DATE: May 24, 1995
Case Nos. 92-CLA-160
92-CLA-161
In the Matter of:
U. S. DEPARTMENT OF LABOR
Plaintiff
v.
SEWELL-ALLEN, INC., and
PIGGLY WIGGLY MEMPHIS, INC.,
Respondents
APPEARANCES:
THOMAS A. GROOMS, Esquire
United States Department of Labor, Office of the Solicitor
For the Plaintiff
WILLIAM E. HESTER, Esquire
Kullman, Inman, Bee, Downing & Banta (New Orleans, LA)
For the Respondents
KAREN WILHELM GROCHAU, Esquire
Kullman, Inman, Bee, Downing & Banta (Memphis, TN)
For the Respondents
BEFORE: ROBERT L. HILLYARD
Administrative Law Judge
DECISION AND ORDER
This proceeding arises under the Fair Labor Standards Act,
as
amended, 29 U.S.C. 1201 etseq. (the Act) and the
regulations promulgated thereunder at 29 C.F.R. Parts 570, 579
and
580. Respondents Piggly Wiggly Memphis, Inc. and Sewell-Allen,
Inc. (dba) Piggly Wiggly (hereinafter referred to as
"Respondents"
or
[PAGE 2]
"Piggly Wiggly"), dispute the accuracy and reasonableness and
request review of the imposition of the civil money penalties
imposed pursuant to Section 16(e) of the Act and Titles 29 C.F.R.
570, 579 and 580 for alleged violations of the Child Labor
Provisions of the Act.
The Wage and Hour Division of the Department of Labor, after
investigation, assessed a civil money penalty against the Respon-
dents in the amount of $203,300.00 for the employment of 158
minors
contrary to the Act and Regulations.
A formal hearing was held in Memphis, Tennessee commencing
September 21, 1993. Each of the parties was afforded full
opportunity to present evidence and argument at the hearing as
provided in the Act and regulations issued thereunder which are
found in Title 29 of the Code of Federal Regulations. Regulation
section numbers mentioned in this Decision and Order refer to the
sections of that title.
I. BACKGROUND
The Respondents operate eight grocery stores, seven stores
under the trade name, Piggly Wiggly, and one store operated under
the trade name, Food Rite. Two investigators employed by the
Wage
and Hour Division of the Employment Standards Administration of
the
Department of Labor visited the eight stores between April, 1991,
and December, 1991, to determine compliance with the child labor
laws (Tr. 11, 14-16).[1] Investigator Lewis conducted the
investigation of seven of the stores and investigator Arnold
conducted the investigation of the other store (Tr. 14, 15). The
investigators found violations which fall into three major
divisions:
a) Use or operation by minors of ages 16 and
17 of hazardous equipment prohibited by the
regulations: 29 C.F.R. 570.58 [Hazardous Order
7 or HO #7]), 29 C.F.R. 570.61 [Hazardous
Order 10 or HO #10], and 29 C.F.R. 570.63
[Hazardous Order 12 or HO #12].
b) Use or operation by minors of ages 14 and
15 of hazardous equipment prohibited by the
regulations: 29 C.F.R. 570.33(e) which is
commonly referred to as Child Labor Regulation
3-Occupation which regulation incorporates by
reference all of the hazardous orders includ-
ing 29 C.F.R. 570.58, 570.61 and 570.63.
[PAGE 3]
c) Work by minors of ages 14 or 15 (or
younger) during times prohibited by the
regulations or for longer hours than permitted
by the regulations: 29 C.F.R. 570.35.
The specific violations are listed in Wage and Hour Forms
103
(WH 103). These forms list the name and age of the minor, the
nature of the alleged violation, the implementing regulations and
the period during which the alleged violations occurred (RX
6-13).
Civil money penalties were assessed and listed on Wage and Hour
Forms 266 (WH 266s).[2] The total of the penalties as
originally
assessed was $203,300.00 (PX 65-72). Following discovery,
several
assessments were found to be improper and certain assessments
were
withdrawn and the civil money penalty was reduced to $190,400.00.
Plaintiff has subsequently withdrawn other assessments and the
total penalty was reduced to $187,400.00 for 158 minors
(Respondents' Post-Hearing Brief at 4).
II. ISSUES
1) Whether the Respondents employed minors in occupations
declared to be hazardous by regulations promulgated by the
Secretary of Labor. Specifically, the Respondents are charged
with
violating the following regulations:
a) Use of High-lift or Fork-Lift Trucks (Fork Lifts)
Hazardous Order 7(29 C.F.R. 570.58).
b) Use of Power-Driven Meat-Processing Machines
(Meat Slicers) Hazardous Order 10 (29 C.F.R. 570.61)
c) Use of Power-Driven Paper-Products Machines
(Paper Balers) Hazardous Order 12 (29 C.F.R. 570.63).
d) Employment of minors (ages 14 or 15, or younger)
during times prohibited by the regulations or for longer
hours than permitted by the regulations at 29 C.F.R.
570.35.
2) Whether the civil money penalties assessed by the
Department of Labor are appropriate and reasonable in light of 29
C.F.R. §579.5 and the facts of this case.
III. Evidentiary Record
The evidence on which this Decision and Order is based
[PAGE 4]
consists of the testimony of the witnesses who testified at the
hearing and documentary evidence which was introduced into
evidence
at the hearing. The parties were given the opportunity to file
post-hearing briefs. The brief of the Plaintiff was untimely
filed
and not considered.[3] The Respondents' brief was timely filed
and it was considered in this Decision and Order. The
documentary
evidence is identified as follows:
Joint Exhibit (JX) 1
Plaintiff's Exhibits (PX) 1 through 73
with the exception of: 7 (not admitted)
15 (withdrawn)
63-64 (no exhibit)
Respondents' Exhibits (RX) 1 through 13
Post-Hearing Stipulations[4] (PHS) 1 through 120
The following witnesses testified at the hearing:
Nettie Ann Lewis - a wage hour investigator for the Wage
Hour
Division of the U.S. Department of Labor testified about her
investigation of seven of the eight stores which are the subject
of
this action.
Cheryl Arnold - a wage hour investigator for the Wage Hour
Division of the U.S. Department of Labor testified about her
investigation of one of the eight stores which are the subject of
this action.
Ralph S. Delbove - a supervisor with Malone and Hyde, an
accounting firm, testified to the preparation of the financial
statements of the respondent companies.
Jenny W. Evans - the Human Resource Manger and Safety
Manager
for Piggly Wiggly, Memphis, testified concerning the company
policy
regarding the employment of minors and safety precautions taken
by
the company.
Robert D. Allen - Co-Chairman of Piggly Wiggly Memphis, Inc.
testified about the company policy concerning the employment of
minors and about the financial condition of the company.
IV. BACKGROUND
Testimony at the hearing concerned the investigation, the
fines imposed, the financial condition of the Respondent
companies,
the method of determining the amount of the fines, and the
reasonableness, or lack thereof, of the fines. Nettie Lewis, a
Wage and Hour investigator, testified concerning her
investigation
[PAGE 5]
of the Respondents.[5] She based her violation findings on
inter-
views with Piggly Wiggly's employees, during which they admitted
either to engaging in prohibited activity themselves or observed
others engaging in prohibited activity (Tr. 61-64).
Ms. Lewis then testified concerning her method of assessing
fines for the violations. She assessed penalties based on the
amounts listed on the Form 266 (Tr. 28). Each violation carries
with it a predetermined penalty amount, with the number of
violations multiplied by the predetermined amounts which, when
added up, resulted in the total fine (Tr. 29-31, PX 65-71). Ms.
Lewis testified that she did not take into account the factors
contained in §579.5 when assessing the penalty amounts (Tr.
42).
Cheryl Arnold, a Wage and Hour investigator, testified
concerning her investigation of one of the eight Piggly Wiggly
stores. Like Ms. Lewis, Ms. Arnold testified that she based her
penalties on Form 266 and did not take into account the factors
contained in §579.5 (Tr. 69-70, PX 72).[6] In calculating
the penalties, Ms. Arnold used the pre-November 5, 1990 amounts
(the lower amounts) for violations beginning prior to November 5,
1990 and ending before November 5, 1990; for violations beginning
before November 5, 1990 but continuing beyond November 5, 1990 or
violations occurring after November 5, 1990, the Plaintiff used
the
post-November 5, 1990 amounts (the higher amounts) (Tr. 73).[7]
Upon completion of her investigation, Ms. Arnold met with Sharon
Stramel, a representative of Piggly Wiggly, and explained the
violations (Tr. 66-67). Ms. Stramel pledged compliance in the
future (Tr. 67-68). Ms. Arnold obtained information pertaining
to
Piggly Wiggly's financial condition and number of employees from
Ms. Stramel and conveyed it to her supervisor (Tr. 71-72).[8]
Ralph Delbove, a supervising retail accountant who prepared
Piggly Wiggly's 1992 financial statements, testified to the
financial condition of Piggly Wiggly. Mr. Delbove stated that
Piggly Wiggly experienced a $400,00.00 net loss for 1992 (Tr.
119).
A summary of this loss was included in the record (RX 1). On
cross
examination, Mr. Delbove testified that he did not perform an
independent audit of Piggly Wiggly and that he based his
assessment
of Piggly Wiggly's financial status on the information supplied
by
Piggly Wiggly (Tr. 121-22).
Jenny Evans, Piggly Wiggly's Human Resources and Safety
Manager testified concerning Piggly Wiggly's policy regarding the
employment of minors. She stated that Piggly Wiggly prohibits
employees under the age of eighteen from operating power driven
equipment, i.e., paper balers, fork lifts and meat slicers (Tr.
[PAGE 6]
130). This policy was in effect before the Wage & Hour
investiga-
tion and is currently in effect. In an effort to ensure future
compliance with the child labor laws, Piggly Wiggly places signs
on all power driven equipment prohibiting operation of the
equipment by employees under eighteen;[9] meets with all
employees
under eighteen and reviews Piggly Wiggly's policies; supplies new
employees under the age of eighteen with a new hire packet
explaining Piggly Wiggly's "hands off" policy with regards to
power
driven equipment;[10] and holds monthly safety meetings with
store
safety coordinators (Tr. 131-36).
