maield 5/2/94
Date:
Case No.: 93-CLA-54
In the Matter of:
UNITED STATES DEPARTMENT OF LABOR
Plaintiff
v.
B & W PRESS, INC.
Respondent
DECISION AND ORDER APPROVING CONSENT FINDINGSI.
By notice dated May 21, 1992, pursuant to Section 16(e) of the
Fair Labor Standards Act, as amended 29 U.S.C. § 216(e), and
in accordance with 29 C.F.R. Part 579, a civil money penalty in the
amount of $12,200.00 was assessed against the Respondent, as a
result of the employment of five (5) minors in violation of the
child labor provisions of Section 12 of the Act, 29 U.S.C. §
212, and regulations issued thereunder, 29 C.F.R. Part 570.
II.
Respondent, within 15 days of receipt of that notice, timely
filed with the Administrator of the Wage and Hour Division,
Employment Standards Administration, United States Department of
Labor, an exception to the determination that the violations
occurred for which the penalty was imposed and to the assessed
civil money penalty, pursuant to 29 U.S.C. § 216(e) and 29 CFR
Part 580.6.
III.[PAGE 2]
Subsequent to the filing of the exception, the Administrator
of the Wage and Hour Division, United States Department of Labor,
by Order of Preference, referred the matter to the Chief
Administrative Law Judge, United States Department of Labor,
pursuant to 29 CFR Part 580, for a final determination as to the
violations for which the penalty was imposed, as provided in 29 CFR
Part 580, and as to the appropriateness and reasonableness of the
penalty, as provided by 29 CFR Part 579.
IV.
The matter was thereafter referred by said Chief
Administrative Law Judge, United States Department of Labor, to the
Boston District and was assigned to this Administrative Law Judge
for hearing in accordance with the provisions of 29 CFR Parts 579
and 580.
V.
The parties agree that at all times pertinent hereto
Respondent has been an enterprise engaged in commerce or in the
production of goods for commerce within the meaning of Sections
3(r) and 3(s)(2) (prior to November 11, 1977, Section 3(s)(1)) of
the Fair Labor Standards Act of 1938, as amended, 29 USC §
203(r) and § 203(s)(2).
VI.
Respondent certifies that it is presently in compliance with
the provisions of Section 12 of the Fair Labor Standards Act of
1938, as amended, 29 U.S.C. 212, and the regulations set forth at
29 CFR Part 570, and further certifies its intention to continue in
compliance therewith.
VII.
Plaintiff hereby agrees to withdraw its determination that the
employment of five (5) minors was in violation of the child labor
provisions of Section 12 of the Act 29 U.S.C. § 212, and
regulations issued thereunder, 29 CFR Part 570, and in consequence
thereof also withdraws its assessment of a civil money penalty in
the amount of $12,200.00 against the Respondent, levied as a result
of said determination of violation, pursuant to Section 16(e) of
the Fair Labor Standards Act, as amended, 29 U.S.C. § 216(e),
and in accordance with 29 CFR Part 579. Respondent accordingly
hereby withdraws its exception to such determination of violation
and to
[PAGE 3]
said assessment of civil money penalties.
VIII.
This cause having come on for administrative hearing
before this Administrative Law Judge and the parties having offered
testimony with respect thereto on December 7 and December 8, 1993,
and the hearing having adjourned sine die to be reconvened
for possible additional testimony, now come the parties and agree
to resolve the matter between them without further litigation as
follows:
(1) The parties agree that Hazardous Order # 12, 29 CFR Part
570, Subpart E (§ 570.63), relating to prohibited occupations
of operating or assisting to operate power-driven paper-product
machines, does not cover envelope machines, including specifically
the Respondent's SPEC (Special Products Engineering Company) High-
Speed Rotary Gap Cutter envelope machine or machines;
(2) The parties agree that the five (5) minor employees who
were the subject of the Order of Reference, were employed as
packers, who removed finished envelopes from a separate conveyer
belt in a process permitted by the child labor provisions of
Section 12 of the Act, 29 U.S.A. § 212, and the regulations
issued thereunder, 29 CFR Part 570;
(3) While the parties agree that minors, sixteen and seventeen
years of age, may be employed as packers, as above defined, at the
Respondent's place of business, nonetheless the parties further
agree that no such minor, sixteen or seventeen years of age, shall
be employed as an operator or as an assistant to an operator of any
such envelope machine or machines, whether or not of the specific
make, model or type which is the subject matter of these
proceedings; and
(4) The Respondent agrees to continue its previous policies,
which were in effect until the use of minors as packers was
suspended due to a determination of child labor law violation and
an assessment of civil money penalties as referenced above; said
previous policies having been that minor employees, sixteen or
seventeen years of age, not be employed in operating or assisting
in the operation of the aforesaid envelope machine or machines, and
that such minor employees not be permitted manually to clear any
such paper jams as might develop in the operation of the aforesaid
envelope machines, including the SPEC High-Speed Rotary Gap
Cutters.
IX.[PAGE 4]
Any order entered in accordance with these consent findings
shall, pursuant to 29 CFR § 18.9(b)(1), have the same force
and effect as an order made after full hearing, and decision
reached thereafter by this Administrative Law Judge.
X.
The entire record upon which any final order may be based
shall be consistent with the provisions of 29 CFR §
18.9(b)(2).
XI.
The signing of these Consent Findings waives any claim either
party has to costs and/or attorney fees.
XII.
All further procedural rights provided by 29 CFR Part 580, and
any rights to contest the validity of these consent findings or any
order issued pursuant hereto are hereby waived, in accordance with
29 CFR §§ 18.9(b)(3) and (4).
This Administrative Law Judge, having reviewed the Consent
Findings, concludes that this settlement is in the best interests
of all of the parties and it is therefore ORDERED that the
settlement agreement shall be, and the same hereby is
APPROVED pursuant to the provisions of 29 CFR § 18.9.
DAVID W. DI NARDI
Administrative Law Judge
Dated:
Boston, Massachusetts
DWD:las
[PAGE 5]
SERVICE SHEET
Case Name: B & W PRESS, INC.
Case No.: 93-CLA-54
Title of Document: Decision and Order Approving Consent
Findings
A copy of the above document was sent to the following:
Maria Echaveste
Administrator, Wage & Hour Division
U.S. Department of Labor
Employment Standards Administration
Room S-3502, FPB
200 Constitution Ave., NW
Washington, DC 20210
Linda Jan Pack
Counsel for Employment Standards
U.S. Department of Labor
Office of the Solicitor
Room N-2716, FPB
200 Constitution Ave., NW
Washington, DC 20210
[PAGE 6]
Albert H. Ross, Esq.
Regional Solicitor
U.S. Department of Labor
Office of the Solicitor
One Congress Street, 11th Floor
Boston, MA 02114
ATT: James H. Angevine, Esq.
Paul Beegan, President INTEROFFICE MAIL
B & W Press, Inc.
41 Popes Lane Docket- Library
Winchester, MA 01890
Leo F. Roche, Jr., Esq. _______________________
Roche & Heifetz LEWIS A. SACKS
53 Shore Road Lead Legal Tech
Winchester, MA 01890
