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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 25-95
MOHAMMAD NAWAZ KHAN
dba Khan Farm Labor Contractor
Respondent

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

 
SYNOPSIS
 
Where Respondent operated as a farm labor contractor in Oregon and California, the Commissioner found that Respondent failed to pay Oregon workers all money entrusted to him for that purpose, failed to provide those workers with notices of rights and remedies, with written agreements regarding terms and conditions of employment, and with itemized deductions statements, and failed to provide annual reports to the Agency of farmers with whom Respondent contracted. The Commissioner imposed fines for the multiple violations. ORS 658.405; 658.407; 658.410; 658.440 (1)(c),(e),(f),(g) and (h); 658.453; OAR 839-15-125; 839-15-310; 839-15-350; 839-15-370; 839-15-508(1)(a),(b),(e), (g),(h),(j) and (s); 839-50-300.
 

 
The above-entitled contested case came on regularly for hearing before Warner W. Gregg, designated as Hearings Referee by Jack Roberts, Commissioner of the Bureau of Labor and Industries of the State of Oregon. The hearing was held on July 11 and 12, 1995, in a conference room of the Oregon Employment Department, 119 N. Oakdale, Medford. The Bureau of Labor and Industries (the Agency) was represented by Linda Lohr, an employee of the Agency. Mohammad Nawaz Khan, dba Khan Farm Labor Contractor (Respondent), was present and was represented by David C. White, Attorney at Law, Portland. Riaz Kahn, Sacramento, was appointed by the Forum and under proper affirmation, acted as interpreter for the Punjabi_ speaking witnesses. Maria Carillo, Klamath Falls, was appointed by the Forum and under proper affirmation, acted as interpreter for a Spanish speaking witness.
 
The Agency called as witnesses, in order of appearance: Respondent; southern Oregon farmers James L. Moore and Dan and Tammy Shuck; Agency Compliance Specialists Eduardo Sifuentez and Raul Ramirez; and Respondent foreman Eliasar Castillo.
Respondent called as witnesses, in order of appearance: farm workers Dilbagh Singh and Balbir Kaur Singh; and Respondent´s bookkeeper Rana Kahn.
 
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 October 26, 1994, the Agency issued a "Notice Of Intent To Assess Civil Penalties" (Notice of Intent) to Respondent. The Notice of Intent informed Respondent that the Commissioner intended to assess civil penalties against Respondent totaling $288,500 pursuant to ORS 658.453. As the basis for this action, the Agency alleged substantially as follows:
I.In 1993, while licensed as a farm labor contractor (FLC), Respondent failed to pay wages when due with funds entrusted to Respondent for that purpose to 19 persons employed by respondent in Oregon, violating ORS 658.440(1)(c) and OAR 839-15-508(1)(g). The Agency alleged that these violations were aggravated by being willful, intentional, repeated and numerous and sought a penalty of $1,000 per violation, or $19,000.
II.In 1993, while licensed as a FLC, Respondent failed to furnish to at least 105 workers at the time they were hired, recruited or solicited with a written statement describing the worker´s rights and remedies as required by statute, violating ORS 658.440(1)(f) and OAR 839-15-310. The Agency alleged that these violations were aggravated by being willful, intentional, repeated and numerous and sought a penalty of $500 per violation, or $52,500.
III. In 1993, while licensed as a FLC, Respondent failed to execute written agreements between Respondent and at least 105 workers containing the terms and conditions listed in ORS 658.440 (1)(f) at the time they were hired and before they performed any work for Respondent, violating ORS 658.440(1)(g) and OAR 839-15-508(1)(g). The Agency alleged that these violations were aggravated by being willful, intentional, repeated and numerous and sought a penalty of $500 per violation, or $52,500.
IV. As of April 30, 1993, Respondent failed to file any form showing the dates, types and location of work and the name of the farmer contracted with by Respondent in Oregon in 1992, and as of April 30, 1994, Respondent failed to file any form showing the dates, types and location of work and the name of the farmer contracted with by Respondent in Oregon between May 1, 1993 and April 30, 1994, violating ORS 658.440(1)(e) and OAR 839-15- 350. The Agency alleged that these violations were aggravated by being willful and repeated and sought a penalty of $500 per violation, or $1,000.
V. In 1993, while licensed as a FLC, Respondent failed to furnish to at least 75 workers employed by Respondent itemized statements of earnings and deductions (WH-154) as required at the time Respondent paid the workers, violating ORS 658.440(1)(h) and OAR 839-15-370. The Agency alleged that these violations were aggravated by being willful and repeated and sought a penalty of $500 per violation, or $37,500.
VI. In June and July, 1994, Respondent, while unlicensed, recruited, solicited and supplied 32 workers to perform farm labor for James Moore in Merrill, Oregon, violating ORS 658.453(1)(a) and OAR 839-15-125. The Agency alleged that these violations were aggravated by being willful and repeated and by Respondent´s knowledge of the license expiration and sought a penalty of $2,000 per violation, or $64,000.
VII. In June and July, 1994, Respondent, while unlicensed, recruited, solicited and supplied 29 workers to perform farm labor for Daniel and Tammy Shuck in Merrill, Oregon, violating ORS 658.453(1)(a) and OAR 839-15- 125. The Agency alleged that these violations were aggravated by being willful and repeated and by Respondent´s knowledge of the license expiration and sought a penalty of $2,000 per violation, or $58,000.
VIII. In June and July, 1994, Respondent, while acting as a farm labor contractor as described in counts VI and VII, failed to carry a labor contractor´s license, violating ORS 658.440(1)(a). The Agency alleged that these violations were aggravated by being willful and repeated and by Respondent´s knowledge of the violations and sought a penalty of $2,000 per violation, or $4,000.
The Notice of Intent was served on Respondent by certified mail at 8346 Bailey Road, Yuba City, CA 95993 on October 29, 1994 and by certified mail at PO Box 704, Yuba City, CA 95993 on November 2, 1994. (Exhibits X-2, X-3)
2) On November 14, 1994 Respondent through counsel answered the Notice of Intent by denying each of the eight counts, reserving the right to amend the answer to state affirmative defenses, and requested a contested case hearing. (Exhibit X-4)
3) The Agency requested a hearing date and on January 5, 1995 the Hearings Unit issued to Respondent and the Agency a Notice of Hearing setting forth the time and place of the requested hearing and the designated Hearings Referee, 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 January 27, 1995, the Forum received Respondent´s motion requesting a postponement of the hearing scheduled for February 28, 1995 due to Respondent´s absence from the United States, and the hearing was reset to May 16. On April 26, Respondent´s counsel again sought a postponement due to Respondent´s continued absence from the country due to a death in the family. Over the Agency´s objection, the Hearings Referee reset the hearing to July 11, 1995. (Exhibits X-6, X-7, X-9, X-10)
5) On June 16, Respondent´s counsel moved for appointment of a Pakistani speaking interpreter based on Respondent´s limited English and the anticipated presentation of non-English speaking witnesses from Pakistan or India. On June 29, the Agency objected, citing affidavits of Agency staff concerning Respondent´s dealing with the Agency in English. The Agency had no objection to a Punjabi speaking interpreter for the witnesses. (Exhibits X-11, X-12)
6) The Agency and Respondent timely filed their respective case summaries. (Exhibits X-13, X-14)
7) On July 7, the Hearings Referee, relying on the OAR 839-50-300 provision that "a person who cannot speak or understand the English language * * * is entitled to a qualified interpreter" ruled as follows:
"Respondent has obtained a license as a farm labor contractor using the Agency´s forms printed in English. He is represented by counsel. The forum finds no necessity for providing him with an interpreter. The witnesses are a different matter. Assuming that some or all of them have difficulty with English, a failure to have an interpreter available might adversely affect Respondent´s defense."
 
