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Final Order
Hearings Unit: Final Order
 
 
BEFORE THE COMMISSIONER
OF THE BUREAU OF LABOR AND INDUSTRIES
OF THE STATE OF OREGON
 
In the Matter of
Case Number 11-96
MANUEL GALAN
Respondent

 
FINDINGS OF FACT
ULTIMATE FINDINGS OF FACT
CONCLUSIONS OF LAW
OPINION
ORDER
 

 
SYNOPSIS
 
Where the individual Respondents were the majority shareholder and the operational manager of unlicensed Respondent corporation, the Commissioner held both liable together with the corporation for acting as a forest/farm labor contractor without a license, and imposed a civil penalty against each Respondent. Where the unlicensed corporate Respondent recruited workers in Oregon for work in another state, failed to provide them with disclosure statements about working conditions, failed to execute written work agreements and misrepresented lodging expenses, the Commissioner assessed a civil penalty against the corporate Respondent and majority shareholder for each violation. The Commissioner ordered that the right of all three Respondents to obtain forestation licenses in Oregon be suspended for three years, in accordance with a prior Consent Order. ORS 658.405(1); 658.407(3); 658.410(1),(2)(c) and (d); 658.417 (1); 658.440(1)(d),(f),(g) and (3)(b); 658.453(1)(a),(c) and (2); 659.501; OAR 839-15- 004(5)(a) and (e); 839-15-507; 839-15-508(1)(a),(f),(g),(h) and (l); 839-15-510(1),(2) and (4); 839-15-512; 839-15-520(3)(a),(c),(i) and (4).
 

 
The above-entitled contested case came on regularly for hearing before Warner W. Gregg, designated as Administrative Law Judge (ALJ) by Jack Roberts, Commissioner of the Bureau of Labor and Industries of the State of Oregon. The hearing was held on October 25, 26, and 27, 1995, in a conference room of the Oregon Employment Department, 119 N. Oakdale, Medford, and on December 1, 1995, in room 1004 State Office Building, 800 NE Oregon Street, Portland. The Bureau of Labor and Industries (the Agency) was represented by Linda Lohr, an employee of the Agency. Manuel Galan (Respondent M. Galan) and Erlinda Galan (Respondent E. Galan) were present and, together with Staff, Inc. (Respondent corporation), were represented by Douglas Wilkinson, Attorney at Law, Springfield. Charles Sheldon, Medford, appointed by the Forum and under proper affirmation, acted as interpreter for the Spanish speaking witnesses. Respondent E. Galan, at the request of counsel and with permission of the ALJ, assisted with some translation.
 
The Agency called as witnesses (in alphabetical order): Respondent M. Galan; forest workers Jaime Mancilla, Perfecto Mancilla, Rodrigo Mancilla, Debbie Martinez, Luis Orlando Montoya, and Gabriel Campuzano; United States Forest Service (USFS) Contracting Officer Stephen M. Patton; forest worker Juan Luis Pelayo; Agency Compliance Specialist Raul Ramirez; Summit Forest foreman Celestino Rodriguez; and Respondent corporation foreman Guadalupe Zamora.
 
Respondent called as witnesses (in alphabetical order): Agency Compliance Supervisor Nedra Cunningham; Respondent M. Galan; Respondent E. Galan; labor contractor Antonio Osorio (by telephone); and Respondent corporation foreman Justo Zavala.
Having fully considered the entire record in this matter, I, Jack Roberts, Commissioner of the Bureau of Labor and Industries, make the following Rulings on Motions and Objections, Findings of Fact (Procedural and on the Merits), Ultimate Findings of Fact, Conclusions of Law, Opinion, and Order.
 
 
1) On August 16, 1995, the Agency issued a "Notice Of Intent To Assess Civil Penalties And To Enforce Provisions Of Consent Order" (Notice of Intent) to Respondent Respondents Staff, Inc., M. Galan, and E. Galan. The notice informed Respondents as follows:_
"THIS WILL NOTIFY YOU that the Commissioner of the Bureau of Labor and Industries (´Commissioner´) intends to assess civil penalties against Staff, Inc., Manuel Galan and Erlinda Galan [´Respondents´] in the amount of $252,000.00, pursuant to ORS 658.453(1) for violations of Chapter 658, Oregon Revised Statutes and rules adopted pursuant thereto. The Commissioner further seeks to enforce the terms and conditions of the Consent Order executed by the Commissioner and [Respondents] on March 11, 1994, by extending the period [Respondents] are prevented from applying for a license for an additional three year period from the date the Commissioner finds [Respondents] in breach of the Consent Order and unfit to act as forest labor contractors.
 
THE BASIS FOR THE PROPOSED CIVIL PENALTIES AND ENFORCEMENT OF THE CONSENT ORDER IS AS FOLLOWS:
 
1. Failure To Comply With The Terms and Provisions Of A Legal and Valid Agreement Entered Into With The Commissioner In Contractors´ Capacity As Farm Labor Contractors.(Fifteen Violations) From March 11, 1994, and thereafter in 1994, [Respondents] engaged in forest labor contracting activities in Oregon and repeatedly violated the provisions of ORS chapter 658 by acting as forest labor contractors without a license, willfully making false, fraudulent or misleading statements to workers regarding the terms and conditions of their employment and by failing to furnish workers with disclosure statements and copies of work agreements, thereby breaching_ the terms and conditions of the Consent Order executed by [Respondents] on March 11, 1994, * * * [ BY REFERENCE INCORPORATED herein], a legal and valid agreement entered into with the Commissioner in their capacity as forest labor contractors, in violation of ORS 658.440(1)(d). Civil Penalty of $30,000. (Five violations per [Respondent] @ $2,000 per violation).
"2. Acting As A Forest Labor Contractor Without A Valid License Or Indorsement Issued By The Commissioner And In Violation Of A Valid Consent Order Executed On March 11, 1994.(Three violations) In or around April, 1994, [Respondents] through their agent, Antonio Bernal Osorio, recruited, solicited,_ supplied or employed workers in Oregon to perform labor upon [Respondents´] forestation contract with the U.S. Forest Service (USFS) on the Tongass National Forest in Ketchikan, Alaska Contract No. 52-0116-4- 00279. At all times material, [Respondents] did not possess a valid forest labor contractor license, in violation of ORS 658.410, ORS 658.415, ORS 658.417 and in breach of the terms and conditions of [the above] Consent Order * * * Civil Penalty of $6,000. ($2,000 per [Respondent])
"3. Acting As A Forest Labor Contractor Without A Valid License Or Indorsement Issued By The Commissioner And In Violation Of A Valid Consent Order Executed On March 11, 1994.(Three violations) In or around June, 1994, [Respondents], for an agreed remuneration or rate of pay, recruited, solicited, supplied or employed 14 or more workers in Oregon to perform labor upon [Respondents´] forestation contract on the El Dorado National Forest in Placerville, California, USFS Contract No. 53-91U9-4-1C04. At all times material, [Respondents] did not possess a valid forest labor contractor license, in violation of ORS 658.410, 658.415, 658.417 and in breach of the terms and conditions of [the above] Consent Order * * * Civil Penalty of $6,000. ($2,000 per [Respondent])
"4. Failure To Furnish Each Worker At The Time Of Hiring, Recruiting, Soliciting or Supplying, Whichever Occurs First, A Written Statement In The English Language And Any Other Language Used By The Contractor To Communicate With Workers Containing The Terms And Conditions Of Employment And A Statement Of The Workers´ Rights and Remedies.(42 Violations) [Respondents], In or around June, 1994, solicited and recruited at least 14 workers in Medford, Oregon, to perform labor on [Respondents´] forestation contract in Placerville, California, USFS Contract No. 53-91U9-4-1C04, and failed to furnish each worker a written statement in English and Spanish containing the terms and conditions of employment and a statement of the workers´ rights and remedies, in violation of ORS 658.440 (1)(f) and in breach of the terms and conditions of [the above] Consent Order * * * Civil Penalty of $42,000. (14 violations per [Respondent] @ $1,000 per violation)
"5. Failure To Execute A Written Agreement Containing The Terms And Conditions Of Employment For Each Worker At The Time Of Hire Or Prior To Work Being Performed.(42 violations) [Respondents], in or around June, 1994, employed at least 14 workers in Medford, Oregon, to perform labor on [Respondents´] forestation contract in Placerville, California, USFS Contract No. 53-91U9-4-1C04, and failed to execute prior to hire or prior to work being performed, a written agreement between [Respondents] and each worker in English and Spanish containing the terms and conditions of employment, in violation of ORS 658.440(1)(g) and in breach of [the above] Consent Order * * * Civil Penalty of $84,000. (14 violations per [Respondent] @ $2,000 per violation)
"6. Willfully Making A False, Fraudulent Or Misleading Representation To Workers About The Terms And Conditions Of Employment.(42 violations) In or around June, 1994, [Respondents] recruited and hired at least 14 workers in Medford, Oregon, to perform labor on [Respondents´] forestation contract in Placerville, California, USFS Contract No. 53-91U9- 4-1C04, and at the time of hire made oral representations, through an agent, to each worker that [Respondents] would pay hotel expenses for each worker for the duration of their work on the contract in California; [Respondents] subsequently deducted hotel expenses from each worker´s paycheck after the workers relocated in California having willfully misrepresented the terms and conditions of the workers´ employment, in violation of ORS 658.440 (3)(b) and in breach of [the above] Consent Order * * * Civil Penalty of $84,000. (14 violations per [Respondent] @ $2,000 per violation)
"7. Failure To Adhere To The Terms And Conditions Of A Consent Order Executed By [Respondents] And The Commissioner On March 11, 1994.After March 11, 1994, [Respondents] repeatedly engaged in the forest labor contracting activities cited above in paragraph 1 through 6, realleged and incorporated herein, and violated the provisions of ORS Chapter 658, the Commissioner´s rules adopted pursuant thereto and the terms, conditions and representations of the Consent Order * * * [of] * * * March 11, 1994. In the Consent Order, [Respondents] agreed to refrain from engaging in forest labor contracting activities for a two year period beginning March 11, 1994, and agreed that any violations of the aforementioned Consent Order would result in ´the denial of a forest/farm labor contractor license . . . without any further proceeding based upon the admissions contained herein, which denial shall, for a period of three years from the date of the breach of this agreement, operate to further bar any application for a forest/farm labor contractor license. . . ´ [Respondents´ ] actions set forth in allegations 1 through 6, including their failure to adhere to the terms and conditions of the Consent Order, demonstrate that their character, reliability or competence make them unfit to act as forest labor contractors. ORS 658.420(1) and OAR 839-15-520(3)(a)(c) & (i)."
 
