. Robles be credited? Second, although Mr. Robles allegedly read and attested to the statement, how carefully could he have read it if he did not even notice that his name was misstated?⁷ The fact that Mr. Baker prepared such a fundamentally flawed interview statement makes one question the reliability of his entire investigation.⁸

[Page 7]

Mr. Baker also managed to take pictures of the house (GX 7(a) - (p), 7(s) - (v)), but the pictures do not prove who lived in the house or who had control over the property.

Respondent submitted a sales agreement and lease agreement to show he did not own the house and had no control over the land the house was on. These documents indicate that on May 1, 1999, Raul Mendez purchased the house from Respondent (RX D) and leased the land on which the house was located (RX E). There was also testimony from Respondent (TR 101), Virginia Oro (TR 154-56), and Beverly Kenda (TR 133-34), to confirm that Raul Mendez owned the house, leased the land and that his family lived in the house. In addition, on June 4, 2001, Raul Mendez gave a statement that he bought the house from Respondent on May 1, 1999, that his family lived there and that on August 4, 1999, he got home and found people in his house (RX I). While the Secretary tried to interpret "people" as migrant workers, Respondent testified that the only people in Mr. Mendez's house on August 4, 1999, were government people because he was watching through his sliding glass door (TR 104-06). While the sale of the house and the lease of the property to Raul Mendez, along with the fact that Raul Mendez has not returned to the property since August 4, 1999 while still paying for it, seem suspect and a little too convenient, the Secretary offered no proof to discredit this evidence. Nor did the Secretary put on any evidence of her own aside from Mr. Robles's discredited interview report to support her contention that Respondent's migrant laborers lived in the house.

Since there is no credible evidence that Respondent either owned or controlled the house or that he was housing migrant workers there, no violations found at the house have been established.

The Labor Camp

Mr. Baker also found alleged OSHA violations at the labor camp:

area around the house was not maintained in a clean and sanitary condition (TR 58) (See 29 C.F.R. 1910.142(a)(3)) (Checklist Item No. 8 on GX 9);
mattresses on the floor (TR 59) (See C.F.R. 1910.142(b)(3)) (Checklist Item No.17 on GX 9);
broken windows (TR 60) (See 29 C.F.R. 1910.142(b)(7)) (Checklist Item No. 26 on GX 9);
doors not equipped with self-closing devices (TR 61) (See 29 C.F.R. 1910.142(b)(8)) (Checklist Item No. 28 on GX 9);
unsanitary toilets (TR 61) (See C.F.R. 1910.142(d)(10)) (Checklist Item No. 54 on GX 9);
laundry facilities not provided (TR 61) (See 29 C.F.R. 1910.142(f)(1) and (5))(Checklist Item No. 57 on GX 9);
electrical outlets not provided in every room, outlets exposed and inadequate lighting (TR 62) (See 29 C.F.R. 1910.142(g)) (Checklist Item No. 75 on GX 9);
unclean kitchen area and no leakproof garbage containers with lids provided (TR 63 (See 29 C.F.R. 1910.142(h)(1)) (Checklist Item No. 89 on GX 9);
no leakproof garbage containers with lids provided (TR 63) (See 29 C.F.R. 1910.142(h)(1)) (Checklist Item No. 91 on GX 9)
infestation and harborage of insects or pests (TR 63) (See 29 C.F.R. 1910.142(j)) (Checklist Item No. 93 on GX 9)

Respondent admitted that he controlled the labor camp and housed migrant workers there. Respondent and his wife testified that the labor camp was leased by Respondent from Roger Guidinger and that he charged his migrant workers $14 per week ($2/day for electricity and propane) to live in the labor camp (TR 113, 137-38). Since Respondent admitted that he leased the labor camp and housed migrant workers there, he is subject to civil money penalties for any violations of §203(a).