The Referee stated his intent to have a Punjabi speaker for the witness testimony available beginning at a time certain for Respondent to present his Punjabi speaking witnesses, out of order if necessary. The interpreter could then clarify any problems in understanding that may have arisen earlier and the interpreter´s services may be limited to a portion of the proceeding. (Exhibit X-15)
8) Beginning in mid-June and continuing until the date of hearing, the Forum attempted to obtain the services of a Punjabi speaking interpreter, either in Medford or elsewhere in Oregon. No professional interpreter with the requisite skills in the needed dialect was available. Out of necessity, the Hearings Referee appointed Riaz Kahn, a brother of Respondent, to serve as interpreter for the witnesses speaking Punjabi. During the hearing, the Hearings Referee appointed Maria Carillo to serve as interpreter for Eliasar Castillo, a Spanish speaking witness. (Statement of the Hearings Referee)
9) At the commencement of the hearing, Respondents´ counsel stated that Respondent had received the Notice of Contested Case Rights and Procedures and had no questions about it. (Statement of White)
10) At the commencement of the hearing, pursuant to ORS 183.415(7), the Hearings Referee 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 Hearings Referee)
11) During the hearing, the Agency and Respondent stipulated that the testimony of farm workers Khurshid Ahmad, Aetar Singh, and Daljit Kaur, all of whom had worked for Respondent since 1992, and all of whom were available as witnesses, would be substantially similar to that of Dilbagh Singh and Balbir Kaur Singh and therefore cumulative. (Stipulation of the participants; Statement of the Hearings Referee)
12) At the close of the hearing on July 12, the participants agreed to submit the case on written argument and the Hearings Referee announced a schedule for submitting argument. Submissions were timely received under that schedule and the record closed August 14, 1995. (Statement of the Hearings Referee)
11) The proposed order, containing an exceptions notice, was issued June 26, 1996. Exceptions were due July 6, 1996. On July 3, 1996, the ALJ extended the due date for exceptions to July 31, 1996. Respondent timely filed exceptions which are dealt with in the Opinion section of this order.
 