Ms. Evans testified that Piggly Wiggly is required to
document
any injuries occurring at the workplace (Tr. 143). The record
contains five reports detailing injuries sustained by minors
while
operating the meat slicer. The minors were Mario Martin, Stacey
Smith, Mark Jackson, Barry Overton and Candice Simpson (PX
3).[11]
Robert D. Allen, co-chairman of Piggly Wiggly, testified on
behalf of Piggly Wiggly. Mr. Allen gave assurances that Piggly
Wiggly would comply with the child labor laws in the future (Tr.
155). Mr. Allen stated that Ms. Stramel, the Piggly Wiggly
employee who provided financial information to Wage & Hour, did
not
have the authority to speak on behalf of Piggly Wiggly and was
not
privy to the information she provided to Wage and Hour (Tr. 155-
58).
Many of the post hearing stipulations contain statements
from
minors revealing that Piggly Wiggly knew or had reason to know
that
the minors were operating the paper balers, meat slicers and/or
fork lifts. Employees whose statements support this proposition
include: Terrance Brown, Derrick Davis, Andre Langston, Tony
Littles, Keith Olswing, Tai Powell, John Shinault, David
Sprowles,
Christopher Young, Jonathan Legg, Barry Overton, Vernon Scott
Hagewood, Paul Moore, William Spence, Marko Thomas, Jeffrey
Williams, Mike Moskovitz, Eric Gladhill, Chris Edwards, Alan
Flanigan, Mark Andrew Hall, Cameron Hogg, Lejuanna Hunter,
Jarrett
Jackson, Willie Smith, Lonnie Tate, Carl Whitten, Richie Becton,
Antonio Burks, Michael Harty, James McDonnell, Jr., Shawn Baltz
and
Candice Simpson (PHS 1-120).
V. FINDINGS OF FACT
Based on my review of the record, summarized above, I make
the
following credibility and factual findings:
1. Neither investigator Lewis nor Arnold took §579.5
into account when determining the penalty amounts to be assessed
against
[PAGE 7]
the Respondents. Rather, they based the penalty assessments
solely
on the WH-266s Forms. The investigators used both pre-November
5,
1990 penalty rates and post-November 5, 1990 penalty rates in
their
calculations.
2. The Respondents knew that many of their employees under
the age of eighteen were operating the paper balers, fork lifts
and/or meat slicers.
3. Five minors sustained injuries while operating the meat
slicers.
4. Policies established by Piggly Wiggly to ensure compli-
ance with the child labor laws were largely implemented after the
Wage and Hour investigation.
5. The length of employment of minors alleged to be
working
in violation of the Act ranges from 13 days to 21 months.
6. The Respondents have no history of prior violations of
the Act.
As determined in the Findings of Fact, the Plaintiff's
assessment of a $187,400.00 penalty is based solely on the
completion of the WH-266 Child Labor Civil Money Reports. WH-266
is comprised of four parts - parts A through D. Part A
determines
what factors are involved in the violation. In the present case,
Wage and Hour checked off three factors - a Hazardous Order
violation, serious injury and the involvement of multiple minors
(PX 65-72). Part B determines the amount of the penalty by using
a pre-established dollar amount for a violation multiplied by the
number of violations. In the present case, Wage and Hour found
violations of Reg 3-Hours Violation applying to employees 14 and
15
years of age; Reg 3-Occupation applying to employees 14 and 15
years of age; Hazardous Order applying to employees under the age
of 16, 16 years of age, and 17 years of age; and Serious Injury
Hazardous Order. For the above violations, the Plaintiff used
both
the pre- and post-November 5, 1990 penalty rates, resulting in a
penalty of $187,400.00.[12] Part C allows for reductions in the
penalty where appropriate. No reductions were made in this case.
Part D represents the total of the monetary penalty which, in
this
case, remained at $187,400.00.[13]
My evaluation of the above penalty involves a two-tiered
analysis. Part I of my analysis involves examining each of the
alleged violations to determine whether: (1) the Plaintiff has
proven the violation and (2) if the violation has been proven, to
[PAGE 8]
decide whether the Plaintiff applied the proper WH-266 amount,
and
if the Plaintiff did not, to apply the correct amount per viola-
tion. The penalty amount listed in Part I of the analysis
represents the penalty assessed by the Plaintiff, subject to
change
under Part II of the analysis. Part II of the analysis involves
the application of §579.5, which the Plaintiff failed to
consider in their penalty assessment, to determine if any
reduction
in the penalty is merited.
VI.
PART I - EVALUATION OF ALLEGED VIOLATIONS AND PENALTY ASSESS-
MENTS
A. Alleged Violations of 29 C.F.R. §§570.58, 570.61
and 570.63
1. Pre- and Post-November 5, 1990 Violations
In accord with the Regulation, Form WH-266, the form the
Wage
and Hour investigators used in calculating the penalties, doubles
the penalties stemming from post-November 5, 1990 violations.[14]
In calculating the penalties, the Plaintiff used the
pre-November
5, 1990 amounts (the lower amounts) for violations beginning
prior
to November 5, 1990 and ending before November 5, 1990; for
violations beginning before November 5, 1990, but continuing
beyond
November 5, 1990, or violations occurring after November 5, 1990,
the Plaintiff used the post-November 5, 1990 amounts (the higher
amounts) (Tr. 73).
Twenty nine C.F.R. §579.9[15] states:
The assessment of civil penalties, not to exceed
$10,000.00 for each employee who was the subject of a
violation of section 12 of the Act relating to child
labor or of any regulation issued under that section,
shall apply to all such violations occurring on or after
November 5, 1990. A civil penalty not to exceed
,000.00 per violation shall be applicable to any such
violation occurring before November 5, 1990.
In determining the validity of whether the alleged
violations
have been proven, I have relied on three pieces of evidence - the
injury reports (PX 3), the post-hearing stipulations (PHS 1-120)
and the Respondents' Responses to Plaintiff's Request for Admis-
sion, Interrogatories and Request for Production of Documents (PX
5).[16]
[PAGE 9]
2. Violations of 29 C.F.R. §§570.58, 570.61,
570.63[17]
I find that the following violations alleged by Plaintiff
have
been established, and I have listed the penalty assessed by
Plaintiff next to each violation.
A. Store Number 11
1. In his statement, Adrian Branch admits to throwing
boxes into the baler. I find this statement specific
enough
to establish a violation of 29 C.F.R. §570.63.
Age at Assessed
DOBPeriod of Violation[18]
ViolationPenalty
10/3/73 11/5/90 - 5/91 17 ,000.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-
November 5, 1990 §570.63 violation is ,000.00 (PX 71).
2. Jonathan Cansler stated: "I placed material in the
paper
baler and pushed the button to start the baler. I used the paper
baler at least two to three times per week." This statement is
sufficient to establish a violation of 29 C.F.R. §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
3/3/73 12/13/89 - 3/24/91 16 ,200.00
Discussion: The minor worked five months after November 5, 1990,
using the paper baler at least two to three times per week.
Under
Form WH 266, the pre-established penalty for a post-November 5,
1990 §570.63 violation is ,200.00 (PX 71).
3. Derrick Davis stated that he "used the paper bailer...
by
throwing boxes into the baler and pushing the start button. I
did
this two times while employed at Piggly Wiggly." This statement
is
sufficient to establish a violation of 29 C.F.R. §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
12/17/73 7/3/90 - 1/6/91 16 ,200.00
[PAGE 10]
Discussion: The Plaintiff did not show whether the two
violations
occurred before or after November 5, 1990. Without further
proof,
the Respondent is entitled to the benefit of the doubt and the
pre-
November 5, 1990 penalty rate is applicable. Under Form WH 266,
the pre-established penalty for a pre-November 5, 1990
§570.63
violation is $600.00 (PX 71).
4. The statements of Eric Heaton are sufficient to
establish
violations of 29 C.F.R. §§570.61 and 570.63. He stated
that he put boxes in the machine and pushed the start button,
using
the baler once or twice per week as a sacker and daily as a deli
clerk. Mr. Heaton also acknowledged cutting meat for customers
using the meat slicer.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
3/24/73 10/15/89 - 3/23/91 16/17 $2,200.00
Discussion: The minor worked five months after November 5, 1990,
using the paper baler once or twice per week. Under Form WH 266,
the pre-established penalty for a post-November 5, 1990
§570.63 violation is ,200.00. The Plaintiff did not show
whether the minor used the meat slicer before or after November
5,
1990. Without further proof, the Respondent is entitled to the
benefit of the doubt and the pre-November 5, 1990 penalty rate
for
the meat slicer violation is applicable. Under Form WH 266, the
pre-established penalty for a pre-November 5, 1990 §570.61
violation is $500.00 (PX 71).
5. Andre Langston was 16 years old when he began to work
for
Piggly Wiggly and quit when he was 17. He stated that he used
the
paper baler about twice a week, "taking empty boxes to the baler,
throwing them in, pushing the button and, if the machine was
full,
making a bale." This is sufficient to establish a violation of
29
C.F.R. §570.63. Mr. Langston also acknowledged "using the
fork lift to remove items from the stockroom to the store," with
management's knowledge. This statement is sufficient to
establish
a violation of 29 C.F.R. §570.58.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
9/19/72 6/24/89 - 4/8/90 16 ,200.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalties for
pre-
[PAGE 11]
November 5, 1990 §§570.63 and 570.58 violations is
,200.00 (PX 71).
6. Tony Littles acknowledged throwing boxes into the
baler
and pushing the start button. This statement is sufficient to
establish a violation of 29 C.F.R. §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
4/15/74 10/1/90 - 10/14/90 16 $600.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
November 5, 1990 §570.63 violation is $600.00 (PX 71).
7. Keith Olswing stated that he "put paper in the baler,
closed the door and pushed the button." When the baler was full,
he would pull the bale out and refill it. This statement is
sufficient to establish a violation of 29 C.F.R. §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
4/20/73 5/23/89 - 8/18/89 16 ,200.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
November 5, 1990 §570.63 violation is $600.00 (PX 71). The
Plaintiff also alleged a violation of Hazardous Order 7
(operation
of a fork lift by a minor), assessing an additional $600.00
penalty. However, Mr. Olswing's statement makes no mention of
operating a fork lift and no fork lift violation is established.
