U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

ADMINISTRATOR, WAGE

AND HOUR DIVISION, UNITED

STATES DEPARTMENT OF LABOR,

PROSECUTING PARTY,

ARB CASE NO. 2023-0038

ALJ CASE NOS. 2022-MSP-00002

2022-TAE-00004

CHIEF ALJ STEPHEN R. HENLEY

DATE: July 17, 2025

A&M LABOR MANAGEMENT, INC.,

RESPONDENT.

Appearances:

For the Administrator, Wage and Hour Division:

Elena Goldstein, Esq.; Jennifer S. Brand, Esq.; Sarah Kay Marcus,

Esq.; Rachel Goldberg, Esq.; Sejal Singh, Esq; U.S. Department of

Labor, Office of the Solicitor; Washington, District of Columbia

For the Respondent:

Shaina Thorpe, Esq.; ThorpeLaw, P.A.; Tampa, Florida

Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL,

Administrative Appeals Judge

DECISION AND ORDER AFFIRMING IN PART AND REVERSING IN PART

This case arises under the H-2A provisions of the Immigration and

Nationality Act (INA), as amended,1 including the U.S. Department of Labor’s

(Department or DOL) implementing regulations found at 20 C.F.R. Part 655,

8 U.S.C. §§ 1101(a)(15)(H)(ii)(a), 1184(c)(1), 1188.

Subpart B and 29 C.F.R. Part 501 (collectively, the H-2A program).2 The INA’s H2A program allows employers to hire foreign, nonimmigrant workers to temporarily

fill agricultural positions in the United States.

On December 15, 2020, the Tampa, Florida office of DOL’s Wage and Hour

Division (WHD) issued a Notice of Determination of H-2A violations (NOD) to A&M

Labor Management, Inc. (Respondent or A&M), finding back wages owed, assessing

civil money penalties (CMPs), and debarring Respondent.3 Respondent sought

review of the NOD and requested a hearing.4

On March 23, 2023, DOL Chief Administrative Law Judge (Chief ALJ)

Stephen R. Henley issued a D. & O. after a hearing.5 In the D. & O., the Chief ALJ

affirmed one of the H-2A violations found in the NOD, reduced the amount of back

wages and CMPs owed, and declined to debar A&M from receiving future labor

certifications.6 On April 24, 2023, the Administrator of WHD (Administrator) filed a

Petition for Review with the Administrative Review Board (Board or ARB).

For the reasons set forth below, we affirm, in part, and reverse, in part, the

Chief ALJ’s ruling.

BACKGROUND AND PROCEDURAL HISTORY

Gregorio Gonzalez, Sr. (Gonzalez Sr.) is the owner and manager of A&M,

while Gregorio Gonzalez, Jr. (Gonzalez Jr.) is also a manager of A&M and the son of

The events in this case occurred during 2018 and 2019. At the time, the

Department’s 2010 H-2A regulations were in effect. Unless otherwise noted, all regulations

cited are to the 2010 version of the regulations.

Administrator’s Exhibit (PX) 19; Decision and Order (D. & O.) at 2.

D. & O. at 2.

The Chief ALJ’s D. & O. also covered issues under the Migrant and Seasonal

Agricultural Worker Protection Act (MSPA). The Administrator separately appealed the

D. & O.’s MSPA ruling, and on July 31, 2023, the Board issued a Decision and Order on the

MSPA portion of the case. See Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. A&M Labor

Management, Inc., ARB No. 2023-0025, ALJ Nos. 2022-MSP-00002, 2022-TAE-00004 (ARB

July 31, 2023).

D. & O. at 2, 18-19.

Gonzalez Sr.7 In 2018, the DOL certified A&M’s applications for Temporary

Employment Certifications (TEC 1 and TEC 2).8 TEC 1 and 2 authorized A&M to

employ foreign workers for two different harvesting operations in 2018 and 2019.9

1. TEC 1 and 2; WHD Notice of Determination10

TEC 1 authorized A&M to hire up to 30 foreign workers for corn harvesting

and packing in Vincennes, Indiana, for the period of July 6, 2018, to October 5,

2018.11 In addition to foreign workers, A&M also hired U.S. Haitian workers from

Belle Glade, Florida, to harvest and pack corn in Indiana.12 Gonzalez Sr. went to

Indiana to oversee the harvest.13 Early in the TEC 1 period, A&M terminated its

contract with a group of 13 U.S. workers of Haitian descent, sending them from the

worksite in Indiana back home to Florida.14 A&M claimed that the U.S. workers

had refused to work in rainy and muddy conditions, and it could not afford to pay

for hotel rooms for an additional week if the workers refused to report to the

worksite.15 Subsequently, in the WHD investigation, four of the U.S. workers sent

back to Florida “provided statements to the effect that they believed they had been

sent home because [A&M] preferred to work with H-2A workers, rather than U.S.

workers.”16 In its NOD, the WHD determined that A&M had improperly laid off the

13 workers in violation of 20 C.F.R. § 655.135(g), and that A&M’s unlawful layoffs

also violated 20 C.F.R. § 655.122(i)’s three-fourths guarantee requirement to offer

Administrator Brief (Adm’r Br.) at 7, 9; D. & O. at 5. Gonzalez Jr. testified at the

hearing for A&M. Adm’r Br. at 9. In 2019, 2020, and 2021, Respondent earned profits of

about $300,000 to $400,000 each year. D. & O. at 9.

D. & O. at 5, 7.

Id. at 5, 7.

The WHD NOD identified other violations, but we only recount the WHD violations

that are relevant on appeal.

D. & O. at 5. In June 2018, the Department of Labor certified A&M’s application for

TEC 1, which was assigned number H-300-18131-141957. Id.

Id.

Id. at 6. We note there is some disagreement in the record regarding whether one of

the U.S. workers was of Haitian descent, but it is not relevant to our decision.

Id. at 5-6.