FINDINGS OF FACT THE MERITS
 
1) At times material herein, Respondent Mohammad Nawaz Kahn, doing business as Khan Farm Labor Contractor, utilized the personal services of persons within this state in connection with the production or harvesting of farm products for an agreed remuneration or rate of pay. He speaks English and Punjabi. (Testimony of Respondent; Sifuentez; R. Khan; Entire Record)
2) At times material, Eduardo Sifuentez was employed as a Compliance Specialist with the Wage and Hour Division of the Agency. His duties included investigation of wage claims and of alleged violations of wage and hour laws including farm labor contracting laws. He was stationed in Eugene, but covered some work in southern Oregon. He is fluent in English and Spanish; he does not speak Punjabi. (Testimony of Sifuentez)
3) At times material herein, Raul Ramirez was a Compliance Specialist with the Farm Labor Unit of the Wage and Hour Division of the Agency. He began his duties, which included investigation of wage claims and of alleged farm labor violations, in March 1994 in Medford. He is fluent in English and Spanish; he does not speak Punjabi. (Testimony of Ramirez)
4) Ramirez was familiar with farm labor contracting through his position with the Agency, through his family, which included a labor contractor, and from working on farms. It is common among persons of Hispanic extraction to use the paternal-maternal form in stating their names and the names of other workers or to use either or both names._ (Testimony of Ramirez)
5) In July, 1993 Sifuentez received a telephone complaint that farm workers were being paid California minimum wage while working in Oregon. In 1993, minimum wage in California was $4.25 an hour and minimum wage in Oregon was $4.75 an hour. (Testimony of Sifuentez; Official Notice)
6) 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. (Testimony of Sifuentez; Official Notice)
7) 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. (Testimony of Sifuentez; Official Notice)
8) Oregon farm labor contractors are required by statute to furnish each worker with an itemized written statement of earnings and deductions each time the worker is paid. (Testimony of Sifuentez; Official Notice)
9) On July 21, 1993 Sifuentez interviewed Deloris Gallaga, Martin Gallaga and Rueben Pallacios at the Starr Inn in Doris, California. They each stated that they had worked for Respondent in both Oregon and California for $4.25 an hour, were paid in cash and were not given a written statement of deductions. They each stated that they had not received written statements of their rights and remedies (WH-151) and had not received written agreements signed on behalf of Respondent containing the terms and conditions of employment (WH-153) at the time of hire and before any work was performed. They were not working on July 21 because their transportation had broken down. They stated that their co-workers would be available in the evening. (Testimony of Sifuentez)
10) On the evening of July 21, Sifuentez returned to the Starr Inn and interviewed Doroteo Avila, Rocque Avila, Jovito Campos, Alberto Castillo-Garcia, Guillermo Cervantes, Refubio Flores, Juan Gonzales, Lorenzo Gonzales, Jose Gonzalez, Juan Guyardo, Humberto Hernandez, Mardento Hernandez-Delgado, Hilario Lora, Gilberto Martinez, Pedro Morado, Isaac Morales, Alfredo Rosales, Roberto Zamudia, and Simon Zamudia. All claimed to have worked in Oregon for Respondent under a foreman named Lala. They stated that they were transported by bus to a job site north of Klamath Falls, Oregon. They did not know the farmer´s name. All stated that they were paid $4.25 an hour in cash and were not given a written statement of deductions. All stated that they had not received written statements of their rights and remedies (WH-151) and had not received written agreements signed on behalf of Respondent containing the terms and conditions of employment (WH-153) at the time of hire and before any work was performed. (Testimony of Sifuentez)
11) On July 29, Sifuentez met with Respondent and Rana Khan at the Agency´s Medford office. He had requested payroll records and information covering Respondent´s work in Oregon in 1993. Respondent supplied a lists of workers paid by check and a list of cash payments. Thereafter, Sifuentez continuously asked Respondent for documentation of hours worked in Oregon, payments made, and deductions provided to the workers. On or about August 3, Respondent submitted a revision of those lists, showing additional workers paid. (Testimony of Sifuentez, Rana Kahn; Exhibits A-23, A-24)
12) Sifuentez understood Respondent to say on July 29 that neither Respondent nor his foreman or bookkeeper had given out the WH-151 and WH-153 forms to the workers in 1993. Respondent also said that workers who were paid cash received no listing of deductions. (Testimony of Sifuentez)
13) On August 12, 1993 Sifuentez wrote to Respondent listing 36 individuals whom he had determined had worked for Respondent in Oregon and had not been paid minimum wage of $4.75 an hour. The list included those persons Sifuentez had interviewed at the Starr Inn. His letter also questioned the total number of workers who had worked in Oregon for Respondent because Sifuentez had developed information showing over 50 workers in Oregon on several days in July and over 80 workers on three occasions. He asked for further documentation. Finally, Respondent submitted a final revised list of workers for 1993 in Oregon. (Testimony of Sifuentez; Exhibits A-17, A-25)
14) At times material herein, Rana Khan resided in Yuba City, California, where his normal occupation was with an engineering firm. Beginning in 1993, he acted as bookkeeper for Respondent on an on call basis. He is Respondent´s brother-in-law. In 1994, he also acted in a bookkeeping capacity for Dan and Tammy Shuck. He speaks English and Punjabi. (Testimony of Rana Khan, Respondent)
15) Rana Khan began his bookkeeper duties with Respondent after the 1993 labor season started. He located temporarily in Doris. In 1993, the foreman on the job kept track of the number of hours worked by each worker and turned that in to the bookkeeper. Workers were paid each two weeks. Lala was the main foreman and knew whether the work was in California or Oregon. Lala also was in charge of giving written rights of workers (WH-151) and work agreements (WH-153) to the workers. He was out of the country at the time of hearing and was not available. He had the original records of work location and distribution of documents with him. (Testimony of Rana Kahn, Respondent)
16) Rana Khan prepared the lists of workers and payments submitted to Sifuentez in July, 1993, using available records. The lists were revised and expanded as Rana Khan compiled them and more work was performed. They included only those who worked in Oregon. He denied that either he or Respondent told Sifuentez in July, 1993 that WH-151 and WH-153 forms were not provided to the workers in 1993. (Testimony of Rana Khan)
17) Respondent gave out the WH-151 and WH-153 forms to some of the workers in 1993. He could provide no record of the written receipt by each worker. He denied that he told Sifuentez in July, 1993 that WH-151 and WH-153 forms were not provided to the workers. (Testimony of Respondent)
18) Respondent acknowledged that he had not filed a record of farmers with whom he contracted in 1992 or in 1993. He testified that the work for each farmer was of short duration and did not involve written contracts because the farmers would not bother with written contracts for only a few days work. He stated his belief that the annual requirement for such reports referred only to written contracts. (Testimony of Respondent)
19) Rana Kahn discussed the wages claimed by Deloris Gallaga with the worker. An additional payment was made, satisfying that claim. The claims of Martin Gallaga and Rueben Pallacios were also resolved. (Testimony of Rana Kahn, Sifuentez)
20) Sifuentez pursued wages claims for 19 of the 22 persons interviewed at the Starr. When Respondent did not respond with payment, Sifuentez initiated a claim against Respondent´s bond with Amwest Surety. Amwest demanded documentation, which Sifuentez supplied on March 11, 1994. (Testimony of Sifuentez; Exhibits A-27, A-28)
