Date: May 24, 1996
Case No.: 95-CLA-0008
In the Matter of
ROBERT REICH, SECRETARY OF
THE UNITED STATES DEPARTMENT
OF LABOR
Plaintiff
v.
JERRAL D. PARRIS, INDIVIDUALLY, D/B/A
J. PARR CONSTRUCTION AND DESIGN, INC.
AND HARMONY WOOD PRODUCTS
and
JERRAL D. PARRIS, PRESIDENT
J. PARR CONSTRUCTION AND DESIGN, INC.
D/B/A/ HARMONY WOOD PRODUCTS
Respondents
APPEARANCES:
JERRAL D. PARRIS, Pro Se
For the Respondents
BRIAN W. DOUGHERTY, Esquire
For the Plaintiff/Administrator
BEFORE: J. MICHAEL O'NEILL
Administrative Law Judge
SUMMARY DECISION AND ORDER
This civil money penalty proceeding arises under the child
labor provisions of the Fair Labor Standards Act, as amended, 29
U.S.C. 201 et seq., and regulations of the Secretary of
Labor published at 29 C.F.R. Parts 579 and 580.
A formal hearing in this case was held in Manchester,
Tennessee, on October 23 and 24, 1995. Each of the parties
was afforded full opportunity to present evidence and argument
at the hearing as provided in the Act and the regulations issued
thereunder which are found in Title 29 of the Code of Federal
[Page 2]
Regulations. Regulation section numbers mentioned in this
Summary Decision and Order refer to the sections of that title.
The findings and conclusions which follow are based upon a
careful analysis of the entire record in light of the arguments
of the parties, applicable statutory provisions, regulations and
pertinent case law.
STATEMENT OF THE CASE
On March 28, 1994, the Wage and Hour Division (Wage and
Hour) of the United Sates Department of Labor charged the
respondents with violations of the child labor provisions of the
Fair Labor Standards Act and issued a penalty in the amount of
$12,750.00. Subsequently, Wage and Hour increased the penalty to
$44,650.00. On April 4, 1994, respondents issued an exception
letter to Wage and Hour requesting rescission of the notice of
violation and penalty. By Order of Reference dated November 8,
1994, the matter was referred to the Chief Administrative Law
Judge of the United States Department of Labor and a formal
hearing was held on October 23 and 24, 1995.
PREHEARING MOTIONS
On September 20, 1995, the Administrator, Wage and Hour
Division, U.S. Department of Labor (Administrator), filed a
Motion for an Order of Default, seeking that sanction against
the respondents for failure to comply with an Order to Compel
Discovery which I issued on August 10, 1995. 29 C.F.R. 18.40,
18.41; Fed. R. Civ. P. 37(b). As further support for her motion,
on October 11, 1995, the Administrator submitted a Supplement to
Order of Default. On September 29, 1995, the Administrator filed
a Motion for Summary Decision, arguing that no genuine issue of
material fact is present in this matter, so that the Adminis-
trator is entitled to judgment in her favor as a matter of law.
29 C.F.R. 18.40, 18.41.
On October 11, 1995, I issued an Order to Show Cause,
ordering the respondent to demonstrate why the Administrator's
motions should not be granted. The Order stated that the respon-
dents would be given the opportunity to present oral argument in
support of their position on the motions at the hearing, and that
the motions would be addressed prior to taking testimony or
receiving other evidence.
At the hearing, the Administrator stated that the Motion to
Default stemmed from the respondents' failure to provide finan-
cial records (Tr. 8-9).[1] In response, Jerral D. Parris, repre-
sentative for the respondents, produced a bank statement from the
Citizens Tri-County Bank, explaining the respondents' current
financial status. The bank statement read that the respondents
had a line of credit with Citizens Tri-County Bank for the amount
of $50,000.00, of which $46,277.95 was available (Tr. 59).[2]
Upon submission of this information, the Administrator withdrew
her Motion for Order of Default (Tr. 58).
Next, the Administrator renewed its Motion for Summary
Decision (Tr. 62). Jerral Parris, one of the named respondents,
represented himself at the hearing.[3] He is not an attorney.
At the hearing, he was informed that he had the right to be
represented by counsel or a qualified representative (Tr. 5).
Mr. Parris said that he was aware of this right but chose to
represent himself anyway. Id. In light of these
circumstances, I reserved ruling on the Administrator's Motion
for Summary Decision until after the hearing. The
administrator's motion will be addressed at this time.