Id. at 6.

employment for three-fourths of the workdays.17 For the unlawful layoff violations,

WHD assessed $206,505.00 in CMPs, and for the three-fourths guarantee

violations, WHD assessed $47,098.73 in back wages.18

TEC 2 authorized A&M to hire up to 30 foreign workers to harvest and pack

corn at multiple worksites in Florida, including “5058 E Sugarland Hwy.,

Clewiston, Florida 33440” and “Florida Other/Miami Canal Road and Rodgers Road,

Lake Harbor, Florida, 33430” for the period of January 10, 2019, to June 1, 2019.19

In 2019, WHD Investigator Paul Dean (Investigator) investigated A&M for

the period of July 6, 2018, to June 5, 2019.20 Subsequently, on December 15, 2020,

the district director of the WHD’s Tampa, Florida office issued a NOD letter to

A&M, finding H-2A violations under TEC 1 and 2.21

In its NOD, WHD determined that A&M committed several violations in

connection with TEC 2.22 WHD determined that A&M did not satisfy the conditions

of the job order for TEC 2 by failing to disclose a third worksite and by listing an

experience requirement that it did not in fact require, for which WHD assessed

$3,178.80 in CMPs.23 WHD also determined that A&M unlawfully rejected a

qualified U.S. worker, for which WHD assessed $5,960.01 in back wages and a CMP

of $14,120.00.24 Finally, in the NOD, WHD imposed a three-year debarment based

on A&M’s violations.25

PX-19 at 2, 8; D. & O. at 8.

D. & O. at 8.

Id. at 7. In December 2018, the Department of Labor certified A&M’s application for

Temporary Employment Certification, which was assigned H-300-18313-191684. Id.

Id.

Id. at 2, 7. The NOD assessed back wages in the amount of $53,626.36, CMPs in the

amount of $228,557.40, and a three-year debarment. Id. at 2.

PX-19; D. & O. at 8-9.

D. & O. at 9.

Id. at 8-9.

Id. at 2, 9, 9 n.21.

2. Chief ALJ’s Decision26

A&M sought review of the NOD, and the Chief ALJ held a hearing on July

21, 2022, and July 27, 2022.27 On March 23, 2023, the Chief ALJ issued a D. & O.

affirming only one of the violations in the NOD–specifically, WHD’s determination

that A&M failed to hire a qualified U.S. worker in TEC 2.28 The worker (Wilson

Michel) “told Mr. Gonzalez, Sr. that he was available and willing to work,” but A&M

did not provide work, violating 20 C.F.R. § 655.135(d).29 Therefore, the Chief ALJ

assessed back wages owed to Wilson Michel of $5,960.01 and a CMP of $13,875.20.30

This finding is uncontested on appeal, but is relevant to debarment considerations.

The Chief ALJ rejected the rest of the WHD’s determinations in the NOD and found

A&M did not commit any other H-2A violations.

First, the Chief ALJ rejected the Administrator’s determination that A&M

improperly laid off the 13 U.S. workers.31 Instead, the Chief ALJ ruled that A&M

fired the 13 U.S. workers for their refusal to work in rainy conditions and that the

U.S. workers’ race, ethnicity, or heritage played no role in Respondent’s decision.32

In reaching that conclusion, the ALJ found that early in the TEC 1 period, it rained

heavily in Indiana, creating muddy conditions.33 A&M still expected the foreign and

U.S. workers to work, but a group of U.S. workers refused to work due to the rain

and muddy conditions.34 Gonzalez Jr. spoke with “the crew leader for the U.S.

workers refusing to work,” and the crew lead told Gonzalez Jr. “that he would speak

to his crew about showing up,” but “when the bus showed up to the hotel to take the

We only recount the Chief ALJ’s H-2A rulings that are relevant or contested by the

Administrator on appeal.

D. & O. at 2-3.

Id. at 14. The H-2A program requires that employers provide “employment to any

qualified, eligible U.S. worker who applies to the employer” during the first half of the

contract period. 20 C.F.R. § 655.135(d).

D. & O. at 14.

Id. at 16, 18-19. The Chief ALJ applied a 20% reduction to the CMP because A&M

had no previous H-2A violations, A&M was a small business, and only one worker was

affected. Id. at 19.

Id. at 11-12, 16, 18.

Id. at 12.

Id. at 5.

Id.

workers to the worksite,” the “crew was not waiting outside and did not respond

when the bus driver knocked on hotel room doors . . . .”35

With “respect to the reason U.S. workers were sent home from Indiana,” the

Chief ALJ found “credible the version of events offered by Gonzalez Jr. who testified

that rainy conditions put the corn harvest behind schedule and that Respondent

needed as many workers as possible to catch up.”36 A&M “decided that it could not

afford to pay for hotel rooms for an additional week if the workers refused to report

to the worksite,” and “[u]ltimately, Respondent terminated its contract with 13 U.S.

workers.”37 The Chief ALJ also found that “Respondent [had] paid to transport U.S.

workers from Florida to Indiana because it needed help with the harvest,” and “it

does not follow that Respondent would indiscriminately and unlawfully lay off such

a large group of workers at the precise time Respondent needed more work done.”38

Therefore, the Chief ALJ found that A&M did not improperly lay off the workers in

violation of 20 C.F.R. § 655.135(g).39 Similarly, the Chief ALJ ruled that because

“Respondent did not improperly lay off U.S. workers, it cannot serve as the factual

basis for the allegation that Respondent did not comply with the three-fourths

guarantee” under 20 C.F.R. § 655.122(i).40 The Chief ALJ reversed the back wages

and penalties assessed by WHD.41

Second, the Chief ALJ rejected the Administrator’s determination that A&M

failed to satisfy the requirements of the job order for TEC 2.42 The Administrator

alleged that “[A&M] placed workers at worksites not listed on the certified H-2A

contract” and A&M “listed false experience requirements” in the job order.43 The

Chief ALJ found that the Administrator failed to prove the charge because WHD

cited the incorrect regulatory provision in its NOD: WHD cited 20 C.F.R.

Id.

Id. at 6.

Id. at 5-6.

Id. at 6.

Id. at 12.

Id.

Id. at 18.

Id. at 14-15.

Id. at 14 (quotations omitted).