21) On or about March 17, 1994, Amwest officially advised Respondent in writing of the Agency´s claim against the bond, asking for resolution or defenses. When it did not receive a satisfactory response, Amwest eventually paid a total of $3,750 to the Agency for the 19 workers listed in the Agency´s March 11 letter. At the time of the hearing, 11 of those individuals had been located and paid by the Agency. (Testimony of Sifuentez; Exhibits A-26, A-28)
22) Sifuentez determined that a total of 105 individuals had worked for Respondent in Oregon in 1993. He arrived at this number from the records Respondent provided, from the persons he interviewed, and from a list of workers provided by Deloris Gallaga. He assumed that those listed on Respondent´s records were Oregon workers because he had asked for Oregon records. Relying on Respondent´s statement that required documents were not provided, he also determined that Respondent violated each document requirement for each worker. (Testimony of Sifuentez)
23) Some workers who worked for Respondent in 1993 received forms listing their rights (WH-151) and forms of agreement disclosing terms and conditions of each job (WH-153) through Respondent. While the workers did not read English, their children did and the forms were explained to them by the children. These workers knew the Oregon and California minimum wage and where to go to seek assistance with wages. They were consistently provided with statements of earnings and deductions which were read to them by their children. Once a job was completed and they were paid for it, they did not keep the documents. They worked for Respondent in Oregon in 1993 but did not work for Respondent in Oregon in 1994. (Testimony of Dilbagh Singh, Balbir Kaur Singh; Stipulated Testimony of Khurshid Ahmad, Aetar Singh, Daljit Kaur)
24) The workers whom Respondent provided to the Oregon farmers in 1993 performed thinning and weeding of sugar beets. Respondent billed for these services by listing the number of workers provided and hours worked for each day. The number of workers multiplied by the hours worked by the crew each day was then multiplied by an hourly rate ($4.75 in Oregon). The foreman´s services were billed at $5.00 an hour. The total charge for workers and foreman were added together and then 25% of that figure was added for FICA, workers compensation, unemployment and Respondent´s commission. It was this final total which was billed to and paid by the farmer. (Testimony of Moore, D. Shuck, Rana Khan, Respondent; Exhibits R-5, R-6)
25) At times material, James Moore was a farmer in Klamath County, Oregon and Modoc and Siskiyou counties in California. In 1993, he retained Respondent to provide labor for his sugar beet operation in Oregon. He was satisfied with Respondent´s crew and services and planned to use him again in 1994. Moore then learned that Respondent had no 1994 Oregon license. (Testimony of Moore)
26) At times material, Dan and Tammy Shuck farmed land northeast of Merrill, in Oregon, and south of Tulelake in California. In 1993, they retained Respondent to provide labor for their sugar beet operation in Oregon. They were satisfied with Respondent´s crew and services and planned to use him again in 1994. (Testimony of D. Shuck; T. Shuck; Respondent)
27) In June 1994 Ramirez received an allegation that Respondent was working in Oregon near Klamath Falls. He checked for the presence of a work force in the Merrill and Malin areas near Klamath Falls. He knew that farmers needed labor in June and July for weeding and thinning sugar beets. (Testimony of Ramirez)
28) Ramirez interviewed Moore in mid-June, 1994. Moore was upset with the Agency over Respondent´s unlicensed status, believing it was due to an increased bonding requirement. He had difficulty locating labor and his crops needed work. He asked Ramirez about hiring workers who also worked for Respondent. Ramirez told him he could hire available workers, but could not use Respondent as a source. Ramirez explained the law and supplied Moore with written definitions of farm labor contractor activity. Moore was upset due to difficulty in getting labor and perceived Ramirez as accusatory and unsympathetic. (Testimony of Moore, Ramirez)
29) Respondent was doing work for Moore in California in June 1994 and Moore learned of an idle crew through its foreman, "Alvaro"._ Moore told "Alvaro" there was Oregon work. Workers showed up and Moore hired them directly. Moore´s CPA cut the individual workers´ paychecks for Moore´s signature and handled withholding and taxes. Moore paid "Alvaro" only as a foreman and not for supplying workers. He did not pay Respondent for supplying workers in 1994. (Testimony of Moore; Respondent)
30) On June 30, 1994 Ramirez spoke with four workers in Oregon south of Klamath Falls: Jueventino Alvarado, Genovva Orosco, Hugo Orosco and Jose Ortega all stated they had been working on the Shuck property in Oregon. They said they had been recruited by Serefino Alvaro Pina, a foreman for Respondent, and that they had worked for Respondent. They had paychecks signed by Dan Shuck, but were convinced they had worked for Respondent. They were reporting that day to work for Respondent in California. (Testimony of Ramirez)
31) In June 1994, Jefferson State Plumbing, Merrill, Oregon, provided portable toilets to the Shuck property. The toilets were ordered by Pina, whom Jefferson State knew had worked for Respondent as a foreman, and were billed to Respondent. (Testimony of Ramirez)
32) On or about June 30, Ramirez spoke with Dan Shuck, who stated he had hired and paid the farm laborers himself. Ramirez understood him to say that he had used Respondent´s services and prepared a statement for Shuck´s signature. On July 25, when Ramirez again met with the Shucks, Dan Shuck denied that he had said he used Respondent in 1994 and refused to sign a statement. (Testimony of Ramirez)
33) When the Shucks learned that Respondent had no 1994 license, they hired workers directly. They dealt with Serefino Pina, who had also been a foreman for Respondent. They hired Rana Khan to do the paperwork. They did not know where Pina obtained the workers. They paid Rana Khan as a bookkeeper and paid Pina as a foreman; neither was paid any sum for supplying workers. They did not pay Respondent for supplying workers in 1994. (Testimony of D. Shuck; T. Shuck ; R. Khan; Respondent)
34) Eliasar Castillo worked for Respondent as a foreman in 1994, about May to August. He was hired by Felipe Mendoza, who acted as Respondent´s general manager and who showed him the various work locations. Serefino Pina was also a foreman, with the same duties of making sure that the workers did their jobs. The workers provided their own transportation. Castillo lived in Klamath Falls and knew where the Oregon-California state line was located. He was aware that Respondent was prohibited from working in Oregon. He stated that there was some work in Oregon, but not for Moore or the Shucks. He did not recall giving pre-work documents to workers in Oregon. He did recall that all checks for his services and for his crew came from Respondent through Rana Khan. He stated he was told by another brother of Respondent to say in Oregon that the farmer was paying him. (Testimony of Castillo)
35) Respondent and Rana Khan were not altogether credible. Neither could satisfactorily explain the lack of resistance to the bonding action. Both testified under solemn affirmation that their Oregon workers in 1993 received required worker´s rights and disclosure statements and also were given statements of deductions, but admitted there were no copies in their files, which they attributed to the disappearance of the foreman Lala. Both testified that Sifuentez was confrontive and seemed to have decided that Respondent had violated the law. Respondent admitted that he had not filed the required annual listing of Oregon contracts, but stated that he thought only written contracts need be reported. On the other hand, there was evidence from some workers that they routinely received the required documents. The Forum has credited only so much of the testimony of Respondent and Rana Khan as was not overcome by more credible documents or testimony. (Testimony Respondent, Rana Khan)
 
