COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals


Giancarlo Zambrano, Individually, and
A.R.H. Roofing & Construction,


(Citation No. WH080076)
Petitioner

v. Docket No. LB-08-281

Office of Attorney General -
Fair Labor Division,

Respondent

Appearance for Petitioner:

Giancarlo Zambrano

11B Cold Spring Drive
Sutton, MA 01590

Appearance for Respondent:

Kate J. Fitzpatrick, Esq.

Office of the Attorney General -
Fair Labor Division
One Exchange Place
Worcester, MA 01602

Administrative Magistrate:

Sarah H. Luick, Esq.

RULING ON RESPONDENT'S MOTION FOR RECONSIDERATION
AND CLARIFICATION OF THE MAY 19, 2009 DECISION

Respondent filed a Motion for Reconsideration on June 19, 2009.
(Attachment A) No response to this Motion was filed by Petitioner, Giancarlo Zambrano. I am denying Respondent's Motion other than to correct the error on page 2 of the May 19, 2009 Decision as to the address for the Division of Administrative Law Appeals (DALA). Respondent correctly noted the address should have been listed as 98 North Washington Street, 4th Floor, Boston, MA 02114. I am also treating this Motion as a Motion for Clarification based on the issues raised in the Motion, and what I conclude is confusion as to the process I followed in reaching my conclusions.

The Standard Adjudicatory Rules of Practice and Procedure permit the filing of a Motion for Reconsideration. The rule states:
After a decision has been rendered and before the expiration of the time for filing a request for review or appeal, a Party may move for reconsideration. The motion must identify a clerical or mechanical error in the decision or a significant factor the Agency or the Presiding Officer may have overlooked in deciding the case. A motion for reconsideration shall be deemed a motion for rehearing in accordance with M.G.L. c. 30A, § 14(1) for the purposes of tolling the time for appeal.

801 CMR 1.01(7)(l).

Respondent contends the Decision improperly placed the burden of proof on Respondent to prove by a preponderance of the evidence, that its Citation can be enforced against Mr. Zambrano when this burden should be upon Petitioner to prove that the Citation was "erroneously issued" against him under G.L. c. 149, § 27C(b)(4). Respondent further contends the Decision reflects a review not confined to the issue of whether the Citation was "erroneously issued." Specifically, Respondent maintains that DALA cannot hear this matter de novo, can only address whether the Citation was issued based on error of law or with a deviation from the law, and that DALA failed to give deference to Respondent's expertise in interpreting the Wage Laws.

The Decision does not shift the burden of proof and place it instead upon
Respondent to prove the Citation was properly issued. Respondent is correct when in its Motion it cites the pertinent provision in G.L. c. 149, § 27C(b)(4) that places the burden of proof on Petitioner:
Any person aggrieved by any citation or order issued pursuant to this subsection may appeal said citation or order by filing a notice of appeal with the attorney general and the division of administrative law appeals within ten days of the receipt of the citation or order. Any such appellant shall be granted a hearing before the division of administrative law appeals in accordance with chapter 30A. The hearing officer may affirm or if the aggrieved person demonstrates by a preponderance of evidence that the citation or order was erroneously issued, vacate or modify the citation or order.

The May 19, 2009 Decision is based on the outcome of the adjudicatory hearing that Petitioner sought to defend against the Citation. As a result of the hearing, I found Petitioner demonstrated by a preponderance of the evidence, that the Citation against him was "erroneously issued." This is because I concluded the findings show Petitioner was not a G.L. c. 149, § 148 employer on the Rowans' Westborough project. In the conclusion section of the Decision, I explained why, and I pointed out how Respondent's evidence to support the contrary conclusion was insufficient to overcome Petitioner's proof. The Decision does not reflect an improper review by DALA or a deviation from the law.