§ 655.121(a)(3) and the Chief ALJ ruled that WHD should have cited subparagraph

(a)(4) of that regulation.44 The Chief ALJ reversed the penalties assessed by WHD.45

Third, the Chief ALJ found debarment was not warranted. The only violation

was “Respondent’s unlawful rejection of one U.S. worker in January 2019,” which

the Chief ALJ found was not a “substantial violation of the regulation” and did not

support debarment.46

On appeal, the Administrator timely filed a Petition for Review of these three

rulings by the Chief ALJ.47

JURISDICTION AND STANDARD OF REVIEW

The Secretary has delegated the authority to review this matter to the

Board.48 The ARB reviews an ALJ’s decision de novo and acts with “all the powers

which it would have in making the initial decision . . . .”49 In addition, because an

ALJ observes all witnesses throughout a hearing, the Board generally defers to an

ALJ’s credibility findings “unless they are inherently incredible or patently

unreasonable.”50

Id. at 14-15.

Id. at 18.

Id. at 20.

The Administrator originally sought review of four of the Chief ALJ’s H-2A related

rulings, but the Administrator withdrew appeal of one of the rulings after further review of

the evidence. Adm’r Br. at 4 n.2.

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020); 29

C.F.R. § 501.42.

5 U.S.C. § 557(b); see also Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Ten West

Cattle, Inc., ARB Nos. 2024-0003, 2023-0058, ALJ No. 2023-TAE-00002, slip op. at 8 (ARB

May 29, 2025); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Washington Farm Labor

Association, ARB No. 2021-0069, slip op. at 8 (ARB Mar. 31, 2023) (“The ARB, on review

from the ALJ, reviews the record de novo, including the CMP assessments.”) (citations

omitted).

Klinger v. BNSF Ry. Co., ARB No. 2023-0003, ALJ No. 2016-FRS-00062, slip op. at 5

(ARB July 23, 2024) (citations and inner quotations omitted); see also Gourneau v. BNSF

Ry. Co., ARB No. 2023-0034, ALJ No. 2021-FRS-00018, slip op. at 14 (ARB May 21, 2025).

DISCUSSION

On appeal, the Administrator raises three primary arguments. First, the

evidence does not support the Chief ALJ’s conclusion that A&M did not unlawfully

lay off 13 U.S. workers and A&M did not violate the three-fourths guarantee.51

Second, the Board should reverse the Chief ALJ’s dismissal of WHD’s charge that

A&M failed to satisfy the conditions in its job order.52 Third, the Chief ALJ’s

decision that debarment was not warranted should be vacated and remanded. 53

Upon review of the Chief ALJ’s D. & O., the parties’ arguments on appeal,

and the record, the Board concludes that: (1) the Chief ALJ correctly found that

A&M fired the workers for refusal to work in muddy conditions; (2) the Chief ALJ

erred in finding that A&M did not violate 20 C.F.R. § 655.121(a)(3)’s requirement to

satisfy the conditions listed in its job order; and (3) the Chief ALJ correctly found

that debarment is not warranted.

1. A&M Fired the U.S. Workers for Refusal to Work in Muddy Conditions in

TEC 1

We affirm the Chief ALJ’s determination that A&M fired the 13 U.S. workers

for refusing to work in rainy and muddy conditions and that A&M did not lay off the

workers for discriminatory reasons. Therefore, we also affirm the Chief ALJ that

A&M did not violate 20 C.F.R. § 655.135(g)’s protection against unlawful layoffs or

violate the three-fourths guarantee of 20 C.F.R. § 655.122(i).

The regulations at issue impose the following requirements on H-2A

employers. First, under 20 C.F.R. § 655.135(g), an H-2A employer must not “lay off

any similarly employed U.S. worker in the occupation that is the subject of the

Adm’r Br. at 12. The Administrator argues that the Chief ALJ’s finding “fails the

substantial evidence standard” and that the “Board should vacate and remand for proper

consideration of all relevant evidence.” Id. at 14-15. However, in H-2A cases, the

Administrative Procedure Act governs our review. 5 U.S.C. § 557(b). Therefore, “[t]he ARB

reviews an ALJ’s decision de novo and acts with all the powers [the Secretary] would have

in making the initial decision.” Ten West Cattle, Inc., ARB Nos. 2024-0003, 2023-0058, slip

op. at 8 (citations and quotations omitted). Moreover, “[t]he ARB, on review from the ALJ,

reviews the record de novo, including the CMP assessments.” Washington Farm Labor

Association, ARB No. 2021-0069, slip op. at 8.

Adm’r Br. at 15, 32.

Id. at 14-15.

Application for [TEC], except for lawful, job-related reasons within 60 days of the

first date of need[.]”54 Second, 20 C.F.R. § 655.122(i)’s three-fourths guarantee

requires that an H-2A employer must offer each worker “employment for a total

number of work hours equal to at least three-fourths of the workdays of the total

period . . . specified in the work contract . . . .”55 However, an H-2A employer is

relieved of the three-fourths guarantee when a worker is “terminated for cause.”56

The WHD charged A&M with violations of 20 C.F.R. § 655.135(g) and 20

C.F.R. § 655.122(i) for improperly laying off U.S. workers early in TEC 1.57 The

Chief ALJ disagreed with WHD and found that “the 13 U.S. workers did not want to

work in the rain and mud and Respondent fired them for their refusal to do so and

that their race, ethnicity, or heritage played no role in that decision.”58 Thus, the

Chief ALJ found no violation of 20 C.F.R. § 655.135(g), stating “the 13 U.S. workers

were not laid off because of their background or ethnicity.”59 Furthermore, the Chief

ALJ found no violation of 20 C.F.R. § 655.122(i), noting that “[b]ecause I previously

found that Respondent did not improperly lay off U.S. workers, it cannot serve as

the factual basis for the allegation that Respondent did not comply with the threefourths guarantee.”60

On appeal, the Administrator argues the Chief ALJ failed to properly

consider significant, relevant evidence in the record, including evidence showing

that A&M laid off the 13 U.S. workers for discriminatory reasons and evidence

showing that A&M’s claims about why it fired 13 U.S. workers were pretextual.61

Furthermore, given that the evidence shows that the A&M unlawfully laid off 13

Even when an employer has a lawful, job-related reason for a layoff, the employer

must lay off “all H-2A workers” before laying off “any U.S. worker in corresponding

employment.” 20 C.F.R. § 655.135(g).

Id. at § 655.122(i).

