412 644-5754
..........................................
In the Matter of: :
:
MARIA ECHEVESTE, :
Administrator :
Wage and Hour Division :
United States Department of Labor, : CASE NO. 94-CLA-54
Plaintiff, :
:
v. :
:
SPRAY ON SYSTEMS COMPANY, a corporation, :
and ARTHUR T. LEACH, JR., :
individually and as President of :
the corporation, :
Defendants. :
..........................................
DECISION AND ORDER
This matter comes before me pursuant to Section 16(e) of the
Fair Labor Standards Act of 1938, as amended (29 U.S.C.
§216(e)), and 29 C.F.R. Parts 579 and 580, of the
regulations for hearing and final determination of the issues
raised by Defendants' timely exception to the notice of civil
money penalty assessed by the authorized representative of the
Secretary of Labor.
By Order of Reference dated May 11, 1994, the Administrator
submitted this case to the Chief Administrative Law Judge for
hearing for final determination of whether child labor violations
occurred, for which the penalty was imposed and, if so, whether
the penalty assessed was appropriate and reasonable.
A Notice of Hearing and Pre-Hearing Order was issued on
August 30, 1994 setting this case for trial on December 19 and
20, 1994 in Pittsburgh, Pennsylvania. Trial was held on December
19, 1994 at which the parties were afforded a full opportunity to
present evidence and argument, as provided in the Act and
Regulations.[1] The record was held open for 60 days for the
parties to submit final briefs. The Plaintiff's brief was
[PAGE 2]
received February 22, 1995 and the Defendants' on February 21,
1995. The issues for me to decide are as follows:
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1. Whether the minor, Robert L. Taylor, was engaged in a
wrecking and demolition occupation at the time of his injury in
violation of Hazardous Order #15; and, if so,
2. Whether the amount of the assessed civil money penalty
was appropriate under the applicable regulations.
And now, having heard the evidence and argument of counsel,
I make the following Findings of Fact and Conclusions of Law:
1. Jurisdiction of this action is conferred upon me by
Section 16(e) of the Fair Labor Standards Act of 1938, as
amended, 29 U.S.C. §201, etseq. and the
regulations enacted thereunder at 29 CFR Parts 579 and 580. (DOL
X-1, para. 8).
2. Defendant, Spray on Systems Company, is a corporation
maintaining an office and place of business located at 46 Center
Avenue, Pittsburgh, Pennsylvania, where it is engaged in
installing fire proofing on structural steel buildings,
installing insulation and asbestos removal. (DOL X-1, para. 1).
3. Defendant, Arthur T. Leach, Jr., individually and as
President of Spray On Systems Company, maintains an office and
place of business at 46 Center Avenue, Pittsburgh, Pennsylvania.
Defendant Arthur T. Leach, Jr. has actively supervised and
directed the business affairs, operations, and employee relations
and practices of the corporate Defendant. (DOL X-1, para. 2).
4. Robert L. Taylor was born on December 27, 1975 and was
seventeen (17) years old during his period of employment with
Defendants. (DOL X-1, paras. 10 & 11; TR-15). In April, 1993,
Taylor was employed by Defendants in removing drywall and plaster
from two rooms from the second story of a property located at 48
Center Avenue, Pittsburgh, Pennsylvania 15229. (TR-16). Taylor,
who utilized a claw hammer and push broom to perform this job,
performed this activity for 20-25 hours per week. (TR-17).
5. Taylor would pull it (the drywall/plaster) down and
sweep the debris into a pile and Defendant Leach would shovel the
debris out the window down a chute into a dumpster/trailer. (TR-
18).
6. All utilities had been either disconnected or shut off
[PAGE 3]
by Mr. Leach. At no time were demolition balls, jackhammers or
sledge hammers used. (TR-19). No hooks, ropes or steel cables
were used (TR-20).
7. All work was performed by hand. Mr. Leach removed the
doors and frames, however, windows and frames were left intact.
(TR-20, 21).
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8. After the drywall/plaster was removed, left behind were
the studs of the wall. The supporting walls were never touched.
Taylor did no shoring up of staircases, doors, frames or
supporting walls. (TR-22). Taylor removed covers to electric
outlets. (TR-23).
9. Taylor was injured on his way to lunch. He was going
down the stairs and tripped when his boot became caught in the
carpet. He fell down the stairs, hit his elbow which jarred his
left shoulder. He continued working that day for about two hours
and then he went home. Next day he went to the hospital. His
injury was diagnosed as a pulled muscle. A week later personnel
from the hospital called and said it was a number two separation.