Therefore, the additional $600.00 has not been established.
8. There is nothing from Mario Martin's testimony that
establishes a violation. However, the record contains an injury
report showing that Mr. Martin injured himself while cleaning the
meat slicer when he was 17 (PX 3).[19] This report is
sufficient
to establish a violation of §570.61.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
9/18/72 10/16/89 - 9/17/90 17 ,000.00
Discussion: The Plaintiff produced a medical report showing that
[PAGE 12]
the minor suffered his injury on August 13, 1990 (pre-November 5,
1990 penalty rate) while cleaning the meat slicer (PX 3). Form
WH-
266 allows for a $500.00 penalty for such an injury. The
Plaintiff
also penalized the Respondents an additional $500.00 for Mr.
Martin's alleged use of the paper baler. However, the Plaintiff
failed to demonstrate that Mr. Martin operated the baler and the
penalty is denied (PX 71).
9. Tai Powell's statement establishes that he operated the
paper baler by inserting empty boxes and pushing the start
button.
He stated that he operated the baler twice a week while employed
at
Piggly Wiggly. This is sufficient to establish a violation of 29
C.F.R. §570.63. The Respondents also acknowledge that on
occasion Mr. Powell worked more than three hours on a school day,
a violation of §570.35.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
11/6/74 9/25/90 - 12/9/90 15/16 ,600.00
Discussion: The minor worked one month after November 5, 1990,
using the paper baler twice a week. Under Form WH 266, the pre-
established penalty for a post-November 5, 1990 §570.63
violation is ,200.00 (PX 71). Under Form WH 266, the pre-
established penalties for post-November 5, 1990
§§570.63
and 570.35 violations are ,500.00 and $400.00 respectively,
resulting in a ,900.00 penalty (PX 71).
10. Derek Reed stated that he "used the paper baler...by
throwing boxes and paper into the baler....I put paper or boxes
into the paper baler." This statement is sufficient to
establish
a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
5/5/73 8/29/89 - 5/28/90 16 $600.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
November 5, 1990 §570.63 violation is $600.00 (PX 71).
11. Kevin Rook stated that he operated the paper baler once
a week by throwing boxes into the baler and pushing the button.
This is sufficient to establish a violation of §570.63.
[PAGE 13]
Age at Assessed
DOBPeriod of ViolationViolationPenalty
10/13/73 4/23/90 - 11/10/90 16 ,200.00
Discussion: The Plaintiff did not show whether the violations
occurred before or after November 5, 1990. Without further
proof,
the Respondent is entitled to the benefit of the doubt and the
pre-
November 5, 1990 penalty rate is applicable. Under Form WH 266,
the pre-established penalty for a pre-November 5, 1990
§570.63
violation is $600.00 (PX 71).
12. John Shinalult's statement establishes violations of 29
C.F.R. §§570.58, 570.61 and 570.63. He stated that at
the age of 16 he threw cardboard boxes into the paper baler and
pushed the start button. He also admitted to using the meat
slicer
one day, when he was 17 years old and using the fork lift one
day,
when he was 16 years old.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
12/15/72 6/13/89 - 3/10/91 16/17 $2,300.00
Discussion: The Plaintiff did not show whether the violations
occurred before or after November 5, 1990. Without further
proof,
the Respondent is entitled to the benefit of the doubt and the
pre-
November 5, 1990 penalty rate is applicable. Under Form WH 266,
the pre-established penalties for pre-November 5, 1990
§§570.63 and 570.61 and 570.58 violations are $600.00,
$600.00 and $500.00 respectively, resulting in a ,700.00
penalty
(PX 71).
13. David Sprowlers admitted putting boxes in the paper
baler
about every other week. This is sufficient to establish a vio-
lation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
1/10/73 5/5/89 - 3/18/90 16 $600.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
November 5, 1990 §570.63 violation is $600.00 (PX 71).
14. Hudson Taylor's statement, that he threw boxes into the
paper baler while under the age of 18, is sufficient to establish
[PAGE 14]
a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
8/27/74 2/14/91 - 5/91 16 ,200.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 violation is ,200.00 (PX
71).
15. Larry Turnmire's statements are sufficient to establish
violations of §§570.58 and 570.63. He acknowledged
throwing boxes into the baler and pushing the button,
approximately
once every two days. He also admitted driving the fork lift.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
5/29/73 11/17/89 - 1/13/91 16/17 $2,200.00
Discussion: The minor worked three months after November 5,
1990,
using the paper baler once every two days. Under Form WH 266,
the
pre-established penalty for a post-November 5, 1990 §570.63
violation is ,200.00. The Plaintiff did not show whether the
minor drove the fork lift before or after November 5, 1990.
Without further proof, the Respondent is entitled to the benefit
of
the doubt and the pre-November 5, 1990 penalty rate for the fork
lift violation is applicable. Under Form WH 266, the pre-estab-
lished penalty for a pre-November 5, 1990 §570.58 violation
is
$500.00 (PX 71).
16. Dedrick Wade stated that he operated the baler every
day
by "throwing boxes into the baler and pushing the start button."
This is sufficient to establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
4/1/73 12/13/89 - 5/13/90 16 $600.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
November 5, 1990 §570.63 violation is $600.00 (PX 71).
17. Christopher Young stated that he threw cardboard boxes
[PAGE 15]
into the baler approximately 3-4 times before his eighteenth
birthday; also making a bale. This statement is sufficient to
establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
2/23/74 12/23/90 - 5/91 16 ,200.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 violation is ,200.00 (PX
71).
B. Store Number 61
1. Becky Branden's testimony that she put cigarette cartons
into the paper baler is sufficient to establish a violation of
§570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
7/31/73 6/7/90 - 8/90 16 $600.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
November 5, 1990 §570.63 violation is $600.00 (PX 67).
2. Darren Craft stated that he put paper boxes into the
paper
baler and at some point during his employment also pushed the
button on the baler. This is sufficient to establish a violation
of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
10/27/73 8/27/90 - 11/16/90 16 ,200.00
Discussion: The Plaintiff's use of the ,200.00 penalty rate is
erroneous. For that rate to apply, the minor must have committed
the violation after November 5, 1990, when he was sixteen years
old. However, Mr. Craft was born on October 27, 1973, and was
seventeen years old nine days before November 5, 1990.
Therefore,
since the record shows that Mr. Craft was seventeen years old
when
he committed the violation, WH 266 provides for a ,000.00
penalty
(PX 67).
[PAGE 16]
3. Chris Edwards stated that he threw things into the paper
baler and pushed the button. This statement is sufficient to
establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
9/13/74 10/29/90 - 4/91 16 ,200.00
Discussion: Since the minor began his employment approximately
one
week before November 5, 1990, I find that the majority of his
prohibited conduct occurred after November 5, 1990. Under Form
WH
266, the pre-established penalty for a post-November 5, 1990
§570.63 violation is ,200.00 (PX 67).
4. Alan Flanigan stated that he placed cardboard boxes into
the opening of the baler. This act is sufficient to establish a
violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
1/27/75 1/28/91 - 5/91 16 ,200.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 violation is ,200.00 (PX
67).
5. Mark Andrew Hall stated that he put brown paper sacks
into
the baler and pushed the button. This is sufficient to establish
a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
3/22/73 6/25/90 - 1/27/91 17 ,000.00
Discussion: The Plaintiff did not show whether the violations
occurred before or after November 5, 1990. Without further
proof,
the Respondent is entitled to the benefit of the doubt and the
pre-
November 5, 1990 penalty rate is applicable. Under Form WH 266,
the pre-established penalty for a pre-November 5, 1990
§570.63
violation is $600.00 (PX 67).
6. Cameron Hogg stated that he threw boxes into the baler,
lifted the handle down to close the cage and pushed the start
button on a daily basis. This statement is sufficient to
establish
[PAGE 17]
a violation of §570.63.
Age at
Assessed
DOBPeriod of ViolationViolationPenalty
12/11/72 7/1/89 - 12/10/90 16 ,200.00
Discussion: The minor worked one month after November 5, 1990,
using the paper baler on a daily basis. Under Form WH 266, the
pre-established penalty for a post-November 5, 1990 §570.63
violation is ,200.00 (PX 67).
7. The statement of Lejuanna Hunter is sufficient to
establish violations of §§570.61 and 570.63. He stated
that he used the meat slicer everyday while employed in the deli
and injured himself in the process. He also stated that he threw
boxes into the paper baler and pushed the button.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
5/7/72 7/17/89 - 4/6/90 17 ,000.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalties for
pre-
November 5, 1990 §§570.63 and 570.61 violations (17
years
old) are $500.00 each, resulting in a ,000.00 penalty (PX 67).
8. Jarrett Jackson stated that he threw boxes and paper
into
the baler and helped the stockers make bales by "grabbing the
bale
wires and pulling the bale out on to the pallet." This is
sufficient to establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
11/7/73 1/7/91 - 5/91 17 ,000.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 (17 years old) violation is
,000.00 (PX 67).
9. Taylor Johnson stated that he placed materials into
the
baler. This is sufficient to establish a violation of
§570.63.
Age at Assessed
[PAGE 18]
DOBPeriod of ViolationViolationPenalty
8/16/74 10/29/90 - 12/23/90 16 ,200.00
Discussion: Since the minor began his employment approximately
one
week before November 5, 1990, I find that the majority of his
prohibited conduct occurred after November 5, 1990. Under Form
WH
266, the pre-established penalty for a post-November 5, 1990
§570.63 (16 years old) violation is ,200.00 (PX 67).
10. Bobby McDaniel made the following statement:
I used the paper baler. I threw boxes in the machine,
pulled the guard rails down and pushed the start button.
The guard rail automatically comes up itself. When the
baler level reaches 6-10, I turn the switch to tie and
push start. After the machine has stopped, I open the
door to the baler and tie the cardboard off. I then use
a pallet jack to remove the bale from the area and store
until picked up.