Id. at § 655.122(n) (emphasis added).

PX-19 at 8; D. & O. at 8.

D. & O. at 12 (emphasis added); see also id. at 6 (“I find the evidence does not

support that the U.S. workers sent back to Florida were laid off due to Respondent’s alleged

animus toward Haitians. Rather, I find that the U.S. workers were fired and sent back to

Florida because they refused to work in rainy conditions.”) (emphasis added).

Id. at 12 (emphasis added).

Id. (emphasis added).

Adm’r Br. at 15-16, 18-28.

U.S. workers, the Administrator argues that the Chief ALJ erred in concluding that

A&M did not violate 20 C.F.R. § 655.135(g) (protecting against improper layoffs)

and 20 C.F.R. § 655.122(i) (requiring employers meet the three-fourths

guarantee).62 The Administrator argues the Board should vacate and remand for

proper consideration of all relevant evidence.63

As discussed in the following sections, we disagree with the Administrator.

First, the record supports the Chief ALJ’s finding that A&M fired the workers for

refusing to work in rainy and muddy conditions, not for discriminatory reasons.

Second, because A&M did not improperly lay off the workers, the Board affirms the

Chief ALJ’s ruling that A&M did not violate 20 C.F.R. § 655.135(g) or 20 C.F.R.

§ 655.122(i).

A. The Record Supports the Chief ALJ’s Finding that A&M Fired Workers for

Refusal to Work in Rainy and Muddy Conditions, Not Discriminatory

Reasons

We find that the record supports the Chief ALJ’s finding that A&M fired the

13 U.S. workers for refusing to work in rainy and muddy conditions and that the

workers were not laid off for discriminatory reasons. Notably, the Chief ALJ found

Gonzalez Jr.’s version of events to be credible as to why the U.S. workers were sent

home from Indiana.64 The ARB only disturbs credibility findings when “they are

inherently incredible or patently unreasonable.”65 Far from being “inherently

incredible,” Gonzalez Jr.’s version of events was reasonable and logical. Gonzalez Jr.

testified that A&M paid approximately $4,500 for the charter bus to transport the

workers to Indiana.66 Once in Indiana, A&M “needed all hands on deck” because the

“crops were completely ready and [they] were behind.”67 However, the U.S. workers

refused to work in the rain and muddy conditions,68 and A&M “could not afford to”

Id. at 16, 28-29.

Id. at 14, 22-23, 28.

D. & O. at 6.

Klinger, ARB No. 2023-0003, slip op. at 5 (citations and inner quotations omitted).

Hearing Transcript (Tr.) at 348-49; see also D. & O. at 5.

Tr. at 356; see also D. & O. at 6.

Tr. at 351-57; see also D. & O. at 5.

continue paying for their hotel rooms.69 Therefore, A&M fired the U.S. workers for

refusing to work70 and A&M “paid approximately $2,200 for the charter bus” to

transport those workers back to Florida.71 In sum, the record supports the Chief

ALJ’s finding that A&M fired the workers for failure to work in the rainy and

muddy conditions, not for discriminatory reasons. The Chief ALJ’s findings are

logical, well-reasoned, and supported by the record. We affirm them.

On appeal, the Administrator argues the Chief ALJ failed to properly

consider certain evidence showing that A&M discriminated against the U.S.

workers and that A&M’s claims about why it fired the U.S. workers were

pretextual.72 Furthermore, because the Chief ALJ failed to explain why it ignored or

discounted key evidence of discrimination and pretext, the Administrator argues

the Board should vacate and remand for further review.73

We disagree. First, in support of pretext, the Administrator highlights how

the Chief ALJ did not address “evidence in the record that shows that A&M had

repeatedly hired many of the same U.S. workers for years”74 and that “the record

does not contain any evidence that A&M had ever objected to those workers’

performance.”75 We disagree with the Administrator that this shows pretext. In

fact, it weighs in favor of Gonzalez Jr.’s version of events.

The evidence that A&M had a long history of employing and hiring the same

workers undermines the Administrator’s theory that A&M’s reason for firing the

workers was pretextual and A&M actually fired the workers for discriminatory

reasons. Gonzalez Jr. acknowledged in his testimony that the U.S. workers had

“been doing this for a long time” and [t]hey are very good at their job,”76 but he also

explained what had changed that caused the firing: “[t]hey just did not want to do it

Tr. at 356; see also D. & O. at 6.

Tr. at 354; see also D. & O. at 6.

Tr. at 357; see also D. & O. at 6.

Adm’r Br. at 15-16, 18-28.

Id. at 14, 22-23, 28.

Id. at 13.

Id. at 25.

Tr. at 356.

in the rain.”77 Gonzalez Jr.’s testimony shows that the change in the ongoing

working relationship was that the U.S. workers refused to work in the rain. It

strains credulity that A&M would repeatedly hire the same workers for many years,

pay to transport the workers to Indiana, and then abruptly fire them in the middle

of a busy season for discriminatory reasons (which had not prevented A&M from

hiring the same workers in the past).78 The more reasonable explanation, and the

explanation that the Chief ALJ found to be credible, is that the workers refused to

work in the rainy conditions, it was expensive to continue paying for the workers’

hotel rooms, and A&M fired the workers.79

Next, the Administrator relies heavily on the statements of four fired workers

to show that A&M’s actions were driven by racial animus and preference for H-2A

workers, arguing that the Chief ALJ did not provide an adequate analysis of the

worker statements.80 We have independently reviewed those statements and

concede that the ALJ could have done a more thorough job in determining their

impact and relevancy.81 However, our own review indicates that we cannot give the

statements the weight argued for by the Administrator. Although the statements

are a key pillar of the Administrator’s position, the statements as reflected in the

record are without context. Because the Investigator translated and transcribed the

worker statements,82 we do not know the exact questions asked by the

Investigator—which may or may not been leading—and the statements stand

Id.

See D. & O. at 6 (“Respondent [had] paid to transport U.S. workers from Florida to

Indiana because it needed help with the harvest,” and “it does not follow that Respondent

would indiscriminately and unlawfully lay off such a large group of workers at the precise

time Respondent needed more work done.”).

See id.