[Page 8]

While Mr. Baker testified about the alleged OSHA violations at the labor camp, he failed to provide proof of all of the violations. Four photographs of the labor camp were admitted into evidence (GX 7(q), 7(r), 7(w), 7(x)). Of the ten OSHA violations Mr. Baker allegedly found at the labor camp, only one violation is conclusively shown in the photographs, i.e., unsanitary toilets (RX 7(r)). The area around the labor camp was not shown so there is no way to know if there was debris. There is a photograph of a mattress and a box spring, but it is unclear if the bed is "elevated at least 12 inches from the floor" as required in 29 C.F.R. 1910.142(b)(3). None of the photographs show windows or doors so there is no way to know if the windows were broken or if the doors had self-closing devices. There is no photograph showing laundry facilities, but that does not mean they are not there. The photographs show electrical outlets in the two rooms depicted in the photographs and there appears to be adequate light. There is a photograph of an exposed outlet (GX 7(x)), but 29 C.F.R. 1910.142(g) does not state that all outlets must be covered. While there is a photograph of a messy kitchen area which does not show a leakproof garbage container, that does not mean there was not a leakproof garbage container somewhere in the kitchen, as the photograph does not appear to show the entire kitchen. Finally, none of the photographs show insects or other pests.

As alluded to earlier, Mr. Baker's investigation leaves a lot to be desired. If the alleged violations really existed, Mr. Baker should have and could have taken pictures of them. He also could have brought in witnesses to testify about the conditions in the camp. Because he failed to conduct a competent investigation, the Secretary has not met her burden regarding the alleged violations. Respondent will only be assessed civil money penalties for failing to provide sanitary toilets.

Since it has been established that Respondent leased the labor camp and housed migrant workers there, he is also subject to civil money penalties if he violated § 201(c). Mr. Baker testified that while inspecting the labor camp, he did not see "a statement of the terms and conditions" posted in a conspicuous place (TR 42-43). Once again, this testimony is uncorroborated. Since I do not find Mr. Baker's testimony credible and there is no evidence to substantiate Mr. Baker's allegations, Respondent will not be assessed a civil money penalty for this alleged violation.

Failure to provide safe transportation vehicles in accordance with §401(b)(1)(A) of the Act;
Failure to ensure driver has valid license in accordance with §401(b)(1)(B) of the Act; and
Failure to obtain prescribed insurance coverage in accordance with §401(b)(1)(C) of the Act

During the August 4, 1999 visit to Respondent's farm, Mr. Baker allegedly observed a van transporting several workers from the house to the field. The driver could not produce a driver's license or proof of insurance. Mr. Baker determined that Respondent was causing the transportation of migrant workers in a van without a licensed driver and without the proper insurance. He assessed civil money penalties in the amount of $200 for violation of §401(b)(1)(A), $100 for violation of §401(b)(1)(B) and $500 for violation of §401(b)(1)(C).

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Section 401(b)(1) of the Act states:

When using, or causing to be used, any vehicle for providing transportation to which this section applies, each agricultural employer, agricultural association, and farm labor contractor shall –

    (A) ensue that such vehicle conforms to the standards prescribed by the Secretary under paragraph (2) of this subsection and other applicable Federal and State safety standards,
    (B) ensure that each driver has a valid and appropriate license, as provided by State law, to operate the vehicle, and
    (C) have an insurance policy or a liability bond that is in effect which insures the agricultural employer, the agricultural association, or the farm labor contractor against liability for damage to persons or property arising from the ownership, operation, or the causing to be operated, of any vehicle used to transport any migrant and seasonal agricultural worker. 29 U.S.C. 1841(b)(1).

According to Mr. Baker, he observed a gentleman by the name of Juan Gonzalez transporting eight or nine migrant workers in a Dodge van from the house to the field (TR 37-38).⁹ He also testified that Mr. Gonzalez could not produce a drivers license or insurance for the van (TR 67). Mr. Baker took pictures of the van and the migrant workers who purportedly were transported to the farm in the van (GX 8(a) - 8(d)). Some of the workers allegedly told Mr. Baker that Respondent paid for the gas and oil for the van.

