U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: October 10, 1991
CASE NO. 86-MSP-107
IN THE MATTER OF
MARIO GARCIA,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This matter is before me pursuant to the Migrant and Seasonal
Agricultural Worker Protection Act, as amended (MSPA or the Act), 29 U.S.C. §§
1801-1872 (1988), and regulations promulgated thereunder at 29 C.F.R. Part 500 (1989). A
Notice of Intent to Modify or Vacate the Decision and Order (D. and O.) of Administrative Law
Judge (ALJ) Joseph A. Matera was timely issued in accordance with Sections 103(b)(2) and
503(b)(2) of the Act, 29 U.S.C. §§ 1813(b)(2), 1853(b)(2), and 29 C.F.R. §
500.265.
Respondent Mario Garcia is a farm labor contractor who employs farm
laborers in an area within E1 Paso County, Texas, referred to as the "Lower Valley."
Respondent testified that he provides services for up to six different farm owners, employing
between 100 and 120 farm laborers per day. Transcript (T.) 81. The Wage and Hour Division
investigated Respondent's operations from May 1983 to May 1985 for possible MSPA
violations. D. and O. at 1. Respondent testified that, during this period, he employed at least
5,000 farm laborers. T. 87.
Based on the investigation conducted by Compliance Officer Richard
Anaya, the Wage and Hour Division concluded that Respondent had violated several MSPA
provisions, including Section 106(a), 29 U.S.C. § 1816(a), which prohibits the
employment of illegal aliens, and, by letter dated March 17, 1986, revoked his Farm Labor
Contractor Certificate of Registration. D. and O. at 2. On March 28, 1986, Wage and Hour
assessed against Respondent a civil money penalty of $119,275.00, D. and O. at 3, of which
$118,800.00 was identified as the penalty for employing 297 illegal aliens. By letter dated April
14, 1986, Respondent requested a hearing on both actions.
In his D. and O., the ALJ noted the parties' stipulation that a violation
of Sections 201(d)(1) and 301(c)(1) of the Act, 29 U.S.C. §§ 1821(d)(1), 1831(c)(1),
occurred because Respondent Garcia did not maintain the required payroll records. D. and O. at
[Page 2]
6; T. 9. Pursuant to the stipulation, the ADJ assessed a penalty of $100.00. The ALJ also
concluded that a violation of Sections 201(b) and 301(b) had been established in that a required
poster advising workers of their rights and protections under MSPA had not been conspicuously
posted at one of Respondent's work sites. He assessed a penalty of $10.00 for that violation. D.
and O. at 6.
The ALJ found that Wage and Hour had failed to show that
Respondent had violated Sections 201(d)(2) and 301(c)(2) by not providing wage statements to
his workers. D. and O. at 6. Additionally, the ALJ concluded that the evidence failed to show that
Respondent had violated Section l0l(b) of the Act, 29 U.S.C. § 1811(b), by employing
Edmundo Perea as a farm labor contractor employee without evidence that Perea had a certificate
of registration authorizing such activity. D. and O. at 6-7.
With respect to Wage and Hour's finding that Respondent violated
Section 106(a) of the Act, 29 U.S.C. § 1816(a), by knowingly employing 297 illegal
aliens, the ALJ stated he was not convinced that the evidence, although properly admitted,
constituted "the required reliable, probative and substantial evidence required in an
administrative hearing of this nature." D. and O. at 7. He therefore concluded that
"respondent did not, with knowledge, employ the services of 297 illegal aliens not lawfully
authorized to accept employment." D. and O. at 8. Notwithstanding the ALJ's conclusion
that there was no proof that Respondent knowingly hired illegal aliens, he made the further
finding that Respondent "constructively complied" with the Act's purported
requirement to check the documentation of each prospective worker. D. and O. at 9.
The ALJ next observed that, revoking a farm labor contractor's
certificate of registration, pursuant to 29 U.S.C. § 1813(a), for MS PA violations is
discretionary. D. and O. at 8. Because he viewed the violations in this case as minor in nature,
the ALJ concluded that a monetary penalty was sufficient and revocation of Respondent's
certificate was not justified. D. and O. at 9.
Finally, the ALJ found that Respondent was entitled to attorney fees
under the Equal Access to Justice Act, 5 U.S.C. § 504 (1988), because he had prevailed in
a significant and discrete substantive portion of the proceeding and the agency's position was not
substantially justified. D. and O. at 9-11. The ALJ awarded Respondent's counsel the sum of
$3,269.50.