Adm’r Br. at 18-23. The WHD obtained the statements from the workers after A&M

fired them. D. & O. at 6.

The Chief ALJ referenced the four worker statements in the D. & O. at 6, 6 n.14.

The Investigator testified that he “would ask the questions,” then “[t]he translator

would ask the question in Creole and give me an interpretation of the answer which is what

I memorialized.” Tr. at 168.

without any cross examination.83 In addition, the worker statements appear to

contain errors, raising questions about their reliability.84

Further, since it is apparent that the interviews were done over the phone,

there appears to be no reason in the record, or offered by the Administrator, as to

why the workers could not have testified at least virtually, with the opportunity for

cross examination, either in the hearing or through depositions. We are mindful of

practical geographic difficulties, but in a world where virtual communications are

now quite common, this anomaly stands out and is left unexplained. If these four

statements were a mere sidebar to the Administrator’s argument, this might be

somewhat irrelevant, but given their key nature to the Administrator’s argument,

we are unable to give them the weight argued for without more context.

Our concern with the failure of the Administrator to take simple steps such

as a virtual deposition testimony of any of the four employees is further underscored

by the failure of the investigator to even ask the employer directly about the

reasons for the layoffs. This is of course the gravamen of the entire case before us

and yet the investigator failed to pursue that avenue of inquiry.85 Whether this was

because of a concern about receiving an answer that would undermine the

prosecution or an odd oversight, the omission of this line of inquiry together with

the failure to bolster the statements by the four employees on which the

Administrator so heavily relies undermines the Administrator’s position. In sum,

the ex parte witness statements from four impacted workers do not persuade us to

disturb the Chief ALJ’s logical, well-reasoned explanation for why the evidence

supported a finding that A&M fired the workers for failure to work in rainy

conditions, not for discriminatory reasons.

The Administrator also claims the Chief ALJ did not consider other evidence

of pretext and “never acknowledged evidence that undermines A&M’s trial

In contrast, Gonzalez Jr. was subject to cross examination, which further

strengthens the Chief ALJ’s credibility determination about Gonzalez Jr.

For example, one of the workers noted that “I was with 15 Haitians he fired when

we were in Indiana last year.” PX-15. A&M terminated the employment of 13 U.S. workers,

not 15. D. & O. at 6.

The Investigator testified that he requested and never received documentation from

A&M to support a layoff or termination, but importantly, the Investigator also testified that

he never interviewed A&M for an explanation of why the U.S. workers left Indiana. Tr. at

278-80.

testimony,” including that “A&M changed its story and claimed for the first time at

trial that it had laid off the 13 workers because of their refusal to work due to the

weather, even though none of the four worker statements so much as mentioned

rain or muddy conditions.”86 The Board does not find compelling the Administrator’s

argument that A&M changed its story.

The record is unclear why the worker statements did not mention rain or

muddy conditions, but as discussed above, the worker statements suffer from

several evidentiary deficiencies. As already noted, the Board cannot tell the exact

question asked by the Investigator and the exact answer provided by the workers.

In addition, none of the workers were subject to cross examination. Therefore, we

cannot determine why the worker statements did not mention rain or muddy

conditions, but we do not take the absence as evidence that A&M changed its story.

Furthermore, the record before the Chief ALJ seems to have gaps, and it

appears that WHD may have failed to fully develop the context and evaluate both

sides when determining that A&M violated H-2A regulations. As we discussed

above, the Investigator testified that he never interviewed A&M for an explanation

of why the U.S. workers left Indiana.87 Without asking that crucial question of

A&M, the Investigator may not have learned of the muddy and rainy conditions

until the hearing and would not have known to ask the workers about the rain or

muddy conditions earlier. Therefore, we do not find it persuasive that A&M changed

its story because the four worker statements did not mention the rain or muddy

conditions, especially given that the Investigator never asked A&M for an

explanation of why the workers left Indiana.

Adm’r Br. at 26-27. The Administrator also argues that the Chief ALJ “omits the

fact that A&M’s sole live witness Gonzalez, Jr., was never present at the Indiana job site

and did not have first hand knowledge of the conditions.” Id. at 26-27. We do not find this

persuasive. Gonzalez Jr. was subject to cross examination at the hearing and the Chief ALJ

found “credible the version of events offered by Mr. Gonzalez, Jr.” D. & O. at 6.

Furthermore, the evidence shows that Gonzalez Jr. was closely involved and monitoring

what occurred in Indiana. For example, Gonzalez Jr. spoke with “the crew leader for the

U.S. workers refusing to work.” Id. at 5. Moreover, in Gonzalez Jr.’s testimony, he indicated

that he spoke to his father and the bus drivers who were in Indiana, that he paid the hotel

bills, and that he ultimately made the decision to fire the workers for refusing to work in

the rain. Tr. at 354-55, 359.

Tr. at 280.

Finally, in support of the argument that A&M had a discriminatory motive in

laying off the workers, the Administrator claims the Chief ALJ overlooked a

statement by Gonzalez Jr. of A&M, who testified at the hearing that: “[a]nybody

that works in farm labor contracting can tell you that a Haitian worker will not

work in adverse weather. They just will not work in the rain or muddy conditions.”88

We do not assign much weight to one stray comment, and the remark does not

overcome the evidence supporting the Chief ALJ’s finding that A&M fired the

workers for refusal to work in rainy and muddy conditions.

On this point, we need not leave common sense at the door. Courts have

recognized that relatively isolated comments should be evaluated in the context of

the relevant workplace, and that not all workplaces are the same.89 In cases arising

under the National Labor Relations Act and Title VII of the Civil Rights Act of

1964, courts have long recognized that heated speech, even speech laden with

sexual or racial overtones, must be viewed in the context in which it is uttered.90

On the one hand, “[s]peech that might be offensive or unacceptable in a prep school

facility meeting or on the floor of Congress, is tolerated in other work

environments.”91 On the other hand, employers have obligations under Title VII to

Adm’r Br. at 20; see also Tr. at 350.

See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998) (“The real

social impact of workplace behavior often depends on a constellation of surrounding

circumstances, expectations, and relationships which are not fully captured by a simple

recitation of the words used or the physical acts performed. Common sense, and an

appropriate sensitivity to social context, will enable courts and juries to distinguish

between simple teasing or roughhousing among members of the same sex, and conduct

which a reasonable person in the plaintiff's position would find severely hostile or

abusive.”).

