U.S. Department of Labor Office of Administrative Law Judges
800 K Street, NW
Washington, DC 20001-8002
Date Issued: December 18, 1996
Case No.: 96-CLA-19
In the Matter of
PHOENIX ORGANIZATION, INC.
d/b/a HARDEES RESTAURANT and
MELVIN P. KERR, an Individual,
Respondents
Before: JOHN M. VITTONE
Chief Administrative Law Judge
DECISION AND ORDER
This case arises under the Fair Labor
Standards Act of 1938 (FLSA), as amended 29 U.S.C. § 216(e)
etseq. and the regulations at 29 C.F.R. Parts 579
and 580.
By notice dated August 23, 1996, the Wage and
Hour Division of the United States Department of Labor (DOL)
notified Phoenix Organization, Inc. d/b/a Hardees Restaurant and
Melvin Kerr (Respondents) of an assessment of a civil money
penalty ($46,100). DOL alleged that Respondents violated the
child labor provisions of Section 12 of FLSA and the regulations
thereunder. Respondents filed a timely exception to the
assessment. On April 12, 1996, DOL filed an Order of Reference
with this Office. This Office issued a Notice of Docketing on
May 2, 1996. The Notice of Docketing instructed the parties to
exchange and submit certain information to this Office. On May
13, 1996, DOL filed a response to the Notice of Docketing.
Due to failure of Respondents to comply with
the Notice of Docketing, DOL filed a Motion to Strike
Respondents' Letter of Exception and Request for a Hearing
(Motion for Default Judgment) on September 19, 1996. On October
16, 1996, this Office issued an Order directing Respondents to
show cause why a default decision should not be entered in this
case. To date,Respondents have failed to respond to the Notice
of Docketing, the Motion for Default Judgment, and the Order to
Show Cause. The regulations at 29 C.F.R. § 8.6(d)(2)(v)
provide that:
If a party or an officer or agent of a party fails
to comply with a subpoena or with an order, . . .
or any other order of the administrative law judge,
the administrative law judge, for the purpose of
permitting resolution of the relevant issues and
disposition of the proceeding without unnecessary
delay despite such failure, may . . . [r]ule that
a pleading, or part of a pleading, or a motion or
other submission by the non-complying party,
concerning which the order or subpoena was issued,
be stricken, or that decision of the proceeding
be rendered against the non-complying party, or both.
After reviewing the record and considering
Respondents' failure to participate in this matter, I hereby
ORDER that a Judgment by Default be entered against Respondents.
I adopt the material facts alleged in the Order of Reference as
my findings of fact. Further, I hereby ORDER that Respondents
pay a civil money penalty in the amount of $46,100 to DOL and
that Respondent's request for hearing be DISMISSED.