BACKGROUND
The respondents, Jerral D. Parris, individually, d/b/a J.
Parr Construction and Design, Inc. and Harmony Products (respon-
dents/Parris/Harmony Wood Products), are located in Altamont,
Tennessee. The respondents manufacture and produce the material
and plans for Harmony Wood home kits and products and have rented
lodges at the Harmony Village to individuals who are residents
and non-residents of the State of Tennessee (AX 1, Tr. 92).
Kenneth Stripling, a Wage and Hour Investigator, conducted
an investigation into Parris' employment practices from September
of 1991 to September of 1993 (Tr. 272). As a result of Mr.
Stripling's investigation, Wage and Hour alleged violations in
the following areas:
(a) Employment of minors between the ages of sixteen and
eighteen in the occupation of operating or helping the
operator on power-driven woodworking machines. 29 C.F.R.
[Page 3]
570.55 [Hazardous Order Number 5].
(b) Employment of minors between the ages of sixteen and
eighteen in the occupation of operating a high-lift truck,
which includes forklifts. 29 C.F.R. 570.58(a)(1) [Hazardous
Order Number 7]
(c) Employment of minors between the ages of sixteen and
eighteen in the occupation of operating or helping on a
power-driven circular saw or band saw. 29 C.F.R. 570.65
[Hazardous Order Number 14]
(d) Employment of minors between the ages of sixteen and
eighteen in all occupations in roofing operations. 29 C.F.R.
570.67 [Hazardous Order Number 16]
(e) Employment of minors beyond eighteen hours in any one
week, and more than three hours in any one day, when school
is in session. 29 C.F.R. 570.35(a)(3) and (a)(5).
(f) Failure to keep records concerning minors' dates of
birth and proofs of age. 29 C.F.R. 579.3(5).
Civil money penalties were assessed and listed on Wage and Hour
Forms 266 (AX 10, 11). The total of the penalties as originally
assessed was $12,750.00 (DX 10). Following discovery, other
violations were found Wage and Hour raised the civil money
penalty to $44,650.00 (DX 11).
ISSUES
1. Whether the respondents employed minors in occupa-
tions 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 power-driven woodworking machines (nail
guns, chain saws, off-bearing from circular saw and
band saw) Hazardous Order 5 (29 C.F.R. 570.55);
(b) Use of high-lift of forklift trucks (forklifts)
Hazardous Order 7 (29 C.F.R. 570.58);
(c) Use of power-driven woodworking machines (assist
in the operation of a band saw) Hazardous Order 14 (29
C.F.R. 570.65);
(d) Employment of minors in roofing operations.
Hazardous Order 16 (29 C.F.R. 570.67);
(e) Employment of minors during times prohibited by
the regulations or for longer hours than permitted by
the regulations at 29 C.F.R. 570.35;
(f) Failure to keep proper records in violation of 29
C.F.R. 579.3.
2. Whether the civil money penalties assessed by the
administrator are appropriate and reasonable.
DISCUSSION
The evidence offered by the Administrator to support her
allegations consists of: testimony from the hearing; declarations
from the minors; a declaration from Compliance Officer Stripling;
admissions from Mr. Parris; photographs; and a school attendance
schedule. What follows is a discussion of each minor alleged to
have participated in the violations.
Brad Barrett
Brad Barrett was born on April 11, 1976. In a statement
dated September 18, 1995, and at the hearing, he said he worked
for the respondents for three weeks in November of 1992, when he
was sixteen years old (Tr. 118, AX 5). He wrote that his duties
included operating a chain saw to cut a hiking trail and oper-
ating a band saw and wood chipper to cut and process lumber (AX
5). He wrote that he often worked more than three hours a day
and more than eighteen hours a week while school was in session
(AX 5, 9). Brad Barrett's testimony at the hearing supported his
written statement (Tr. 119-120). He also testified that he was
involved in off-bearing[4] at the sawmill (Tr. 120).
Keith Barrett
Keith Barrett was born on October 25, 1977. In a state-
ment dated September 18, 1995, and at the hearing, he said that
he worked for the respondents for three weeks in November of
1992, when he was fifteen years old (Tr. 152, AX 6). He wrote
that his duties included operating a chain saw to cut a hiking
trail and operating a band saw to cut and process lumber (AX 6).
He wrote that he often worked more than three hours a day and
more than eighteen hours a week while school was in session (AX
6, 9). Keith Barrett's testimony at the hearing supported his
written statement (Tr. 153-56). He also testified that he was
involved in off-bearing at the sawmill (Tr. 153).