See Kurt Stumpo, Driving the National Labor Relations Act Forward: Analyzing

Abusive Conduct that Occurs in the Course of Protected Activity After General Motors LLC,

43 CARDOZO L. REV. 1999, 2022 (2000) (“The Board and federal appellate courts have long

understood that protected activity constitutes a struggle between workers and employers,

and that by definition, labor battles frequently do not comport with idealized workplace

images.”).

Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1538 (10th Cir. 1995) (quoted in

Herrera v. Lufkin Indus. Inc., 474 F.3d 675, 692-93 (10th Cir. 2007) (Cassell, J., dissenting)

(“Vulgarity and other socially-unacceptable behavior that might lead to termination in a

typical office setting were commonplace in the oilfields. Since raucous race-neutral behavior

permeated Herrera’s working environment, the conduct he describes above—even when

yoked to the five unquestionably race-based incidents—is not evidence Herrera’s work

environment was permeated with discriminatory ridicule.”)).

maintain safe and civil workplaces.92 In our case, it would be difficult to conclude

without more context that Gonzalez Jr. was driven by racial or national origin

animus based on comments in a difficult, rough agricultural setting.

Furthermore, we also do not consider the stray comment to be significant

because, in reviewing the record, it appears that Gonzalez Jr. was relaying a prior

comment told to him by Jeanot Saint Hilaire–the crew leader for the U.S. workers

of Haitian descent.93 Specifically, Gonzalez Jr. testified that Mr. Saint Hilaire had

told Gonzalez Jr. “that I should know that, you know, Haitians are not going to

work in muddy conditions.”94 Therefore, the original comment must be read in light

of the broader context in which it seems Gonzalez Jr. was sharing what one of the

Haitian workers had told him.95

In sum, the Administrator’s arguments on appeal do not convince us that the

Chief ALJ failed to properly consider evidence or that the Chief ALJ erred in

finding that A&M fired the workers for refusal to work in rainy and muddy

conditions. Therefore, we decline to vacate and remand for further consideration of

the evidence raised by the Administrator on appeal.

See Williams v. Gen. Motors Corp., 187 F.3d 553, 564 (6th Cir. 1999) (rejecting the

principle that the standard for sexual harassment varies depending on the work

environment).

D. & O. at 5 (“Jeanot Saint Hilaire, the crew leader for the U.S. workers refusing to

work.”).

Tr. at 353. Gonzalez Jr. testified:

Q: Do you know whether your father ever talked with the domestic workers about, you

know, increasing their production?

A: Most definitely that was a conversation that was had.

Q: How do you know?

A: I talked -- well, I talked to Jeanot myself and, you know, tried to understand what

the problem is. And, you know, he just said that the people didn’t want to work in the

rain and muddy conditions.

Id. at 351-52.

As evidence of pretext, the Administrator also argues that the “ALJ’s decision

ignores payroll records and trial testimony confirming that there was no substantial

increase in the hours worked by the workers who remained at the jobsite after the 13 U.S.

workers were laid off.” Adm’r Br. at 25. We note A&M has an alternative explanation of the

hours which appears at least equally plausible. A&M Response Brief (Response Br.) at 2023. We need not consider the evidence further because we have already concluded that the

Chief ALJ’s findings are logical, well-reasoned, and supported by the record.

B. We Affirm the Chief ALJ that A&M Did Not Violate 20 C.F.R. § 655.135(g) or

20 C.F.R. § 655.122(i)

The Administrator argues that, because A&M improperly laid off the

workers, the Chief ALJ erred in finding no violations of 20 C.F.R. § 655.135(g)

(protecting against improper layoffs) and 20 C.F.R. § 655.122(i) (requiring

employers meet the three-fourths guarantee).96 However, as discussed in Section

1.A., supra, we find that the record supports the Chief ALJ’s findings that A&M

fired the workers for refusal to work in rainy and muddy conditions and A&M did

not lay them off. Accordingly, as explained further below, we affirm the Chief ALJ

that A&M did not violate either provision.

First, 20 C.F.R. § 655.135(g) protects against improper or impermissible

layoffs. Here, we agree with the Chief ALJ that A&M fired the workers for refusal

to work in rainy and muddy conditions and did not lay off the workers. Because 20

C.F.R. § 655.135(g) only applies when there is a layoff, and no layoff occurred, we

affirm the Chief ALJ that A&M did not violate the provision.

Second, 20 C.F.R. § 655.122(i)’s three-fourths guarantee requires that an H2A employer must offer each worker “employment for a total number of work hours

equal to at least three-fourths of the workdays of the total period[.]” However, under

20 C.F.R. § 655.122(n), an H-2A employer is relieved of the three-fourths guarantee

when a worker is “terminated for cause.”97 As set forth below, we find that A&M

terminated for cause the U.S. workers. Therefore, pursuant to 20 C.F.R.

§ 655.122(n), A&M is relieved of the three-fourths guarantee obligation.

In his ruling, the Chief ALJ appeared to equate firing with termination for

cause, using the terms interchangeably. For example, the Chief ALJ found several

times that A&M fired the workers, and the Chief ALJ also found that “Respondent

terminated its contract with 13 U.S. workers.”98 Therefore, we construe the Chief

ALJ’s finding that A&M fired the workers for refusal to work in rainy and muddy

conditions as a finding that A&M terminated for cause the U.S. workers.

Adm’r Br. at 16, 28-29.

