DATE: October 10, 1991
CASE NO. 86-MSP-107

IN THE MATTER OF

MARIO GARCIA,
   RESPONDENT.

BEFORE:   THE SECRETARY OF LABOR

   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

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.

   Section 106(a) of MS PA provided¹ that:

No farm labor contractor shall recruit, hire, employ, or use, with knowledge, the services of any individual who is an alien not lawfully admitted for permanent residence or who has not been authorized by the Attorney General to accept employment.

In support of its contention that Respondent violated Section 106(a) by hiring illegal aliens, the Wage and Hour Division introduced records of approximately² thirty to forty deportable aliens, Government Exhibit (GX) 5, summaries of Immigration and Naturalization Service border patrol daily logs purporting to show illegal aliens apprehended while working for Respondent, GX 6, and an alphabetical list of employees from GX 6 who had been apprehended more than once. GX

7. Each of these was admitted into evidence, T. 5, and the only question is whether the ALJ erred in assigning too little weight to this evidence as the Administrator of the Wage and Hour Division argues.³ Brief of the Administrator at 19-22.

   The records of deportable aliens were dated April 11, 1985, the date the border patrol station in Fabens, Texas, advised Compliance Officer Anaya that it had picked up a number of undocumented workers. T. 16-19. These records were, in virtually every instance, signed by a border patrol agent and, contrary to the ALJ's finding, D. and O. at 4, they showed, with only two exceptions, that the apprehended illegal aliens worked for Respondent Mario Garcia.

   As to the summaries in GX 6, the compliance officer testified that the summaries represented employees apprehended while working for Garcia, as shown by the border patrol daily logs. T. 48, 53. The ALJ gave little weight⁴ to the records and summaries, GX 5 and 6, because the compliance officer did not testify that he had any direct personal knowledge that any of the persons whose names appeared thereon were illegal aliens or worked for Garcia. D. and O. at 4, 8. This observation misses the mark.

   Those with personal knowledge as to the status of persons whose names appeared on the records and the logs would be limited to border patrol agents. There is no requirement, however, that the party offering a public record produce the author of the item. See Federal Deposit Insurance Corp. v. Staudinger, 797 F.2d 908, 910 (lOth Cir. 1986). Particularly in a case such as this, a requirement of direct testimony by the deporting officer would add little to the weight of the evidence, considering the improbability that he would recall the facts surrounding any one particular deportation. United States v. Quezada, 754 F.2d 1190, 1196 (5th Cir. 1985).

   Respondent's counsel could have requested the ALJ to order that the border patrol logs be produced at the hearing, see Fed. R. Evid. 1006, and their entries, along with the records, authenticated⁵ by the appropriate persons, see Fed. R. Evid. 901(b)(7). Having not done so, once the summaries and records were admitted, they should not have been discounted for lack of authentication.

   The ALJ also appeared to question the relevancy and probative value of the summaries as he referred to them simply as a list of names. D. and O. at 4; T. 51. Any suggestion, however, that Respondent was unaware that the list represented illegal aliens apprehended at his operations is not tenable. Item 29 of the attachment to Wage and Hour's letter assessing the civil money penalty charges Respondent with employing illegal aliens. The Pre-Hearing Exchange identifies summaries of INS records of deportable aliens.⁶ Contrary to the ALJ's conclusion, D. and O. at 4, the INS records were available because there was an adequate opportunity for discovery and Respondent's counsel could have inspected them. See Case & Co. v. Board of Trade of the City of Chicago, 523 F.2d 355, 361 (7th Cir. 1975). If there were any doubt, prior to the hearing, that the summaries represented illegal aliens apprehended at Respondent's operations, Respondent could have clarified the matter by asking opposing counsel or reviewing the border patrol logs.