Jeremy Stone
Jeremy Stone was born on April 11, 1976. In a statement
dated September 18, 1995, he wrote that he worked for the respon-
dents from September of 1992 to February of 1993, when he was
sixteen years old (AX 7). He wrote that while he was employed by
the respondents he routinely operated a chain saw, assisted other
minors in operating a band saw to cut and process lumber, assist-
ed other minors in operating a front-end loader and a forklift,
and routinely used a power nail gun to perform framing and roof-
ing work. Id. He wrote that he often worked more than
three hours a day and more than eighteen hours a week while
school was in session (AX 7, 9). Jeremy Stone's testimony at the
hearing supported his written statement (Tr. 166-170). He also
testified that he operated a wood chipper and worked on
scaffolding approximately seven to ten feet high (Tr. 165, 167).
John Hobbs
John Hobbs was born on December 7, 1976. At the hearing he
testified that he worked for the respondents during the late
fall, early winter of 1992, when he was fifteen or sixteen years
old (Tr. 179). He said that while working for the respondents he
off-beared wood from a band saw, operated a wood chipper, and
rode on the side of a forklift (Tr. 180-82). He noted that at
times he worked more than eighteen hours a week while school was
in session (Tr. 180, AX 9).
Thomas Hobbs
Thomas Hobbs was born on January 15, 1976. At the hearing
he testified that he worked for the respondents from the Summer
of 1991 to the Summer of 1993, when he was fifteen, sixteen and
seventeen years old (Tr. 189). He said that while working for
the respondents he operated a chain saw, forklift, front-end
loader, dump truck, pick up truck[5], band saw, wood chipper,
nail gun and jackhammer (Tr. 190-98, 207). The record contains
photographs, taken from a video, showing T. Hobbs using a nail
gun and performing roofing work (AX 8, Tr. 196-97). T. Hobbs
said that one time he fell off scaffolding, cutting his wrist
(Tr. 205-06). T. Hobbs also testified that at the request of
Parris he cut meat with a meat slicer for an "open house"
barbecue held on Company grounds (Tr. 202). He noted that he
usually worked more than three hours a day and more than eighteen
hours a week while school was in session and often skipped school
to work (Tr. 200-01, AX 9).
Bruce Stevens
Bruce Stevens was born on December 5, 1977. At the hearing
he testified that he worked for the respondents off and on from
the Summer of 1993 to the Summer of 1994, when he was fifteen and
sixteen years old (Tr. 234-35). Stevens said that while working
for the respondents he operated a wood chipper, nail gun, chain
saw and skill saw; drove a forklift; fed the band saw; and off-
beared at the saw mill (Tr. 235-36). He said that he oftentimes
worked more than three hours a day while school was in session
(Tr. 240, AX 9).
Mark Richardson
Mark Richardson was born on January 8, 1979. At the hearing
he testified that he worked for the respondents for one month in
the Summer of 1994, when he was sixteen years old (Tr. 234-35).
Richardson said that while working for the respondents he oper-
ated a chain saw, nail gun and circular saw; drove a forklift and
pick up truck on the property; worked on scaffolding; and off-
beared in the saw mill (Tr. 249-251).
I find the minors' testimonies and statements credible and
accord them substantial weight.
Wage and Hour investigator Stripling testified and submitted
a statement. In his statement, he wrote that Wage and Hour con-
ducted three prior investigations in 1980, 1985 and 1987 of
Parris' Alabama business, J Parr Construction and Design. The
investigations revealed that Parris failed to pay backwages
totalling $477 (1980), $194 (1985) and $2,507 (1987). Parris
refused to pay backwages in the first two instances but paid the
backwages from the 1987 violation (AX 4).
Stripling's investigation of Harmony Wood Products reveal-
ed that the respondents' annual gross income was less than
$500,000.00 for the two years prior to the 1993 investigation.
Id. Stripling and Parris met twice during Stripling's
investigation - on October 6, 1993 for an initial conference and
on November 15, 1993 for a final conference. Stripling wrote
that during those conferences Parris acknowledged that he allowed
minors to operate chain saws and nail guns. Id. Stripling
wrote that at the November 15, 1993 conference, Parris admitted
that he did not keep records of the minors' birth dates.
Stripling also noted that at the final conference Parris gave
assurances of future compliance. Id.