This statement is sufficient to establish a violation of
§570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
9/22/73 1/3/90 - 5/91 16 ,200.00
Discussion: The Plaintiff's use of the ,200.00 penalty rate is
erroneous. For that rate to apply, the minor must have committed
the violation after November 5, 1990, when he was sixteen years
old. However, Mr. McDaniel was born on September 22, 1973, and
was
seventeen years old six weeks before November 5, 1990. WH 266
states that violations committed by a 17 year old before November
5, 1990 require a ,000.00 penalty (PX 67).
11. Brandon Scott stated that he threw boxes into the paper
baler, pulled the gate down and pushed the start button. He used
the baler every time he was scheduled to work. This statement is
sufficient to establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
2/12/74 8/28/90 - 5/91 16 ,200.00
Discussion: The minor worked seven months after November 5,
1990,
[PAGE 19]
using the paper baler every time he was scheduled to work. Under
Form WH 266, the pre-established penalty for a post-November 5,
1990 §570.63 violation is ,200.00 (PX 67).
12. Willie Smith stated that he put boxes into the paper
baler and pushed the start button. This statement is sufficient
to
establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
6/14/72 6/15/89 - 2/12/90 17 $500.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
November 5, 1990 §570.63 (17 years old) violation is $500.00
(PX 67).
13. Lonnie Tate stated that once or twice weekly he threw
boxes into the paper baler and pushed the button. This statement
is sufficient to establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
4/28/73 7/26/90 - 4/27/91 17 ,000.00
Discussion: The minor worked six months after November 5, 1990,
using the paper baler once or twice weekly. Under Form WH 266,
the
pre-established penalty for a post-November 5, 1990 §570.63
(17 years old) violation is ,000.00 (PX 67).
14. Lynn Tillery (Faulkner) stated that she placed boxes
into
the paper baler and pushed the button to crush them. She did
this
two to three times per month. This statement is sufficient to
establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
1/30/73 10/17/90 - 2/3/91 17 ,000.00
Discussion: The minor worked three months after November 5,
1990,
using the paper baler two to three times per month. Under Form
WH
266, the pre-established penalty for a post-November 5, 1990
§570.63 (17 years old) violation is ,000.00 (PX 67).
[PAGE 20]
15. Carl Whitten stated that he pushed the button to crush
boxes and made bales. This is sufficient to establish a
violation
of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
10/31/72 6/10/89 - 5/27/90 16 $600.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
November 5, 1990 §570.63 (16 years old) violation is $600.00
(PX 67).
C. Store Number 81
1. Robert Garrett, Jr. admitted to using the meat slicer
while under the age of 18. This statement establishes a
violation
of §570.61.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
8/16/74 6/90 - 8/15/90 15 ,500.00
Discussion: All of the prohibited activity occurred before
November 5, 1990. Under Form WH 266, the pre-established penalty
for a pre-November 5, 1990 §570.61 (15 years old) violation
is
$750.00 (PX 70).
2. Mark Jackson acknowledged using the meat slicer when he
was 17 years old. The record also contains an injury report
showing that Mr. Jackson injured himself while operating the meat
slicer when he was 17 (PX 3). This report, along with the
statement of the minor, is sufficient to establish a violation of
§570.61.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
9/7/72 5/7/90 - 9/6/90 17 ,000.00
Discussion: The Plaintiff produced a medical report showing that
the minor suffered a serious injury on May 17, 1990 (pre-November
5, 1990 penalty rate) while using the meat slicer (PX 3).[20]
Form WH 266 provides for a ,000.00 penalty in such a situation
(PX 70).
[PAGE 21]
3. Jonathan Legg stated that he operated the meat cutting
machine. This statement is sufficient to establish a violation
of
§570.61.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
3/11/75 5/90 - 3/10/91 15 ,500.00
Discussion: The minor stated that he began using the meat slicer
in November of 1990, establishing that his prohibited conduct
occurred after November 5, 1990. Under Form WH 266, the pre-
established penalty for a post-November 5, 1990 §570.61 (15
years old) violation is ,500.00 (PX 70).
4. Barry Overton stated that he operated the meat cutting
machine as a minor on a daily basis. The record also contains an
injury report showing that Mr. Overton injured himself while
cleaning the meat slicer when he was 17 (PX 3). This report,
along
with the statement of the minor, is sufficient to establish a
violation of §570.61.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
9/8/73 9/10/90 - 2/91 17 $5,000.00
Discussion: The Plaintiff produced a medical report showing that
the minor suffered a serious injury on November 6, 1990 (post-
November 5, 1990 penalty rate) while cleaning the meat slicer (PX
3). Form WH 266 provides for a $5,000.00 penalty in the event of
a serious injury (PX 70).
5. Jason Scholl stated that he operated the meat cutting
machine nine or ten times as a minor. This statement is
sufficient
to establish a violation of §570.61.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
8/8/73 1/91 - 4/91 17 ,000.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.61 (17 years old) violation is
,000.00 (PX 70).
[PAGE 22]
D. Store Number 103
1. Eric Gladhill stated that he threw boxes into the paper
baler and pushed the button. This statement is sufficient to
establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
3/29/73 1/21/91 - 2/17/91 17 ,000.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 (17 years old) violation is
,000.00 (PX 65).
E. Store Number 164
1. Mike Moskovitz stated that he operated the paper baler
by
opening the front, throwing boxes in, shutting the gate and
pushing
the button. He did this on a daily basis. He also made bales
when
needed. This statement is sufficient to establish a violation of
§570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
6/11/73 3/91 - 4/91 17 ,000.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 (17 years old) violation is
,000.00 (PX 66).
2. The record contains an injury report showing that Stacey
Smith injured herself while cleaning the meat slicer when she was
17 (PX 3). This report is sufficient to establish a violation of
§570.61.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
7/22/72 5/89 - 7/21/90 16 $600.00
Discussion: The Plaintiff produced a medical report showing that
the minor injured herself on May 28, 1989 (pre-November 5, 1990
[PAGE 23]
penalty rate) while cleaning the meat slicer (PX 3). All of her
prohibited conduct occurred before November 5, 1990. Form WH 266
proscribes a $600.00 penalty rate in such an instance (PX
66).[21]
F. Store Number 187
1. Jonathan Bennett stated that he threw cardboard into the
baler, pulled the gate down, pushed the button and made bales.
He
made bales "at least 12 times as a stocker from October, 1990
until
April, 1991." This statement is sufficient to establish a
violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
6/30/73 11/20/89 - 4/2/91 16 ,200.00
Discussion: The minor stated that he made bales at least twelve
times since October of 1990, making most of his prohibited
conduct
after November 5, 1990. Under Form WH 266, the pre-established
penalty for a post-November 5, 1990 §570.63 (16 years old)
violation is ,200.00 (PX 72).
2. Vernon Scott Hagewood stated that he operated the fork
lift while under the age of 16. This statement is sufficient to
establish a violation of §570.58.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
1/13/75 6/3/90 - 8/19/90 15 $750.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
November 5, 1990 §570.58 (15 years old) violation is $750.00
(PX 72).
3. Paul Moore's statement that he put cigarette boxes into
the baler is sufficient to establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
5/17/73 2/6/90 - 7/22/90 16 $600.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
[PAGE 24]
November 5, 1990 §570.63 (16 years old) violation is $600.00
(PX 72).
4. William Spence's statement is sufficient to establish
violations of §§570.58 and 570.63. He stated that he
used the paper baler every night - opening the gate, putting
boxes
in, closing the gate and pushing the button. He also stated that
he drove the fork lift about ten to fifteen times as a minor.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
5/20/74 6/4/90 - 9/23/90 16 ,200.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalties for
pre-
November 5, 1990 §§570.63 and 570.58 violations (16
years
old) are $600.00 each, resulting in a ,200.00 penalty (PX 72).
5. Jeffrey Williams stated that he used the paper baler
three
times in three months by opening the gate, putting the boxes in
and
pushing the button. This statement is sufficient to establish a
violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
12/14/72 3/30/90 - 7/15/90 17 $500.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
November 5, 1990 §570.63 (17 years old) violation is $500.00
(PX 72).
6. Anthony Wilson stated that he used the paper baler at
least once a week. He put trash in the baler, closed the door
and
pressed the button. This is sufficient to establish a violation
of
§570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
9/23/73 8/6/90 - 9/9/90 16 $600.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
November 5, 1990 §570.63 (16 years old) violation is $600.00
(PX 72).
[PAGE 25]
7. Benjamin Wooley stated that he used the paper baler
about
once a day. He threw cardboard boxes in, closed the door and
pushed the button. This is sufficient to establish a violation
of
§570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
9/3/74 9/10/90 - 4/2/91 16 ,200.00
Discussion: The minor worked five months after November 5, 1990,
using the paper baler once a day. Under Form WH 266, the pre-
established penalty for a post-November 5, 1990 §570.63 (16
years old) violation is ,200.00 (PX 72).
8. Marko Thomas stated that he used the paper baler about
two
times per week, putting paper in the machine, closing the gate
and
pushing the button. This statement is sufficient to establish a
violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
5/21/73 8/6/90 - 11/27/90 17 $500.00
Discussion: The minor worked three weeks after November 5, 1990,
using the paper baler two times per week. Under Form WH 266, the
pre-established penalty for a post-November 5, 1990 §570.63
(17 years old) violation is ,000.00 (PX 72).
G. Store Number 189
1. Marcus Askew stated that he threw boxes into the baler,
pushed the button and made bales. This statement is sufficient
to
establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
9/23/74 11/15/89 - 5/19/91 15 ,500.00
Discussion: The Plaintiff's use of the ,500.00 penalty rate is
erroneous. For that rate to apply, the minor must have committed
the violation after November 5, 1990, when he was fifteen years
old. However, Mr. Askew was born on September 23, 1974, and was
sixteen years old six weeks before November 5, 1990. In that
situation, Form WH 266 provides for a ,200.00 penalty (PX 68).
