DATE: March 12, 1996
CASE NO.: 94-CLA-58In the Matter of
U.S. DEPARTMENT OF LABOR
Plaintiff
against
MIKE BLUDAU d/b/a
B & B METAL BUILDINGS, INC.
Respondent
BEFORE: C. RICHARD AVERY
Administrative Law JudgeDECISION AND ORDER
This proceeding arises under the Child Labor Provisions of the
Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Section 201
et. seq. (hereinafter referred to as "the Act"), and in
accordance with the regulations promulgated thereunder at 29 C.F.R.
Parts 570, 579 and 580. Respondent, Mike Bludau, 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
Provisions.
Findings of Fact
By letter dated June 19, 1992, Respondent was informed that an
investigation disclosed Respondent employed two minors, Clay
Fetters and Jeffrey Oliver, in hazardous occupations contrary to
the Child Labor provisions of the Fair Labor Standards Act.
Specifically, it was alleged that the minor Fetters operated a
motor vehicle, operated a fork lift and performed roofing work and
that the minor Oliver operated a forklift. A money penalty of
$2,400.00 was assessed for these violations.
Respondent timely appealed these findings alleging that he was
uninformed about the regulations and wanted an opportunity to
introduce the minors, their parents and a vocational education
[Page 2]
director. He alleged that he had helped the minors while they were
students and questioned the amount of the penalty assessed.
Because of Respondent's request for a hearing, on February 1,
1994, the matter was referred to the Office of Administrative Law
Judges. Thereafter, on June 30, 1994, then Deputy Chief Judge John
Vittone issued an Order requiring certain pre-trial disclosure from
the parties, including lists of witnesses. The Office of the
Solicitor responded. Respondent failed to respond, and Judge
Vittone issued a Show Cause Order on November 4, 1994. Respondent
responded on November 21, 1994, that he was unrepresented, would
appear in court with no witnesses in Corpus Christi, Texas, when
the matter was set for trial.
In May, 1995, the case was assigned to the undersigned, and a
Notice of Hearing and Pre-Trial Order was mailed May 23, 1995. The
notice required certain exchanges between the parties before trial,
which was scheduled for October 2, 1995, in Corpus Christi, Texas.
On July 10, 1995, the Office of the Solicitor filed a Motion for
Summary Judgment stating that on May 12, 1995, they had served upon
Respondent "Plaintiff's First Request for Production of Documents"
and "Plaintiff's First Request for Admissions to Respondent", and
that Respondent had neither responded to the discovery nor sought
additional time by which to respond. Consequently, the Solicitor's
Motion for Summary Judgment sought an order that Respondent had
admitted all essential allegations, that no genuine issue of
material fact remained and a judgment was sought in the amount of
$2,400.00.
A Show Cause Order issued on July 17, 1995, inquiring of
Respondent as to why Plaintiff's Motion for Summary Judgment should
not be granted. By letter dated July 21, 1995, Respondent
indicated his frustrations and sense of harassment with the system.
I responded by letter dated July 27, 1995, suggesting he employ
counsel and asking for reasons he had not responded to the Request
for Admissions and the Request for Production.
By letter dated August 7, 1995, Respondent stated that he did
not respond because he did not understand all that was being asked
and that the documents sought had "nothing to do with proving any
sort of guilt or innocence." The letter went on to state the
$2,400.00 penalty sought "is a life savings to my family and me."
The letter contained no reply to the Request for Admissions nor was
it accompanied by any documents sought by Solicitor's Motion to
Produce.
As to the issue of Respondent's specific violations of the
Child Labor provisions of the Fair Labor Standards Act, I granted
Solicitor's Motion for Summary Judgment by Order dated August 11,
1995. Respondent never denied the employment of these minors.
Pursuant to 29 C.F.R. 18.20(b) and (e) unless a party denies
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requests for admissions within 30 days after service each matter of
which an admission is requested is deemed admitted and is
conclusively established. Respondent failed to timely answer or
object within 30 days of service of Plaintiff's Request for
Admissions, and I deemed the requests admitted, and I found them
sufficient to establish the violations set out in Exhibit A.
However, I found the Respondent entitled to be heard on the
question of the amount of penalties assessed because on appeal I
must determine the appropriateness of the penalty assessed by the
Administrator. (29 C.F.R. 580.12(b)).
A formal hearing on the issue of penalties was held on October
2, 1995, in Corpus Christi, Texas, in accordance with provisions of
Part 580 of the regulations. Administrative Exhibit 1 and
Solicitor's Exhibit 1 were received into evidence. My Decision is
based on the record made that day.
Sam Ray testified for the Department of Labor (DOL). He was
previously the supervisor of Wage and Hour in Corpus Christi,
Texas, and is now the Assistant District Director for the Houston
District. He was not personally familiar with the Respondent, but
had reviewed the file. Mr. Ray identified Solicitor's Exhibit 1 as
DOL's recommendation for civil penalties.
Mr. Ray testified that because the minor Oliver was employed
so briefly that a decision was made there should be no assessment
for any violation regarding his employment. As to the minor
Fedders, Mr. Ray testified that the penalties there sought of
$2,400.00 concerned two violations: (1) operation of a motor
vehicle and (2) operation of a fork lift. For each violation he
stated the Respondent had been assessed a penalty of ,200.00.