THE BASIS FOR ENHANCED PENALTIES IS AS FOLLOWS:
 
[Respondents] expressly admitted in the [above] Consent Order * * * to previous violations of ORS 658.410, 658.415, 658.440(3)(e), 658.417(3) and 658.440(1)(g) and have continued to violate the provisions of ORS chapter 658; [Respondents] have demonstrated, in spite of their knowledge of past and present violations, and, by their continued breach of the terms and conditions of the Consent Order, a willful disregard for Oregon´s forest labor contracting laws; the magnitude and seriousness of the foregoing violations warrant maximum civil penalties."
 
The Notice of Intent was served on Respondent corporation through its registered agent by certified mail on August 18, 1995 and on Respondents M. Galan and E. Galan, personally, by the Deschutes County Sheriff on August 22, 1995. (Exhibits X-2, X=3)
2) On September 6, 1995 Respondents through counsel answered the Notice of Intent as follows (eliminating caption and cause):
REQUEST FOR HEARING
"Staff, Inc., Manuel Galan and Erlinda Galan (hereinafter ´Respondents´) hereby request a hearing in the above entitled matter. The notice of intent to assess civil penalties was delivered to the registered agent on August 18, 1995.
"ANSWER
"Respondents deny the allegations contained in paragraphs 1-7 of the notice of intent to assess civil penalties and to enforce provisions of consent order and the whole thereof.
"AFFIRMATIVE DEFENSES
"1. The Commissioner has no jurisdiction for events outside the state of Oregon.
"2. At all material times, Antonio Bernal Osorio, aka Sierra Grande Reforestation was an independent contractor.
"MOTION TO AMEND
"Respondents move for an opportunity to amend the answer and affirmative defenses, after discovery has been conducted."
(Exhibit X-4)
3) The Agency requested a hearing date. On September 12, 1995 the Hearings Unit issued to Respondents and the Agency a Notice of Hearing, which set forth the time and place of the requested hearing and the designated ALJ, together with the following: a) a Notice of Contested Case Rights and Procedures containing the information required by ORS 183.413, and b) a complete copy of the Agency´s administrative rules regarding the contested case process -- OAR 839-50-000 through 839-50-420. (Exhibits X-1, X-5)
4) On September 15, the Forum received by fax Respondents´ motion dated September 14 requesting a postponement of the hearing scheduled for October 17 in Medford. The motion was based on a recitation of counsel´s work load for September and October, counsel´s personal plans to be out of state in mid-October, and anticipated need for additional time for discovery. On September 19, the Agency filed objections to postponement to which Respondents replied by fax on September 20. (Exhibits X-6, X-7, X-8)
5) On September 22, the ALJ found that Respondents´ motion did not meet the "good cause" standard in that it cited conflict with counsel´s personal plans and workload but did not recite a previously scheduled conflicting appearance before another forum. Respondents´ reply had detailed desired discovery encompassing 60 days, which the ALJ found to be an unacceptable delay. The ALJ denied the motion as tendered, but delayed the hearing until October 25 in Medford. (Exhibit X-9)
6) On September 29, the Agency moved for appointment of a Spanish speaking interpreter based on the anticipated presentation of several Agency witnesses who could not speak or understand English. The Agency suggested that a particular Agency employee be appointed. On October 2, by fax, Respondents acknowledged the necessity for an interpreter, objected to appointment of Agency staff for that purpose, and requested an interpreter for Respondent M. Galan "who has difficulty speaking and understanding the English language." Respondents also requested that the location of the hearing be changed from Medford to Bend, citing Respondents´ residence in Redmond. (Exhibits X-10, X-11)
7) On October 5, the Agency objected to changing the hearing location because most of the Agency´s witnesses were from the Medford area. The Agency agreed with Respondents´ suggestion for appointment of "a non-employee interpreter," but objected to Respondent M. Galan´s use of an interpreter. (Exhibit X-12)
8) On October 6, the ALJ ruled as follows:
"The proper standard for appointment of an interpreter is that the person involved in a contested case hearing "cannot speak or understand the English language." OAR 839-50-300(1). [Emphasis supplied]. Mere difficulty is not enough. [Noting that this forum found in a prior proceeding that Respondent M. Galan speaks and understands English, the ALJ appointed] Charles Sheldon, Medford, who is not an Agency employee, to act as interpreter for the Agency witnesses in this case."
Also on October 6, the ALJ denied Respondents´ motion to change the place of hearing and issued a Discovery Order calling for the filing of Case Summaries, as required by OAR 839-50-210, to be delivered no later than October 23. (Exhibit X-13)
9) On October 20, by fax, Respondents again moved to postpone the hearing for at least 60 days and for depositions. The motion was supported by the affidavits of counsel, of Tim Grundeman, and of Respondent E. Galan which incorporated a letter to counsel from Respondent M. Galan. In addition to outlining desired discovery and naming several witnesses which Respondents were unable to locate, the submissions suggested bias on the part of the Forum and the Agency, and requested time to depose Agency employees Raul Ramirez and Nedra Cunningham. (Exhibit X-14)
10) Also on October 20, the ALJ ruled as follows, in pertinent part:
" * * * Respondents´ motion alleges a refusal by the Agency to cooperate in discovery (by allowing interview of an Agency employee), difficulty in contacting potential witnesses, inadequate time to prepare a defense, and a need to depose Agency personnel.
"I find no evidence in the files and records of this case indicating any attempt by Respondents to subpoena witnesses for deposition or to obtain a discovery order therefor since my September 22 ruling herein. That ruling partially granted Respondents´ postponement request of September 14, 1995, and reset the hearing from October 17 to its current setting of October 25. Whatever the Agency´s posture may be regarding interview of its employees, those employees may be subpoenaed for deposition where necessary.
"Respondents´ request for further postponement is denied. Failure to complete discovery is not a reason to delay hearing where the participants do not agree on the delay. Also, I find that the type of information being sought by the investigator, Grundeman, is not material to the violations alleged in this case. Finally, if Respondents´ motion is intended to be a motion for discovery as to the witnesses Cunningham and Ramirez, that motion is denied as untimely. The hearing will proceed on October 25, 1995 as scheduled."
(Exhibit X-15)
11) The Agency and Respondents timely filed their respective case summaries. At the commencement of the hearing, Respondents´ counsel stated that Respondents had received the Notice of Contested Case Rights and Procedures and had no questions about it. (Exhibits X-16, X-17; Statement of Wilkinson)
12) At the commencement of the hearing, pursuant to ORS 183.415(7), the ALJ orally advised the participants of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Statement of the ALJ)
13) At the commencement of and during the hearing, the ALJ made rulings on certain motions of the participants which are set out in a separate section of this Order. (Statement of the ALJ)
14) The proposed order, containing an exceptions notice, was issued April 12, 1996. Exceptions were due April 22, 1996. Under a timely requested extension of time, Respondents filed exceptions by fax on May 22, 1996, and by mail thereafter. Respondent´s exceptions are dealt with in the Opinion section of this Order.
 
RULINGS ON MOTIONS AND OBJECTIONS
 
Agency Motion to Amend
At the commencement of the hearing, the Agency moved to amend paragraph 2 of the Notice of Intent. Based on the answer and case summary of Respondent, the Agency sought to have the paragraph read "through their agent, Antonio Bernal Osorio, or by entering into a subcontract with Antonio Bernal Osorio, recruited, solicited,... etc." The Agency argued that entering into a subcontract with another for forestation labor brought Respondents under the ORS 658.405(1) statutory definition of farm labor contractor, for which they held no license. Counsel for Respondent objected on the ground that the subcontract involved forestation of lands outside the state of Oregon over which the Commissioner has no jurisdiction, and that the statute and the rule, OAR 839-15-004(5)(e), refer to land within the state. The Forum took the matter under advisement, to be ruled upon in the Proposed Order. For reasons more fully explained in the Opinion section of this Order, the Agency´s motion was granted. That ruling is confirmed.
 
Respondents´ Motion to Clarify the Number of Violations Alleged
At the commencement of the hearing, counsel for Respondent requested a clarification of the "Five violations per [Respondent]" alleged in paragraph 1. of the Notice of Intent. The Agency responded that the five violations tracked the allegations in paragraphs 2. through 6., that is, acting as a forest labor contractor without a license (paragraphs 2. and 3.), failure to furnish disclosure statements (paragraph 4.), failure to execute written agreements with workers (paragraph 5.), and making false, fraudulent or misleading statements to workers regarding terms and conditions of employment (paragraph 6.). Counsel acknowledged this explanation, and the ALJ announced that he would treat the allegation in paragraph 1. which read "failing to furnish workers with disclosure statements and copies of work agreements, thereby breaching ..." as if it read "failing to furnish workers with disclosure statements and failing to execute written work agreements, thereby breaching..." That ruling is confirmed.
 
Respondents´ Motion to Require Clear and Convincing Quantum of Proof
At the commencement of the hearing, counsel for Respondents moved for a ruling that the quantum of proof required to impose the sanction sought in paragraph 7. of the Notice of Intent (i.e., further suspension of Respondents´ right to apply for a forest/farm labor contracting license) should be "clear and convincing," rather than a preponderance. Respondents cited Bernard v. Dental Examiners, 2 Or App 22, 465 P2d 917 (1970), and Van Gordon v. Board of Dental Examiners, 52 Or App 749, 629 P2d 848 (1981), as standing for the proposition that where fraud or misrepresentation is alleged, clear and convincing evidence is required for revocation of a license. The ALJ stated that he would consider whether the clear and convincing standard applied. For reasons more fully set out in the Opinion section below, the Forum has used preponderance of evidence as the standard of proof in this matter. That ruling is confirmed.
 