 
1) At times material herein, Respondent Mohammad Nawaz Kahn utilized the personal services of persons within this state in connection with the production or harvesting of farm products for an agreed remuneration or rate of pay.
2) Respondent was a licensed farm labor contractor in Oregon and in California through May 30,1993. Respondent was not licensed in Oregon after May, 1993.
3) In 1993, Respondent failed to pay wages when due that had been entrusted to him for that purpose to 19 persons who had worked for Respondent in Oregon.
4) In 1993, Respondent failed to furnish to each of 22 workers at the time they were hired a written statement describing the workers´ rights and remedies.
5) In 1993, Respondent failed to execute written agreements, containing the terms and conditions of employment, between himself and each of 22 workers at the time of hire and before any work was performed.
6) On or after April 30, 1993, Respondent failed to file with the Bureau of Labor and Industries written information showing dates, types and location of work for each farmer with whom Respondent contracted in Oregon in 1992.
7) On or after April 30, 1994, Respondent failed to file with the Bureau of Labor and Industries written information showing dates, types and location of work for each farmer with whom Respondent contracted in Oregon in 1993.
8) In 1993, Respondent failed to furnish to each of 22 workers at the time they were paid with an itemized statement of deductions taken from the workers´ pay.
9) Respondent did not recruit workers to perform farm labor for James Moore in Merrill, Oregon in June and July, 1994.
10) Respondent did not recruit workers to perform farm labor for Dan and Tammy Shuck in Merrill, Oregon in June and July, 1994.
11) Respondent did not carry an Oregon farm labor contractor´s license in 1994.
 