[PAGE 26]
2. Eric Bender stated that he put boxes in the baler and
pushed the button. This statement is sufficient to establish a
violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
7/19/73 11/8/89 - 1/27/91 16 ,200.00
Discussion: The Plaintiff did not show whether the violations
occurred before or after November 5, 1990. Without further
proof,
the Respondent is entitled to the benefit of the doubt and the
pre-
November 5, 1990 penalty rate is applicable. Under Form WH 266,
the pre-established penalty for a pre-November 5, 1990
§570.63
violation is $600.00 (PX 68).
3. Christopher Boyd stated that he threw boxes into the
baler, pushed the button for the boxes to be crushed and made
bales
approximately two times per month before turning 18. This
statement is sufficient to establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
12/11/74 1/29/91 - 5/19/91 16 ,200.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 (16 years old) violation is
,200.00 (PX 68).
4. Antonio Burks' testimony is sufficient to establish
violations of §§570.61 and 570.63. He stated that he
used the paper baler two to three times daily - throwing the
boxes
into the baler and pushing the start button. He also stated that
he used the meat slicer approximately two times per week before
he
turned 18.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
2/23/74 11/6/89 - 4/28/91 15/16 $2,700.00
Discussion: The minor worked five months after November 5, 1990,
[PAGE 27]
using the paper baler two to three times daily and the meat
slicer
approximately two times per week. Under Form WH 266, the pre-
established penalties for post-November 5, 1990
§§570.63
and 570.61 violations is ,200.00 and ,500.00 respectively,
resulting in a $2,700.00 penalty (PX 68).
5. David Delloso stated that he put paper inside the paper
baler and pushed the button on a daily basis. This statement is
sufficient to establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
2/18/74 12/11/89 - 1/27/91 15 ,500.00
Discussion: The minor worked three months after November 5,
1990,
using the paper baler on a daily basis. Under Form WH 266, the
pre-established penalty for a post-November 5, 1990 §570.63
(15 years old) violation is ,500.00 (PX 68).
6. Thurman Gray stated that he threw boxes in the paper
baler
and pushed the button four or five times per day. This statement
is sufficient to establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
10/21/74 4/2/90 - 4/91 15 ,500.00
Discussion: The minor worked six months after November 5, 1990,
using the paper baler four or five times per day. Under Form WH
266, the pre-established penalty for a post-November 5, 1990
§570.63 (15 years old) violation is ,500.00 (PX 68).
7. Michael Harty stated that he threw boxes in the baler,
pushed the start button and unloaded the baler by using the hand
truck to remove the bale. He used the paper baler two to three
times daily. This statement is sufficient to establish a
violation
of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
7/24/73 8/10/90 - 2/10/91 17 ,000.00
Discussion: The minor worked four months after November 5, 1990,
using the paper baler two to three times daily. Under Form WH
266,
[PAGE 28]
the pre-established penalty for a post-November 5, 1990
§570.63 (17 years old) violation is ,000.00 (PX 68).
8. Jeffrey Higgins stated that he operated the baler once a
week by throwing the boxes in and pushing the start button. This
statement is sufficient to establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
9/6/74 2/90 - 4/91 15 ,500.00
Discussion: The minor worked six months after November 5, 1990,
using the paper baler once a week. Under Form WH 266, the pre-
established penalty for a post-November 5, 1990 §570.63 (15
years old) violation is ,500.00 (PX 68).
9. Jonathan Redfearn stated that he threw boxes into the
baler, pushed the button, waited for the boxes to be crushed and
then removed the baled boxes. This statement is sufficient to
establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
10/15/73 5/6/89 - 10/28/90 15 $750.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-
November 5, 1990 §570.63 (15 years old) violation is $750.00
(PX 68).
10. James McDonnell, Jr. stated that he used the paper
baler
at least once a day, throwing boxes in and pushing the start
button. This statement is sufficient to establish a violation of
§570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
11/1/74 2/11/91 - 5/19/91 16 ,200.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 (16 years old) violation is
,200.00 (PX 68).
[PAGE 29]
H. Store Number 203
1. Jackie Godwin stated that she threw cardboard boxes into
the baler and pushed the button, doing this several times per
week.
This statement is sufficient to establish a violation of
§570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
12/27/74 3/23/91 - 5/19/91 16 ,200.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 (16 years old) violation is
,200.00 (PX 69).
2. Gaston Garrett II stated that he operated the meat
slicer.
This statement is sufficient to establish a violation of
§570.61.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
1/23/74 8/23/90 - 11/18/90 16 ,200.00
Discussion: The Plaintiff did not show whether the violation
occurred before or after November 5, 1990. Without further
proof,
the Respondent is entitled to the benefit of the doubt and the
pre-
November 5, 1990 penalty rate is applicable. Under Form WH 266,
the pre-established penalty for a pre-November 5, 1990
§570.61
(16 years old) violation is $600.00 (PX 69).
3. Stephanie Hopper's statement that she cleaned the
slicing
machine while the blade was running is sufficient to establish a
violation of §570.61.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
10/6/73 4/11/90 - 5/19/91 16 ,200.00
Discussion: The Plaintiff did not show whether the violation
occurred before or after November 5, 1990. Without further
proof,
the Respondent is entitled to the benefit of the doubt and the
pre-
November 5, 1990 penalty rate is applicable. Under Form WH 266,
the pre-established penalty for a pre-November 5, 1990
§570.61
(16 years old) violation is $600.00 (PX 69).
4. Jason McGhee stated that he made bales while employed at
[PAGE 30]
Piggly Wiggly. This statement is sufficient to establish a
violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
1/29/74 6/1/90 - 3/17/91 16 ,200.00
Discussion: The Plaintiff did not show whether the violation
occurred before or after November 5, 1990. Without further
proof,
the Respondent is entitled to the benefit of the doubt and the
pre-
November 5, 1990 penalty rate is applicable. Under Form WH 266,
the pre-established penalty for a pre-November 5, 1990
§570.63
(16 years old) violation is $600.00 (PX 69).
5. Allen Pannell stated that he threw boxes into the baler,
pushed the button and made bales. This statement is sufficient
to
establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
12/6/74 1/22/91 - 5/19/91 16 ,200.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 (16 years old) violation is
,200.00 (PX 69).
6. Shawn Peace stated that he put boxes in the baler,
pushed
the button and made bales. This statement is sufficient to
establish a violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
6/5/74 12/1/90 - 5/19/91 16 ,200.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 (16 years old) violation is
,200.00 (PX 69).
7. Aaron Edward Presnell stated that he took boxes to the
baler, threw them in, pushed the button and helped bale them.
This
statement is sufficient to establish a violation of §570.63.
[PAGE 31]
Age at Assessed
DOBPeriod of ViolationViolationPenalty
3/21/74 5/24/89 - 1/90 15 $750.00
Discussion: All of the prohibited conduct occurred before
November
5, 1990. Under Form WH 266, the pre-established penalty for a
pre-November 5, 1990 §570.63 (15 years old) violation is
$750.00 (PX 69).
8. Candice Simpson acknowledged using the meat slicer when
she was 16 years old. The record also contains an injury report
showing that Ms. Simpson injured herself while operating the meat
slicer when she was 17 (PX 3). This report, along with the
statement of the minor, is sufficient to establish a violation of
§570.61.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
4/1/74 3/27/90 - 5/19/91 16 $6,200.00
Discussion: The Plaintiff produced a medical report showing that
the minor suffered a serious injury on March 31, 1991 (post-
November 5, 1990 penalty rate) while using the meat slicer (PX
3).
Form WH 266 allows for a $5,000.00 penalty in the event of a
serious injury (PX 69).
9. Shawn Baltz stated that he threw boxes into the baler on
a weekly basis. This statement is sufficient to establish a
violation of §570.63.
Age at Assessed
DOBPeriod of ViolationViolationPenalty
12/6/74 12/20/90 - 5/91 16 ,200.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 (16 years old) violation is
,200.00 (PX 69).
10. David Hilliard's statement that he threw boxes into the
paper baler is specific enough to establish a violation of
§570.63.
[PAGE 32]
Age at Assessed
DOBPeriod of ViolationViolationPenalty
3/16/75 3/5/91 - 5/19/91 15 ,500.00
Discussion: All of the prohibited conduct occurred after
November
5, 1990. Under Form WH 266, the pre-established penalty for a
post-November 5, 1990 §570.63 (15 years old) violation is
,500.00 (PX 69).
3. Alleged Violations of §§570.58, 570.61 and
570.63
I find that the following violations alleged by the
Plaintiff
have not been established and no penalty will be assessed.
A. Store Number 11
1. Terrance Bayes stated that he was 16 years old for the
majority of time that he worked at Piggly Wiggly and that he used
the paper baler during his employment. This statement, "used the
paper baler," is too vague to qualify as a prohibited operation
of
a paper baler within the meaning of the Regulations. For
instance,
"use of the paper baler," according to the Plaintiff, includes
throwing candy wrappers into the baler (Respondents' Post-Hearing
Brief at 43). However, this interpretation is not supported by
the
language of the Regulation, which defines operating a paper baler
to mean "all work which involves starting or stopping a
ma-
chine,...placing or removing materials into or from the
machine, or any other work directly involved in operating
the machine." 29 C.F.R. §570.63(b)(1) (emphasis added). In
light of the Plaintiff's overly broad interpretation of the
statement "using a paper baler," any alleged violation based on
that statement alone, absent further explanation, cannot
establish
a violation.
2. Nothing in Mario Bell's statement proves a violation of
any of the Regulations. He denies using the meat slicer or the
fork lift.
3. Terrance Brown's statement that he used the paper
bailer
is insufficient to establish a violation of 29 C.F.R.
§570.63,
as explained supra at A.1.
B. Store Number 61
1. The statement of Mark Arendale is not sufficient to
establish a violation. Mr. Arendale stated that he "did in fact
[PAGE 33]
throw brown paper from the grocery sacks into the baler." The
regulation prohibits "starting or stopping the ma-
chine...placing or removing materials into or from the
machine, or any other work involved in operating the machine." 29
C.F.R. §570.63(b) (emphasis added). Throwing something into
the machine, as Mr. Arendale did, does not fall within this
language. See supra discussion at A.1.