1Section 106 was repealed by the
Immigration Reform and Control Act of 1986, title I, § 101(b)(1)(C), 100 Stat. 3372. Its
provisions still apply, however, to any violations which occurred prior to June 1, 1987, such as in
this case. 29 C.F.R. § 500.147 (1989). See 8 U.S.C. §§ 1324a(i)(3),
1160(a)(1).
2As the ALJ states, D. and O. at 4,
some of GX 5, which consists of 44 pages, is illegible. About 30 of the documents are legible
and some appear to be typewritten copies of the illegible documents.
3Respondent has not filed a brief
in this proceeding although the record shows that Respondent and his attorney were served with
the briefing schedule by certified mail and return receipt cards verify the service.
4The Administrator argues that
since Garcia's attorney stipulated to admitting the reports and summaries into evidence the ALJ
should have relied upon them. Brief for Administrator at 22. Respondent's attorney, however,
reserved objections as to weight or relevance, Joint Exhibit 1, and raised objections at the
hearing. T. 52.
5In situations where a party
desires to attack the authenticity or accuracy of summaries, the availability to him of original or
duplicate materials forming the basis for the exhibit should facilitate cross-examination or
provide opportunity for him to offer exhibits of his own as rebuttal evidence. 5 J. Weinstein &
M. Berger, Weinstein's Evidence ¶ 1006 [06] (1989).
6The summaries and records were
identified as 21 pages, C-1 thru C-1(T); 15 pages, C-2 thru C-2(N); and 44 pages, C-3, C-4 thru
C-4(V), C-5 thru C-5(L) and C-6 thru C-6(F). These documents, as identified, appear in the
record as GX-5, 6 and 7.
7This figure apparently includes
those names appearing on the records of deportable aliens, GX 5, as they were apprehended on
April 11, 1985, during that period.
8Under MSPA, the Secretary has
broad authority to modify or vacate the ALJ's decision. 29 U.S.C. §§ 1813(b),
1853(b); 29 C.F.R. § 500.263.
9If the standard for knowledge
were a subjective one, Alvillar's testimony would tend to corroborate Respondent 's. Because, for
reasons explained infra, the standard is objective, Alvillar's testimony shows, if
anything, that Respondent was negligent in not checking for undocumented workers.
10The current regulations do
not contain a comparable provision, presumably because of the repeal of Section 106 of MSPA.
See note 1 supra.
11It also seems highly unlikely
that Respondent checked each worker for either a passport or social security number inasmuch as
more than 1,800 illegal aliens were apprehended at his operations.
12In view of my decision, it is
not necessary to decide the Administrator's contention that interview statements from several
illegal aliens should have been admitted under the declarant unavailable exception to the hearsay
rule. Brief of Administrator at 15-19. It would appear, however, that the interview statements are
not admissible because the statements were not against interest within the meaning of Fed. R.
Evid. 804(b)(3). Although a statement by a worker that he is an illegal alien would subject him to
deportation, the individuals providing statements here had admitted to the border patrol agents
that they were Mexican citizens without proper documentation and were therefore already
subject to deportation. See GX 5; Corona-Palomera v.Immigration and
Naturalization Service, 661 F.2d 814, 816 n.2 (9th Cir. 1981) (in deportation proceedings
government must establish a primafacie case of alienage); Triaz-Hernandez v.Immigration & Naturalization Service, 528 F.2d 366, 368 (9th Cir.
1975) (because of civil nature of deportation, Form 1-213 containing alien's statements as to
nationality was admissible despite absence of Miranda warnings).
Additionally, the statements appear to be inadmissible because they
were not part of the Administrator's pretrial submission. In deciding whether to permit a party to
vary from its pretrial submission, a court should consider among other things, if there has been
prejudice or surprise and, if so, the ability of the other party to cure the prejudice. Smith v.
Rowe, 761 F.2d 360, 365 (7th Cir. 1985). The statements could have created prejudice and
surprise because, unlike a witness, they cannot be cross examined. They must be defended
differently and there is, therefore, no opportunity to cure the prejudice. As the ALJ suggested,
this problem may have been alleviated had counsel for the Administrator provided the statements
to Respondent pre hearing. See T. 28-29.
13At no time has Respondent
Garcia challenged the amount of the penalty assessed by Wage and Hour for these violations.