(TR-23).
10. Taylor testified that he did not continue to suffer pain
as a result of the injury and there are no complications.
Surgery has not been performed or contemplated. He was out of
work for ten days and he filed a workers' compensation claim.
(TR-24, DOL X-4).
11. Subsequent to the injury, an investigation was conducted
by Wage and Hour Investigator John DuMont. This investigation
was initiated due to a notice from the Commonwealth of
Pennsylvania, Department of Labor and Industry that a minor had
been injured. (See DOL X-3). The notice indicated that, "an
employee was tearing down plaster from house being demoed, when
he slipped on stairs; loss his balance and hit his shoulder."
12. After conducting an investigation, Investigator DuMont
determined that a violation of Hazardous Order No. 15 had
occurred. (TR-36, 29 C.F.R. §570.66).
13. The investigator also specifically reviewed DOL X-2
entitled, "Occupational Hazards to Young WorkersReport
No. 15,Wrecking and Demolition Operations." (TR-41).
[PAGE 4]
14. Investigator DuMont prepared a, "Notice of Civil Money
Penalty" to give to the employer describing the child labor
violation. (TR-47, 48). DuMont made a determination as to the
level of injuries sustained. He felt it was serious and he
determined the amount of the penalty according to a form which he
reviewed. The stated penalty on the form was $5,000.00 for
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serious injury. (TR-48).[2] Investigator DuMont determined
that
Taylor's injury was serious. (TR-53). He based his opinion on
the fact that the minor missed ten days of work. (TR-54).
15. Investigator DuMont had no personal knowledge whatsoever
of what work was being performed on the house other than the
statements which were given to him. (TR-55). To his knowledge,
Defendant, Spray On Systems, never had been investigated
regarding violations of the Fair Labor Standards Act. (TR-55).
There was no finding of a prior investigation. (TR-56). In
making his findings against the Defendant, Spray On Systems,
Investigator DuMont relied upon his interviews with Mr. Leach and
Mr. Taylor and review of Department of Labor's Field Operations
Handbook which he did not have in court with him. (TR-59).
16. Arthur T. Leach, Jr. testified that the nature of Spray
On Systems' business is mostly commercial asbestos removal,
insulation and fire proofing. Spray On Systems does not engage
in construction work, the job in question was for Mr. Leach's
mother. His mother lived in an apartment which was inconvenient
for her. She owned an old farm house which he wanted to remodel
for her so she could live beside him and he could watch her and
take care of her. (TR-98). Mr. Leach did the job for his mother
free. It's an old farm house. The inside had old plaster. The
walls were removed, not the ceiling. There was always a floor
under everybody working, the electric was shut off. (TR-99).
17. Before Mr. Leach hired Robert Taylor, Leach knew that
Taylor quit school. (TR-100). Aside from Taylor, the following
individuals were working at Mr. Leach's mother's house: Robert
[PAGE 5]
Taylor's father, Mr. Leach's wife, Mr. Leach's stepdaughter and
Mr. Leach. (TR-101). Leach had Taylor taking down the plaster
from the walls, not the ceiling. Leach took care of shoveling
the debris down the shoots at night. The only work Taylor did
outside was cutting grass and raking leaves. There was no work
done on the outside of Leach's mother's house. (TR-104).
18. Taylor used a claw hammer. No one used a jackhammer or
any other mechanical or power tools at the site. (TR-104).
19. No walls were removed when young Taylor was on the
premises. Some walls were removed on the first floor by
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Mr. Leach and Pastor Taylor after Robert left. No floor boards
were removed. A plumber did all the plumbing. The electrician
did all the electrical work. There was no electrical work
performed on the second floor, it was all performed on the first
floor. (TR-105).
20. All of Robert Taylor's medical bills were paid. After
Taylor received a doctor's release he went back to work feeding
insulation machines and sweeping up insulation.
21. Spray On Systems has never been warned about child labor
violations. It has never been investigated by any government
agency. (TR-106).
22. Leach testified that he has been involved in demolition
projects, he just finished one prior to the hearing. Before a
building can be torn down and before, "they can put a ball to it"
all the asbestos must be removed for clean air purposes. (TR-
108, 109).
23. Leach testified that he never demolished a building.
(TR-111). Where buildings are being demolished, they usually
tear the whole building down. The only thing he does is remove
asbestos and then he leaves the job. Then the building is torn
down. (TR-111).