2. Angela Blount started that "she did in fact throw paper
into the paper baler." As discussed supra at A.1., I do
not
find that this act falls within the language of the regulation.
C. Store Number 187
1. Sam Mettler stated that "he threw things into the
baler...but did not operate the baler." This statement is
insufficient to establish a violation of §570.63. See
discussion, supra at A.1.
D. Store Number 189
1. Richie Becton stated that he threw boxes into the baler
one time. I do not find this statement sufficient to establish a
violation of §570.63.
E. Store Number 203
1. Daniel Bishop stated that he took boxes to the baler and
disposed of them but did not push the button. I find this
statement too vague to establish a violation of §570.63.
2. Kevin Victory stated that he threw items into the baler
but never pushed the start button. I find this statement too
vague
to establish a violation of §570.63.
The Plaintiff produced no evidence concerning violations for
the following minors who were listed in the complaint:
Store Number 11: Libra Jones and Christy Whitley.
Store Number 61: Wayne Ayers, Jr., Stephen Beckenthal III,
Bryan Bishop and Hugh Graham, Jr.
Store Number 81: Jeffrey Harris and April Peebles.
Store Number 187: Scott Truitt.
Store Number 189: Christopher Jeans, Justine Kehne, Craig
Shaun Quinn, Chad Smith, Michael Andrew Smith, Jason Williams and
Brian Woodruff.
[PAGE 34]
Store Number 203: Corey Brasefield, Justin Camp, Roy Cook,
Jeffrey Eason, Jason Foster, Michael Garlock, Bryan Jackson,
Jennifer May, Christopher Pounds, Daniel Ragland, Justin
Thompson,
Candice Turner and Cindy Wyont.
B. Alleged Violations of 29 C.F.R. §570.35
Twenty nine C.F.R. §570.35 ("C.L. Reg. 3") lists the
periods and conditions of employment for 14-16 year olds.
Employment is confined to the following periods:
(1) Outside school hours;
(2) Not more than 40 hours in any one week when school is
not
in session;
(3) Not more than 18 hours in any 1 week when school is in
session;
(4) Not more than 8 hours in any 1 day when school is not in
session;
(5) Not more than 3 hours in any 1 day when school is in
session;
(6) Between 7 a.m. and 7 p.m. in any 1 day, except during
the
summer (June 1 through Labor Day) when the evening hour will
be 9 p.m.
1. Violations of §570.35
Respondents admit that they employed the following minors in
violation of §570.35:[22] The penalty amounts are from
Form
WH 266.
MinorStorePenalty
$Exhibit
1. Tai Powell 11 $400.00 PX 71
2. Jeffrey Perkins 81 300.00 PX 70
3. James Elliot Bragg 81 300.00 PX 70
4. Gary Cail 81 300.00 PX 70
5. Jay L. Campbell, Jr. 81 400.00 PX 70
6. Robert Garrett, Jr. 81 700.00 PX 70
7. Christi Hughes 81 300.00 PX 70
8. Jonathan Legg 81 400.00 PX 70
9. Albert Spurlock 81 300.00 PX 70
10. Jeffrey Scott Sykes 81 300.00 PX 70
11. Sarah Stramel 103 300.00 PX 65
[PAGE 35]
12. Telliferro H. Jackson 164 300.00 PX 66
13. Lorena Mahan 187 300.00 PX 72
14. Vernon Hagewood 187 300.00 PX 72
15. Sam Mettler 187 300.00 PX 72
16. Stacey West 187 400.00 PX 72
17. Jonathan Redfearn 189 300.00 PX 68
18. Marcus Tuggle 189 450.00 PX 68
19. Marcus Askew 189 700.00 PX 68
20. Antonio Burks 189 300.00 PX 68
21. Thurman Gray 189 300.00 PX 68
22. Jeffrey Higgins 189 300.00 PX 68
23. Justin Kehne 189 300.00 PX 68
24. Christopher Maxey 189 300.00 PX 68
25. Daniel Bishop 203 400.00 PX 69
26. Corey Brasfield 203 400.00 PX 69
27. Dawn Marie Clayton 203 400.00 PX 69
28. David Hilliard 203 400.00 PX 69
29. Gary Reginald Parker 203 400.00 PX 69
2. Alleged Violations of §570.35
I find that the following alleged violations have not been
established.
A. Store Number 81
1. Seale Morrison stated that his normal work schedule was
3:30 p.m. to 9:00 p.m., occasionally working 4:00 p.m. to 9:00
p.m.
This statement does not establish a violation because the
Plaintiff
did not demonstrate how often Mr. Morrison was working these
hours
or whether school was in session.
B. Store Number 189
1. The Plaintiff is unable to support its claim that
Antonio
Burks worked more than three hours on any one day while school
was
in session (Reg 3 Occup.). The only evidence given to support
this
claim is Mr. Burks' payroll history report, which lists the total
hours worked during a given week (PX 39). However, the report
neither shows the hours worked per day nor whether the days in
question were school days. I cannot assume that total hours
worked
per week amounts to more than three hours per day or even that
school was in session during those days. Therefore, I find that
this violation has not been established.
2. The Plaintiff is unable to support its claims that David
Delloso worked in excess of 18 hours during school weeks (Reg 3
[PAGE 36]
Hours) and that he worked more than three hours on any one day
while school was in session (Reg 3 Occup.). The evidence
submitted
to support the claims is Mr. Delloso's payroll history report,
which shows that Mr. Delloso consistently worked in excess of 18
hours per week; however, the report fails to show that school was
in session during those weeks in question (PX 31). I cannot
assume
that certain weeks of the year qualify as school weeks.
Addition-
ally, for the reasons discussed supra at B.1., the payroll
reports fail to demonstrate that Mr. Delloso worked more than
three
hours on any one day while school was in session. Therefore, I
find Plaintiffs have not established that Mr. Delloso's work
schedule constituted violations of §570.35 (Reg 3 Occup. and
Reg 3 Hours).
3. The Plaintiff's reliance on Thurman Gray's payroll
history
report (PX 40) to prove that Mr. Gray worked more than three
hours
on any one day while school was in session fails for the reasons
discussed supra at B.1. Therefore, this violation is not
established.[23]
4. The Plaintiff's reliance on Jeffrey Higgins' payroll
history report (PX 41) to prove that Mr. Higgins worked more than
three hours on any one day while school was in session fails for
the reasons discussed supra at B.1. Therefore, this
violation is not established.
5. The Plaintiff is unable to support its claims that
Christopher Jeans worked in excess of 18 hours during school
weeks
(Reg 3 Hours) and that he worked more than three hours on any one
day while school was in session (Reg 3 Occup.). While the
evidence
to support the claims, Mr. Jeans' payroll history report, shows
that Mr. Jeans consistently worked in excess of 18 hours per
week,
the report fails to show that school was in session during those
weeks in question (PX 32). I cannot assume that certain weeks of
the year qualify as school weeks. For the reasons discussed
supra at B.1., the payroll reports fail to demonstrate
that
Mr. Jeans worked more than three hours on any one day while
school
was in session. Therefore, this violation is not established.
6. The Plaintiff is unable to support its claim that Brian
Woodruff worked in excess of 18 hours during school weeks (Reg 3
Hours). While the evidence available to support the claims, Mr.
Woodruff's payroll history report, shows that Mr. Woodruff
consistently worked in excess of 18 hours per week, the report
fails to show that school was in session during those weeks in
question (PX 38). I cannot assume that certain weeks of the year
qualify as school weeks. Therefore, this violation is not
established.
[PAGE 37]
C. Store Number 203
1. The Plaintiff is unable to support its claims that
Aaron
Edward Presnell worked in excess of 18 hours during school weeks
(Reg 3 Hours) and that he worked more than three hours on any one
day while school was in session (Reg 3 Occup.). While the
evidence
available to support the claims, Mr. Presnell's payroll history
report, shows that Mr. Presnell worked in excess of 18 hours per
week, the report fails to show that school was in session during
those weeks in question (PX 50). I cannot assume that certain
weeks of the year qualify as school weeks. As well, for the
reasons discussed supra at B.1., the payroll reports fail
to
demonstrate that Mr. Presnell worked more than three hours on any
one day while school was in session. Therefore, this violation
is
not established.
2. The Plaintiff is unable to support its claim that
Candice
Simpson worked in excess of 18 hours during school weeks (Reg 3
Hours). The Plaintiff has produced no evidence supporting its
allegation. Therefore, this violation is not established.
3. The Plaintiff is unable to support its claims that
Justin
Thompson worked in excess of 18 hours during school weeks (Reg 3
Hours) and that he worked more than three hours on any one day
while school was in session (Reg 3 Occup.). While the evidence
available to support the claims, Mr. Thompson's payroll history
report, shows that Mr. Thompson worked in excess of 18 hours per
week, the report fails to show that school was in session during
those weeks in question (PX 51). I cannot assume that certain
weeks of the year qualify as school weeks. For the reasons
discussed supra at B.1., the payroll reports fail to
demonstrate that Mr. Thompson worked more than three hours on any
one day while school was in session. Therefore, this violation
is
not established.
Based on my review of the alleged violations, discussed
above,
I find that the Respondents committed 97 violations of the Act -
68
hazardous order violations and 29 hours violations. Relying on
the
penalty amounts contained in the Form WH 266s, these violations
result in a penalty of $88,250.00. As discussed, this amount
will
now be reviewed in light of §579.5 to determine whether any
further reductions are merited.
VII.
PART II - APPLICATION OF §579.5[PAGE 38]
While I have found that Wage and Hour did not consider the
§579.5 factors in assessing the penalty, this does not merit
an automatic reduction in the penalty; rather, a reduction in the
penalty must be based on a thorough evaluation of the factors.
See Keesling v. Supermarkets Gen. Corp., 90-CLA-0034
(Sec'y
January 13, 1993).
Twenty nine C.F.R. §579.5 lists the factors to be
considered when determining the amount of the civil penalty. The
pertinent parts are summarized as follows:
(b) In determining the amount of such penalty there
shall be considered the appropriateness of such penalty
to the size of the business of the person charged with
the violation...taking into account the number of
employees employed by that person, dollar volume of sales
...and such other information as may be available
relative to the size of the business of such person.