20 C.F.R. § 655.122(n) (emphasis added).

D. & O. at 6 (emphasis added).

However, even if the Chief ALJ did not equate firing and termination for

cause, the record supports a finding that A&M terminated the workers for cause

because A&M’s basis for firing the workers (refusal to work in rainy and muddy

conditions) fits squarely within the permissible bases for terminating workers for

cause. DOL Field Assistance Bulletin No. 2012-1 provides guidance to the meaning

of “termination for cause,”99 stating: “Generally, ‘termination for cause’ refers to

termination based on specific act(s) of omission or commission by the employee. For

example, insubordination, deliberately violating company policies or rules, lying,

stealing, breaching the employment contract, and other job-related misconduct are

all possible bases for termination for cause.”100

Here, in the “job duties” section of TEC 1, the workers were informed that the

“[j]ob is outdoors and continues in all types of weather.”101 Therefore, by refusing to

work in rainy and muddy conditions, the U.S. workers violated the requirements of

their “job duties” and engaged in conduct that falls within a permissible basis to

terminate for cause a worker’s employment. Accordingly, we find A&M’s firing of

the U.S. workers for refusal to work in rainy and muddy conditions constitutes a

termination for cause. Because the three-fourths guarantee does not apply when

there is a termination for cause, we affirm the Chief ALJ that A&M did not violate

20 C.F.R. § 655.122(i).

2. A&M Failed to Satisfy the Conditions It Listed in Its Job Order in TEC 2

We reverse the Chief ALJ’s ruling that A&M did not violate 20 C.F.R.

§ 655.121(a)(3). We find that A&M failed to satisfy the requirements of the job order

in two respects. Accordingly, we assess a penalty of $1,412.80 for each violation of

20 C.F.R. § 655.121(a)(3), totaling a CMP of $2825.60 for both violations.

A. Chief ALJ Erred in Finding that A&M Did Not Violate 20 C.F.R.

§ 655.121(a)(3)

The Chief ALJ dismissed WHD’s charge in its NOD that A&M violated 20

C.F.R. § 655.121(a)(3) in TEC 2 by failing to adhere to the conditions it included in

“Termination for cause” is not defined in the applicable version of the regulations

(the 2010 version). It is defined in the latest 2024 version of § 655.122(n), but that version is

inapplicable because the 2010 version applies here.

100

DOL Field Assistance Bulletin No. 2012-1 at 6 (Feb. 28, 2012) (FAB 2012-1).

101

Joint Exhibit 1A at 3.

its job order for TEC 2.102 The Chief ALJ found that the Administrator had not

proven the charge because WHD had cited the incorrect regulatory provision in its

NOD: WHD had cited 20 C.F.R. § 655.121(a)(3) and the Chief ALJ ruled that WHD

should have cited subparagraph (a)(4) of that regulation.103

We disagree with the Chief ALJ because the Chief ALJ relied on the 2022

version of 20 C.F.R. § 655.121(a)(3) when dismissing WHD’s charge. The ALJ

should have relied on the 2010 version of that regulation which was operative at the

time of A&M’s 2019 violation. In 2022, the Department moved what had been in

subparagraph (a)(3) to subparagraph (a)(4).104 Thus, the Chief ALJ was correct that

the 2022 version of 20 C.F.R. § 655.121(a)(3) did not apply,105 but that was not the

provision WHD had relied on in the NOD: WHD’s NOD properly referred to the

2010 version of 20 C.F.R. § 655.121(a)(3).106

Because the Chief ALJ believed WHD had cited to the wrong regulatory

provision, the Chief ALJ did not make a factual finding about whether A&M had

failed to satisfy the conditions it listed in its job order. We now review whether

violations should be assessed for failure to comply with the job order in accordance

with the 2010 version of 20 C.F.R. § 655.121(a)(3).

The 2010 version of 20 C.F.R. § 655.121(a)(3) states: “The job order submitted

to the SWA must satisfy . . . the requirements set forth in § 655.122.” In the

December 15, 2020 NOD, the WHD charged A&M with the following two violations

of 20 C.F.R. § 655.121(a)(3) in TEC 2:

• The “employer listed false experience requirements in the job orde[r] that

were not actually considered when hiring H[-]2A workers.”107

102

D. & O. at 14-15.

103

Id.

Compare 20 C.F.R. § 655.121(a)(3) (2010) (“The job order submitted to the SWA

must satisfy . . . the requirements set forth in § 655.122”), with 20 C.F.R. § 655.121(a)(4)

(2022) (“The job order must satisfy . . . the requirements set forth in § 655.122.”). The

provisions are slightly different, but almost identical.

104

The 2022 version of § 655.121(a)(3) deals with job orders for employers that plan to

jointly employ workers.

105

The NOD could not have applied the 2022 version of § 655.121(a)(3) because WHD

issued the NOD in 2020 before the changes to (a)(3) occurred.

106

107

PX-19 at 7.

•

“[T]he investigation disclosed that the employer placed workers at worksites

in Homestead, FL, which are not listed on the certified H-2A contract and are

not within the area of intended employment.”108

After reviewing the record, and the parties’ arguments on appeal, the Board

finds two violations for TEC 2 under the 2010 version of 20 C.F.R. § 655.121(a)(3),

which incorporates requirements for 20 C.F.R. § 655.122.109

First, 20 C.F.R. § 655.122(b) requires that “[e]ach job qualification and

requirement listed in the job offer must be bona fide[.]” Here, A&M listed a job

qualification requirement in the job order that required three months of corn

harvesting experience.110 However, both Gonzalez Sr. and Gonzalez Jr. admitted

they did not enforce the experience requirement.111 Accordingly, we find that A&M

violated 20 C.F.R. § 655.121(a)(3), which incorporates the 20 C.F.R. § 655.122(b)

requirement that job offers only list bona fide job qualifications.

Second, 20 C.F.R. § 655.122(c) requires that “[e]very job order accompanying

an” application for TEC must include the “working condition provisions[.]” On

appeal, the Administrator argues that A&M failed to disclose in the job order that

the employer had another worksite in Homestead, Florida.112 In its response, A&M

does not address this argument from the Administrator.113 Instead, A&M argues

that if the ARB agrees “that the appeal is proper on this issue” and not waived, “the

108

Id.

The Board has de novo review, and “[o]n appeal from or review of the initial decision,

the agency has all the powers which it would have in making the initial decision . . . .”

5 U.S.C. § 557(b); see also Ten West Cattle, Inc., ARB Nos. 2024-0003, 2023-0058, slip op. at

109

D. & O. at 7 (“Respondent also indicated in TEC 2 that three months of experience

was required to perform the job of harvester.”).

110

Id. at 9 (The Investigator “also obtained signed statements from Mr. Gonzalez, Sr.

and Mr. Gonzalez, Jr. stating that Respondent does not enforce an experience requirement

for corn harvesting workers . . . .”).