Mr. Baker's testimony regarding the van does not carry any weight, for his testimony is nonsensical. First, he could not identify who allegedly was being transported in the van. He said he had their names in a statement, but that statement was not produced (TR 81). Second, he testified that the van was being driven by Juan Gonzalez, who allegedly told Mr. Baker that he was Respondent's son-in-law. Respondent's son-in-law is Fidencio Oro, not Juan Gonzalez. In addition, no evidence was offered to show that a man name Juan Gonzalez even worked for Respondent. Mr. Baker apparently believes that Juan Gonzalez and Fidencio Oro are the same person, but he failed to provide any proof to back up the allegation such as a photograph of Mr. Gonzalez (TR 84). Third, Mr. Baker testified that every time he went out to Respondent's farm, Respondent's daughter was married to a different person (TR 73). Mrs. Kenda and Mrs. Oro testified that Mrs. Oro has never been married to anyone but Fidencio Oro (TR 122, 153). Fourth, Mr. Baker testified that the workers told him they borrowed the van from a friend, but the friend's name was in the statement that was not produced and he failed to check DMV records to see who actually owned the van (TR 82). Finally, he failed to take a picture of the eight or nine migrant workers who were purportedly being transported in the van. While there are three pictures of the van and one picture of some people in a field (GX 8(a) - 8(d)), there are no pictures of workers in the van, getting in or out of the van, or even near the van. A picture of some people standing in a field (GX 8(b) does not provide proof that those people were transported to the field in the van.

Beverly Kenda and Virginia Oro testified that Fidencio Oro owns the Dodge van, not Juan Gonzalez (TR 138, 156). They also testified that Mr. Oro had a valid driver's license and insurance at the time of the August 4, 1999 investigation, proof of which was produced at the hearing (RX H, G).¹⁰ Mrs. Kenda further testified that Mr. Oro has never transported migrant workers in his van (TR 139, 147). While Mrs. Kenda did admit that she and her husband provided Mr. Oro with a credit card for gas (TR 147), he is their son-in-law and there is nothing wrong with providing him a credit card for gas as long as it is not a condition for transporting workers in the van.

[Page 10]

While Respondent's evidence is otherwise convincing, one thing does not add up. The van in the picture has a Georgia license plate (GX 8(c)), but Mr. Oro is licensed in Florida (RX G) and the insurance policy (RX F) states that the car is registered in Florida. On the other hand, the last seven digits of Mr. Oro's van's vehicle identification number (see RX F) matches seven digits written beneath the photograph of the van (GX 8(c)), so it appears to be the same van. Despite the inconsistency in the evidence, the Secretary bears the burden of proof, not the Respondent, and the Secretary has not met that burden.

In light of the fact that the Secretary failed to provide sufficient proof that workers were being transported in the van, and Respondent provided proof that Fidencio Oro was properly licensed and carried insurance on the van, I find that Respondent did not violate §§401(b)(1)(A) - 401(b)(1)(C).

Civil Money Penalties

Civil money penalties for violations of the Migrant and Seasonal Agricultural Worker Protection Act are governed by §503 of the Act. Section 503 of the Act states, in pertinent part:

(a)(1) Subject to paragraph (2), any person who commits a violation of this Act or any regulation under the Act, may be assessed a civil money penalty of not more than $1,000 for each violation.
(2) In determining the amount of any penalty to be assessed under paragraph (1), the Secretary shall take into account (A) the previous record of the person in terms of compliance with this Act and with comparable requirements of the Farm Labor Contractor Registration Act of 1963, and with regulations promulgated under such Acts, and (B) the gravity of the violation. 29 U.S.C. 1853(a).

The Secretary may also consider the number of workers affected by the violations; efforts made in good faith to comply with the Act; an explanation of the person charged with the violations; a commitment to future compliance, taking into account the public health, interest or safety, and whether the person has previously violated the Act; and the extent to which the violator achieved financial gain due to the violation, or the potential financial loss or potential injury to the workers. 29 C.F.R. §500.143.