(c) In determining the amount of such penalty there
shall be considered...the gravity of the violation taking
into account...any history of prior violations, any
evidence of willfulness or failure to take reasonable
precautions to avoid violations; the number of minors
illegally employed, the age of the minors...; the
occupation in which the minors were so employed...;
exposure of such minors to hazards and any resultant
injury to such minors; the duration of such illegal
employment; and as appropriate, the hours of the day in
which it occurred and whether such employment was during
or outside school hours.
29 C.F.R. §579.5(b),(c).
The mandatory language in subsections (b) and (c) makes
clear
that all of the specified elements must be considered in
assessing the penalty. Furthermore, subsection (d), discussed
infra, sets forth two alternatives, (d)(1) and (d)(2),
wherein if either is satisfied a lessening of the penalty would
be
appropriate. The criteria in subsection (d) is joined by "and",
signifying that all criteria must be satisfied before the
penalty can be decreased. Supermarket Gen. Corp., 90-CLA-
0034.
As applied to Sections B and C, the circumstances in the
present case do not merit a further reduction in the penalty.
Most
damaging to the Respondents' cause is the fact the violations
were
willful. Conduct is considered willful where the employer knew
or
showed reckless disregard for whether conduct was prohibited by
[PAGE 39]
statute. McLaughlin v. Richland Shoe Co., 486 U.S. 128,
133
(1988). Bad purpose or evil intent on the part of a respondent
is
not necessary to demonstrate that the violations were willful.
Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139 (5th Cir.
1971), cert. denied, 409 U.S. (1972). In the present
case,
the statements in the stipulations are numerous enough to
establish
that the Respondents knew that their employees under the age of
eighteen were operating the power driven machines. In some
cases,
the minors were either instructed on how to operate the machines
or
told to use the machines, or both. The sheer number of
violations
(68), and the ease with which they could have been discovered,
constitutes a reckless disregard for compliance with the Act.
See Supermarkets Gen. Corp., 90-CLA-0034. Therefore, the
willful nature of the Respondents' violations does not merit
reduction of the penalty.
The Respondents' argument that they took reasonable precau-
tions to avoid the violations is without merit. Respondents
contend that their policy is and always has been that minors are
not allowed to operate the machines, taking ample steps to ensure
compliance by placing warning signs on the machines (Respondents'
Post-Hearing Brief at 34-36). However, simply telling minors not
to operate the machinery does not constitute taking reasonable
precautions to avoid violations. See Donovan v. ELCA of New
Hampshire, Inc., 615 F. Supp. 106, 108 (D.N.H. 1984),
aff'd, 767 F.2d 905 (2d Cir. 1985). This is especially
true
in the instant case, where the violations were of a persistent
nature. Most of the precautions taken by Piggly Wiggly (see
testimony of Jenny Evans supra at pp. 7-8), were
implemented
after the Wage & Hour investigation, which is too little, too
late.[24]
The minors were engaged in hazardous activities and some
suffered injuries. The minors' operation of the machines put
them
at risk of suffering a serious injury. In particular, a paper
baler, the machine linked to the most violations, is a hazardous
machine which has been declared to be too dangerous to be
operated
by minors. See Occupational Hazards to Young Workers, The
Operation of Paper Products Machines, Report No. 12, U.S.
Department of Labor, Bureau of Labor Standards, 1955. Also
compelling are the injuries suffered by the minors from operating
the meat slicing machines (PX 3, see discussion
supra
at p. 8). The Respondents' failure to satisfy this provision is
significant in light of the fact that the underlying purpose of
the
Act is to protect children at the workplace. 29 C.F.R.
§570.101; Marshall v. Jerrico, Inc., 446 U.S. 238,
244
(1980). Therefore, given the danger associated with the
prohibited
conduct and the documented injuries, reduction in the penalty is
not merited.
[PAGE 40]
The number of minors wrongfully employed also prevents
further
reduction in the penalty. As established in Part I of this
Decision and Order, 97 violations have been established - 68
minors
operated the paper balers, fork lifts and/or meat slicers.
Ninety-
seven violations is a significant amount, dispelling any notion
of
incidental violations. Additionally, some of the minors found to
be operating the machines were as young as fifteen - an age
significantly low considering the dangers associated with the
machines. Therefore, the high number of violations, along with
the
ages of the minors, does not warrant reduction in the penalty.
Another component preventing further reduction of the
penalty
is the fact that many of the hazardous equipment violations
occurred concurrently with Reg. 3 violations. The Respondents
admitted in their stipulations, and I so found, that 29 minors
committed Reg. 3 violations, in addition to the hazardous order
violations. This factor, in accordance with §579.5, weighs
against reducing the penalty.
Also significant is the duration of illegal employment. Of
the 68 hazardous order violations, only five are short enough
(one
month or less) to be what I consider significant enough to
further
reduce the penalty. More importantly, approximately 60% of the
violations occurred over a period of 6 months or more, with many
of
those violations lasting over one year. Given the
longevity
of the majority of the violations, penalty reduction is not
merited.
While the occupations in which the minors were employed were
non-hazardous (baggers, stockers and cashiers), I place more
weight
on the dangers associated with their prohibited conduct. Respon-
dents argue for a reduction in the penalty given the
non-hazardous
nature of the minors' duties (Respondents' Post-Hearing Brief at
24-25). However, the issue at bar concerns the minors'
prohibited
conduct, which I have found merits a penalty, and not their
intended conduct. Therefore, the non-hazardous nature of the
minors' intended duties is not a controlling factor in reducing
the
penalty.
The Respondents' alleged poor financial condition is not
sufficient to merit reduction in the penalty. The Respondents
argue that they are financially incapable of paying the aforemen-
tioned penalty and that the penalty should be reduced
(Respondents'
Post-Hearing Brief at 31-32).[25] However, the financial
condition of a business is only one of numerous factors to be
considered in determining the appropriateness of a penalty and,
as
discussed, most of the evidence does not support reductions.
Besides, I am
[PAGE 41]
not convinced that the Respondents' evidence on this point,
largely
the testimony of Mr. Delbove, establishes that the Respondents
are
in financial straits. Mr. Delbove did not perform an independent
audit and relied on figures supplied by the Respondents
themselves.
Thus, the numerous non-reduction factors, along with the
question-
able financial status of the Respondents, prevents reduction in
the
penalty.
The Respondents' lack of prior violations is not sufficient
to
merit reduction in the penalty. Given the weight of the evidence
against the Respondents, discussed supra at pp. 39-42, I
do
not find that the absence of prior violations merits reduction in
the penalty. Respondents' use of Marshall v. Tom West,
Inc., 23 WH Cases 1121 (1978), to support their contention
that
a lack of prior violations merits a 50% reduction in the penalty
is
misplaced (Respondents' Post-Hearing Brief at 16). In Tom
West, the 50% reduction in penalties applied only to non-
hazardous situations and not hazardous situations, as is
the
case here. Tom West, 23 WH Cases 1121, 1123 n.6.[26]
Therefore, I reject the Respondents' argument and decline to
reduce
the penalty any further.
Besides the factors listed in subsections (B) and (C),
§579.5 requires the consideration of additional factors in
determining the appropriateness of a penalty. Reduction in a
penalty requires satisfaction of all of these latter factors.
Supermarket Gen. Corp., 90-CLA-0034. The pertinent parts
are summarized as follows:
(d)(1) Whether the evidence shows that the violation is
"de minimus" and that the person so charged has given
credible assurance of future compliance and whether a
civil penalty in the circumstances is necessary to
achieve the objectives of the Act; or
(2) that the violations themselves involved no
intentional or heedless exposure of any minor to any
obvious hazard or detriment to health or well being and
were inadvertent....
Many factors, discussed supra at 39-42, prevent the
violations from being classified as de minimus. To illustrate,
there were 98 violations totalling over $80,000.00 in penalties;
the minors were involved in operating hazardous equipment, some
of
whom were injured; and many of the violations lasted over a year.
By any definition, the violations cannot be found to be de
minimus.[27]
A civil penalty is necessary to achieve the objectives of
the
Act. The purpose of the Act is to "protect the safety, health,
well being, and opportunities for schooling of youthful work-
ers...." 29 C.F.R. §570.101. Since the violations in the
case
at bar threatened the safety, health and well being of the
minors,
the assessment of a civil fine is necessary to deter future like
conduct. The Respondents' assurances of future compliance are
not
enough to further reduce the penalty, given the overall weight of
the evidence against them and the ease with which this element
can
be met.
Finally, the Respondents failed to satisfy the second part
of
subsection (d). Given the willful nature of the violations, the
dangers associated with the violations, the high number of
violations and the resultant injuries in some cases, it may be
said
that the Respondents exposed the minors to an obvious hazard
which
detrimentally affected the minors' health and well being. Since
the Respondents only satisfied one element of subsection (d)
(assurances of future compliance), the penalty will not be
reduced.
After completely and thoroughly reviewing the factors of
§579.5, I find that the weight of the evidence does not
support reduction in the penalty.
VIII. CONCLUSION
The Plaintiff's request for a penalty of $187,400.00 is
reduced to $88,250.00, based on their failure to prove all of
their alleged violations. Further reduction in the fine based on
the application of §579.5 is not merited.
IX. ORDER
It is, therefore,
ORDERED, that the Respondents, Sewell Allen, Inc. and Piggly
Wiggly Memphis, Inc., are hereby assessed a penalty of $88,250.00
for their violations of the Act, as determined in the Decision
and Order. This decision shall constitute the final order of the
Secretary unless appealed within 30 days of the date of this
Decision and Order.
__________________________
ROBERT L. HILLYARD
Administrative Law Judge
[ENDNOTES]
[1] "Tr." refers to the Transcript of the hearing, "PX" refers
to Plaintiff's Exhibits; "RX" refers to Respondents' Exhibits and
"JX" refers to a Joint Exhibit of the parties. In the record,
the Plaintiff's exhibits are actually labelled "GX", but for
continuity sake I have relabelled them "PX", with the exhibit
numbers remaining the same.
[2] For the listing of penalty amounts see infra note 12.