At the hearing Stripling testified as to the method he
used to calculate the civil penalties assessed against the
respondents. His testimony centered around the information
contained in the Forms 266 (Tr. 277-288, AX 10, 11). Stripling
concluded that the respondents committed $44,650.00 worth of
violations (Tr. 294, AX 10, 11).
I find Compliance Officer Stripling's testimony and state-
ments credible and accord them substantial weight.
Jerral Parris submitted admission statements and testified.
He wrote that "Harmony Wood Products may have violated the
'letter' of the law but not the 'spirit' of the law." (AX 1). At
the hearing Parris testified concerning the duties of the minors.
He said that Thomas Hobbs off-beared wood; operated a chain saw,
nail gun, jackhammer, forklift and dump truck; and performed
roofing work (Tr. 95-99). Parris did not deny that Brad and
Keith Barrett used chain saws to cut a hiking trail (Tr. 100).
He did not deny that John Hobbs may have off-beared slabs of wood
from the band saw (Tr. 103). Parris acknowledged that he did not
use applications when hiring minors, allowed the minors to keep
track of their own hours, and was not overly concerned with the
age of his employees, placing more emphasis on their sizes (Tr.
107, 115).
At the hearing Parris argued that he was operating a train-
ing facility/school, which made him exempt from the child labor
regulations. Parris did not submit documentation of certifi-
cation from the State of Tennessee and did not offer any other
evidence verifying his claim.
On the morning of the second day of the hearing, Parris read
a statement setting forth his objections to the hearing and, in
protest, withdrew from the hearing. At that time the undersigned
administrative law judge informed Parris that withdrawal from the
hearing meant that summary decision would be entered on behalf of
the Administrator (Tr. 270).
Based on the uncontested and credible statements and testi-
monies of the minors, Compliance Officer Stripling's report and
testimony, and the respondents' admissions and testimony, I make
the following findings of fact:
1. Brad Barrett was sixteen years old when he worked for the
respondents. While working for the respondents he operated a
chain saw, band saw, woodchipper and off-beared at the saw mill.
He worked more than three hours a day and eighteen hours a week
while school was in session. His employment constitutes viola-
tions of Hazardous Order Number 5 (29 C.F.R. §570.55);
Hazardous Order Number 14 (29 C.F.R. §570.65); and 29 C.F.R.
§570.35.
2. Keith Barrett was fifteen years old when he worked for the
respondents. While working for the respondents he operated a
chain saw and band saw and off-beared at the sawmill. He worked
more than three hours a day and eighteen hours a week while
school was in session. His employment constitutes violations of
Hazardous Order Number 5 (29 C.F.R. §570.55); Hazardous
Order Number 14 (29 C.F.R. §570.65); and 29 C.F.R.
§570.35.
3. Jeremy Stone was sixteen years old when he worked for the
respondents. While working for the respondents he operated a
chain saw, nail gun, and wood chipper and assisted in the opera-
tion of a band saw, front end loader and forklift. His employ-
ment constitutes violations of Hazardous Order Number 5 (29
C.F.R. §570.55); Hazardous Order Number 7 (29 C.F.R.
570.58); Hazardous Order Number 14 (29 C.F.R. §570.65); and
29 C.F.R. §570.35.
4. John Hobbs was fifteen or sixteen years old when he worked
for the respondents. While working for the respondents he off-
beared wood and operated a wood chipper. He worked more than
eighteen hours a day while school was in session. His employment
constitutes violations of Hazardous Order Number 5 (29 C.F.R.
§570.55); Hazardous Order Number 14 (29 C.F.R.
§570.65); and 29 C.F.R. §570.35.
5. Thomas Hobbs was fifteen, sixteen and seventeen years old
when he worked for the respondents. While working for the re-
spondents he operated a chain saw, forklift, front-end loader,
dump truck, band saw, wood chipper, nail gun, and jackhammer and
engaged in roofing operations. He also operated a meat cutter
one time. He worked more than three hours a day and eighteen
hours a week while school was in session. At times, he skipped
school to work for the respondents. His employment constitutes
violations of Hazardous Order Number 5 (29 C.F.R. §570.55);
Hazardous Order Number 7 (29 C.F.R. 570.58); Hazardous Order
Number 14 (29 C.F.R. §570.65); Hazardous Order Number 16 (29
C.F.R. §570.67); and 29 C.F.R. §570.35.
