DATE: September 22, 1997

CASE NO: 97-CLA-10

In the Matter of:

U.S. DEPARTMENT OF LABOR,
    Plaintiff,

    v.

MAX DALES, INC., and
TONY PICKERING, an individual,
    Respondents.

   This matter arises under the child labor provisions of the Fair Labor Standards Act of 1938 (the "Act" or "FLSA"), 29 U.S.C. § 212, and in accordance with the applicable regulations contained at 29 C.F.R. Parts 570, 579 and 580. Pursuant to Section 216(e) of the Act, a civil monetary penalty in the amount of $2,400.00 was assessed against Max Dales, Inc., and Tony Pickering (collectively, "Respondents") as the result of the alleged employment of one minor in violation of the child labor provisions. As provided for in 29 C.F.R. § 580.6, Respondents have filed an exception to the determination of the U.S. Department of Labor ("Plaintiff"), finding that Respondents had violated the child labor provisions. This matter has subsequently been assigned to the undersigned administrative law judge for the purposes of conducting a formal hearing and issuance of a decision and order pursuant to 29 C.F.R. §§ 580.10-580.18.

   Pursuant to a Notice of Hearing and Pre-Hearing Order issued August 4, 1997, this matter was scheduled for hearing on September 22, 1997, at Seattle, Washington. On August 12, 1997,

this office received Plaintiff's Motion for Continuance. Therein, Plaintiff's counsel indicated that she had a scheduling conflict and would be unable to attend the hearing. Therefore, Counsel sought a continuance of the hearing, a request to which Respondent had no objection.

   On September 3, 1997, the undersigned issued an Order granting Plaintiff's motion for a continuance. This Order Granting Continuance was served upon the parties on September 3, 1997, and the administrative file was forwarded to the Office of Administrative Law Judges for reassignment.

   On September 5, 1997, this office was contacted by counsel for Plaintiff who indicated that the parties had amicably settled this matter. Counsel asked that the undersigned retain jurisdiction so that the settlement can be approved once the settlement documents have been executed. Based upon this representation from counsel, the undersigned issued an "Order Striking Hearing Date and Rescinding Order Granting Continuance" on September 11, 1997.

   This office received the parties' "Consent Findings" on September 18, 1997. The document appears to have been executed by

Rochelle Kleinberg, Esq., counsel for Plaintiff, and by Tony Pickering, Respondent.

   The parties' Consent Findings provide in pertinent part:

1. By notice dated October 3, 1996, pursuant to Section 16(e) of the FLSA, and in accordance with 29 C.F.R. Part 579, a civil money penalty in the amount of $2,400.00 was assessed by Plaintiff against Respondents as a result of employment of one (1) minor in violation of the child labor provisions of Section 12 of the FLSA and the regulations issued thereunder;

2. Respondents, on October 10, 1996, filed a timely

exception to the assessed civil money penalty pursuant to the FLSA and the regulations;

3. Subsequent to the filing of the exception, an Order of Reference was filed, referring this case to the Chief Administrative Law Judge, pursuant to 29 C.F.R. § 580.10;

4. Plaintiff alleges and Respondents admit that at all times pertinent hereto, Max Dales, Inc., has been an enterprise engaged in commerce or the production of goods for commerce within the meaning of Sections 3(r) and 3(s)(2) of the FLSA;

5. Respondents certify that they are presently in compliance with the provisions of Section 12 of the FLSA and the implementing regulations, and further says that they will continue in compliance therewith;

6. Upon reconsideration of the amount of penalties assessed for the minor in this case, Plaintiff does hereby modify the notice of penalty of October 3, 1996, by reducing the assessment of civil penalties to $250.00;

7. Respondents hereby withdraw their exception to the assessment of civil money penalties, and agree to accept the modified penalties as final and binding, and agrees to pay said penalties of $250.00 within thirty (30) days of the judge's Decision and Order. The parties agree that in the event the payment is more than fifteen (15) days late, the amended penalty of $250.00 is voided and the original proposed penalty of $2,400.00 will become due immediately;

8. Any order entered in accordance with these consent findings shall, pursuant to 29 C.F.R. § 18.9(b)(1), have the same force and effect as an order made after full hearing;

9. The entire record upon which any final order may be based shall, pursuant to 29 C.F.R. § 18.9(b)(2), consist of the notice of penalty, as modified herein, and these consent findings;

10. All further procedural rights provided by 29 C.F.R. Part 580 and any rights to contest the validity of these consent findings or any order issued pursuant thereto are hereby waived (See 29 C.F.R. § 18.9(b)(3), (4)); and

11. The signing of this Consent Findings waives any claim either party has to costs and/or attorney fees.

   IT IS HEREBY ORDERED that:

1. The civil monetary penalty, which pursuant to the parties' Consent Findings has been modified from $2,400.00 to $250.00, is HEREBY AFFIRMED;

2. Respondents shall pay Plaintiff the reduced civil monetary penalty of $250.00 within thirty (30) days from the date hereof;

3. If Respondents fail to pay the aforementioned civil monetary penalty of $250.00 within fifteen (15) days after said penalty becomes due, the original penalty of $2,400.00 will immediately become due; and

4. The parties' "Consent Findings" filed on September 18, 1997, are hereby incorporated by reference and made a part of this decision and order.

   Entered this 22nd day of September, 1997, at Long Beach, California.

      SAMUEL J. SMITH
      Administrative Law Judge