Administrator v. Chrislin, Inc., 1999-CLA-5 (ALJ Dec. 17,
1999)
U.S. Department of
Labor
Office of Administrative Law Judges 2600 Mt. Ephraim Avenue
Camden, NJ 08104
(856) 757-5312 856-757-5403 (FAX)
DATE: December 17, 1999
Case No: 1999-CLA-00005
IN THE MATTER OF:
JOHN R. FRAZER, ACTING ADMINISTRATOR
Wage and Hour Division,
U. S. Department of Labor,
Complainant,
v.
CHRISLIN, INC. D/B/A BIG WALLY'S AND
WALTER A. CHRISTENSEN
Respondents,
Appearances:
Marc G. Sheris, Esq.
For the Complainant
Evan Pickus, Esq.
For the Respondents
Before: RALPH A. ROMANO
Administrative Law Judge
DECISION AND ORDER
This is a proceeding to impose a civil money penalty for violation
of the Fair Labor Standards Act, as amended, 29 U.S.C. 201 et seq, hereinafter
"Act", and regulations issued thereunder at 29 C.F.R. 580, et seq.
1 This matter was assigned to the
writer on November 30, 1998. The originally set April 7, 1999 hearing was twice continued at
the Complainant's request.
2 These assessments are
comprised of $3,600 in hours violations, $412.50 in record keeping violations, and $62,075 for
hazardous occupation violations (total rounded to $66,088). See P-2. References are:
"P" for Government exhibits, "D" for Respondent's exhibits, and
"Tr." for trial transcript.
3 The use, and/or cleaning and/or
disassembling of a slicing machine. Respondents operated sandwich shops at two different
locations in the State of New Jersey, Parlin and Matawan.
4 The $64,000 figure at P-2, page
2 column 6, line 04. Part D is an incorrect extension of a 1.5 factor over $44,500 (column 5, line
04, Part D). The correct extension is $66,750, which is reduced by a ,925 cap overage for
Dickey, and a $2,750 cap overage for Cutrona, for a total reduction of $4,675 from the
$70,762.50 total of all assessments, leaving $66,087.50 due.
5A DOL process called
"bundling", see Tr. 141-4; 162.
6 No determination whether the
cleaning of an already disassembled cutting blade of a slicing machine is addressed or prohibited
by the regulations, is made or implied hereby. This issue is not here presented for resolution.
7 At P-2, page 1, line 05, a fine of
$2,250 is based upon this alleged and invalidated hazardous occupation violation (Tr. 139).
Also, a total fine of $9,000 (included in the $64,000 at P-2, at 2, line 04) is based upon this
incorrect allegation (Tr. 142). Because the only fine validated as against Dickey is $675 for
hours violations, there exists no longer a ($10,000) cap overage for him, thus the reduction from
the $70,762.50 total of all assessments (see ftn. 4, supra) is only Cutrona's $2,750,
leaving a total of $56,762.50 of valid assessments (see Order, infra).
8 Respondents' argument (Br. At
5-6) that Somers' statement (P-19) is valueless since unsigned, and that because he was not
called as a witness, there was a denial of due process as no cross-examination was available, is
baseless. The testimony of Somers' DOL interviewer who related what Somers' told him, found
credible by the writer, suffices as primary evidence of the violative work activities (Tr. 60).
Moreover, 29 C.F.R. 580.7(b) eliminates Respondents' otherwise valid hearsay objection thereto.
9 Dickey has been excised from
this category, supra.
10 The record evidence of use
and/or cleaning and/or disassembling the slicer as to each of these employees is clear and not
refuted, Cutrona (Tr. 248-9); Ferri (Tr. 363); Martinez (Tr. 288-9); Somers (P-19; Tr. 60); Soble
(P-22); Flegler (Tr. 318).
11 Respondents apparently
admit that their initially argued position-that these minors were exempt from the Act's provisions
by reason of their employment "...as part of a state sponsored internship program" -
is abandoned as not providing relief from the penalties assessed here (Br. at 9). In any event,
such argument is clearly unavailing (see 29 C.F.R. 570.50(b)(c); Tr. 20-27; 155-9).
12 Respondents concede this
factor is inapplicable here (Br. at 21).
13 She later testified that
Respondent Christensen "...knew [she] was using [the slicer]...because [she] was...the main
person there..." (Tr. 298).
14 Respondents hotly contest
whether this injury is a "serious" one so as to warrant the imposition of increased
penalties. Cutrona testified that she received nine stitches to her right thumb, and the hospital
records bear this out (P-5, at 3, 7). She also testified that she continues to experience numbness
at the thumb (Tr. 261). While there is some doubt whether she lost work time due to the injury
(Tr. 279; 389-90; D-1), Respondents' suggestion that the injury "...could have been treated
with one single stitch..." (Br. at 33) bears no support in this record, and I find no basis
whatever, in logic or in law, to consider this injury less than "serious", and I so find.
15 Noted, is that Christensen
knew that the slicer was routinely to be cleaned at the end of the day (Tr. 219), and that minors
alone were sometimes left to close the store (Tr. 253; 255; 294).
16 While there is no direct
evidence of the actual dimensions of the Parlin store, considering the employee population at the
store, ranging from two up to four at the busiest time of day (Tr. 365-6; 256), and the busiest
customer population (5-6) (Tr. 256), and visualizing a
17 At Tr. 324, Flegler
inexplicably denies ever using the slicer, and at Tr. 318, inexplicably denies disassembling it!
See ftn. 19 infra.
18 Evidently, the minors
ultimately prevailed on their claims for unemployment benefits (Tr. 269; 302).
19Indeed, Flegler's relationship
to Respondent Christensen (Tr. 189; 329) appears to have tilted his testimony in the opposite
direction, favoring Christensen as much as possible (see ftn. 17, supra).