Text Size:   A+ A- A   •   Text Only
Find     
Site Image

Final Order
Hearings Unit: Final Order
 
In the Matter of
HART INDUSTRIES, INC.
and Hart Logistics Co., Inc., Respondents.


 
Case Number 28-96
Final Order of the Commissioner
Jack Roberts
Issued September 18, 1996.

 
FINDINGS OF FACT
ULTIMATE FINDINGS OF FACT
CONCLUSIONS OF LAW
ORDER

 

 
SYNOPSIS
 
Where the scheduled hearing was canceled when Respondents agreed to a Consent Order requiring payment of certain wages by a date certain, and agreed that if the payment was not made in full when due, the Commissioner could proceed, without notice, to issue a Final Order against Respondents for the wages owing and penalty wages, plus interest, and where Respondents thereafter endorsed the order through counsel, but failed to pay the wages, the Commissioner entered an order based upon the disposition agreed to and for the sums specified. ORS 652.332; OAR 839-50-220(4) and (5).
 

 
The above-entitled contested case was scheduled for hearing before Judith A. Bracanovich, designated as Administrative Law Judge (ALJ) by Jack Roberts, Commissioner of the Bureau of Labor and Industries of the State of Oregon, on May 21, 1996, in the offices of the Bureau of Labor and Industries, 800 NE Oregon Street, Portland, Oregon. The Bureau of Labor and Industries (the Agency) was represented by Linda Lohr, Case Presenter with the Agency. Richard E. Fowlks, attorney at law, represented Respondents Hart Industries, Inc., a corporation, Hart Logistics Co., Inc., a corporation, and Tom Jeffrey Kasinger, an individual, in this forum and in correspondence with the ALJ.
Having fully considered the entire record in this matter, I, Jack Roberts, make the following Findings of Fact, Conclusions of Law, and Order.
 
 
1) On October 16, 1995, Claimant Tracy Carruth filed a wage claim with the Agency. She alleged that she had been employed by Respondents and that Respondents had failed to pay wages earned and due to her. At the same time she filed her wage claim, Claimant Carruth assigned to the Commissioner of Labor, in trust for Claimant Carruth, all wages due from her employer.
2) In November 1995, Claimant Norman Rombach filed a wage claim with the Agency. He alleged that he had been employed by Respondents and that Respondents had failed to pay wages earned and due to him. At the same time he filed his wage claim, Claimant assigned to the Commissioner of Labor, in trust for Claimant Rombach, all wages due from his employer.
3) On January 29, 1996, through the Sheriff of Multnomah County and the Sheriff of Clackamas County, the Agency served on Respondents an Order of Determination based upon the wage claims filed by Claimants and the Agency´s investigation. The Order of Determination found that Respondents owed Claimant Tracy Carruth $750 in unpaid wages and $1,875 in civil penalty wages, together with the interest thereon; and that Respondents owed Claimant Norman Rombach $1,500 in unpaid wages and $2,076 in civil penalty wages, plus interest thereon. The Order of Determination reflects a combined total owing of $2,250 in wages and $3,951 in civil penalty wages, together with the interest thereon.
4) The Agency´s Order of Determination provided that Respondents could, within 20 days, file an answer to the Order of Determination and request a contested case hearing in connection therewith.
5) On February 16, 1996, following an extension of time, Respondents, through their attorney, filed an answer to the Order of Determination. Respondents´ answer did not contain a request for a contested case hearing. Following an additional extension of time, Respondents filed a timely request for a contested case hearing and an amended answer to the charges.
6) On April 18, 1996, the Agency sent the Hearings Unit a request for a hearing date. On April 19, 1996, the Hearings Unit issued a Notice of Hearing to the Respondents, the Agency, and the Claimants indicating the time and place of the hearing. Together with the Notice of Hearing, the forum sent a document entitled "Notice of Contested Case Rights and Procedures" containing the information required by ORS 183.413, and a copy of the forum´s contested case hearings rules, OAR 839-50-000 to 839-50-420.
7) On April 25, 1996, the forum notified Respondents and the Agency that a new ALJ had been designated to hear the contested case.
8) On April 25, 1996, the ALJ issued a discovery order to the participants directing them each to submit a summary of the case by May 13, 1996. The participants substantially complied with the case summary order.
9) On May 21, 1996, the participants appeared for hearing. Based upon their mutual desire to explore a disposition short of formal hearing, the ALJ temporarily delayed commencement of the hearing.
10) Upon reconvening on May 21, the Agency announced the following disposition of the case, to which counsel for Respondents agreed:
As an alternative to further hearing, the participants agreed to a Consent Order providing as follows:
 