24. Leach's wife, Nancy Leach, prepared the report, DOL X-3.
(TR-111). Leach testified that his wife used the wrong word
(when she used the word, "demoed"). (TR-112).
25. No electrical wiring was removed from the second floor.
The main water valve was shut off. Taylor was injured on his way
to lunch. (TR-113).
[PAGE 6]
26. Leach is a subcontractor and is hired either by a
general contractor or an owner. He does not put buildings up nor
tear them down. He has been a subcontractor for twenty years,
either in asbestos removal or the insulation business. (TR-115).
He is licensed to do business in Allegheny County, Pittsburgh,
Pennsylvania. This is where he does 50 to 60% of his work. He
also works in Westmoreland County. Leach is familiar with the
term demolition and to him it means tearing down a building.
(TR-117).
27. Leach was not familiar with the word, "razing". If he
wanted to say tearing down a building he would use the word
demolish. (TR-118). In Leach's mind demolish means like
wrecking a car, once its done it goes to the junkyard.
28. Leach identified photographs of his mother's house. The
photograghs were admitted into evidence as RX-1. (TR-122). At
the time young Taylor worked at the house it looked just like it
does in the photographs. The house looks the same today. (TR-
120). Mr. Leach testified that he was remodeling his mother's
house, it was not being demolished or wrecked. His wife is not
an expert in the construction trade; she is a secretary. Leach
did not tell her to use the word, "demoed" (on DOL X-3). She
should have used the word remodeled. (TR-121).
29. Section 12(c) of the Fair Labor Standards Act,
hereinafter FLSA, provides that, "No employer shall employ any
oppressive child labor in commerce or in the production of goods
for commerce or in any enterprise engaged in commerce or in the
production of goods for commerce." 29 U.S.C. §212(c).
"Oppressive child labor" is defined by Section 3 of the FLSA as a
condition of employment under which (1) an employee under age
sixteen is employed in any occupation, unless exempted by the
Secretary, or (2) an employee between sixteen and eighteen is
employed in any occupation which the Secretary of Labor by order
declares to be particularly hazardous for the employment of
children between such ages or detrimental to their health or
well-being. 29 U.S.C. §203(1).
30. To protect young workers from hazardous employment, FLSA
provides for a minimum age of 18 years in occupations found and
declared by the Secretary to be particularly hazardous or
detrimental to the health or well-being of minors 16 and 17 years
of age. Hazardous occupation Orders are issued after public
[PAGE 7]
hearing and advice from committees composed of representatives of
employers and employees of the industry and the public and in
accordance with published regulatory procedure. 29 C.F.R.
§570 et. seq.
31. Among the occupations so banned since 1960 as being
hazardous are those involving minors engaged in wrecking and
demolition operations as set forth in Hazardous Order No. 15,
which appears at 29 C.F.R. §570.66.
32. 29 C.F.R. §570.66 provides as follows:
570.66 Occupations involved in wrecking,
demolition, and shipbreaking operations
(Order 15).
(a) Finding and declaration of fact.
All occupations in wrecking, demolition, and
shipbreaking operations are particularly
hazardous for the employment of minors
between 16 and 18 years of age and
detrimental to their health and well-being.
(b) Definition. The term wrecking,
demolition, and shipbreaking operations
shall mean all work, including clean-up and
salvage work, performed at the site of the
total or partial razing, demolishing, or
dismantling
7
of a building, bridge, steeple, tower,
chimney, other structure, ship and other
vessel.
33. The minor was pulling and/or ripping drywall and plaster
from walls on the second floor of a building owned by Defendant,
Arthur T. Leach's mother using a claw hammer. What remained of
the walls were the studs (2 x 4's), (see findings 4-8). The
issue for me is whether the minor, Robert L. Taylor, was engaged
in an occupation involving wrecking or demolition, as defined by
the regulations.
34. The Plaintiff did not offer expert testimony on whether
the activity taking place at Leach's mother's house constituted
demolition work. Rather, the Plaintiff relied upon the plain
language of the regulations or the normally accepted definitions
for "demolition and wrecking." (See pages 8 & 9 of Plaintiff's
brief).
[PAGE 8]
35. The regulations at 29 C.F.R. §570.66(b) define the
relevant terms. (See finding 32).