Respondents´ Motion to Postpone
At the commencement of the hearing, Respondents filed a written motion renewing their motion to postpone the hearing for at least 60 days, alleging that Respondents were being denied an opportunity to prepare a defense. Counsel cited Respondents´ previous postponement motions in support. Counsel also sought postponement, at least of a final decision, until the Agency has adopted rules defining recruiting, soliciting, and supplying as they are used in ORS 658.405. The ALJ pointed out that these terms had been defined in In the Matter of Leonard D. Williams, 8 BOLI 57 (1989), which was an example of rulemaking in a contested case. Counsel argued that here must be rulemaking procedures as set forth by statute. The ALJ denied any postponement based on the need for rulemaking. That ruling is confirmed.
 
As to the other portion of the motion for postponement, Respondents claimed to be prejudiced by proceeding with the hearing due to their failure to locate Justo Zavala, the alleged recruiter of workers. Counsel termed Zavala´s testimony as critical on the issue of his authority and whether he had informed Respondents of the source of the workers. Zavala was also considered critical for refutation of witness statements or testimony expected from the Agency. The ALJ ruled that the hearing would proceed with the available witnesses, that if it appeared at the close of testimony that Respondents would be unduly prejudiced by the unavailability of Zavala, and upon showing of efforts to locate him and an indication of later availability, the ALJ would extend the hearing to reconvene on a later date for his testimony. At the close of testimony on October 27, the ALJ adjourned the hearing to a date to be agreed to take testimony of Zavala and of Antonio Osorio. The reconvenement on December 1 at which Zavala and Osorio testified is considered by the Forum to have cured any prejudice to Respondents which might have been attributed to proceeding with the hearing on October 25. That ruling is confirmed.
 
Respondents´ Objections to Certain Evidence
During the hearing, counsel for Respondents objected continuously to questions and responses dealing with living conditions at the job site in Alaska. Initially, because the evidence tended to touch upon the reasons for work stoppage and to identify who was dealing on behalf of what contractor, the ALJ admitted such inquiries and responses, over Respondents´ objections. In addition, it appears that the proof adduced may illustrate the character, competence and reliability of Respondents as forest labor contractors, a statutory area of concern for the Commissioner. The objections were properly overruled.
 