1) At times material herein, ORS 658.405 provided, in part:
"(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 * * * the production or harvesting of farm products; * * * However, ´farm labor contractor´ does not include:
"(a) Farmers, * * * "
At times material herein, ORS 658.407 provided:
"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:
"(1) Investigate and attempt to adjust equitably controversies between farm labor contractors and their workers with respect to claims arising under ORS 658.415 (3).
"(2) Take appropriate action to establish the liability or lack thereof of the farm labor contractor for wages of the employees of the farm labor contractor and if appropriate proof exists of liability for wages the commissioner shall pay the same or such part thereof as the commissioner has funds on deposit or cause the surety company to forthwith pay the entire liability or such part thereof as the sums due under the bond will permit.
"(3) Adopt appropriate rules to administer ORS 658.405 to 658.503 and 658.830."
At times material herein, ORS 658.410 provided, in part:
"(1) Except as provided by ORS 658.425, no person shall act as a farm labor contractor without a valid license in the person´s possession issued to the person by the Commissioner of the Bureau of Labor and Industries. * * * "
The Commissioner of the Bureau of Labor and Industries of the State of Oregon has jurisdiction over the persons and subject matter herein.
2)At times material herein, ORS 658.440 provided, in part:
"(1) Each person acting as a farm labor contractor shall:
" * * *
"(c) Pay or distribute promptly, when due, to the individuals entitled thereto all money or other things of value entrusted to the labor contractor by any person for that purpose.
" * * * "
Respondent´s failure in 1993 to promptly pay 19 workers all money entrusted to him for that purpose constituted 19 violations of ORS 658.440(1)(c).
3)At times material herein, ORS 658.440 provided, in part:
"(1) Each person acting as a farm labor contractor shall:
" * * *
"(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.
At times material herein, OAR 839-15-310 provided
"(1) Every Farm and Forest Labor Contractor must furnish each worker with a written statement of the worker´s rights and remedies under the Worker´s Compensation Law, the Farm and Forest Labor Contractor Law, and Federal Service Contracts Act, The Federal and Oregon Minimum Wage Laws, Oregon Wage Collection Laws, Unemployment Compensation Laws, and Civil Rights laws. The form must be written in English and in the language used by the contractor to communicate with the workers.
"(2) The form must be given to the workers at the time they are hired, recruited or solicited by the contractor or at the time they are supplied to another by the contractor, whichever occurs first.
"(3) The Commissioner has prepared Form WH-151 for use by contractors in complying with this rule. The form is in English and Spanish and is available at any office of the Bureau of Labor and Industries."
Respondent´s failure to provide to each of 22 workers in 1993 the disclosure statements required by ORS 658.440(1)(f) constituted 22 violations of that statute.
4)At times material herein, ORS 658.440 provided, in part:
"(1) Each person acting as a farm labor contractor shall:
" * * *
"(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.
" * * * "
At times material herein, OAR 839-15-360 provided, in part:
"(1) Farm * * * Labor Contractors are required to file information relating to work agreements between the Farm * * * Labor Contractors and their workers with the Bureau.
"(2) The Commissioner has developed Form WH-153 which, in conjunction with Form WH-151, * * * can be used to comply with this rule. Farm * * * Labor Contractors may use any form for filing the information so long as it contains all the elements of Form WH-153 and Form WH-151.
"(3) * * *
"(4) Farm * * * Labor Contractors are required to furnish their workers with a written statement disclosing the terms and conditions of employment, including all the elements contained in Form WH-151 and * * * to execute a written agreement with their workers prior to the starting of work. The written agreement must provide for all the elements contained in Form WH-153. * * * A copy of the agreement must be furnished to workers prior to the workers starting work. * * * "
Respondent´s failure to execute with each of 22 workers in 1993 the written agreement containing the terms and conditions of employment as required by statute constituted 22 violations of ORS 658.440(1)(g).
5)At times material herein, ORS 658.440 provided, in part:
"(1) Each person acting as a farm labor contractor shall:
" * * *
"(e) File with the Bureau of Labor and Industries, as required by rule, information relating to work agreements between the farm labor contractor and farmers and between the farm labor contractor and workers or information concerning changes in the circumstances under which the license was issued.
" * * * "
At times material herein, OAR 839-15-350 provided:
"(1) Farm Labor Contractors are required to file information relating to their agreements with farmers with the Bureau.
"(2) The Commissioner has developed Form WH-152 which can be used to comply with this rule. Farm Labor Contractors may use any form for filing the information so long as it contains all the elements of Form WH-152.
"(3) Farm Labor Contractors must file this information with the Bureau by April 30 of each year. Amended or updated information may be filed at any time. All information must be filed with the Wage and Hour Division, Farm Labor Unit, 3865 Wolverine Street, N.E., Salem, OR 97310."
Respondent´s failure to file a form WH-152 or its equivalent by April 30, 1993 for 1992 constituted a violation of ORS 658.440(1)(e).
6)Respondent´s failure to file a form WH-152 or its equivalent by April 30, 1994 for 1993 constituted a violation of ORS 658.440(1)(e).
7)At times material herein, ORS 658.440 provided, in part:
"(1) Each person acting as a farm labor contractor shall:
" * * *
(h) Furnish to the worker each time the worker receives a compensation payment from the farm labor contractor, a written statement itemizing the total payment and amount and purpose of each deduction therefrom, hours worked and rate of pay or rate of pay and pieces done if the work is done on a piece rate basis, and if the work is done under the Service Contract Act (41 U.S.C.  :S2.  351-401) or related federal or state law, a written statement of any applicable prevailing wage.
" * * * "
At times material herein, OAR 839-15-370 provided, in part:
"(1) Farm and Forest Labor Contractors are required to furnish each worker, each time the worker receives a compensation payment from the contractor, a written itemized statement of earnings. The written itemized statement must include:
"(a) The total gross payment being made;
"(b) The amount and purpose of each and every deduction from the gross payment;
"(c) The total number of hours worked during the time covered by the gross payment;
"(d) The rate of pay;
"(e) If the worker is paid on a piece rate, the number of pieces done and the rate of pay per piece done;
"(f) The net amount paid after any deductions.
"(2) If the worker is being paid for work done under any law which requires the payment of a prevailing rate of wage (such as the Federal Service Contract Act, Davis-Bacon Act or state prevailing wage law), Farm and Forest Labor Contractors must furnish the worker with a written statement specifying the amount to the prevailing wage rate required to be paid.
"(3) The Commissioner has prepared Form WH-154 which contains all the elements required by, and can be used to comply with, this rule. Farm and Forest Labor Contractors may use any form for furnishing this information to workers so long as it contains all the elements of Form WH-154."
Respondent´s failure in 1993 to furnish to each of 22 workers at the time they were paid with an itemized statement of deductions taken from the worker´s pay constituted 22 violations of ORS 658.440(1)(h).
8)At times material herein, OAR 839-15-125 provided:
No person may perform the activities of a Farm or Forest Labor Contractor without first obtaining a temporary permit or license issued by the Bureau. No person may perform the activities of a Forest Labor Contractor or operate a farm-worker camp without first obtaining a special indorsement from the Bureau authorizing such performance. Unless otherwise specifically exempt, and except for cooperative corporations, no person may perform the duties of a farm or forest labor contractor or operate a farm-worker camp under a license issued to be corporation unless the person is also licensed to perform such duties.
Respondent did not act as a farm labor contractor for James Moore in Merrill, Oregon in June and July, 1994, and did not violate ORS 658.410 and OAR 839-15-125.
9)Respondent did not act as a farm labor contractor for Dan and Tammy Shuck in Merrill, Oregon in June and July, 1994, and did not violate ORS 658.410 and OAR 839-15-125.
10)At times material herein, ORS 658.440 provided, in part:
"(1) Each person acting as a farm labor contractor shall:
(a) Carry a labor contractor´s license at all times and exhibit it upon request to any person with whom the contractor intends to deal in the capacity of a farm labor contractor.
* * *
Respondent was not required to carry an Oregon farm labor contractor´s license in 1994 and did not violate ORS 658.440(1)(a).
10At times material herein, ORS 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)* * * "
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;
"(b) Failure of the farm or forest labor contractor to, before beginning work on any contract or other agreement:
(A) Display the license or temporary permit to the person to whom workers are to be provided, or to the person´s agent; or
(B) Provide to the person to whom workers are to be provided, or to the person´s agent, a copy of the license or temporary permit pursuant to ORS 658.453(f).
" * * *
"(e) Failing to pay or distribute when due any money or other valuables entrusted to the contractor in violation of ORS 658.440(1)(c);
" * * *
"(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);
" * * *
"(j) Failing to furnish each worker with an itemized deduction statement and statement as to the rate of wage to be paid and other information in violation of ORS 658.440(1)(h);
" * * *
"(s) Failing to carry the license in violation of ORS 658.440(1)(a);"
" * * * "
The Commissioner of the Bureau of Labor and Industries is authorized to impose civil penalties for violations of ORS 658.405 to 658.503 and 658.830. The penalties imposed in the Order below is a proper exercise of that authority.
 