36. I interpret the terms razing and demolishing as
destroying. Clearly, the structure was not destroyed or even
partially destroyed. (See RX-1). Was the minor engaged in
dismantling of a building by removing drywall or plaster from a
wall? Not in the context of the rest of §570.66(b) which
uses the terms razing, demolishing and salvage.
37. Review of DOL X-2, page 3 entitled Hand Method of
Demolition supports my view. It states in pertinent part:
After removing the trim and fixtures, the
wrecking crew starts on the top floor and
works downward, the demolition of each
successive floor level proceeding in a
similar manner. Walls, columns, and
partitions are completely removed down to the
floor level, and all work above each tier of
floor beams is completed before supporting
members on lower floors are disturbed.
(emphasis added).
38. The phrase, "walls, columns, and partitions are
completely removed down to the floor level" is important. I
interpret this activity to be consistent with dismantling of a
building. However, this activity simply did not take place while
the minor worked at subject location.
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39. The only expert[3] to offer relevant opinion was the
Defendant, Arthur T. Leach, Jr. In Leach's opinion, when a
building is being demolished, the building is torn down.
(finding 23). He was not demolishing or wrecking his mother's
house, he was remodeling it. (finding 28). His wife used the
wrong word (on DOL X-3). Leach did not tell her to use the word,
"demoed". She should have used the word remodeled. (See finding
28).
40. Under the circumstances, I agree with Mr. Leach; on the
issue of whether the minor, Robert L. Taylor, was engaged in a
wrecking and demolition occupation at the time of his injury in
violation of Hazardous Order #15, I find for the Defendants,
Spray On Systems Co. and Arthur T. Leach, Jr. and against the
Plaintiff. I find further that there should be no civil money
[PAGE 9]
penalty assessed against the Defendants.
It is so Ordered.
_____________________________
MICHAEL P. LESNIAK
Administrative Law Judge
MPL/bll
Dated: March 6, 1995
Pittsburgh, Pennsylvania
SERVICE SHEET
Case Name: SPRAY ON SYSTEMS COMPANY, ET AL
Case No. 94-CLA-54
Title of Document: ERRATA
A copy of the above document was mailed to the following parties:
_______________
Betty Lee
Legal Technician
REGULAR MAILREGULAR MAIL
Linda Jan Pack David E. Daniel, Esq.
[PAGE 10]
Counsel For Employment Hyatt Legal Services
Standards 999 West View Park Drive
U.S. Department of Labor Pittsburgh, PA 15229
Office of the Solicitor
Room N-2716, FPB
200 Constitution Ave., N.W.
Washington, D.C. 20210
Catherine Oliver Murphy Arthur T. Leach, Jr.
Deputy Regional Solicitor Spray On Systems Company
U.S. Department of Labor 46 Center Avenue
3535 Market St., Rm. 14480 Pittsburgh, PA 15229
Philadelphia, PA 19104
Counsel For Child Labor Alfred J. Fisher, Esq.
Fair Labor Standards U.S. Department of Labor
U.S. Department of Labor Office of the Solicitor
Room N-2716, FPB 3535 Market St., Room 14480
200 Constitution Ave., N.W. Philadelphia, PA 1910-4
Washington, D.C. 20210
Administrator Div. of Fair Labor Standards
Wage and Hour Division Associate Solictor for
U.S. Department of Labor Fair Labor Standards
Room S-3502 U.S. Department of Labor
200 Constitution Ave., N.W. Room N-2716
Washington, D.C. 20210 200 Constitution Ave., N.W.
Washington, D.C. 20210
Area Director
Employment Standards Admin.
Wage & Hour Division
U.S. Department of Labor
Room S-3502
200 Constitution Ave., N.W.
Washington, D.C. 20210
[ENDNOTES]
[1] The following abbreviations will be used as citations to the
record: DOL X - Plaintiff exhibit; RX - Defendant exhibit;
TR - Transcript of the hearing held December 19, 1994.
[2] I reserved ruling on whether the form in question, DOL X-7,
is admissible. It is a hearsay document, there was no foundation
for its admission and it could not be explained who wrote the
document and what relevance it had to this case. (See discussion
at TR-77-84). Plaintiff's counsel was to provide authority for
its admission (TR-82) which he failed to do. Therefore, I
sustain the objection to DOL X-7.
[3] Arthur T. Leach, Jr. has been a subcontractor in asbestos
removal and installing insulation for 20 years. He has been
involved in demolition projects insofar as he has removed
asbestos before buildings have been demolished. (See findings
22, 23, 26).