[3] Plaintiff's brief was due 30 days after the filing of the
stipulations of the parties. The stipulations were filed by
letter dated November 1, 1993, and received in the administrative
file on November 9, 1993. The Plaintiff requested an extension
of time in which to file its brief. On December 6, 1993, an
Order was issued granting the request and extending the time for
the filing of Plaintiff's brief until December 30, 1994. By
letter dated January 3, 1994,and received in the administrative
file on January 4, 1994, the Plaintiff enclosed its brief with a
Motion to Receive Brief Out of Time. The Respondents filed
objections to the late filing. The parties were advised, at the
conclusion of the hearing, of the importance of adhering to the
filing deadlines and were aware of the importance of the timely
filing of requests for extensions. The Plaintiff's Brief was
untimely filed and no timely request for extension was filed.
Therefore, the brief has not been considered in this Decision.
[4] The post-hearing stipulations as prepared by the Plaintiff
and reviewed and excised by the Defendant are admitted into
evidence. The Plaintiff's objections and attempts to edit the
revisions made by the Defendant are denied. The background is
somewhat involved and tortuous. A Notice of Docketing issued
September 28, 1992, and Prehearing Orders dated January 25, 1993,
and April 27, 1993, required the parties to file stipulations of
facts and issues not in dispute. During a telephone conference
on April 7, 1993, Plaintiff's attorney Grooms stated that he was
in the process of preparing written stipulations for the majority
of the minors' testimony. Plaintiff's response to the pre-
hearing order dated August 28, 1993, stated that the parties had
agreed to enter into written stipulations to the testimony of
minor witnesses. A telephone conference was held on September
16, 1993, at which time Attorney Grooms was questioned regarding
the stipulations and responded that he was still preparing them
and would work on them over the weekend. At the pre-hearing
conference held prior to the commencement of the hearing on
September 21, 1993, Attorney Grooms stated that he had still not
prepared the stipulations but would prepare a guide and model for
all stipulations over the luncheon break. At the beginning of
the second day of hearing, there were no stipulations offered by
the Plaintiff. An agreement was reached between Plaintiff's and
Defendant's attorney that the Plaintiff would submit post-hearing
stipulations concerning statements of minor witnesses and the
Defendant would have the unilateral right to excise any informa-
tion not in compliance with the agreement (JX 1, Tr. 86-92).
Plaintiff's attempt to now alter the agreement falls on deaf
ears. The original agreement remains in full force and effect
and the post-hearing stipulations as reviewed and excised by the
Defendant are admitted into evidence as Post Hearing Stipulations
numbered 1 through 120.
[5] During Ms. Lewis' testimony, the Plaintiffs presented a
videotape showing the Respondents' operations, including video of
the paper balers, fork lifts and meat slicers (Tr. 20-21, PX 1).
The equipment shown in the videotape carried labels prohibiting
anyone under the age of 18 from operating the equipment. Both
Ms. Lewis and Cheryl Arnold, the other Wage and Hour investiga-
tor, testified that the equipment did not contain these warnings
during their investigations (Tr. 48, 74-75).
[6] Both Ms. Lewis and Ms. Arnold stated that their penalty
assessments serve as recommendations for their supervisors, who
make the final assessments taking §579.5 into account (Tr.
42, 69-70). Ms. Arnold testified concerning this matter:
The only thing that the investigator does is fill out
the forms so that the supervisor can have a basis for
an assessment. We can recommend or not recommend it,
but he has the final say so. He doesn't have to follow
our recommendations (Tr. 69-70).
The Wage and Hour supervisors, Mr. Blane and Mr. Friday, did not
testify. Therefore, whether they, in fact, reviewed the
investigators' assessments or considered §579.5 is unknown.
[7] See infra pages 11-12 for further discussion on this
matter.
[8] Ms. Arnold testified that Ms. Stramel told her that Piggly
Wiggly was making "several million dollars a year" and averaged
over 100 employees per store (Tr. 71).
[9] The Plaintiff and the Respondents submitted photographs of
the equipment with the attached warning stickers (PX 8-14, 16-20,
22-25, RX 3-5).
[10] One of the items in the packet includes the following set
of rules, which must be signed by the new employee:
I understand that persons under the age of eighteen are
not permitted to operate any power driven equipment,
including but not limited to the following:
1. NO PERSON UNDER THE AGE OF 18 IS PERMITTED TO
OPERATE OR TO ASSIST IN THE OPERATION OF A PAPER BALER
IN ANY WAY, INCLUDING THE THROWING OF ANYTHING INTO IT.
2. NO PERSON UNDER THE AGE OF 18 IS PERMITTED TO
OPERATE, ASSIST IN THE OPERATION OF, CLEAN, ADJUST, OR
IN ANY MANNER HANDLE A MEAT SLICER.
3. NO PERSON UNDER THE AGE OF 18 IS PERMITTED TO
OPERATE, ASSIST IN THE OPERATION OF, OR IN ANY MANNER
HANDLE A FORKLIFT.
I further understand that there are absolutely no
exceptions to these rules and that no one can counter-
mand these rules.
I further understand that if any of these rules are
violated, I will be subject to disciplinary action up
to and including immediate discharge.
I HAVE READ, I UNDERSTAND, AND WILL COMPLY WITH THESE
STORE SAFETY RULES.
/employee signature/
(RX 2).
[11] These injuries are discussed in more detail in Part I of
this Decision and Order - "Evaluation of Alleged Violations and
Penalty Assessments."
[12] The penalty amounts per violation are as follows:
a. Pre-November 5, 1990 Violations (monetary
penalty per violation)
Reg 3 Hours Violation (15 years) $ 300.00
Reg 3 Occupation (15 years) $ 400.00
Hazardous Order (17 years) $ 500.00
Hazardous Order (16 years) $ 600.00
Hazardous Order (under 16 years) $ 750.00
Serious Injury Hazardous Order ,000.00
b. Post-November 5, 1990 Violations (monetary
penalty per violation)
Reg 3 Hours Violation (15 years) $ 300.00
Reg 3 Occupation (15 years) $ 400.00
Reg 3 Hours Violation (14 years) $ 450.00
Reg 3 Occupation (14 years) $ 650.00
Hazardous Order (17 years) ,000.00
Hazardous Order (16 years) ,200.00
Hazardous Order (under 16 years) ,500.00
Serious Injury Hazardous Order $5,000.00
[13] This amount represents the Plaintiff's adjusted amount and
may not match the amounts in the WH-266s contained in the record
(PX 65-72).
[14] Not all the violation penalties are doubled, but violations
pertaining to the Hazardous Order violations are, and those are
the types of violations applicable to the case at bar.
[15] Section 16(e) of the FLSA, 29 U.S.C.. §216(e) (1988),
was amended by the Omnibus Reconciliation Act of 1990 to raise
the maximum civil money penalty for child labor violations from
,000.00 to 10,000.00, effective November 5, 1990. Pub. L. No.
101-508, 104 Stat. 1388-29 (1990). The above regulation was
promulgated in light of this amendment.
[16] In their Post-Hearing Brief, the Respondents argue that
the statements contained in their "Responses to Plaintiff's
Request for Admission, Interrogatories and Request for Production
of Documents" should not be considered admissions. The
Respondent's contend that, by the Plaintiff's own admission, "the
periods of employment shown may not be inclusive of the entire
period for which such individual was employed . . .." (PX 5)
(emphasis in original). However, this statement is meant to
suggest that the periods of employment shown may be
shorter than they actually were, not longer, as the
Respondents would like to believe. (Respondents' Post Hearing
Brief at 46 n.14). Furthermore, there is nothing to suggest that
they were anything but fully aware that their answers to the
interrogatories would constitute admissions. Therefore, the
answers given by the Respondents will be treated as admissions.
[17] The facts included in the statements are uncontested and
have been admitted by the Respondents.
[18] The periods of violation were either contained in the post-
hearing stipulations or in Attachment A of the Respondents'
Responses to Plaintiff's Request for Admission, Interrogatories
and Request for Production of Documents.
[19] Cleaning the meat slicer constitutes a prohibited operation
within the meaning of the Regulation. 29 C.F.R.
§570.61(a)(4). As well, Jenny Evans, Piggly Wiggly's Safety
Manager, acknowledged that cleaning the meat slicer qualifies as
operating the machine (Tr. 149).
[20] The medical report noted that the tip of the minor's thumb
had been severed.
[21] The record also contains an injury report for Chris
Mayfield, a sixteen year old who injured two fingers while
cleaning the meat slicer. The injury occurred in April of 1988,
three years prior to the current investigation period. The
Plaintiff did not include this documented violation in their
request for relief. Therefore, any fine which may have stemmed
from this violation is not included in the final calculations.
[22] The majority of these admissions were contained in Attach-
ment B to the Respondent's Responses to Plaintiff's Request for
Admission, Interrogatories and Request for Production of Docu-
ments. The remaining admissions are contained in the post-
hearing stipulations.
[23] The Respondents admitted that Mr. Gray worked in excess of
18 hours per week while school was in session, a violation of the
Reg 3 Hours provision of §570.35; that penalty is listed
above.
[24] Both investigator Lewis and Arnold, whom I find credible,
testified that they did not observe the signs on the machines
during their investigation (Tr. 48, 74-75); see also n.5.
Regardless, even if the signs had been on the machines prior to
the investigation, they would not have qualified as a reasonable
precaution given the high number of violations that occurred.
[25] It is worth pointing out that the Respondents' base this
argument on a $187,400.00 penalty assessment. That penalty has
since been reduced to $88,250.00 as a result of this Decision and
Order. This further limits the persuasiveness of the
Respondents' argument.
[26] Specifically, the Administrative Law Judge noted: "Respon-
dent was given credit for its previous good record in the form of
a 50% reduction in penalties after assessment. However, [the
Wage and Hour investigator] testified that penalties assessed for
employment of minors under 16 in an hazardous situation were not
reduced given the seriousness of this violation." Tom
West, 23 WH Cases at 1123 n.6.
[27] Some of the alleged violations involved harmless conduct
(e.g., throwing candy wrappers into the paper baler) and in those
instances I did not adopt the proposed penalty. See discussion
supra.