 
As the result of separate investigations initiated in 1993 and 1994, the Agency brought multiple charges of violation of the Oregon Farm Labor Contractor Act (ORS 658.405 to 658.503) against Respondent. For 1993, Respondent was charged with failure to pay wages when due to 19 persons employed by respondent in Oregon with funds entrusted to Respondent for that purpose, with failure to furnish to 105 workers at the time they were hired, recruited or solicited a written statement describing the worker´s rights and remedies, with failure to execute written agreements between Respondent and 105 workers containing working terms and conditions, with failure to furnish to 75 workers employed by Respondent required itemized statements of earnings and deductions at the time Respondent paid them, and with failure to file a form showing the dates, types and location of work and the name of the farmer contracted with by Respondent in Oregon in 1992 and in 1993. For 1994, Respondent was charged with recruiting, soliciting and supplying 32 workers to perform farm labor for James Moore in Merrill, Oregon, while unlicensed, with recruiting, soliciting and supplying 29 workers to perform farm labor for Daniel and Tammy Shuck in Merrill, Oregon, while unlicensed, and with failure to carry a labor contractor´s license while acting as a farm labor contractor as described. The Agency sought a civil penalty for each violation, including a penalty as to each individual worker involved in each violation.
It is the Agency´s burden to establish by a preponderance of the evidence that Respondent violated the statutes in the manner described. OSCI v. Bureau of Labor and Industries, 98 Or App 548, 780 P2d 743 (1989), rev den 308 Or 660, 784 P2d 1101 (1989). Thus, the Agency must present evidence inferring that the fact of violation is "more probably true than false." In the Matter of Sunnyside Inn, 11 BOLI 151 (1993). Using this standard, it was established to the Forum´s satisfaction by a preponderance of evidence on the whole record that Respondent in 1993 failed to pay wages when due to 19 Oregon employees with funds entrusted to Respondent for that purpose:
1. Respondent billed the services of workers in Oregon at $4.75 an hour in 1993 and was paid at that rate by Oregon farmers.
2. 19 workers in Oregon were initially paid $4.25 an hour.
3. The Agency made claim for the differential against Respondent´s bond.
4. The bond claim was paid.
It was established by a preponderance of evidence on the whole record that Respondent in 1993 failed to furnish to 22 workers at the time they were hired, recruited or solicited with a written statement describing the worker´s rights and remedies:
1. Respondent hired, recruited or solicited workers in Oregon in 1993.
2. 22 of Respondent´s workers in Oregon stated that they did not receive a written statement describing their rights and remedies when they were hired, recruited or solicited.
3. Respondent had no record of providing the required statement to those 22 workers.
4. Respondent had no record of providing the required statement to as many as 83 additional workers, but some of these, though not all, received such statements.
It was established by a preponderance of evidence on the whole record that Respondent failed to execute written agreements containing working terms and conditions between himself and 22 workers in 1993:
1. Respondent hired and employed workers in Oregon in 1993.
2. 22 of Respondent´s workers in Oregon stated that Respondent failed to execute written agreements containing working terms and conditions between himself and the 22 workers.
3. Respondent had no record of executing written agreements containing working terms and conditions between himself and those 22 workers.
4. Respondent had no record of executing written agreements containing working terms and conditions between himself and as many as 83 additional workers, but some of these, though not all, received such agreements.
It was established by a preponderance of evidence on the whole record that Respondent failed to file any report showing the dates, types and location of work, and names of farmers contracted with in Oregon for 1992 or 1993.
1. Respondent admitted he had filed no annual report of farmers contracted with for 1992 or 1993.
It was established by a preponderance of evidence on the whole record that Respondent failed to furnish to 22 workers employed by Respondent in 1993 itemized statements of earnings and deductions as required at the time Respondent paid the workers:
1. Respondent employed workers in Oregon in 1993.
2. 22 workers employed by Respondent in Oregon stated that Respondent failed to furnish them with itemized statements of earnings and deductions as required at the time Respondent paid them.
3. Respondent had no record of furnishing those 22 workers itemized statements of earnings and deductions.
4. Respondent had no record of furnishing itemized statements of earnings and deductions to as many as 53 additional workers, but some of these, though not all, received such agreements.
It was not established by a preponderance of evidence on the whole record that Respondent in 1994, while unlicensed, recruited, solicited and supplied 32 workers to perform farm labor for James Moore in Merrill, Oregon:
1. Respondent was not licensed in Oregon in 1994.
2. Respondent denied employing workers in Oregon in 1994.
3. James Moore denied using Respondent as a contractor in Oregon in 1994.
4. One of Respondent´s foremen stated that there was some work in Oregon in 1994, but not for Moore.
5. Moore hired workers in Oregon in 1994 who had also worked for Respondent in California.
6. Moore paid those workers directly; there was no record that Moore paid anything to Respondent in 1994.
It was not established by a preponderance of evidence on the whole record that Respondent in 1994, while unlicensed, recruited, solicited and supplied 29 workers to perform farm labor for Daniel and Tammy Shuck in Merrill, Oregon.
1. Respondent was not licensed in Oregon in 1994.
2. Respondent denied employing workers in Oregon in 1994.
3. Daniel and Tammy Shuck denied using Respondent as a contractor in Oregon in 1994.
4. One of Respondent´s foremen stated that there was some work in Oregon in Oregon in 1994, but not for the Shucks.
5. The Shucks hired workers in Oregon in 1994 who had also worked for Respondent in California.
6. The Shucks paid those workers directly.
7. Four of Respondent´s workers stated that they worked in Oregon in June, 1994, for Respondent, but their paychecks were issued by the Shucks.
8. The Shucks hired Rana Khan as a bookkeeper in 1994; there was no evidence that the Shucks paid anything to Respondent or to Rana Khan for supplying workers in 1994.
It was not established by a preponderance of evidence on the whole record that Respondent in 1994 acted as a farm labor contractor and failed to carry a labor contractor´s license.
In formulating its factual findings, the Forum has confined itself to the record, as it is obligated to do. It would be speculative to predicate from 50 to 80 individual violations of supplying worker documents upon Respondent´s alleged admissions to the investigator which Respondent later recanted at hearing, particularly where the workers who testified stated that such documents were generally supplied to them. Similarly, where the farmers and Respondent deny contracting in Oregon in 1994, the opinion of absent workers that they worked for Respondent, although paid by the farmer, and the statement of a foreman regarding work for other farmers in Oregon is insufficient to overcome those denials. Based on the Forum´s evaluation of the evidence, the Order below is appropriate.
 
