DATE: September 12, 1995
CASE NO. 92-CLA-151
IN THE MATTER OF
FOX CHAPEL YACHT CLUB, INC.,
A CORPORATION, D/B/A FOX CHAPEL
YACHT CLUB, AND JOSEPH C. ROSS, JR.,
PETER J. BRAUN, AND JOE TKACH,
INDIVIDUALLY AND AS RESPONSIBLE
OFFICERS OF THE CORPORATION,
RESPONDENTS.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case is before me for final review pursuant to the
child labor provisions (Section 12) of the Fair Labor Standards
Act of 1938, as amended (FLSA or the Act), 29 U.S.C. § 212
(1988) and its implementing regulations, 29 C.F.R. Parts 570,
579 and 580 (1994). On February 4, 1993, the Deputy Chief
Administrative Law Judge (ALJ) issued a Decision and Order (D.
and O.) which dismissed Respondents' May 5, 1992 exceptions and
request for hearing and entered a default judgment against them.
As a result of the ALJ's ruling, Respondents were ordered to pay
$9,800.00 in civil money penalties (cmp's) under the Act.[1]
The record reveals that Respondents were notified of an
assessment of cmp's for violations of the Act's child labor
provisions on April 28, 1992. After filing timely exceptions to
the assessment on May 5, 1992, however, Respondents have failed
to proceed in accordance with the applicable procedural
regulations governing administrative hearings under the FLSA.
See 29 C.F.R. § 580.7.[2] On November 9,1992, the
Department of Labor (DOL), in light of Respondents' demonstrated
recalcitrance, filed a Motion for Order to Show Cause. The
motion was granted
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by the ALJ who, on November 23, 1992, issued such an order. By
the terms of that order, Respondents were given twenty (20) days
from November 23rd to show cause, "why a default judgment should
not be entered in this case and why the material facts alleged in
the Order of Reference should not be adopted as my findings of
fact."
Respondents did not timely respond to the ALJ's Order To
Show Cause. Previously, they failed to respond to either the
Notice of Docketing in the case, or the DOL's Prehearing
Exchange, filed on September 14, 1992 and September 30, 1992,
respectively. On April 28, 1993, Respondents filed an Appeal of
the D. and O. along with a belated response to the Order to Show
Cause.
29 C.F.R. § 580.13 states that "[a]ny party desiring
review of a decision of the Administrative Law Judge shall file
an appeal with the Secretary. To be effective, such appeal
must be received by the Secretary within 30 days of the date of
the decision of the Administrative Law Judge. . . ." (emphasis
added). Therefore, Respondents did not timely appeal the
February 4, 1993 D. and O.
In addition, by their failure to respond to any of these
motions or orders, Respondents have subjected themselves to the
discretionary powers of the presiding ALJ. The provision at 29
C.F.R. § 18.6 authorizes an ALJ to apply the full range of
sanctions which include the default ordered in this instance.
§ 18.6(d)(2) reads, in pertinent part, as follows:
If a party or an officer or agent of a party fails to
comply with a subpoena or with an order, including but
not limited to, an order for the taking of a depo-
sition, the production of documents, or the answering
of interrogatories, or requests for admissions, 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 take such action with regard
thereto as is just, including but not limited to the
following:
(ii) Rule that for the purposes of the proceeding
the matter or matters concerning which the
order or subpoena was issued be taken as
established adversely to the non-complying
party. . . ;
(v) [Rule] that a . . . . decision of the
proceeding be rendered against the non-
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complying party . . . .
(Emphasis added). Due to Respondents' failure to respond to
prehearing motions and orders, the ALJ's ruling is clearly
authorized and just on the record before me and I adopt it.
Accordingly, IT IS ORDERED that Respondents' exceptions to
the determination of violation and assessment of a civil money
penalty dated May 5, 1992, be and hereby are, dismissed.
It is further ordered that Respondents pay a civil money
penalty in the amount of $9,800.00 to the United States
Department of Labor.
SO ORDERED.
_________________________
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The civil money penalties were assessed for Respondents'
employment of two (2) minors under the age of 18 in violation of
Hazardous Orders numbers 10 (Occupations involving slaughtering,
meat packing or processing, or rendering) and 11 (Occupations
involved in the operation of bakery machines). 29 C.F.R.
§§ 570.61 and 570.62. The penalties assessed were:
$4,800.00 for the 16 year old minor involved and $4,000.00 for
the 17 year old minor. Additionally, ,000.00 was assessed for
Respondents failure to assure compliance in the future with the
Act's provisions.
[2] That code section makes applicable, "to the extent they do
not conflict with the provisions of this subpart, the Rules of
Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges . . . at 29 CFR Part 18."