Mr. Ray explained that the violation concerning the operation of a
fork lift contained no exceptions, but that the violation involving
operation of a motor vehicle was dependent on the weight of the
vehicle and the frequency and conditions under which it was
operated.
Mr. Will Ney too testified for DOL. He was the investigator
in this case. In May, 1992, Mr. Ney, for unrelated reasons,
investigated the Respondent and in doing so discovered the
employment of these two youths. After talking with the young men,
he concluded that Respondent had employed the two minors in
occupations declared hazardous by the Secretary of Labor.
According to Mr. Ney, Fedders was 16 years old when he first
became employed with the Respondent and had been working there for
a little over a year. During the period of his employment, Mr. Ney
concluded that Fedders had driven a motor vehicle (1/2 ton pick up
truck) on a public road with the frequency of approximately twice
a month to and from job sites to Respondents shop to pick up and
deliver materials, and that Fedders had also operated a fork lift
as a regular part of his duties.[1]
A conference was held with Respondent, according to Mr. Ney,
and the violations were discussed and a request was made that the
Act not again be violated. Mr. Ney agreed the Respondent had no
prior Child Labor violations, and that he (Mr. Ney) had never
personally seen the youths working. Neither did he know what
materials were contained in the truck driven by Fedders twice a
month, nor did he know what purpose the fork lift was used for.
Mr. Ney acknowledged that both the youths were high school students
working part time, and that neither was hurt while employed by
Respondent.
Respondent Mike Bludau testified he had been in business 10
years and presently works four employees. He said he employed
Fedders because his father was an employee of the Respondent and
had asked Respondent to help the young man so that he could get
credit in a vocational class at school. Mr. Bludau said he agreed
and that school papers were filled out and he hired Fedders to work
three hours a day after school cleaning the shop.
Regarding Fedders activities, Mr. Bludau testified that if he
drove the fork lift "I don't know," but "I never told him to drive
the fork lift. . . it was wasn't in his scope of work. . . ." As
to occasionally driving the Respondent's pick up truck, Mr. Bludau
did not deny Fedders might well have driven the truck to retrieve
a few items. However, Mr. Bludau testified that the youth never
drove a loaded truck "on" a job site as such, all the driving was
on public roads carrying small loads.
Mr. Bludau also testified he never had any idea he was
violating Child Labor Laws. He stated he was trying to help the
boys and in fact received a letter of thanks from the school for
doing so. Mr. Bludau does not understand why he was not simply
warned, and he feels a great sense of frustration about the whole
episode. (Tr. 44).
Conclusions of Law
In making a determination of the appropriateness of the
penalty sought, 29 C.F.R. §579.5 specifies in detail the
elements to be considered such as the gravity of the offense, age
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of the minors, the size of Respondent's company, any history of
prior similar violations, precautions taken by Respondent to avoid
the violations, the number of workers underage, the duration of the
employment, the hazards to which the minors were exposed while so
employed and whether injuries occurred.
In this instance, there are no real factual disputes. The
issue is simply should a fine be assessed against the Respondent
and if so what amounts. After a review of the record, it is my
finding that no penalty should be assessed. I do not find a civil
penalty in this circumstance necessary to achieve the objectives of
the Act.
I find Mr. Bludau to be a very credible witness, and I accept
his testimony that he did not know about the minor driving a fork
lift, and that such a task was not within the minor's job duties.
Mr. Bludau evidenced no willfulness or ploy on his part to
heedlessly expose the minor to obvious hazardous duties. To the
contrary, Mr. Bludau intended only to help the young man receive
course credits at school in response to a request made by Fedders'
own father. There is no history of prior violations on the part of
the Respondent, no injuries occurred and there is no allegations
that the work interfered with school attendance.
While there is no exception which allows a minor 16-18 years
of age to operate a hoisting apparatus or fork lift, there is no
evidence in this case that the violation occurred (1) with any
knowledge or direction from Mr. Bludau or (2) that it occurred with
any frequency. Mr. Bludau explained his was a small business and
often a fork lift was not used in the business more than once a
week. Mr. Bludau is frustrated and repentant about the situation
and assures his future compliance with the Act. What possibly
would be gained by a fine for this violation?
As to the occasional driving of the 1/2 ton pick up truck,
Fedders was licensed and 16 years of age. Incidental and
occasional driving is exempted so long as the event occurred in the
day light and the gross weight of the vehicle was less than 6,000
pounds. Here the weight is unknown, but the fact that the driving
was incidental, required no towing or hauling of heavy loads and
was done under safe conditions is unrefuted.
If a violation occurred, it was unintentional on the part of
the Respondent. He is repentant and assures future compliance.
Again, I ask what could possibly be gained by a fine for this
violation?
ORDER
Based upon the foregoing, I hereby find there should be no
assessment of civil penalties against Respondent in this instance.
SO ORDERED this 12th day of March, 1995, at
Metairie, Louisiana.
C. RICHARD AVERY
Administrative Law Judge
CRA:kw
[ENDNOTES]
[1] Mr. Ney also testified his investigation concluded that Fedders
had performed roofing on a metal building, but since no assessment
is sought for that violation, I will not burden the Decision with
testimony concerning that activity.
