DATE: April 14, 1995
CASE NO. 92-CLA-43
IN THE MATTER OF
MARIA ECHAVESTE,
ADMINISTRATOR,
WAGE AND HOUR DIVISION,
U.S. DEPARTMENT OF LABOR,
PLAINTIFF,
v.
MAELOU, INC.,
d/b/a THE BLACK STEER,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case is before me for review pursuant to the oppressive
child labor provisions (Sections 12 and 16) of the Fair Labor
Standards Act of 1938, as amended, (FLSA), 29 U.S.C. §§
212, 216(e) (1988), and the implementing regulations at 29 C.F.R.
Parts 570, 579, 580 (1994). The Administrator of the Wage and
Hour Division, U.S. Department of Labor, has appealed from a
Decision and Order (D. and O.) issued by the Administrative Law
Judge (ALJ) on April 15, 1994. The ALJ reduced the civil money
penalties assessed against Maelou, Inc., d/b/a the Black Steer
(Maelou or Respondent) for violations of Hazardous Order Number
10's prohibition against minors under the age of 18 operating or
cleaning a power-driven meat slicing machine. For the reasons
discussed below, I conclude that the ALJ erred and that the
[PAGE 2]
,600 in civil money penalties set aside by the ALJ should be
reinstated.
BACKGROUND
Section 12 of the FLSA (29 U.S.C. § 212) provides
that employers covered by the FLSA may not employ children under
"oppressive child labor" conditions. Section 3(l) of the FLSA,
29 U.S.C. § 203(l), defines "oppressive child labor" as
including, for minors under the age of 18, "any occupation which
the Secretary of Labor shall find and by order declare to be
particularly hazardous" to such children or "detrimental to their
health or well-being." In Hazardous Order No. 10, 29 C.F.R.
§ 570.61, the Secretary has found that "[a]ll occupations
involved" in the operation of power-driven meat slicers,
including the cleaning of such machines, are particularly
hazardous or detrimental to the health or well-being of minors
and therefore constitute oppressive child labor.
At all times relevant to this case, Respondent operated the
Black Steer Restaurant in Loveland, Colorado. The restaurant had
about 35 employees, including six employees who were under the
age of 18 and had been hired as dishwashers. The restaurant had
an electric meat slicing machine, and it is undisputed that it
was the type of machine that was subject to Hazardous Occupation
Order No. 10.
The Wage and Hour Division conducted an investigation of the
restaurant operation, and determined that on various occasions
the underage dishwashers operated or cleaned the electric meat
slicing machine. Wage and Hour and the Respondent stipulated
that a 17-year-old, a 16-year-old and a 15-year-old employee
cleaned the electric meat slicer, and that a 17-year-old employee
cleaned and operated the meat slicer. Cleaning the machine
involved wiping off debris with a wet rag and then going over the
machine with a sanitized rag. Respondent's kitchen manager
testified that it was restaurant policy to leave the machine
unplugged when it was not in use.
Wage and Hour assessed a civil money penalty totaling $5,600
for the violations of Hazardous Occupation Order No. 10 and for a
violation of the hours restriction in Child Labor Reg. 3.
29 C.F.R. Part 570, Subpart C. Respondent filed exceptions to
the penalty assessment, and the matter was referred to the Office
of Administrative Law Judges. A hearing was held before an ALJ
on May 13, 1993, and the ALJ issued a D. and O. on April 15,
1994.
The ALJ stated that the method by which the Administrator
determined the civil money penalty was reasonable, since all the
relevant factors and mitigating circumstances set forth at
29 C.F.R. § 579.5 were properly considered. D. and O. at 5.
The ALJ concluded, however, that the amounts assessed against
Maelou
[PAGE 3]
for allowing several minors to clean the meat slicer "seem
excessive when all the evidence is considered." Id. The
ALJ stated that the circumstances of this case "suggest that
cleaning the slicer was considerably less hazardous than
operating it." Id. He stated that the slicer "did not
routinely require disassembly to be cleaned," but instead was
regularly cleaned while fully assembled by wiping the machine
with a rag. D. and O. at 6. Furthermore, the ALJ stated,
the dishwashers may have cleaned the meat slicer on more than one
occasion, but they did so with the machine unplugged, which
reduced the hazard. Thus, the ALJ stated, "[c]leaning the slicer
by this method was presumably no less dangerous than washing
sharp knives, which activities were a regular part of the
dishwashers' duties. Yet, one is considered a hazardous duty
under the regulations while the other is not." Id. The
ALJ concluded that the penalties assessed for cleaning the slicer
should be reduced. He reduced the total penalty assessed against
the Respondent by ,600.
DISCUSSION
As noted earlier, Hazardous Order No. 10 prohibits minors
from engaging in "[a]ll occupations involved" in the operation of
power-driven meat slicers, including the cleaning of such
machines, because such activities are "particularly hazardous for
the employment of minors between 16 and 18 years of age or
detrimental to their health or well-being."
In this case, the ALJ determined that the Administrator's
assessment of civil money penalties properly took into account
all the relevant factors and mitigating circumstances listed at
29 C.F.R. § 579.5. The ALJ nevertheless reduced the total
civil money penalty by ,600, based on his view that the hazard
of cleaning the machine was reduced by the method of cleaning
(wiping the fully assembled machine with a rag) and by the fact
that the machine was cleaned while unplugged.
The Administrator argues on appeal that the ALJ was without
discretion under Hazardous Order No. 10 to distinguish between
the hazards posed by operating a meat slicer and cleaning a meat
slicer, or the hazards posed by various cleaning methods. I
agree. Hazardous Order No. 10, which is set forth in the
regulations of the Department of Labor at 29 C.F.R. §
570.61, constitutes the finding of the Secretary of Labor, that
all occupations -- including cleaning -- involved in the
operation of power-driven meat slicers are "particularly
hazardous" for minors or are "detrimental to their health or
well-being." The regulation prohibits minors from engaging in
all such activities and does not distinguish among the hazards
involved by various prohibited activities, including "setting-up,
adjusting, repairing, oiling, or cleaning such machines."[1]
Furthermore, the regulation does not permit an ALJ to establish a
hierarchy of
[PAGE 4]
hazards and to determine that certain prohibited activities, or
certain methods of conducting such activities, are less hazardous
than others. In short, the ALJ erred in reducing the civil money
penalty based on his own evaluation of the hazards presented to
minors by cleaning an electric meat slicer.
For the foregoing reasons, the Decision and Order of the ALJ
is reversed to the extent that it reduces the civil money penalty
assessed by the Administrator, and the ,600 penalty set aside
by the ALJ is reinstated.
SO ORDERED.
________________________
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] As noted by the Administrator when the Department of Labor
amended the child labor regulations in 1991, the Department
received comments stating that Hazardous Order No. 10 did not
need to cover the cleaning of power-driven meat slicers because
such machines have ring guards to prevent injury during cleaning.
56 Fed. Reg. 58628 (Nov. 20, 1991). The Department, however,
adopted the regulation as proposed, including the prohibition
against minors' involvement in cleaning such machines.
Administrator's brief at 8.
