ARB CASE NO. 99-106 ALJ CASE NOS. 99-CLA-2 DATE: October 29, 1999
In the Matter of:
ADMINISTRATOR, WAGE AND
AND HOUR DIVISION, UNITED STATES
DEPARTMENT OF LABOR,
PLAINTIFF
v.
ALBERTSON'S, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
REMAND ORDER
This case arose when the Administrator of the Wage and Hour Division,
U.S. Department of Labor, assessed civil money penalties against Albertson's, Inc. for
violations of the child labor provisions of the Fair Labor Standards Act of 1938, as amended,
29 U.S.C.A. §216 (1998). Albertson's requested the Administrator to produce
statements prepared or adopted by the 24 persons the Administrator identified as potential
witnesses. When the Administrator declined, Albertson's filed a Motion to Compel
production of the statements. In an order dated May 14, 1999, the Administrative Law Judge
(ALJ ) ruled that the informer's privilege did not bar production of the unredacted statements
and handwritten questionnaires given by the 24 potential witnesses. In a decision on
reconsideration issued June 10, 1999, the ALJ concluded that, because the 24 potential
witnesses who might testify about the alleged child labor violations had been identified, there
was no further reason to protect the potential witnesses' written statements. Order Denying
Administrator's Motion for Reconsideration.
[Page 2]
The Deputy Administrator of the Wage and Hour Division petitioned the
Administrative Review Board (ARB) for interlocutory review of the ALJ's orders pursuant to
29 C.F.R. §580.13. On October 7, 1999, the ARB received the Deputy Administrator's
Motion for Remand. The Deputy Administrator asserts that the parties have negotiated a
settlement and have submitted their Consent Findings and Agreement and a proposed Order to
the ALJ. However the Deputy Administrator notes that because he has filed an interlocutory
appeal of the ALJ's discovery orders, the ALJ "lacks jurisdiction" to rule upon the
Consent Findings and Agreement. Deputy Administrator's Motion for Remand at 1.
Accordingly, the Deputy Administrator requests that we remand the case to the ALJ for
"completion of the administrative process and issuance of an appropriate Order."
Id. at 2.
We agree that the ALJ lacks authority to consider the parties' Consent
Findings and Agreement while the case is pending before the ARB. Therefore, we
GRANT the Deputy Administrator's motion and REMAND the case to
the ALJ to consider the parties' consent Findings and Agreement.