FINDINGS OF FACT -- THE MERITS
 
1) Respondent Staff, Inc., is an Oregon corporation registered with the State of Oregon Secretary of State. All shares of the corporation are owned by Respondents M. Galan and E. Galan. The corporate address in 1994 was in Madras, Oregon and at the time of hearing was in Redmond, Oregon. At times material, Respondent corporation was engaged in labor contracting. (Testimony of Respondent M. Galan, Respondent E. Galan; Exhibit A-31)
2) Respondent corporation and Respondents M. Galan and E. Galan were among respondents accused of violations of the Oregon farm and forest labor contracting statutes (ORS Chapter 658) in prior enforcement proceedings which were resolved by a Consent Order wherein the Commissioner agreed to forego further action in exchange for payment by the respondents in that case of a civil penalty of $40,000 and for the provision that the respondents in that case, including Respondents herein, be prohibited from performing forest/farm labor activities in Oregon for a period of two years from the date of the Consent Order. Respondents herein further agreed in the Consent Order that their failure to comply with ORS Chapter 658 and the Consent Order would be a breach of the agreement, the penalty for which would be the further denial of a forest/farm labor contractor license to them for a period of three years from the date of the breach of the agreement. That Consent Order was signed by Respondents M. Galan and E. Galan, for themselves and Respondent corporation, on March 4, 1994 and was signed on behalf of the Commissioner on March 11, 1994. (Statement of the ALJ; Exhibit A-1)
3) At times material, Antonio Osorio, Reedsport, Oregon was an Oregon licensed forest/farm labor contractor since 1986 doing business as Sierra Grande Reforestation. He had his own tools, equipment and vehicles, hired and fired workers, filed tax returns for Sierra Grande and carried his own workers compensation and liability insurance. (Testimony of Osorio)
4) At times material and at the time of hearing, Stephen M. Patton worked as contracting officer, USFS, Region X, Tongass National Forest, Ketchikan, Alaska. He advertised, awarded and administered 20 to 35 forestation contracts annually, some of which were seasonal and others were year around. Forestation contracts awarded by USFS require satisfactory completion of the work within specific time periods. Failure of a successful bidder to make timely progress is a ground for cancellation of the contract, with costs of rebidding and delay chargeable to the defaulting contractor. USFS awards forestation contracts based on sealed bids from the lowest responsible, responsive bidder. This involves routine responsibility survey of the bidder which has a number of elements, including a satisfactory past record. In checking Respondent corporation´s past performance pursuant to its November 1993 bid on a Tongass contract, Patton learned from another USFS contract officer of BOLI´s enforcement action. From BOLI he learned of the disposition by Consent Order. With approval from USFS headquarters, Patton awarded contract # 52-0116-4-00279 to Respondent corporation on March 25, 1994. (Testimony of Patton; Exhibits A-2, A-3)
5) Respondent M. Galan was known to Patton and to the other USFS contract officers with whom Patton spoke as the principle or person in charge for Respondent corporation. A contract award letter identifying the Contract Officer´s representative, Evan Duke, who would be the on site administrator for contract # 52-0116-4-00279, and outlining the information needed from Respondent corporation before an actual notice to proceed would be issued, was prepared for certified mailing to Respondent M. Galan in Madras, Oregon. Duke designated inspectors for the project. A pre-work conference was arranged by telephone for April 1, and Respondent M. Galan picked up and signed for the award letter packet at the USFS office in Ketchikan on April 1, 1994. (Testimony of Patton; Exhibit A-3, A-4, A-5, A-6)
6) The pre-work meeting is routinely the opportunity for USFS administrators to meet with a contractor and any subcontractors and foremen. Information concerning the administration of the individual contract, use of undocumented workers, safety, methods of payment, camping regulations, and the like are discussed. Respondent M. Galan was alone on April 1. In response to specific inquiry, he stated he did not plan to subcontract. He did not identify a foreman, or designate an authorized representative. He did indicate an intent to be ready to proceed in about two weeks. (Testimony of Patton; Exhibit A-7)
7) Osorio met Respondent M. Galan at a forest/farm labor camp operator bond meeting on or about March 9, 1994 in Woodburn, Oregon. At that time and later in March, they discussed a forestation contract which Respondent M. Galan had bid on with USFS in the Tongass National Forest near Ketchikan, Alaska. The contract was awarded to Respondent corporation. (Testimony of Respondent M. Galan, Osorio; Exhibit A-60)
8) Osorio entered into a subcontract agreement with Respondent M. Galan regarding contract # 52-0116-4-00279 on or about April 18, 1994 in Roseburg, Oregon. Osorio signed for Sierra Grande Reforestation as subcontractor and Respondent M. Galan signed for Respondent corporation as contract holder. (Testimony of Osorio, Respondent M. Galan; Exhibit A-22)
9) On April 18, USFS sent to Respondent corporation at PO Box 88, Madras, attention of Respondent M. Galan, a notice to proceed with contract # 52-0116-4-00279. (Testimony of Patton; Exhibit A-9)
10) Receiving no response to the notice to proceed, Patton and COR Duke, by correspondence and telephone, attempted to reach Respondents regarding commencement of work on the contract. These attempts included notice that the failure to begin within 30 days of the notice to proceed jeopardized timely completion of the contract. A certified mailing sent May 25 gave Respondents 10 days from receipt to cure the defect or face default termination of the contract. That mailing to PO Box 88, Madras, attention of Respondent M. Galan, was receipted for on June 7 after Patton spoke by telephone with Respondent E. Galan on June 6. (Testimony of Patton; Exhibits A-10, A-11, A-12)
11) Osorio was aware that the Tongass contract had a start date of April 21, but he knew that Respondent M. Galan was occupied with contracts in California and Idaho and could not go to Alaska immediately. Osorio was reluctant to start the job without the prime contractor being there. It was not until June that he and a crew went to Alaska. (Testimony of Osorio)
12) At times material, Nedra Cunningham was a Compliance Supervisor with the Wage and Hour Division of the Agency. Among her duties was supervision of the farm labor unit (FLU), including Ramirez. She was a spectator in the hearing of this case and had observed other farm labor and wage claim hearings. She had no unusual special interest in this case or these Respondents. (Testimony of Cunningham)
13) At times material, Raul Ramirez was a Compliance Specialist with the farm labor unit of the Agency in Medford. He did farm labor investigations in the area and also handled wage claims. He had been so employed for about five months when he received a telephone call in July, 1994 from his supervisor, Cunningham, directing him to question some farm laborers at the Vali Hai motel. Although it was normally his day off, he went to the motel and spoke with several of the eight workers there. He had come from the grocery store and offered a beer to each of two workers. He was reprimanded for doing so when Cunningham learned about it. None of the workers there had any claims. (Testimony of Ramirez, Cunningham)
14) Ramirez eventually was in touch with several workers who had completed a job for Respondent corporation in Placerville, California. They alleged unauthorized deductions by the employer for lodging. Ramirez obtained statements and contacted Respondents regarding the claims. (Testimony of Ramirez.)
15) Justo Zavala was employed in Idaho by Respondent corporation as a foreman in late May 1994. As a foreman for Respondent corporation, Zavala´s duties included on site administration, hiring, firing and keeping workers´ time. He was directed by Respondent M. Galan to go to Placerville, California and obtain a crew to work on a Respondent corporation contract with the USFS in the El Dorado National Forest. (Testimony of Zavala, Respondent M. Galan)
16) Respondent M. Galan did not tell Zavala not to use Oregon workers. He told Zavala to hire a certain Gustovo and his crew in Placerville. When Zavala could not find Gustavo in Placerville, he called an acquaintance in Medford who sent him to Celestino Rodriguez. (Testimony of Respondent M. Galan, Zavala; Exhibit R-7)
17) Celestino Rodriguez was head foreman with Summit Forests, Inc., in the Medford area. He lived in Gold Hill. On or about June 2, 1994 Zavala phoned him looking for workers, then came to his house. Rodriguez called Juan Pelayo, a Summit foreman who also lived in Gold Hill and whose crew had just finished a job. By telephone, Pelayo notified some members of his crew who talked to others about the possibility of work in California. Rodriguez also notified some workers. (Testimony of Zavala, Rodriguez, Pelayo)
18) In the experience of those who had worked for Summit Forests, Inc., lodging expenses were usually paid for by the employer when the contract was out of town. (Testimony of Rodriguez, Pelayo)
19) Zavala told Pelayo and other workers to whom he talked directly that the job included payment for the motel. All of the workers believed when they left Medford for Placerville that the job included payment for the motel. (Testimony of Rodriguez, Pelayo, P. Mancilla, Campuzano)
20) 14 workers from the Medford area accompanied Zavala in Respondent corporation´s van to Placerville on or about the evening of June 2, 1994. These included Roberto (or Renato) Mancilla (Ibarra), Perfecto Mancilla (Ibarra), Demetrio Montolla (or Montoya), Cipriano Santos (Gutierrez), Juan Jose Cortez (Reyes), Gabriel Campuzano (Patino), Martin Figueroa, Rodrigo Mancilla (Rivera), Jaime Mancilla (Soberanis), Oscar Mancilla (Valdorino), Norberto Ramos, Julio Garcia (Bautista), Arnulfo (Cortez) Vargas and Juan Luis (Delgado) Pelayo. They began work on June 3 and worked in Placerville through June 22. (Testimony of Pelayo, P. Mancilla, Rod. Mancilla, Campuzano, J. Mancilla, Exhibits A-49, A-50)_
21) Form WH-151 is an Agency form headed "Rights of Workers." It is intended to be receipted for by each worker before each job begins and explains the rights of workers and responsibilities of labor contractors in Oregon. It explains that contractors must be licensed, provide written agreements and notice of rights to workers, have a bond, pay and give notice of minimum wage, and explains that workers have legal rights, may make claim for unpaid wages or for on the job injuries, may earn unemployment benefits, and are protected against discrimination. It includes the address of each Agency office. Form WH-151s is the same form in Spanish. (Exhibit A-42, pp. 1-4)
22) Form WH-153 is an Agency form headed "Agreement Between Contractor and Workers (To be executed by both parties)." It is intended to memorialize between the labor contractor and the worker such items as rate of pay, bonus, personal loans, housing, health and day care services, employment conditions, equipment and clothing, the existence of any labor dispute, the owner of the land, any other working conditions, and acknowledgment of the WH-151 rights and remedies form and provisions of the federal service contract act, if applicable. It is intended to be signed by each worker and the contractor before each job begins. Form WH-153s is the same form in Spanish. (Exhibit A-41, pp. 1-4)
23) Sometime after the group from Medford arrived in California, about the second day, Zavala had the workers sign forms which they understood were applications. These forms were blank, i.e., typed, unmarked and without written entries when they were signed. (Testimony of Campuzano, Rod. Mancilla, J. Mancilla)
24) Zavala acted as foreman in Placerville for two or three days and then returned to Idaho. Guadalupe Zamora, another foreman employed by Respondent corporation, then became foreman over the workers Zavala had transported to Placerville from Medford. (Testimony of Zavala, Zamora, Pelayo, P. Mancilla, Rod. Mancilla, Campuzano, J. Mancilla)
25) Zamora soon heard from some of the Oregon workers that Zavala had promised payment for their motel in addition to wages. Zamora told them that the boss didn´t usually pay for the hotel, but that he might if there was a profit on the job. Respondent corporation had paid hotel expense on past contracts based on quality work. (Testimony of Zamora, M. Galan)
26) Zavala acknowledged in his testimony that he may have suggested payment of the motel if there was a profit. Respondent E. Galan stated to the Agency investigator in August 1994 that the workers were told that the motel would be paid if quality work was done. Respondent M. Galan wrote to the Agency "we had only told the foreman that we would pay lodging as a bonus for ahead-of-schedule production if it occurred on that job." (Testimony of Zavala, Ramirez, Exhibit A-40A)
27) The workers who went to Placerville knew they were hired by "Justo" (i.e., Zavala) and most were aware that they were working for "Galan." None had heard of Staff, Inc. (Rodriguez, Pelayo, P. Mancilla, Rod. Mancilla, Campuzano, J. Mancilla)
28) Respondents´ files contained WH-153s forms bearing the apparent signatures of 11 of the 14 workers transported to Placerville by Zavala. Of the 11 signed forms, two were dated "6-3-94" (Campuzano, Ren. Mancilla), five were dated "6-2-94" (P. Mancilla, Cortez (Reyes), Rod. Mancilla, Vargas, Pelayo), and four were not dated (Montoya, Figueroa, J. Mancilla, O. Mancilla). Three WH-153s forms had no signature (Santos (Gutierrez), Ramos, Garcia (Bautista)_. All had the box opposite "No hay bonos" (There will be no bonuses) and "Este contratista no provee estos servicios" (Housing, health and day care services are not provided) marked._ However, on the line reading "Sestos servicios se proveen bajo estas condiciones: (Solamente, el precio justo de la vivienda podra deducirse del sueldo)" (Housing, health and/or day care services are provided under the following conditions (Only the fair market value of housing may be deducted from wages), all had the word "hotel" inserted. None were signed by or on behalf of the contractor. (Exhibits A-40, A-43, A-44 supp, A-45, A-46, A-47, R-11)
29) Respondent corporation´s pay records indicate that of the 14 workers transported to Placerville by Justo Zavala, all except Julio Garcia (Bautista) had $87 deducted from their pay for "Employee hotel" for the pay period "06/03/94 - 06/10/94." (Exhibits A-49, pp. 9,10; A-50, pp. 7, 8, 9, 10, 13, 14, 18,19,20, 21, 22, 24, 25, 30)
30) On June 17, 1994, Respondent M. Galan telephoned Patton to advise that a crew consisting of a foreman and eight workers would arrive within two days. He identified the foreman as Antonio Osorio. Patton allowed work to proceed, but expected timely completion even though work was started two months late. (Testimony of Patton; Exhibit A-13)
31) Osorio and five workers arrived in Alaska on June 19. Patton advised Osorio by telephone to meet COR Duke early the next day. (Testimony of Patton; Exhibit A-14)
32) If a contractor is not on site, USFS requires that the contractor designate a representative with specific areas of authority to act in the contractor´s absence. Respondent M. Galan designated Osorio as Respondent corporation´s representative by fax on June 20, 1994, with authority to act in all areas of the contract, including payment matters. (Testimony of Patton; Exhibit A-15)
33) On June 21, COR Duke determined that the camp site did not meet USFS minimum standards for worker housing; the single trailer leaked, was too small to adequately house the workers and sanitation facilities were inadequate. Duke suggested a second trailer and a toilet facility. Duke suspended work. Both notices were accepted by Osorio on behalf of Respondent corporation. On June 23, Duke allowed work to resume so long as the workers were not housed in the trailer. Osorio receipted for that notice, addressed to Respondent corporation. (Testimony of Patton; Exhibit A-16)
34) Osorio left Alaska after one week. Patton´s office received by fax on or about June 25 a designation of contract representative designating Peter Storf to act for Respondent corporation. It was signed by Respondent M. Galan. (Testimony of Patton; Exhibit A-17)
35) The crew that had accompanied Osorio stayed several nights in a motel in Klawock, AK, about 1½ to 2 hours driving time away from the job site near Thorne Bay. They spent the night of July 28 at the work site after being told to leave the motel. (Testimony of Montoya, Osorio, Patton, Exhibit A-21)
36) Patton visited the job site on June 29. He found numerous violations of federal law including the presence of undocumented workers and again the job was suspended. He noted that Osorio was not on site and could not locate Peter Storf. He did speak with Patrick Petersdorf, who stated he did not know Respondent M. Galan. Patton found that the five workers present had been recruited in and transported from Oregon by Osorio. They did not know of "Staff, Inc." or Respondent M. Galan. (Testimony of Patton; Exhibits A-20 pp. 1-10, A-21)
37) Patton wrote to Respondent M. Galan the next day, outlining his findings and urging him to resolve the numerous problems of documentation, housing, and work progress. He asked that Respondent explain how the workers could be recruited in Oregon. (Testimony of Patton; Exhibits A-20 pp. 1-10)
38) On July 1 in Ketchikan, Patton met with Respondent M. Galan who gave him a copy of the subcontract agreement between Osorio and Respondent corporation. This was the first Patton knew about a subcontract. Patton did not receive a copy which Respondent M. Galan stated had been sent to Patton in April. (Testimony of Patton; Exhibit A-21, A-22)
39) At times material, Luis Orlando Montoya lived in Roseburg, Oregon. In May, 1994 he was working for Osorio in Klamath Falls, Oregon when he learned that Osorio wanted a thinning crew to work in Alaska. Together with four or five other workers, he traveled with Osorio from Oregon to the job in Alaska. Osorio told them that the job would pay good money and that they would camp out in camp trailers at the job site near Thorne Bay in the Tongass National Forest. Osorio brought one trailer to the site in Alaska. Montoya worked about a week when the USFS shut down the job. Shortly after that, Montoya met Respondent M. Galan. Respondent M. Galan spoke with Montoya and Patrick Petersdorf, another worker. Neither was working. Respondent M. Galan mentioned that he would pay $10 an hour for workers. Montoya was not sure who Respondent Galan was, but he was unwilling to work in Alaska for $10 an hour. He returned home and filed a wage claim against Osorio. When he was finally paid, he was paid by Osorio. He did not work for Respondent M. Galan or for Respondent corporation. (Testimony of Montoya)
40) Osorio recruited the workers who accompanied him to Alaska in Oregon. He paid, or was responsible for paying, those workers. He did not recruit or supply workers to Respondent corporation or to Respondent M. Galan. A dispute arose between Osorio and Respondent M. Galan concerning the furnishing of camping facilities. (Testimony of Osorio)
41) On July 6, Patton again wrote to Respondent M. Galan, reviewing the problems found together with his findings that documentation presented by Osorio was incomplete. Patton questioned the validity of the April subcontract agreement because Osorio´s alleged employee Petersdorf had been designated as Respondents´ contract representative. Patton stated that the work suspension would remain in effect until the identified problems were resolved. (Testimony of Patton; Exhibit A-14)
42) In a meeting several days later at the Thorne Bay Ranger Station, Patton was told by Respondent M. Galan that a second trailer was on site for housing. Respondent M. Galan submitted documents for a crew of six who were hired in California. Since it appeared that the deficiencies were corrected, Patton issued a resume work order on July 11. (Testimony of Patton; Exhibits A-21, A- << />
43) After Osorio returned to Oregon, he again went to Alaska in July and completed his subcontract with Respondent corporation. (Testimony of Osorio)
44) Because it appeared that workers on Respondent corporation´s contract with the USFS in the El Dorado National Forest had been recruited in Medford and transported to California to work, Ramirez told Respondent M. Galan during that investigation that Respondents may have violated the law and the outstanding Consent Order. (Testimony of Ramirez.)
45) Respondent Manuel Galan was vice president of and functioned as operations manager for Respondent corporation at times material. He held less than 50% of the shares of the corporation, but made the operational and proprietary decisions. He denied telling Patton that Osorio was Respondent corporation´s foreman and insisted that he had forwarded a copy of the subcontract to Patton in late April. He stated that the delay in starting the Alaska work was due to other contracts in Idaho and California, and to the difficulty in coordinating Osorio´s crew and the ferry schedule. He stated that the problem over the living arrangements at Thorne Bay were due to Osorio´s failure to provide a second trailer. He did not consider his dealings with Osorio to be in violation of the Consent Order because the work was in Alaska. He testified that Respondents had attempted to abide by the Consent Order through better accounting and not bidding on Oregon forestation jobs. He did bid on pesticide, herbicide and certain animal control work in Oregon as well as elsewhere, because those activities were not considered to be forestation or reforestation. He denied any intent to violate the law or the Consent Order, and insisted that he was unaware that Zavala had recruited workers in Oregon. He resented the Agency´s inquiries and was convinced that the Agency and its employees were focusing on Respondent corporation and his family and ignoring other contractors. He pointed to the maximum penalties sought by the Agency as evidence of Agency bias. He testified to his impression that the Agency did not help contractors avoid violations, that Agency personnel intentionally provided federal contracting officer representatives and the Small Business Administration (SBA) with adverse information about Respondent corporation, and that as a result Respondent corporation had lost contracts upon which it was low bidder. He stated that Respondent corporation´s gross income had been reduced markedly because of the Agency´s actions. On cross examination he acknowledged that some of Respondents´ difficulties with SBA, USFS and USDOL were not traceable to actions of the Agency. He blamed cultural differences, poor paper work and limited education rather than any intent to evade regulation. He admitted he had not asked the Agency for guidance, again stating his belief that the Agency did not help contractors. He characterized the violations alleged as merely a few unsigned documents. Although he admittedly was not present at Placerville at the time, he insisted that the workers there were timely provided with proper pre-work documents and information regarding the lodging deductions. The Forum has carefully weighed his testimony as to content and consistency and has credited those portions verified by other credible evidence. (Testimony of Respondent M. Galan)
46) Respondent Erlinda Galan was president and secretary of the corporate Respondent at times material. She held over 50% of the shares of the corporation and was the majority shareholder. She disagreed with the violations charged in the original proceeding and testified to Respondents´ efforts to avoid violating the Consent Order, including limiting Oregon business activity to non-forestation contracts, having separate bookkeeping services in each state, and confining hiring on forest work outside Oregon to workers not living in Oregon. She, too, believed that Agency personnel had been targeting her corporation and particularly cited Cunningham as trying to put Respondent corporation out of business. She suggested that the corporation had lost as many as 10 herbicide or pesticide contracts due to delays of SBA processing caused by information originating with BOLI. She felt that BOLI had lost focus, that it was wrong for Cunningham and Ramirez to solicit wage claims and that fining contractors was not helping employees, but was just a way for BOLI to get money. Somewhat inconsistently, she said others who recruited illegally were not pursued by BOLI. She also stated that Respondents had received no assistance or training from the Agency and believed that all contractors had trouble with paper work. She acknowledged that Respondents sometimes made mistakes and had not sought the Agency´s assistance because of distrust. On cross examination, she admitted that several specific problems involving Respondent corporation and federal and other regulatory offices outside Oregon were not connected with the Agency. The Forum has carefully weighed her testimony as to content and consistency and has credited those portions verified by other credible evidence. (Testimony of Respondent E. Galan)