The hearing record contains the Citation, the complaint of Mr. Ruiz, the testimony of the OAG-Fair Labor Division's complaint investigator, and the documents that were developed from that investigation. The record also contains Mr. Zambrano's testimony addressing that evidence as well as providing an account of his role with the Rowans' Westborough project. The presentation of Respondent's evidence at the hearing before the pro-se Mr. Zambrano presented his evidence, was within the discretion of the Administrative Magistrate. But, having this evidence put into the record by Respondent at the outset of the hearing did not alter or lessen Mr. Zambrano's burden of proof. The Standard Adjudicatory Rules of Practice and Procedure at 801 CMR 1.01(1)(e)(4) permit this exercise of discretion as to which party proceeds first at the hearing. By doing this, Mr. Zambrano was able to have notice of the evidence being relied upon by Respondent to support issuance of the Citation. And, Respondent was provided with the ability, besides cross-examination of Mr. Zambrano, to present any rebuttal evidence to what Mr. Zambrano presented.

Petitioner was able to prove by a preponderance of the evidence, that he was not an employer of Mr. Ruiz or a business partner of Mr. Henry. The findings also show he was not an officer or agent of A.R.H. Roofing and Construction who had management responsibilities. Therefore, I found that Mr. Zambrano could not be held responsible for any non-payment of wages to Mr. Ruiz in violation of G.L. c. 149, § 148, and that he could not have misclassified Mr. Ruiz as an independent contractor in violation of G.L. c. 149, § 148B. The findings of fact and the discussion about them in the conclusion section of the Decision support these determinations about the evidence. I concluded the findings show that Mr. Zambrano was at all times only an employee of Mr. Henry, that Mr. Henry was the sole owner, manager, and operator of A.R.H. Roofing and Construction Co., and that Mr. Henry was the sole supervisor of his employees. The record shows Mr. Zambrano performed laborer tasks for Mr. Henry at the Rowans' home construction job site in Westborough, and that he also did sales work for Mr. Henry by finding possible construction jobs for Mr. Henry's company. One such business opportunity he found for Mr. Henry to consider was the Rowans' Westborough project, but it was Mr. Henry's decision whether to pursue this opportunity. Mr. Henry decided to pursue it, as the record shows, and Mr. Henry produced an estimate to present to the Rowans, which they accepted. The amount was for $30,000.

The findings show that, although Mr. Zambrano had an arrangement with Mr. Henry to ensure he would receive his ten percent commission for finding the Rowans' Westborough project, this arrangement did not make Mr. Zambrano a business partner with Mr. Henry on this project. Even though Mr. Zambrano initially signed the contract with the Rowans, this was necessary in order that he would receive the initial payments to reach his $3,000 commission. In other words, Mr. Henry agreed to this method for Mr. Zambrano to receive his commission. I also found that, once Mr. Zambrano gained his $3,000 commission, the Rowans' payments went only to Mr. Henry. I believed Mr. Zambrano's testimony on this issue, including that if he received any check made out to him from the Rowans after he received his commission, he endorsed the check over to Mr. Henry and/or paid the cash to Mr. Henry after cashing the check. I found this arrangement was known to Mr. Smitts, the Rowans' project manager, and that Mr. Smitts also was aware that only Mr. Henry held the required license and insurance to perform the work on this project. The findings of fact show that at all times the only operator, manager, and supervisor of the work done on this project was Mr. Henry. The findings show only Mr. Henry decided in what amount, by what method (cash only), and when, each of his employees, including Mr. Zambrano, would be paid for their laborer work on the project. I found Mr. Zambrano had no control over these matters.
In the Motion, Respondent sets forth its version of the facts by listing various pieces of evidence and parts of testimony, and then claims Mr. Zambrano functioned as a business partner and manager on this project. Respondent argues that DALA owed deference to its expertise with and interpretations of the Wage Laws, thus seemingly arguing DALA has to adopt its version of the facts. This confusion seems to ignore DALA's role as the finder of facts. And, it is only on the findings made by DALA that the pertinent law can then be applied.
I found that Mr. Zambrano was only ever a laborer at this job site and only ever worked completely under the control and supervision of Mr. Henry, even when he did sales work. I found only Mr. Henry decided when the work day would begin and end on this project, what work would be done by which worker each day, including Mr. Zambrano, and how much Mr. Zambrano, Mr. Ruiz and other workers on this project would receive for their work day. Mr. Zambrano never had any shared authority with Mr. Henry over this project work.