1. Except for the employer status of Tom Jeffrey Kasinger, Respondents stipulated to all material facts contained within the Agency´s Order of Determination, including the amount of wages and civil penalties owed, less lawful deductions, plus interest at the legal rate per annum;
2. The participants stipulated that Respondents Hart Industries, Inc. and Hart Logistics Co., Inc. were the employer of Claimants during times material, and that Respondent Kasinger was not personally liable as an employer;
3. That if Respondents pay in full the wages owed, $2,250, within 60 days of the date of execution of the Consent Order herein, the Agency would waive payment of the civil penalties and all interest otherwise due;
4. That if Respondents fail to pay in full the wages owed within 60 days of the date of execution of the Consent Order, the Consent Order, Order of Determination, and record herein shall become the basis for a Final Order.
11) On May 21, 1996, the ALJ approved the settlement outlined in Finding of Fact 10, allowed the participants 10 days from May 21 to submit the signed Consent Order, and allowed Respondents 60 days from the date of submission of the signed Consent Order to fully execute the settlement by payment of the stipulated amount to the Agency as assignee of the Claimants. The ALJ admitted as exhibits all of the described pleadings and correspondence, including Agency Exhibits A-1 through A-15, which, together with the record of the proceedings of May 21, and Exhibits X-13 through X-17, admitted subsequent to May 21, constitute the entire record herein.
12) On May 30, 1996, the Agency requested, and was granted, an extension until June 7, 1996, within which to file the fully signed Consent Order.
13) On June 7, 1996, the Agency submitted to the Hearings Unit the fully signed Consent Order, which final signature, as evidenced by the signature of Christine Hammond, the Administrator of the Wage and Hour Division, was executed on June 7, 1996.
14) On June 12, 1996, the forum confirmed the cancellation of hearing herein, and affirmed that the file of the Hearings Unit would remain open, due to the contingent terms of the Consent Order.
15) Respondents had not made the agreed upon wage payment of $2,250 as of August 20, 1996, or at any time up to the date of the Proposed Order.
16) More than 60 days have elapsed since June 7, 1996.
17) The Proposed Order, which contained an Exceptions Notice, was issued August 27, 1996. Exceptions were due by September 6, 1996. No exceptions were received.
 
 
1) The Commissioner of the Bureau of Labor and Industries has jurisdiction over the persons and subject matter, pursuant to ORS 652.110 to 652.405.
2) OAR 839-50-220 provides, in part:
"(4) Where a case is settled within ten days before or on the date set for hearing, the terms of the settlement shall be placed on the record, unless fully executed settlement documents are submitted on or before the date set for hearing.
"(5) Where settlement terms are placed on the record because settlement documents are incomplete, * * * fully executed settlement documents must be submitted to the hearings unit within ten days after the date set for hearing. Where a party fails to submit the settlement documentation within ten days after the date set for hearing, the terms of the settlement set forth on the record shall constitute the basis for a final order."
OAR 839-50-240 provides, in part:
"The commissioner designates as hearings referees those employees who are employed by the agency as hearings officers, * * *. The commissioner delegates to such designee the authority to:
"(9) Decide procedural matters, but not grant motions for summary judgment or other motions by a party which involve final determination of the proceeding, but to issue a proposed order as provided for in these rules. * * *"
Respondents´ failure to fully execute the settlement by payment of the stipulated amount to the Agency, as assignee of the Claimants, within 60 days of the final signature on the Consent Order, constitutes failure to submit fully executed settlement documentation and non-compliance with the substance of the agreement, allowing the terms of settlement as placed on the record to form the basis for a final order.
3) Under the facts and circumstances of this record, and according to the law applicable to this matter, the Commissioner of the Bureau of Labor and Industries has the authority to order Respondents to pay Claimants their earned, unpaid, due, and payable wages and the civil penalty wages, plus interest on both sums until paid. ORS 652.332.
 
 
NOW, THEREFORE, as authorized by ORS 652.332, the Commissioner of the Bureau of Labor and Industries hereby orders HART INDUSTRIES, INC. and HART LOGISTICS CO., INC., jointly and severally, to deliver to the Business Office of the Bureau of Labor and Industries, 800 NE Oregon Street, Portland, Oregon 97232-2109, the following:
 
(1) A certified check payable to the Bureau of Labor and Industries IN TRUST FOR TRACY CARRUTH in the amount of TWO THOUSAND SIX HUNDRED TWENTY-FIVE DOLLARS ($2,625), less appropriate lawful deductions, representing $750 in gross earned, unpaid, due, and payable wages and $1,875 in penalty wages; plus
(a) Interest at the rate of nine percent per year on the sum of $750 from October 1, 1995, until paid; plus
(b) Interest at the rate of nine percent per year on the sum of $1,875 from November 1, 1995, until paid.
(2) A certified check payable to the Bureau of Labor and Industries IN TRUST FOR NORMAN ROMBACH in the amount of THREE THOUSAND FIVE HUNDRED SEVENTY-SIX DOLLARS ($3,576), less appropriate lawful deductions, representing $1,500 in gross earned, unpaid, due, and payable wages and $2,076 in penalty wages; plus
(a) Interest at the rate of nine percent per year on the sum of $1,500 from October 1, 1995, until paid; plus
(b) Interest at the rate of nine percent per year on the sum of $2,076 from November 1, 1995, until paid.
 
Pursuant to the stipulation of the participants, Tom Jeffrey Kasinger was not the employer at times material herein, and he is not personally liable for the agreed payment herein; accordingly, his name has been deleted from the caption. The forum, on its own motion, has admitted Exhibits X-13 through X-16 into the record.