 
1) At times material herein, Respondent Staff, Inc., an Oregon corporation engaged in labor contracting and registered with the Oregon Secretary of State, was owned by Respondents M. Galan and E. Galan. Respondent E. Galan, its president and secretary, held over 50% of the shares and Respondent M. Galan was vice president and operations manager. The corporate address in 1994 was in Madras, Oregon.
2) Respondent corporation and Respondents M. Galan and E. Galan were subject to a Consent Order (Order) wherein the Commissioner required that said Respondents be prohibited from performing forest/farm labor activities in Oregon for a period of two years from March 11, 1994, the date of the Order. The Order further provided that Respondents agreed and stipulated that Respondents´ failure to comply with ORS Chapter 658 and the Order would be a breach of their agreement for the Order, the penalty for which would be the further denial of a forest/farm labor contractor license for a period of three years from the date of the breach.
3) At times material, Respondent corporation was not licensed as a forest labor contractor in Oregon.
4) At times material, Respondent M. Galan was not licensed as a forest labor contractor in Oregon.
5) At times material, Respondent E. Galan was not licensed as a forest labor contractor in Oregon.
6) At times material, Antonio Osorio was licensed as a forest labor contractor in Oregon.
7) In April, 1994 Respondent M. Galan entered into a subcontract with Antonio Osorio in Oregon for forestation work in Alaska on USFS forestation contract # 52-0116-4-00279.
8) In June, 1994 Antonio Osorio sought workers for the purpose of establishing a direct employer-employee relationship in Oregon and transported them to Alaska to work for Osorio; they were not recruited for or by Respondent corporation or Respondent M. Galan.
9) In June, 1994 Justo Zavala, an employee of Respondent corporation, was directed by Respondent M. Galan to hire workers for Respondent corporation on a USFS contract in Placerville, California. Zavala, for the purpose of establishing a direct employer-employee relationship between the workers and Respondent corporation, gave oral notice to 14 workers in and around Medford, Oregon, of employment availability and the steps necessary to obtain it, and transported them to California to work for Respondent corporation.
10) At the time the 14 workers from Oregon were recruited, Zavala did not furnish them with a written description of the terms and conditions of the employment for which they were hired.
11) At the time the 14 workers from Oregon were hired and before work began, neither Respondent corporation or any employee or representative of Respondent corporation executed a written agreement with the workers describing the terms and conditions of the employment for which they were hired.
12) At the time the 14 workers were recruited, they were told that their hotel expenses would be paid by the employer. The hotel expenses were deducted from the paychecks of 13 of the workers for the work in Placerville.