Respondent´s Exceptions
Respondent excepted to the findings and conclusions of the Proposed Order as follows: Exception:
I. 19 violations of ORS 658.440(1)(c) in 1993 (failing to pay when due all monies entrusted to him for that purpose);
II. 22 violations of ORS 658.440(1)(f) (failing to furnish 22 workers written statements of their rights and remedies);
III. 22 violations of ORS 658.440(1)(g) (failing to execute written agreements containing labor terms and conditions);
IV. 22 violations of ORS 658.440(1)(h) (failing to furnish workers with written statements itemizing deductions from their pay).
V. Respondent admitted to two violations of ORS 658.440(1)(e) (failure to file forms regarding contracts with farmers in 1992 and 1993), but excepted to the civil penalty proposed of $500 per violation as "an unconscionable abuse of agency discretion" for "technical, paperwork violations."
Respondent argues that the failure to pay count was based on unrecorded and undocumented interviews of persons who did not testify and did not otherwise make claim against Respondent. Respondent also noted an "inability to rebut the allegations due to a missing former foreman and missing records, and to a bonding company action of which Respondent had no notice." In the latter regard, Respondent claims no prior notice and no opportunity to defend the bonding action, stating "It is undisputed that the bonding company addressed its notice to respondent incorrectly and the notice was not delivered to respondent," and that BOLI "made no effort to notify respondent of the claim against the bond."
 
The Agency investigator interviewed 22 individuals who had worked for Respondent in Oregon in 1993; all indicated they had not received the rights and remedies statements, executed written agreements containing labor terms and conditions, or been furnished with written statements itemizing their deductions. All 22 told the investigator that they had received the lower California wage for their Oregon work. Three of these were later paid when they confronted Respondent directly. The remaining 19 were paid by the bonding company._ Respondent testified to receiving notice of the bonding action and discussing it with the Agency investigator. The Agency evidence regarding these 22 interviews was hearsay, but nothing on this record indicates that it was anything but reliable. Respondent´s exceptions I-IV are overruled.
As to the amount of civil penalty of $500 for each admitted violation of ORS 658.440(1)(e), ORS 658.453 authorizes the Commissioner to impose a penalty of up to $2,000 for each violation. The penalties imposed herein are reasonable, and Respondent´s exception V is overruled.
 
 
NOW, THEREFORE, as authorized by ORS 658.453, Respondent MOHAMMAD NAWAZ KHAN, dba Khan Farm Labor Contractor, is 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 FIFTY-THREE THOUSAND DOLLARS ($53,000), 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 Respondent complies herewith. This assessment is made as civil penalty against said Respondent as follows:
 
for 19 violations of ORS 658.440(1)(c), $19,000 ($1,000 per violation);
for 22 violations of ORS 658.440(1)(f), $11,000 ($500 per violation);
for 22 violations of ORS 658.440(1)(g), $11,000 ($500 per violation;
for two violations of ORS 658.440(1)(e), $1,000 ($500 per violation;
for 22 violations of ORS 658.440(1)(h), $11,000 ($500 per violation,
(total $53,000).
 
DATED This ______ Day of December, 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 FOLLOWING AGENCIES AT THE ADDRESSES LISTED BELOW:
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
ATTN: MARY LOGUE
400 JUSTICE BUILDING
SALEM, OREGON 97310