Mr. Zambrano and Mr. Ruiz were both laborers working only for Mr. Henry on this project. The fact that Mr. Zambrano had previously worked with Mr. Ruiz for another company and because Mr. Ruiz traveled with Mr. Zambrano to the Westborough worksite, does not constitute sufficient proof that Mr. Zambrano hired Mr. Ruiz. Also, even if Mr. Henry wanted Mr. Zambrano to physically hand over the cash wages to Mr. Ruiz once Mr. Ruiz quit, that is insufficient proof Mr. Zambrano was a supervisor or manager or business partner of Mr. Henry. The findings show Mr. Henry at least set up the possibility that Mr. Zambrano could decide if he wanted to keep any part of Mr. Ruiz's wages in payment for a debt Mr. Ruiz owed Mr. Zambrano. This never happened, and I found Mr. Zambrano never received Mr. Ruiz's final wages. I believed and found understandable and credible Mr. Zambrano's evidence supporting these findings. I
assessed his evidence under a preponderance of the evidence standard in coming to adopt his version of what he knew about Mr. Henry not paying Mr. Ruiz's final wages.

Respondent issued the Citation once it reviewed and investigated Mr. Ruiz's complaint information. The investigation included brief statements of Mr. Henry made over the telephone that were self-serving, brief information given by Mr. Smitts, information from Mr. Zambrano including an in-person discussion, and the investigator's report. Even if Respondent concluded this evidence showed Mr. Zambrano was Mr. Henry's business partner and a manager/supervisor of A.R.H. Roofing and Construction to explain why both men were named in the Citation, that does not mean the Citation cannot be successfully challenged by Mr. Zambrano as "erroneously issued."

When I discussed the significance of Mr. Ruiz and Mr. Henry not testifying, I did not shift the burden of proof from Mr. Zambrano to Respondent. The Decision merely shows the insufficiency of Respondent's evidence to rebut Mr. Zambrano's sufficient evidence. I discussed how the content of Mr. Ruiz's complaint does not on its own or in combination with the hearsay reported by Respondent's investigator, sufficiently rebut Mr. Zambrano's evidence. I explained that Mr. Ruiz is primarily Spanish speaking, did not write the complaint narrative himself, and that some information in the complaint is in direct conflict with other evidence Respondent presented as well as with Mr. Zambrano's credible accounts. I explained that Mr. Ruiz's testimony might have presented a clearer account of what happened to him on the Rowans' Westborough project than his complaint did. I explained that Mr. Ruiz's testimony might have helped to explain the inconsistencies in the complaint such as never mentioning Mr. Henry's name and listing an address for A.R.H. Roofing and Construction that had no connection with Mr. Zambrano but did have a connection with Mr. Henry.