 
1) At times material herein, ORS 658.407 provided, in part:
"The Commissioner of the Bureau of Labor and Industries shall administer and enforce ORS 658.405 to 658.503 and 658.830, and in so doing shall:
" * * *
" * * *
"(3) Adopt appropriate rules to administer ORS 658.405 to 658.503 and 658.830."
2) At times material herein, ORS 658.501 provided:
"ORS 658.405 to 658.503 and 658.830 apply to all transactions, acts and omissions of farm labor contractors and users of farm labor contractors that are within the constitutional power of the state to regulate, and not preempted by federal law, including but not limited to the recruitment of workers in this state to perform work outside this state, the recruitment of workers outside of this state to perform work in whole or in part within this state, the housing of workers in this state for work in another state, the housing of workers from another state in connection with work to be performed in this state, the transportation of workers through this state and the payment, terms and conditions, disclosure and record keeping required with respect to work performed outside this state by workers recruited in this state."
The Commissioner of the Bureau of Labor and Industries has jurisdiction over the subject matter and the Respondents herein, including but not limited to the recruitment of workers in Oregon to work elsewhere, transportation of such workers to another state, and provisions of Oregon law pertaining to payment, terms, conditions, disclosure and record keeping and related matters for such workers.
3) At times material herein, ORS 658.405 provided in part:
"As used in ORS 658.405 to 658.503 and 658.830 and 658.991 (2) and (3), unless the context requires otherwise:
"(1) ´Farm labor contractor´ means any person who, for an agreed remuneration or rate of pay, recruits, solicits, supplies or employs workers to perform labor for another to work in forestation or reforestation of lands, * * * or who enters into a subcontract with another for any of those activities."
At times material herein, OAR 839-15-004 provided:
"As used in these rules, unless the context requires otherwise:
" * * *
"(5) ´Forest Labor Contractor´ means:
"(a) Any person who, for an agreed remuneration or rate of pay, recruits, solicits, supplies or employs workers to perform labor for another in the forestation or reforestation of lands; or
" * * *
"(e) Any person who subcontracts with another for the forestation or reforestation of lands."
At times material herein, ORS 658.417 provided:
"In addition to the regulation otherwise imposed upon farm labor contractors pursuant to ORS 658.405 to 658.503 and 658.830, a person who acts as a farm labor contractor with regard to the forestation or reforestation of lands shall:
"(1) Obtain a special indorsement from the Commissioner of the Bureau of Labor and Industries on the license required by ORS 658.410 that authorizes the person to act as a farm labor contractor with regard to the forestation or reforestation of lands.
At times material herein, ORS 658.410 provided, in pertinent part:
"(1) * * * No person shall act as a farm labor contractor with regard to the forestation or reforestation of lands unless the person possesses a valid farm labor contractor´s license with the indorsement required by ORS 658.417 (1). * * *
"(2) Farm labor contractor licenses may be issued by the commissioner only as follows:
" * * *
(c) To the majority shareholder or majority shareholders of a corporation that is licensed to operate as a farm labor contractor.
(d) To a corporation whose majority shareholder or majority shareholders are also licensed to operate as a farm labor contractor and that is authorized to do business in Oregon by the Office of Secretary of State.
" * * *
As a person acting as a farm labor contractor in the State of Oregon with regard to the forestation or reforestation of lands, Respondent M. Galan was and is subject to the provisions of ORS 658.405 to 658.503. As a person acting as a farm labor contractor in the State of Oregon with regard to the forestation or reforestation of lands, Respondent corporation was and is subject to the provisions of ORS 658.405 to 658.503. As majority shareholder of a corporation so acting, Respondent E. Galan was and is subject to the provisions of ORS 658.405 to 658.503.
4) The actions, inactions, statements and motivations of Justo Zavala, Respondent M. Galan and Respondent E. Galan are properly imputed to Respondent corporation herein.
5) On April 18, 1994, by entering into a forestation subcontract in Oregon, Respondent M. Galan acted as a forest labor contractor without a license to do so, violating ORS 658.410. By entering into a forestation subcontract in Oregon, Respondent corporation acted as a forest labor contractor without a license to do so, violating ORS 658.410. As majority shareholder of a corporation entering into a forestation subcontract in Oregon, Respondent E. Galan acted as a forest labor contractor without a license to do so, violating ORS 658.410.
6) At times material herein, ORS 658.440 provided, in part:
" (1) Each person acting as a farm labor contractor shall:
" * * *
"(d) Comply with the terms and provisions of all legal and valid agreements or contracts entered into in the contractor´s capacity as a farm labor contractor.
" * * *
"(f) Furnish to each worker, at the time of hiring, recruiting, soliciting or supplying, whichever occurs first, a written statement in the English language and any other language used by the farm labor contractor to communicate with the workers that contains a description of:
"(A) The method of computing the rate of compensation.
"(B) The terms and conditions of any bonus offered, including the manner of determining when the bonus is earned.
"(C) The terms and conditions of any loan made to the worker.
"(D) The conditions of any housing, health and child care services to be provided.
"(E) The terms and conditions of employment, including the approximate length of season or period of employment and the approximate starting and ending dates thereof.
"(F) The terms and conditions under which the worker is furnished clothing or equipment.
"(G) The name and address of the owner of all operations where the worker will be working as a result of being recruited, solicited, supplied or employed by the farm labor contractor.
"(H) The existence of a labor dispute at the worksite.
"(I) The worker´s rights and remedies under ORS chapters 654 and 656, ORS 658.405 to 658.503 and 658.830, the Service Contract Act (41 U.S.C. :S2. 351-401) and any other such law specified by the Commissioner of the Bureau of Labor and Industries, in plain and simple language in a form specified by the commissioner.
(g) At the time of hiring and prior to the worker performing any work for the farm labor contractor, execute a written agreement between the worker and the farm labor contractor containing the terms and conditions described in paragraph (f)(A) to (I) of this subsection. The written agreement shall be in the English language and any other language used by the farm labor contractor to communicate with the workers.
" * * *
" "(3) No person acting as a farm labor contractor, or applying for a license to act as a farm labor contractor, shall:
" * * *
" "(b) Willfully make or cause to be made to any person any false, fraudulent or misleading representation, or publish or circulate any false, fraudulent or misleading information concerning the terms, condition or existence of employment at any place or by any person.
In June, 1994, by recruiting workers in and around Medford, Oregon and transporting them to California to work for Respondent corporation, Respondent corporation violated ORS 658.410. In June, 1994, as majority shareholder of a corporation recruiting workers in Oregon and transporting them to California, Respondent E. Galan violated ORS 658.410.
7) In June, 1994, by failing to furnish 14 workers from Oregon at the time they were recruited with a written description of the terms and conditions of the employment for which they were hired, Respondent corporation violated ORS 658.440(1)(f) 14 times. In June, 1994, as majority shareholder of a corporation which failed to furnish 14 workers from Oregon at the time they were recruited with a written description of the terms and conditions of the employment for which they were hired, Respondent E. Galan violated ORS 658.440 (1)(f) 14 times.
8) In June, 1994, by failing to execute a written agreement with the 14 workers from Oregon at the time they were hired and before work began containing the terms and conditions of the employment, Respondent corporation violated ORS 658.440(1)(g) 14 times. In June, 1994, as majority shareholder of a corporation which failed execute a written agreement with the 14 workers from Oregon at the time they were hired and before work began containing the terms and conditions of the employment, Respondent E. Galan violated ORS 658.440(1)(g) 14 times.
9) In June, 1994, by misrepresenting to 14 workers from Oregon when they were recruited that their hotel expenses would be paid by the corporation and thereafter deducting the hotel expenses from the paychecks of 13 of the workers, Respondent corporation violated ORS 658.440(3)(b) 13 times. In June, 1994, as majority shareholder of a corporation which misrepresented to 14 workers from Oregon when they were recruited that their hotel expenses would be paid by the corporation and thereafter deducted the hotel expenses from the paychecks of 13 of the workers, Respondent E. Galan violated ORS 658.440(3)(b) 13 times.
10) On April 18, 1994, Respondent corporation, Respondent M. Galan, and Respondent E. Galan each breached the Consent Order agreement of March 11, 1994, a legal and valid agreement with the Commissioner entered into in their capacity as forest labor contractors. Each Respondent thus violated ORS 658.440(1)(d). In June, 1994, Respondent corporation and Respondent E. Galan each breached the Consent Order agreement of March 11, 1994, four more times and thus each violated ORS 658.440(1)(d) four times.
11) At times material herein, 658.453 provided in part:
"(1) In addition to any other penalty provided by law, the Commissioner of the Bureau of Labor and Industries may assess a civil penalty not to exceed $2,000 for each violation by:
"(a) A farm labor contractor who, without the license required by ORS 658.405 to 658.503 and 658.830, recruits, solicits, supplies or employs a worker.
" * * *
"(c) A farm labor contractor who fails to comply with ORS 658.440 (1), (2)(c) or (3).
" * * *
"(2) Civil penalties under this section shall be imposed as provided in ORS 183.090.
" * * * "
At times material herein, OAR 839-15-507 provided:
"Each violation is a separate and distinct offense. In the case of continuing violations, each day´s continuance is a separate and distinct violation."
At times material herein, OAR 839-15-508 provided in part:
"(1) Pursuant to ORS 658.453, the Commissioner may impose a civil penalty for violations of any of the following statutes:
"(a) Acting as a farm or forest labor contractor without a license in violation of ORS 658.410;
" * * *
"(f) Failing to comply with contracts or agreements entered into as a contractor in violation of ORS 658.440(1)(d);
(g) Failing to execute a written agreement with each worker in violation of ORS 658.440(1)(g);
(h) Failing to furnish each worker with a disclosure statement or copy of a work agreement concerning the terms and conditions of employment in violation of ORS 658.440(1)(f);
(l) Willfully making or causing to be made any false, fraudulent or misleading information concerning the terms, conditions or existence of employment in violation of ORS 658.440(3)(b);
At times material herein, OAR 839-15-510 provided in part:
"(1) The Commissioner may consider the following mitigating and aggravating circumstances when determining the amount of any civil penalty to be imposed, and shall cite those the Commissioner finds to be appropriate:
"(a) The history of the contractor or other person in taking all necessary measures to prevent or correct violations of statutes or rules;
"(b) Prior violations, if any, of statutes or rules;
"(c) The magnitude and seriousness of the violation;
"(d) Whether the contractor or other person knew or should have known of the violation.
"(2) It shall be the responsibility of the contractor or other person to provide the Commissioner any mitigating evidence concerning the amount of the civil penalty to be imposed.
" * * *
"(4) Notwithstanding any other section of this rule, the Commissioner shall consider all mitigating circumstances presented by the contractor or other person for the purpose of reducing the amount of the civil penalty to be imposed.
At times material herein, OAR 839-15-512 provided, in part:
"(1) The civil penalty for any one violation shall not exceed $2,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.
"(2) Repeated violations of the statutes for which a civil penalty may be imposed are considered to be of such magnitude and seriousness that a minimum of $500 for each repeated violation will be imposed when the Commissioner determines to impose a civil penalty.
"(3) When the Commissioner determines to impose a civil penalty for acting as a farm or forest labor contractor without a valid license, the minimum civil penalty shall be as follows:
"(a) $500 for the first offense;
"(b) $1,000 for the second offense;
"(c) $2,000 for the third and each subsequent offense.
"(4) The civil penalties set out in sections (2) and (3) of this rule shall be in addition to any other penalty imposed by law or rule.
"(5) The civil penalty for all other violations shall be set in accordance with the determinations and considerations referred to OAR 839-15-510.
At times material herein, OAR 839-15-520 provided, in part:
"(3) The following actions of a Farm or Forest Labor Contractor license applicant or licensee or an agent of the license applicant or licensee demonstrate that the applicant´s or the licensee´s character, reliability or competence make the applicant or licensee unfit to act as a Farm or Forest Labor Contractor:
"(a) Violations of any section of ORS 658.405 to 658.485;
" * * *
"(c) Willful violation of the terms and conditions of any work agreement or contract;
" * * *
"(i) Willfully make or cause to be made to any person any false, fraudulent or misleading representation, or publish or circulate any false, fraudulent or misleading information concerning the terms, conditions or existence of employment at any place or by any person."
The Commissioner of the Bureau of Labor and Industries is authorized to impose civil penalties for the violations described herein and the penalties imposed in the Order below is a proper exercise of that authority. The Commissioner of the Bureau of Labor and Industries is authorized to deny or prohibit application for a forest/farm labor contractor license based on the character, competence and reliability of Respondents to act as forest/farm labor contractors as exhibited by the violations described herein and the disposition in the Order below is a proper exercise of that authority.

