USDOL v. Design Center Enterprises, Inc., 93-CLA-130 (ALJ Oct. 26, 1995)

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USDOL v. Design Center Enterprises, Inc., 93-CLA-130 (ALJ Oct. 26, 1995)

U.S. Department of Labor
Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104

Phone: 609-757-5312
Fax: 609-757-5403

DATE: October 26, 1995

CASE NO.: 93-CLA-00130

In the Matter of

UNITED STATES DEPARTMENT OF LABOR,
Plaintiff

DESIGN CENTER ENTERPRISES, INC.
doing business as CORNUCOPIA DELI
Respondent

Appearances:

Marc G. Sheris, Esq.
Office of the Solicitor

United States Department of Labor
For the Plaintiff

Robert Hwang
For the Respondent

BEFORE: Ainsworth H. Brown
Administrative Law Judge

DECISION AND ORDER

I. SUMMARY OF THE CASE

This proceeding arises under the Child Labor Provisions of the Fair Labor Standards Act of 1938, as amended, 29

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U.S.C. section 201 et. seq. (hereinafter "the Act"), and in accordance with the regulations promulgated at 29 C.F.R. Parts 579 and 580. Defendant, Design Center Enterprises, Inc., d/b/a Cornucopia Deli (hereinafter "Cornucopia") requests review of the imposition of a civil money penalty imposed pursuant to section 16(e) of the act for alleged violations of the Child Labor Provisions¹ .

Following an investigation, the Wage and hour Division of the Department of Labor, on June 30, 1992, assessed a civil money penalty against the defendant in the amount of $9,900.00 for the employment of 6 minors contrary to the Child Labor Provisions of the Act and the Regulations. (P3.² ) In a letter dated July 10, 1992, the defendant filed exceptions to the assessment of the penalty, and requested a hearing on the matter. (P4.) On September 20, 1993, Patricia M. Rodenhausen, Regional Solicitor, United States Department of Labor, referred the matter to the Office of Administrative Law Judges for a final determination of the violations for which the penalty was imposed, and of the appropriateness and reasonableness of the penalty assessed.

A formal hearing on the merits was held on July 24, 1995 in Poughkeepsie, New York in accordance with the provisions of Part 580 of the regulations.

The hearing consisted of testimony from 3 former employees of Cornucopia: Jennifer Folster, Michelle Dipper, and Cristobal Garcia, and testimony from the Department of Labor Wage and Hour Investigator, Edward Ritz. Mr. Hwang testified on behalf of Cornucopia.

Jennifer Folster testified that she worked at Cornucopia for four months, and was 17 years old when she began. She stated that her duties included operating and cleaning the meat slicer. She stated that the manager, Suh Hwang, trained her in the use of the meat slicer and observed her in using it.

Michelle Dipper testified that she was 16 years old when she began working at Cornucopia. Her duties included operating and cleaning the meat slicer. She stated that Robert Hwang trained her to use the slicer, and that Suh Hwang was the owner, and as such Suh Hwang also knew she operated the meat slicer. She stated that neither Robert nor Suh Hwang ever indicated to her that nobody under the age of 17 was to use the meat slicer.

Cristobal Garcia testified that he worked at Cornucopia Deli from April, 1991 through March, 1992, and was age 16 when he began there. He stated that his duties at Cornucopia at all times included operating and cleaning the meat slicer. He stated that Robert Hwang instructed him on how to use the meat

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slicer. As far as Mr. Garcia knew, Robert Hwang was the manager and Suh Hwang was the owner. Garcia stated that Suh was also aware that he was operating and cleaning the meat slicer.

Wage and Hour Investigator Edward Ritz explained that his investigation was based on a complaint of minimum wage violations and of minors operating the meat slicer. His investigation with respect to the meat slicer charge consisted of in-person interviews, telephone interviews, and mail interviews.

Mr. Ritz conducted an interview over the telephone with Bobbie Swartz, a former Cornucopia Deli employee. Ms. Swartz began working at the deli at age 15 and worked there for nearly three years. Mr. Ritz explained that Ms. Swartz indicated that there were times when health officials, for example, would come to inspect Cornucopia Deli, and Ms. Swartz was told by the Hwangs not to use the meat slicer at such times since she was not allowed by law to use it and the managers did not want her to be seen operating it.