111

Adm’r Br. at 33; see also D. & O. at 9 (“[S]igned statements from Mr. Gonzalez, Sr.

and Mr. Gonzalez, Jr.” state that “Respondent brought H-2A workers to worksites in

Homestead, Florida.”).

112

113

A&M Response Br. at 29.

issue is due to be remanded” because the “Board cannot render a decision on the

propriety of CMPs” and the “Board cannot engage in fact-finding.”114

We disagree with A&M. In H-2A cases, the Administrative Procedure Act

governs our review, and “[t]he ARB, on review from the Chief ALJ, reviews the

record de novo, including the CMP assessments.”115 Because A&M did not address

the Administrator’s argument, we adopt the Administrator’s position and find that

A&M violated 20 C.F.R. § 655.121(a)(3), which incorporates 20 C.F.R. § 655.122(c)’s

obligation to include in the job order the working conditions of the job.

B. The Board Assesses CMPs for Violations of 20 C.F.R. § 655.121(a)(3)

Having found two violations, we proceed to consider penalties. The maximum

CMP at the time of WHD’s assessment was $1,766.00.116 WHD applied a 10%

reduction because A&M did not have a prior history of violations.117 Thus, based on

two violations of 20 C.F.R. § 655.121(a)(3), WHD assessed two CMPs of $1,589.40

each, totaling $3,178.80.118 As already noted, the Chief ALJ reversed these

penalties.119

In determining the monetary amount that should be assessed for each

violation, several non-exclusive factors may be considered, including any history of

noncompliance, the number of affected workers, the seriousness of the violations,

efforts made in good faith to comply, the explanation for noncompliance, a

commitment to future compliance, and any financial gain from the violations.120

Here, we agree with WHD that a 10% reduction should apply to the

maximum CMP of $1,766.00 because A&M does not have a previous history of H-2A

violations. We also apply an additional 10% reduction because of the small size of

114

Id.

Washington Farm Labor Association, ARB No. 2021-0069, slip op. at 8; see also 5

U.S.C. 557(b); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Azzano Farms, Inc., ARB No.

2020-0013, ALJ No. 2019-TAE-00002, slip op. at 5 (ARB Mar. 30, 2023).

115

116

29 C.F.R. § 501.19(c) (2020).

117

D. & O. at 9; see also 29 C.F.R. § 501.19(b)(1) (2020).

118

D. & O. at 9.

119

Id. at 18.

120

29 C.F.R. § 501.19(b) (2020).

A&M’s business. Therefore, we apply a 20% reduction to the maximum CMP of

$1,766.00. Accordingly, we assess a penalty of $1,412.80 for each violation of 20

C.F.R. § 655.121(a)(3), resulting in a total CMP of $2,825.60 for both violations.

3. Debarment Is Not Warranted

The Administrator argues that the Board should vacate the Chief ALJ’s

dismissal of debarment and remand for reconsideration in light of all the evidence

in the record.121 We disagree.

An employer may be barred from receiving future labor certifications for up

to three years if the employer has “substantially violated a material term or

condition of its temporary labor certification, with respect to H-2A workers . . . or

U.S. workers improperly rejected for employment, or improperly laid off or displaced

. . . .”122 The regulations further provide that “[i]n determining whether a violation

is so substantial as to merit debarment, the factors set forth in § 501.19(b)(1) shall

be considered.”123

The Administrator argues that the Chief ALJ erred because the Chief ALJ

premised the decision not to debar A&M on a conclusion unsupported by the

evidence–that “A&M had a lawful reason for firing 13 U.S. workers.”124 As set forth

in Section 1., supra, we affirm the Chief ALJ that the U.S. workers were lawfully

fired and do not find a violation on that issue. Therefore, it cannot be a basis for

debarment.

The remaining question is whether A&M’s violations of 20 C.F.R. §

655.135(d) (unlawful rejection of a qualified U.S. worker) and 20 C.F.R.

§ 655.121(a)(3) (for failure to satisfy conditions it listed in its job order) are “so

substantial as to merit debarment.” We agree with the Chief ALJ that “debarment

is a severe punishment,”125 and after consideration, we find that debarment is not

warranted under the circumstances.

121

Adm’r Br. at 30, 32.

122

29 C.F.R. § 501.20.

123

Id. at § 501.20(d)(2).

124

Adm’r Br. at 30.

125

D. & O. at 20.

Debarment would be inappropriate and unduly harsh for these violations. We

agree with the Chief ALJ that A&M did not commit a “substantial” violation when

it unlawfully rejected one U.S. worker in January 2019.126 In addition, as the Chief

ALJ pointed out, “[b]ack wages have been ordered to make the single U.S. worker

whole.”127 Similarly, we do not find A&M engaged in “substantial” violations when

A&M failed to satisfy conditions listed in its job order, and we have also ordered

A&M to pay CMPs for the violations. Notably, A&M also does not have any previous

history of H-2A violations related to these provisions. Thus, we find that the

violations at issue are not so substantial as to merit debarment.

CONCLUSION

We AFFIRM the Chief ALJ’s findings that: A&M did not violate 20 C.F.R.

§ 655.135(g)’s protection against unlawful layoffs; A&M did not violate 20 C.F.R.

§ 655.122(i)’s three-fourths guarantee; and debarment is not warranted.

We REVERSE the Chief ALJ’s ruling that A&M did not violate 20 C.F.R.

§ 655.121(a)(3) because A&M failed to satisfy the requirements of the job order in

two respects. Accordingly, we assess a penalty of $1,412.80 for each violation of 20

C.F.R. § 655.121(a)(3), for a total CMP of $2,825.60 for both violations.

In all other respects, the Chief ALJ’s D. & O. is AFFIRMED, including the

back wages and CMP assessed by Chief ALJ.128

SO ORDERED.

THOMAS H. BURRELL

Administrative Appeals Judge

RANDEL K. JOHNSON

Chief Administrative Appeals Judge

126

Id.

127

Id.

The Chief ALJ assessed back wages owed to Wilson Michel of $5,960.01 and a CMP

of $13,875.20. Id. at 16, 18-19.

128

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.