 
The Agency brought this enforcement action based on alleged violations of the forest/farm labor contracting statutes and administrative rules and of a pre-existing Consent Order entered into by Respondents in their capacity as forest/farm labor contractors.
1) Commissioner´s jurisdiction.
During the hearing, Respondents argued that the statute, ORS 658.405(1), and the rule, OAR 839-15-004(5)(e), defining farm labor contractor refer to land within this state and that the subcontract in this case involved forestation of lands outside the state of Oregon over which the Commissioner had no jurisdiction. The law is otherwise. The Commissioner, in 1989, adopted the October 1988 proposed order of the Hearings Referee which found, on facts arising in 1986 and 1987:
"The fact that the forestation or reforestation work was in the State of Alaska is not material. ORS 658.405 to 658.485 was enacted to protect workers in Oregon from all unlawful employer activity in the forestation/ reforestation field. Allowing unlicensed recruitment in this state on the basis of job location outside Oregon would not accomplish this purpose. To recruit or solicit workers in Oregonto work in the forestation or reforestation of lands, wherever situate, is a forest labor contractor activity requiring a valid farm labor contractor license with appropriate indorsement." In the Matter of Leonard Williams, 8 BOLI 57, 73 (1989) (Emphasis in original)
The Oregon Court of Appeals, in a case involving facts arising prior to 1989, decided that the Oregon Farm Labor Contractors Act (then ORS 658.405 to 658.485) applied to contracts entered into in Oregon between Oregon employees and Oregon employers for reforestation in Idaho. Perez v. Coast to Coast Reforestation Corp., 100 Or App 115, 785 P2d 365 (1990). Finally, the Oregon legislature adopted Oregon Laws 1989, Chapter 164, § 9, effective May 23, 1989, since codified as ORS 658.501. That statute, quoted in the Conclusions of Law above, provides that the Farm Labor Contractors Act, (ORS 658.405 to 658.503 and 658.830) applies "to all transactions, acts and omissions of farm labor contractors * * * including but not limited to" recruitment, housing, transportation, payment, disclosure and record keeping involving workers in Oregon working elsewhere or workers from another state working in Oregon (emphasis supplied). Entering into a subcontract in Oregon for the forestation of lands, in Oregon or elsewhere, is a transaction to which the Act applies. The Agency´s motion to amend its Notice of Intent was properly granted.
2) Assessment of penalties
The Agency has charged Respondent corporation and its owners, the Respondents Galan, with multiple statutory violations which also form violations of the Consent Order of March 11, 1994. The Agency seeks to hold Respondent corporation, together with each individual Respondent, liable for civil penalties for each unlawful act found. The Agency also seeks the imposition of the agreed upon sanction for breach of the Consent Order
Respondents describe this action as follows:
"The agency seeks to enforce the terms of a consent order. In the consent order, the agency and Respondent [sic] have agreed that the consent order shall control penalties until Respondents are licensed. Thereafter, the penalties shall be provided by law and not the consent order. [citing page 4, lines 17-18 of the consent order] The consent order provides that the penalty for any breach of the consent order shall be denial of a license to Respondents for a period of three years. [citing page 4, line 6-12 of the consent order."
Respondents frame the issue regarding assessment of penalties as follows:
"Can majority shareholders of a corporation be held liable for corporate activities in which they did not knowingly or willfully participate?"
Respondents points out that Oregon corporation law provides that personal liability of a corporate shareholder for acts or debts of the corporation cannot be based on mere shareholder status (ORS 60.151(2)) and then notes examples of civil penalty and criminal statutes which limit liability of an individual agent or board of an organization to conduct personally engaged in by that individual.
The Agency´s statement of policy_ states that Agency policy holds a corporation engaging in forest/farm labor activity and its majority shareholder(s) equally liable for violations of the Farm Labor Contractors Act, based upon ORS 658.410(2)(c) and (d). That statute, reiterated as OAR 839-15-135(1)(c) and (d) requires that both a corporation and its majority shareholder(s) must be licensed to operate as a farm labor contractor. The legislature has clearly expressed an intent to hold a majority shareholder (or majority shareholders) responsible together with the majority shareholder´s corporation for forest/farm labor activities, including violations._ This forum has previously stated:
"ORS 658.410(2) clearly sets out that the majority shareholder´s license is a derivative of the license issued to the corporation. There is but one license, not two or more, where a corporation is the licensee. To treat the majority shareholder separately from the corporation would defeat the apparent purpose of the statute." In the Matter of Robert Gonzalez, 12 BOLI 181, 198 (1994)
The statute requires that Respondent corporation and its majority shareholder be licensed in order to engage in forest/farm labor activity. Limiting penalty for unlicensed activity to the corporation would defeat the apparent purpose of the statute. Respondent Erlinda Galan, as majority shareholder, is liable for the corporate violations herein. As to her, knowledge and/or participation are not elements. Respondent Manuel Galan is liable only for those violations in which he actively participated (acting as a contractor by executing the subcontract, which also violated the Consent Order) and is not liable as a mere shareholder.
The Notice of Intent provides in part:
"The Commissioner further seeks to enforce * * * the Consent Order * * * by extending the period [Respondents] are prevented from applying for a license for an additional three year period from the date the Commissioner finds [Respondents] in breach of the Consent Order and unfit to act as forest labor contractors."
"The Commissioner further seeks to enforce the terms and conditions of the Consent Order executed by the Commissioner and [Respondents] on March 11, 1994, by extending the period [Respondents] are prevented from applying for a license for an additional three year period from the date the Commissioner finds [Respondents] in breach of the Consent Order and unfit to act as forest labor contractors."
The Consent Order itself recites in part:
"Whereas, [Respondents] * * * further understand and agree that any violation of * * * this Consent Order shall be a breach of a legal and valid agreement entered into with the Commissioner, the penalty for which * * * shall be the denial of a forest/farm labor contractor license to [Respondents] * * * which denial shall, for a period of three years from the date of the breach of this agreement, operate to further bar any application for a forest/farm labor contractor license by [Respondents}; and,
"Whereas, it will be necessary for [Respondents] to make application to become licensed under the provisions of ORS Chapter 658 two years from the date this Consent Order is signed by all participants, and, if licensed, any penalties imposed for violations thereafter shall be provided by law and not this agreement; * * * "
The Forum finds that the plain language of the Consent Order agreement provides for further denial of the right to apply for a forest/farm labor contractor license for a three year period "from the date of the breach" of the agreement, not, as alleged in the Notice of Intent, "for an additional three year period from the date the Commissioner finds [Respondents] in breach." Thus the further suspension imposed in the Order below dates from April 18, 1994, the date of the breach of the agreement, and not from the date of this Order.
3) Respondents´ Motion to Require Clear and Convincing Quantum of Proof
The Forum has used preponderance of evidence as the standard of proof in this matter, thus effectively denying Respondents´ motion to require clear and convincing evidence in order to impose the sanction of further suspension of Respondents´ right to apply for a forest/farm labor contracting license. In their post-hearing Memorandum of Law, Respondents acknowledge that Sobel v. Board of Pharmacy, 130 Or App 374, 882 P2d 606, rev den 320 Or 588, 890 P2d 994 (1995) appears dispositive in holding that a license could be denied upon a showing of fraud by a preponderance of evidence, but argue that the "holding is not applicable * * * because of the serious consequences visited upon Respondents in the event the agency prevails." Counsel cites Brown v. Multnomah County Dist. Ct., 280 Or 95, 110, 570 P2d 52 (1977) and Thornton v. Johnson, 253 Or 342, 454 P2d 647(1969) in support of the proposition that a higher level of proof is required when a violation takes on the characteristics of a criminal proceeding and subjects the party to stigma for the violation. Counsel then posits that since some of the violations alleged could be prosecuted for criminal penalties under ORS 658.991, "[a]s a result [of] a finding * * * that Respondents have violated the statute as alleged the Respondents will suffer the stigma of engaging in conduct for which there are criminal penalties despite proof not being beyond a reasonable doubt." * * * This is certainly a matter of seriousness for which the quantum of proof ´clear and convincing´ is appropriate rather than preponderance."
Whatever the rationale in those earlier cases, Sobel clearly distinguishes between license application (i.e., qualifying for a license) and license revocation (loss of an existing license). Since the sanction in this case, as in Sobel, involves application (i.e., qualification) and not the loss of an existing license, preponderance is the proper standard.
4) Rulemaking
During the hearing, Respondents sought postponement of a final decision until the Agency adopted rules by formal rulemaking procedures defining recruiting, soliciting, and supplying as they are used in ORS 658.405. The ALJ denied any postponement based on the need for rulemaking, citing the fact that "recruit" and "solicit" were defined in In the Matter of Leonard D. Williams, 8 BOLI 57, 73 (1989), an example of rulemaking in a contested case. Counsel argued that there must be formal rulemaking procedures as set forth by statute, and renewed that argument in Respondents´ post-hearing Memorandum of Law.
Respondents concede that if an agency is given authority to interpret the law it may do so through contested case proceedings, Trebesch v. Employment Division, 300 Or 264, 710 P2d 136 (1965), and that announcement of a general policy applicable in the contested case and like cases may be relied on in subsequent cases, ORS 183.355(5). But Respondents argue that since the Agency´s own rule, OAR 839-15-000, does not provide specifically for rule making through contested case decisions, there is no authority for rule making by case decisions. Respondents´ view of the Commissioner´s authority is too narrow. As the official with comprehensive review powers to consider interpretations of law in final contested case decisions under the Farm Labor Contractors Act, the Commissioner may interpret a statutory term in a contested case. (Trebesch, supra; ORS 183.550(5)).
5) Mitigation
During the hearing, the ALJ took testimony from both of the individual Respondents which was represented to be mitigating in nature directed toward reducing the sought after civil penalties if the Forum found Respondents in violation. Brief summaries of that testimony are contained in Findings of Fact 46 and 47. For the most part, that testimony asserts Respondents´ difficulties with contracting in general and the Agency in particular, and suggests that the Agency was focusing unduly on Respondents. Such representations do nothing to mitigate penalties. As this forum observed earlier in a similar case:
"The Commissioner, in a prior proceeding, allowed Respondent corporation to continue operating as a forest labor contractor upon solemn assurance that certain conditions would be met. Respondent could not, after that, expect that it would not be the subject of the Agency´s further scrutiny in order to assure that the conditions were met." In the Matter of Robert Gonzalez, 12 BOLI 181, 200 (1994)
6) Respondents´ Exceptions
Respondents filed voluminous exceptions, dealing with each of the 47 listed Proposed Findings of Fact-The Merits (PFOF). Respondents agreed with some of these, which are unchanged and are now appear as Findings of Fact-The Merits (FOF) 1, 3, 5, 9, 18, 21, 24, 26, 31, 42 and 43._
Respondents agreed in substance with a number of other PFOF. Then, in each instance, Respondents questioned the relevance or total accuracy of each statement. Some of Respondents´ argument in this regard involved evidence not contained in the hearing record. The Forum has carefully examined the record and found that each of these findings was an accurate and relevant recitation of events based on the evidence in the record. These are unchanged and are now FOF 7, 8, 10, 13 through 15, 20, 22, 31, 32 through 37, 40, and 44 through 46.
Respondents excepted to the accuracy and/or meaning of the remaining PFOF. All were considered and remain unchanged except where noted:
PFOF 2:
Respondents´ exception to this finding consists of two typewritten pages describing the circumstances of the prior proceeding as viewed by Respondents, including allegations of being misled by the Agency and the USFS, of being victimized by fraudulent wage claims and an incompetent bookkeeper, and reciting their reasons for entering into the Consent Order. These allegations were on the record of the present proceeding as testimony in mitigation. None of them detracted from the accuracy of the subject finding of fact, nor were they relevant to the recitation of the existence of the Consent Order.
PFOF 4:
Respondents´ exception claims an intent between the Agency and USFS to adversely affect their operation. Respondents point to the Agency supplying USFS with a copy of the Consent Order and certain cooperation between the two agencies. The finding is correct in acknowledging that Respondents´ bid was in November, 1993, and in explaining why Patton awaited approval from USFS headquarters before approving the bid.
PFOF 6:
Respondents except to this finding as being inaccurate, in that:
"Patton stated in his testimony that subcontracting was not discussed in the April 1, 1994, prework meeting, yet admitted under cross-examination that his notes from that meeting indicated that subcontracting was on of the issues covered *** "
Patton testified that Respondent Galan stated on April 1 that he did not plan to subcontract. Respondents´ view of the evidence is in error.
PFOF 11:
Respondents except to this finding as being
"brought up for the purpose of attacking the credibility and responsibility of Respondents through the unavoidable delays in starting the contract."
They acknowledge that the finding is an accurate recitation regarding the history of the Alaska contract which Respondent M. Galan signed in Oregon.
PFOF 12:
Respondents exception to this finding addresses the portion which found that Cunningham had no unusual special interest in this matter. The exception argues how the Forum should view the assignment of an investigator to evaluate a suspected infraction. There was no evidence adduced that even suggested that Cunningham was doing anything but her job.
PFOF 17 (now 16):
Respondents exception here attempts to disclaim responsibility for Zavala´s Oregon activity. He was clearly Respondents´ agent. Ultimate Finding of Fact 9, to which Respondents did not except, is based on this finding.
PFOF 18 (now 17):
This finding has been revised to more accurately reflect how some of the workers were notified of the opportunity in California.
PFOF 20 (now 19):
Respondents except to the statement that all of the workers believed "that the job included payment for the motel." Respondents point out that not all of the workers were available to testify, and suggest that they might have been located if Respondents had more time. The inference from the available testimony was that "when they left Medford for Placerville" the workers thought the motel was included. Respondents attempted no showing that a delay in hearing date might produce further witnesses, other than Osorio and Zavala, for whom delay was granted.
PFOF 24 (now 23):
Respondents except to this finding as not being supported by the evidence. Respondents then offer possible explanations, not on the record, regarding photocopying batches of forms. The workers´ testimony remains that the forms they saw were blank, and that they received them about the second day of work. In addition, Zavala testified that the forms he gave the workers were given to them in California. The available credible evidence supports the finding.
PFOF 26 (now 25):
Respondents except to the implication of unanimity suggested by "the workers." This finding has been revised to more accurately reflect how Zamora learned from some Oregon workers of the hotel dispute.
PFOF 28 (now 27):
Respondents except to this finding as not being in accordance with the evidence. The available credible evidence supports the finding.
PFOF 29 (now 29):
Respondents´ exception to this finding seems to be that only five of the forms were introduced by the Agency. The Forum must use all of the evidence on the whole record, and therefore included the exhibits introduced by Respondents. Respondents also argue that the lack of signature by the contractor is not significant. ORS 658.440(1)(g) requires a person acting as an Oregon farm labor contractor to execute a written agreement between the worker and the contractor containing the terms and conditions in 658.440(1)(f). That means the contractor (or authorized agent) must sign the agreement.
PFOF 30 (now 29):
Respondents´ exception to this finding is without merit.
PFOF 39 (now 38):
Respondents´ exceptions here are based on their assertion of having earlier sent a copy of the subcontract to Patton. Patton did not receive it.
PFOF 40 (now 39):
Respondents deny that M. Galan was offering work to Montoya, or that Montoya and Petersdorf were out of work at the time. The testimony on the record supports the finding.
PFOF 42 (now 41):
Respondents´ exception to this finding recites, in part:
"Patton´s apparent confusion regarding the subcontract agreement was not through any inconsistency or improper action on the part of Respondents or Osorio and may have been influenced by his communications with BOLI in Oregon. He appeared to be trying very hard to find violations that he could blame on Staff Inc. that would indicate Staff Inc. was violating the Consent Order in Oregon."
It did not appear from the evidence that finding violations required unusual effort, or that Patton was motivated beyond assuring compliance with federal law.
Respondents excepted to Proposed Ultimate Findings of Fact 10 through 12. These were based on the individual findings of fact, which are substantially unchanged herein.
Respondents´ exception to the Proposed Conclusions of Law renews the argument that the majority shareholder should not be automatically liable for violations by the corporation. The Forum adheres to its ruling recited under "2) Assessment of Penalties," above. A majority shareholder, as well as the corporation, must qualify for a license. Neither may be licensed without the other. It follows that a corporate violation affects the majority shareholder´s license status as well as that of the corporation.
Respondents argue that because the Osorio subcontract was performed in Alaska and Respondent Staff could also legally perform there, the subcontract could not violate Oregon law. But the subcontract was executed (signed) in Oregon by Respondent Manuel Galan, who had no Oregon license, acting on behalf of Respondent Staff, which had no Oregon license. OAR 839-15-004 provides that "Forest Labor Contractor" means "Any person who subcontracts with another for the forestation or reforestation of lands." ORS 658.501 applies ORS 658.405 to 658.503 to "all transactions, acts and omissions of farm labor contractors." That includes forestation subcontracts executed within the state.
Respondents excepted to the Opinion section as well as to the proposed penalties. They state concerning the recruitment by Zavala in Medford that:
"Justo did not knowingly violate the law because he did not know the act he committed was illegal. Respondents did not knowingly or willfully violate the law because they had neither knowledge or control over Justo´s actions."
Respondents argue that they did not anticipate the possibility that Zavala would go to Oregon,
"so did not instruct him not to do what it did not occur to them he might possibly do. Under these circumstances, there should be no violation on behalf of Respondents or at least, mitigating circumstances requiring a minimal penalty, if any."
Zavala was clearly the agent of Respondent corporation, assigned to that duty by the corporate general manager. The result of his recruitment efforts were accepted and utilized by the corporation. Whether attributable to knowledge or oversight, the violations occurred. Respondents consider the penalties too severe, and argue that the other violations found are "´nit-picking´" over "letter of the law´ details which are unclear to ordinary people." They suggest that all currently licensed contractors would have some type of violation.
All of Respondents´ exceptions having been considered, the Forum finds no reason to disturb the penalties proposed.