   Looking at all the evidence, it is abundantly clear that Respondent employed many illegal aliens during the period of the investigation. The summary of illegal aliens shown as being employed by Respondent Garcia from August 1983 to May 1985 includes more than 1,800 persons.⁷ GX 6. This constitutes thirty-six percent of the estimated 5,000 persons employed by Respondent from May 1983 to May 1985. Of these, 297 were apprehended at Garcia's operations more than once. The only evidence supporting Respondent's position is the testimony of Eli Vera, farm placement agent for the Texas Employment Commission, who stated, without stating the basis for his conclusion, that after checking Respondent's operations, where usually 100 or so workers were employed, he would inform Respondent that there were maybe four or five illegal aliens. T. 97. The ALJ gave special weight to Mr. Vera's testimony because "he had no vested interest in the outcome of [the] proceeding. . . ." D. and O. at 8. Even accepting his testimony as credible, however, it establishes, that some illegal aliens were employed and does not foreclose the possibility that considerably more were present but were undetected. I therefore conclude that the evidence amply demonstrates, as charged, that Respondent employed 297 illegal aliens.⁸

   In concluding that Respondent had not knowingly hired illegal aliens, the ALJ relied on Respondent's testimony to that effect, T. 86, and Mr. Vera's testimony that he had no reason to believe that Respondent knowingly employed a single illegal alien. T. 98; D. and O. at 8. The ALJ also found that Respondent's testimony was corroborated by the testimony of an illegal alien, Ricardo Alvillar,⁹ who stated he never saw Respondent and, hence, never told him he was not authorized to be employed. T. 74; D. and O. at 8.

   Based on the regulation in effect at the time of the hearing,¹⁰ a farm labor contractor will be considered in compliance with the prohibition against knowingly hiring illegal aliens if the contractor can demonstrate reliance in good faith on documentation prescribed by the Secretary attesting to a prospective employee's status as a United States citizen or as an individual lawfully authorized to work in the United States. The contractor also must have had no reason to believe that the prospective employee was an illegal alien. 29 C.F.R. § 500.59 (1986). Section 500.59 thus articulates an objective standard for determining if a contractor has employed illegal aliens "with knowledge." As to this issue, Respondent testified that he would ask for social security numbers or passports. T. 87. While a United States passport identifying a person as a citizen of the United States is acceptable evidence of citizenship, 29 C.F.R. § 500.59(a)(5), a social security number, by itself, is not. 29 C.F.R. § 500.59(a)(11). I therefore conclude that Respondent did not establish compliance with the prohibition in Section 106 of MS PA against employing illegal aliens.¹¹

   I also reject the ALJ's conclusion that Respondent constructively complied with the Act's requirement to check the documentation of prospective workers. Although the concept of constructive compliance has been recognized under other statutes, its application has been limited to instances where actual compliance would have been futile, see Commonwealth of Massachusetts v. United States Veterans Administration, 541 F.2d 119, 122 (1st Cir. 1976), or where

actions are tantamount to actual compliance. Dedham Water Co. v. Cumberland Farms Dairy, 588 F. Supp. 515, 516-17 (D. Mass. 1983); People of the State of California v. The Department of the Navy, 431 F. Supp. 1271, 1278 (N.D. Cal. 1977). Because Respondent's actions were not tantamount to actual compliance and there is nothing to suggest that actual compliance would have been futile, there is no basis for finding constructive compliance with Section 106.¹²

   The civil money penalty assessed by the Wage and Hour Division amounted to $400.00 for each illegal alien who was apprehended more than once at Respondent's operations. Penalties in this amount have been found reasonable for repeat violations involving illegal aliens. See Counterman v. United States Department of Labor, 607 F. Supp. 286, 289 (W.D. Tex.), aff'd, 776 F.2d 1247 (5th Cir. 1985). In determining the amount to be assessed, I am guided by the factors set forth at 29 C.F.R. § 500.143. In this case, the important factors are the number of workers affected by the violations, the gravity of the violations and the extent to which Respondent achieved a financial gain due to the violations.

   The number of illegal aliens apprehended who were repeat violators, 297, was substantial. In Counterman, 42 illegal aliens were repeat violators. The gravity of the violations is considerable in that illegal aliens can adversely affect the local economy to the detriment of lawful migrant and seasonal agricultural workers. Finally, the record contains evidence that many of the illegal aliens were paid below the minimum wage, GX-5, which would result in a financial gain to Respondent. For all of the foregoing reasons, a penalty of $400.00 for each violation charged, for a total penalty of $118,800.00, is considered appropriate in this case.¹³

B. Employment of a Farm Labor Contractor Employee Without a Certificate of Registration.

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 prima facie 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.