6. Bruce Stevens was fifteen and sixteen years old when he
worked for the respondents. While working for the respondents he
operated a wood chipper, nail gun, chain saw, and skill saw;
drove a forklift; fed the band saw; and off-beared at the saw
mill. He worked more than three hours a day while school was in
session. His employment constitutes violations of Hazardous
Order Number 5 (29 C.F.R. §570.55); Hazardous Order Number 7
(29 C.F.R. 570.58); Hazardous Order Number 14 (29 C.F.R.
§570.65); and 29 C.F.R. §570.35.
7. Mark Richardson was sixteen years old when he worked for the
respondents. While working for the respondents he operated a
chain saw, nail gun, circular saw and forklift; off-beared wood;
and worked on scaffolding. His employment constitutes violations
of Hazardous Order Number 5 (29 C.F.R. §570.55); Hazardous
Order Number 7 (29 C.F.R. 570.58); Hazardous Order Number 14 (29
C.F.R. §570.65); Hazardous Order Number 16 (29 C.F.R.
§570.67); and 29 C.F.R. §570.35.
8. The respondents did not require the minors to fill out
employment applications, did not maintain birth records, and
allowed minors to keep track of their hours worked. These
[Page 4]
practices constitute a violation of 29 C.F.R. §579.3.
Based on my findings of fact, I find that the Administrator
has proven the violations alleged in her Motion for Summary
Decision.
Whether the Civil Money Penalties Assessed by the
Administrator are Appropriate and Reasonable
The Administrator assessed a penalty of $44,650.00 (AX 11).
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:
(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(c).
As applied to Section C, the circumstances in the present case do
not merit a reduction in the penalty. The violations were of a
severe nature because they involved minors operating dangerous
machinery. The respondents have a history of prior violations,
having failed to pay backwages to employees in 1980, 1985 and
1987. Parris exhibited a lack of concern for the minors' ages,
testifying that he placed more emphasis on their sizes. Seven
minors were illegally employed, ranging in ages from fifteen to
seventeen. These ages are significant considering the hazardous
duties performed by the minors. The duration of the illegal em-
ployment was significant, encompassing at least the two
years in which Compliance Officer Stripling conducted his
investigation. Finally, the minors worked substantial hours
while school was in session; one minor, Thomas Hobbs, often
skipped school to work.
The regulation also lists other factors to be considered in
determining whether the violation was de minimis. The
pertinent parts are summarized as follows:
(d)(1) the person so charged has given cred-
ible 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 involv-
ed no intentional or heedless exposure of any
minor to any obvious hazard or detriment to
health or well being and were inadvertent
....
Parris' lack of cooperation, both before and during the hearing,
casts doubt on the sincerity of his assurance of future compli-
ance. Given Parris' disdain for the regulations and this admin-
istrative hearing process, a civil penalty is necessary to
achieve the objectives of the Act. Parris demonstrated no inter-
est in the age of his employees, heedlessly exposing them to
obvious hazards. Therefore, the violations cannot be found to be
de minimis.
The respondents have not demonstrated the elements necessary
for a reduction in the civil penalty. I find that the assessed
penalty of $44,650.00 is appropriate.
CONCLUSION
The Administrator's Motion for Summary Decision is GRANTED
and her request for a penalty of $44,650.00 is approved. No re-
duction in the penalty is merited.
ORDER
It is, therefore,
ORDERED that the respondents, Jerral D. Parris, individ-
ually, d/b/a J. Parr Construction and Design, Inc. and Harmony
Products, are hereby assessed a penalty of $44,650.00 for their
violations of the Act, as determined in the Summary Decision and
Order. This Order shall constitute the final order of the
Secretary unless appealed within thirty (30) days of the date of
this Summary Decision and Order.
J. MICHAEL O'NEILL
Administrative Law Judge
[ENDNOTES]
[1] In this decision, "AX" refers to the administrator's exhibits
and "Tr." refers to the transcript of the hearing.
The administrator's exhibits were labeled "MSD GX" (Motion for
Summary Decision, Government's Exhibit), but for clarity sake I
have relabeled the exhibits "AX".
[2] Subsequently, Mr. Parris closed this account (Tr. 270).
[3] Mr. Parris is the owner of J. Parr Construction and Design,
Inc and Harmony Wood Products, two of the respondents
in this case, and is also named individually as a respondent.
[4] The regulations define off-bearing as "the removal of
material or refuse directly from a saw table or from the point
of operation." 29 C.F.R. 570.55(b)(2).
[5] T. Hobbs testified that he had his license when he drove the
dump truck, front end loader and pick up truck (Tr. 208).