 
NOW, THEREFORE, as authorized by ORS 658.453, Respondents Staff, Inc., Manuel Galan and Erlinda Galan, are hereby ordered to deliver to the:
Bureau of Labor and Industries
Fiscal Services Office Suite 1010
800 N.E. Oregon Street # 32
Portland, Oregon 97232-2109

 
a certified check payable to the Bureau of Labor and Industries in the amount of ONE HUNDRED SIXTY-EIGHT THOUSAND DOLLARS ($168,000), plus any interest thereon which accrues at the annual rate of nine percent, between a date ten days after the issuance of this Final Order and the date said Respondents comply herewith. This assessment is made as civil penalty against said Respondents as follows:
Against Respondent Staff, Inc.:
for five violations of ORS. 658.440(1)(d), $10,000 ($2,000 per violation);
for two violations of ORS 658.410, $4,000 ($2,000 per violation);
for 14 violations of ORS 658.440(1)(f), $14,000 ($1,000 per violation);
for 14 violations of ORS 658.440(1)(g), $28,000 (2,000 per violation);
for 13 violations of ORS 658.440(3)(b), $26,000 ($2,000 per violation)
(total $82,000);
Against Respondent Manuel Galan:
for one violation of ORS 658.440(1)(d), $2,000;
for one violation of ORS 658.410, $2,000
(total $4,000);
Against Respondent Erlinda Galan:
for five violations of ORS 658.440(1)(d), $10,000 ($2,000 per violation);
for two violations of ORS 658.410, $4,000 ($2,000 per violation);
for 14 violations of ORS 658.440(1)(f), $14,000 ($1,000 per violation);
for 14 violations of ORS 658.440(1)(g), $28,000 (2,000 per violation);
for 13 violations of ORS 658.440(3)(b), $26,000 ($2,000 per violation)
(total $82,000)
 
AND, FURTHER, as authorized by ORS 658.405 to 658.503 and the Consent Order agreement dated March 11, 1994, the Commissioner of the Bureau of Labor and Industries does hereby bar and prohibit any application for a forest/farm labor contractor license by Respondents Staff, Inc., Manuel Galan and Erlinda Galan, or any of them, for a period of three years from April 18, 1994, the date of the initial breach of said Consent Order agreement.
 
DATED This _________ Day of ______________________, 1996.
 
_______________________________________________
JACK ROBERTS, COMMISSIONER
Bureau of Labor and Industries
 
JUDICIAL NOTICE
Pursuant to ORS Chapter 183, you are entitled to judicial review of this Final Order. To obtain judicial review, you must file a Petition for Judicial Review with the Court of Appeals in Salem, Oregon, within sixty (60) days of the issuance of this Order. If you file a Petition for Judicial Review, YOU MUST ALSO SERVE A COPY OF THE PETITION ON THE BUREAU OF LABOR AND INDUSTRIES and THE DEPARTMENT OF JUSTICE - APPELLATE DIVISION AT THE FOLLOWING ADDRESSES:

 

BUREAU OF LABOR AND INDUSTRIES
HEARINGS UNIT
1005 STATE OFFICE BUILDING
800 NE OREGON STREET # 32
PORTLAND, OREGON 97232-2162

 
DEPARTMENT OF JUSTICE
APPELLATE DIVISION
400 JUSTICE BUILDING
SALEM, OREGON 97310

 
CERTIFIED TO BE A TRUE AND CORRECT COPY OF THE ORIGINAL AND OF A WHOLE THEREOF. ________________________________________________