Since the Secretary failed to prove several of the alleged violations, the potential civil money penalty must be reduced by the amounts indicated: failing to pay 12 workers wages when due ($2,400); violating the terms of working arrangements made with the 12 workers ($200); failing to post the terms and conditions of the housing conditions in a conspicuous place within the house and labor camp ($25); failing to provide safe transportation ($200); failing to ensure the driver has a valid license ($100); and failing to obtain the prescribed insurance coverage on the van ($500). That leaves a maximum penalty of $6400 of the original assessed penalty of $9,875.

[Page 11]

Respondent admitted to the violations for failing to make and keep employer records ($200) and for failing to provide wage statements to workers. He was assessed a penalty of $200 for the former and $50 for the latter. Both of those penalties are reasonable and Respondent will be ordered to pay them.

Respondent was assessed a total of $6200 for the health and safety violations at the house and labor camp. In determining the penalty for each health and safety violation, the Secretary evaluates each violation as either marginal, serious or aggravated. A marginal violation has little or no effect on the health and safety of the people affected and therefore no penalty is assessed A serious violation has at least a moderately serious impact on the health and safety of the persons affected and a the penalty may be anywhere from $250 to $500. An aggravated violation poses an immediate danger to the health and safety of the people affected and carries a penalty from $400 to $600 (GX 9). Since I found that the Secretary failed to prove that the Respondent owned or controlled the house and was housing migrant workers there, he will not be assessed any civil money penalties for the alleged OSHA violations at the house. However, Respondent admitted to having control of the labor camp and housing migrant workers there, so civil money penalties for the OSHA violations proven to have existed at the labor camp will be assessed.

Mr. Baker found eight serious violations regarding the labor camp and assessed a $350 penalty for each (GX 9). The serious violations he found were: area around the house was not maintained in a clean and sanitary condition; mattresses on the floor; broken windows; doors not equipped with self-closing devices; unsanitary toilets; failing to provide laundry facilities; unclean kitchen area; and no leakproof garbage containers with lids. The two aggravated violations for which $500 penalties were assessed were insufficient electrical outlets along with inadequate lighting, and infestation and harborage of insects and pests. As stated earlier, I found that the Secretary proved only one of those violations, which was having unsanitary toilets. The Secretary assessed a $350 civil money penalty for the unsanitary toilets, and I find this penalty to be reasonable.

ORDER

IT IS ORDERED that Richard Kenda pay a civil money penalty of $600 to the United States Department of Labor for violations of the Migrant and Seasonal Agricultural. Workers' Protection Act.

JEFFREY TURECK
Administrative Law Judge

[ENDNOTES]

¹This case was docketed for hearing on January 24, 2001. However, in response to a request by the parties, a settlement judge was appointed pursuant to 29 C.F.R. §9(e). The settlement judge could not resolve the case, and on October 19, 2001 the hearing was scheduled.

²The civil penalties assessed for these two offenses total $250.00.

³See, e.g. In re R.H.D. Construction Co., Inc., 95-DBA-7, slip op. at 12 Decision and Order Apr.28, 1999); U.S. DOL v. Saunders, 90-SCA-39, slip op. at 4 (Decision and Order on Remand Feb. 28, 1995); In re John T. Jones Const. Co., 90-DBA-22, slip op. at 6-8 Decision and Order March 29, 1991.

⁴Citations to the record of this proceeding will be abbreviated as follows: GX – Government's Exhibit; RX – Respondent's Exhibit; TR – Hearing Transcript.

⁵All regulations cited in this decision are contained in Title 29 of the Code of Federal Regulations.

⁶ No checks were provided for the ninth person listed in RX A, Tanya Hetrick, and apparently the Secretary is not contending that she was underpaid or paid in an untimely manner.

⁷In this regard, it should be pointed out that Mr. Robles's statement as written by Mr. Baker is virtually illegible. I had Mr. Baker read the statement into the record before I would admit it into evidence. See TR 165-66.

⁸See TR 171-72 for further evidence of Mr. Baker's inadequate investigatory techniques.

⁹There is no evidence of how far the field was from the house.

¹⁰However, Mr. Oro's insurance did not meet the minimum requirement of §500.121(b) of $100,000 per seat. Mr. Oro's insurance policy had a limit of $20,000 per occurrence. See RX F.