Mr. Ritz explained that based on this evidence (of Mr. Hwang's knowledge of the violations), he multiplied the penalties by a factor of 1.5., in accordance with the Department's procedures and as indicated on the appropriate forms ³ .

Mr. Hwang claimed that the violations resulted from a misconception that the minimum age for operating meat slicers was relatively recently changed from 16 to 17, and he asserted that he instructed all employees under the age of 17 not to use the meat slicer. He further maintained that he and his mother, Suh Hwang, the President of the company, did their best to follow the law.

ISSUES

(1) Whether the Respondent committed six violations of Hazardous Order number 10, 29 C.F.R. section 570.61; and

(2) If so, whether the imposition of the $9900.00 civil money penalty is appropriate.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. The Violations

I find that the Department has met its burden of establishing that the six violations of Hazardous Order 10, 29 C.F.R. section 570.61 ⁴

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occurred, based on the testimony of the three former employees, the interview forms submitted (P1; P5-10), and the testimony of Edward Ritz. Defendant has presented no evidence or testimony to the contrary, and has merely asserted that the violations were not willful.

II. The Civil Money Penalty

I find that the civil money penalty assessed by the Department is also appropriate. Cornucopia's knowledge of the violations is indicated from Swartz' statement, as recounted by Mr. Ritz, that she had been told by Robert Hwang not to operate the meat slicer in the presence of certain officials since she was underage and not allowed.

Mr. Hwang disputes the appropriateness of the penalty on the basis that he and his mother, Suh Hwang, the President, did their best to follow the law. He asserts that the violations resulted from their misconception that the minimum age for operation of such machines was recently changed from 16 to 17, and that he instructed all employees under the age of 17 not to use the meat slicer. This assertion is undermined, however, by the testimony and statements of Michelle Dipper, Cristobal Garcia, and Bobbie Swartz, all of whom indicated that they used the meat slicer with the knowledge and at the direction of Robert and Suh Hwang while under the age of 17. These statements demonstrate that the Hwangs did not attempt to comply even with a minimum age requirement of 17 years, and I credit the statements of these witnesses over the assertions of Mr. Hwang. I therefore conclude that the Department has demonstrated Cornucopia's knowledge of the violations by a preponderance of evidence. Thus the Department's use of the 1.5 multiplier/factor in computing the civil money penalty is appropriate.

ORDER

IT IS HEREBY ORDERED that a civil penalty of $9900.00 is assessed against defendant, Design Enterprises, Inc., d/b/a Cornucopia Deli, for violation of the Child Labor provisions of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. section 201 et seq.

Ainsworth H. Brown
Administrative Law Judge

Camden, NJ

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NOTICE TO THE PARTIES: The Administrator of the Wage and hour Division or any other party to this proceeding desiring review of this Decision and Order may petition the Secretary of Labor to review this Decision and Order. To be effective, such petition shall be received by the Secretary within 30 calendar days of the date of this Decision and Order. Copies of the petition shall be filed with the Secretary at the Office of Administrative Appeals, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., NW, Washington, DC 20210. Copies of the petition shall be served on all parties and on the Administrative Law Judge. Provisions regarding review rights are set forth at 29 C.F.R. section 580.13.

[ENDNOTES]

¹ Cornucopia's violations also included payment of straight time cash, off of the books, for hours worked in excess of 40 per week by its employees. Cornucopia agreed to restore backwages and to full future compliance with the Fair Labor Standards Act, Minimum Wage, Overtime, and Child Labor regulations. Therefore the back wage issue is not before me.

² The symbol "P" used herein represents "Department's Exhibit."

³ In accordance with 29 C.F.R. section 579.5(c), the Department takes into account, among other things, the willfulness of the violations in assessing a civil money penalty. Where employer knowledge is found, as in the present case, the Department uses a 1.5 multiplier/factor in computing the penalty to be assessed. (See P2 at p. 3).

⁴

Hazardous Order 10 provides in relevant part:

All occupations involved in the operation or feeding of the [certain] power-driven machines, including setting-up, adjusting, repairing, oiling, or cleaning such machines, regardless of the product being processed by these machines (including, for example, the slicing in a retail delicatessen of meat, seafood, bread, vegetables, or cheese, etc.)... are particularly hazardous for the employment of minors between 16 and 18 years of age or detrimental to their health or well being.

29 C.F.R. section 570.61(a)(4) (emphasis added).