Also, the hearsay evidence presented by Respondent from Mr. Henry was not sufficient to rebut the credible account of Mr. Zambrano. Mr. Henry's information came through the Respondent's investigator. No documents were authored by Mr. Henry, and I found this evidence not sufficiently reliable or comprehensive to overcome Mr. Zambrano's thorough and believable testimony.
For instance, the investigator understood Mr. Henry denied having any employees. This makes no sense as even Mr. Ruiz's complaint is about his employment by A.R.H. Roofing and Construction which Mr. Henry told the investigator only he owns. Also, the business card that listed Mr. Zambrano as Vice President and leaves off Mr. Henry's name yet contains a reference to the insurance and license only Mr. Henry has, is not enough evidence to support a finding that Mr. Zambrano is Mr. Henry's business partner. This is because Mr. Zambrano credibly explained why he used such a card in securing potential new projects for Mr. Henry as part of his sales work as an employee. Mr. Henry's statement made to the investigator over the telephone, that Mr. Zambrano was his business partner on the Rowan's Westborough project, without following that up with sworn testimony, is not enough reliable evidence to overcome Mr. Zambrano's evidence that he was not his business partner on this project. The same reasoning applies in terms of the significance of the shirts both he and Mr. Henry wore at some meetings. Mr. Zambrano's testimony credibly connected the wearing of the shirts to his sales work for Mr. Henry, and to how he could receive his commission, his compensation, from the first payments made by the Rowans once Mr. Henry's work crew began working on the project. Given that, on the record, Respondent was allowed the opportunity to seek enforcement of its subpoena of Mr. Henry, Respondent was not precluded from presenting testimony from this important witness for purposes of rebutting Mr. Zambrano's account.
Respondent contends in its Motion that Mr. Zambrano referred to himself as a business partner with Mr. Henry so that it was error not to conclude that he was a
G.L. c. 149, § 148 employer of Mr. Ruiz, and that he is responsible for misclassifying him as an independent contractor in violation of G.L c. 149, § 148B. I disagree. As the fact finder, I made findings I concluded show that Mr. Zambrano did not function as a business partner or manager/supervisor. Nevertheless, Respondent contends I must consider these statements, no matter what context they may have been made in or agreed to by Mr. Zambrano at the hearing, to be binding admissions. I did not find Mr. Zambrano's testimony contained admissions of fact that showed he was a business partner or manager/supervisor. Using such words in a particular context cannot amount to Mr. Zambrano making an unwitting legal conclusion about his status that I am bound to accept as decisive. I reached a legal conclusion on the findings of fact I made and which I am empowered to make, even if Respondent would have made different findings of fact and reached a different legal conclusion.

Because I concluded that Mr. Zambrano succeeded in proving he was not a G.L. c. 149, § 148 employer, I also did not find he could have misclassified Mr. Ruiz as an independent contractor. Mr. Henry reported to the investigator that he had no employees and kept no records to produce pursuant to G.L. c. 151, § 15. That is the only evidence in the record about recordkeeping. Since Mr. Zambrano was not a manager or supervisor or business partner with Mr. Henry on the Rowans' Westborough project, he had nothing to offer on this issue. Nothing in Mr. Zambrano's testimony or in Mr. Ruiz's complaint supported a finding that Mr. Ruiz was treated as anything other than an employee of A.R.H. Roofing and Construction on this project. That is what the findings show, and this is what I explained in the conclusion section of the Decision.

Ruling
Nothing in the Motion for Reconsideration shows any facts presented at the hearing that were not given consideration, and nothing in the Motion sets forth any significant factor ignored, or any mechanical or clerical error in the Decision other than the correction of the DALA address at page 2.

The explanation of the burden of proof for a Petitioner when challenging a Citation as set forth by Respondent, and the case law provided to support the explanation, is not disputed. Rather, it is the argued application of those standards in the Decision that explains why this ruling on the Motion has been addressed as primarily a Motion for Clarification. The Decision did not impose an incorrect burden of proof on Respondent, but did address whether Respondent's evidence was sufficient to rebut Petitioner's credible, believable and understandable proof under a preponderance of the evidence standard. The May 19, 2009 Decision concludes by vacating the Citation against Mr. Zambrano, which is consistent with what the Decision found, and consistent with the conclusion section of the Decision. This is the appropriate action to take once the


Citation is found to have been "erroneously issued" as no findings support Mr. Zambrano as a G.L. c. 149, § 148 employer.

SO ORDERED.

DIVISION OF ADMINISTRATIVE
LAW APPEALS

//s//
Sarah H. Luick, Esq.
Administrative Magistrate

DATED : 8/12/09