SO ORDERED.
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 See 41 U.S.C.A. § 351 et seq. (West 1994) and its implementing regulations at 29 C.F.R. Parts 4, 6 and 18 (2007).
2 41 U.S.C.A. § 354(a).
3 See Dec. 6, 2004 Complaint (Compl.) at 1-2; Hearing Transcript (HT) at 15.
4 The SCA generally requires that every contract in excess of $2,500 entered into by the United States, the principal purpose of which is to provide services through the use of service employees in the United States, must contain a provision that specifies the minimum hourly wage and fringe benefit rates that are payable to the various classifications of service employees working on such a contract. See 41 U.S.C.A. § 351(a)(1)-(2). These wage and fringe benefit rates are predetermined by the Wage and Hour Division acting under the authority of the Administrator, who has been designated by the Secretary of Labor to administer the Act.
5 41 U.S.C.A. at § 351(a).
6 Id. at § 352(a).
7 Compl. at 2; Government Exhibits (GX) C 1-4.
8 HT at 13-14, 38, 40, 62-65.
9 Compl. at 3.
10 Compl. at 3; HT at 4.
11 Id.
12 See Dec. 6, 2004 Complaint.
13 See 29 C.F.R. § 6.20 (2007).
14 See 29 C.F.R. § 8.1(b) (2007).
15 29 C.F.R. § 8.1(c).
16 29 C.F.R. § 8.1(d).
17 29 C.F.R. § 8.9(b). See Dantran, Inc. v. U.S. Dep't of Labor, 171 F.3d 58, 71 (1st Cir. 1999).
18 SuperVan, Inc., ARB No. 00-008, ALJ No. 1994-SCA-014, slip op. at 3 (ARB Sept. 30, 2002); United Kleenist Org. Corp. & Young Park, ARB No. 00-042, ALJ No. 1999-SCA-018, slip op. at 5 (ARB Jan. 25, 2002).
19 41 U.S.C.A. § 354(a); 29 C.F.R. § 4.188(a), (b) (2007).
20 Hugo Reforestation, Inc., ARB No. 99-003, ALJ No. 1997-SCA-020, slip op. at 9 (ARB Apr. 30, 2001).
21 Sharipoff d/b/a BSA Co., No. 1988-SCA-032, slip op. at 6 (Sec'y Sept. 20, 1991). Accord A to Z Maint. Corp. v. Dole, 710 F. Supp. 853, 855-856 (D.D.C. 1989); Colorado Sec. Agency, No. 1985-SCA-053, slip op. at 2-3 (Sec'y July 5, 1991); Able Bldg. Maint. & Serv. Co., No. 1985-SCA-004 (Dep. Sec'y Feb. 27, 1991). See also Vigilantes, Inc. v. Adm'r of Wage & Hour Div., U.S. Dep't of Labor, 968 F.2d 1412, 1418 (1st Cir. 1992) ("The legislative history of the SCA makes clear that debarment of a contractor who violated the SCA should be the norm, not the exception, and only the most compelling of justifications should relieve a violating contractor from that sanction.")
22 29 C.F.R. § 4.188(b)(1); Hugo Reforestation, slip op. at 12-13.
23 29 C.F.R. § 4.188(b)(3)(i).
24 See 29 C.F.R. § 4.188(b)(3)(ii).
25 See Decision and Order (D. & O.) at 1, 4; see also Compl. at 3; HT at 4.
26 41 U.S.C.A. § 354(a).
27 29 C.F.R. § 4.188(b)(3)(i).
28 J & J Merrick's Enters., Inc., BSCA No. 94-009, slip op. at 5 (Oct. 27, 1994).
29 29 C.F.R. § 4.188(b)(3)(i).
30 D. & O. at 4-5.
31 Rasputin, Inc., ARB No. 03-059, ALJ No. 1997-SCA-032, slip op. at 10 (ARB May 28, 2004) (contractor's failure to ensure that its pay practices are in compliance with the SCA constitutes culpable neglect).
32 Ray's Lawn Brief at 4.
33 See 29 C.F.R. § 4.188(b)(3)(i).
34 Hugo Reforestation, slip op. at 9 n.10, quoting J & J Merrick's Enters., Inc., slip op. at 5.
35 See Nationwide Bldg. Maint., Inc. & William W. Johnson, BSCA No. 92-004, slip op. at 12 (Oct. 30, 1992) ("Violations which are committed more than once - after proper notice - can also be seen as intentional, deliberate and willful."); see also A to Z Maint. Corp., 710 F. Supp 853, 857-859 (D.D.C. 1989) (contractor's repeated violations of SCA even after receiving advice from Labor Department Compliance Officer is one of the aggravating factors that precludes a finding of "unusual circumstances" under 29 C.F.R. § 4.188(b)(3)(i)); Hugo Reforestation, slip op. at 10.
36 Ray's Lawn Brief at 4.
37 See 29 C.F.R. § 4.188(b)(2). See also Vigilantes, 968 F.2d at 1418 (debarring government contractor and its president despite company's status as a Small Business Administration certified, Section 8(a) business); Summitt Investig. Serv., Inc. v. Adm'r of Wage and Hour, 34 F. Supp. 2d 16 (D.D.C. 1998)(enforcing debarment sanction against small disadvantaged minority-owed business).
38 29 C.F.R. § 4.188(b)(3)(i). Ray's Lawn contends that its employees will be unemployed if it is debarred. Ray's Lawn Brief at 4. But, the ARB has held that "[d]ebarment is the statutorily required sanction for SCA violators and its adverse effects [on the contractor's business] should not be considered a reason to excuse a contractor for its wrongdoing." Integrated Res. Mgmt., Inc., ARB No. 99-119, ALJ No. 1997-SCA-014, slip op. at 7 n.2.
39 Integrated Res. Mgmt., Inc., slip op. at 6 n.2 (The second prong of the three-part test for unusual circumstances should never be examined in the event that culpable conduct is a factor in the commission of the SCA violations. The third factor, also, may not be examined where aggravated circumstances or culpable disregard of obligations is demonstrated).
40 Ray's Lawn Brief at 1-2.
41 Griffith v. Wackenhut Corp., ARB No. 98-067, ALJ No. 1997-ERA-052, slip op. at 10 n.7 (ARB Feb. 29, 2000), quoting Dozier v. Ford Motor Co., 707 F.2d 1189, 1194 (D.C. Cir. 1983).
42 Cf. Canterbury v. Administrator, ARB No. 03-135, ALJ No. 2002-SCA-011, slip op. at 3-4 (ARB Dec. 29, 2004).
43 See, e.g., United States v. Trapnell, 512 F.2d 10, 12 (9th Cir. 1975)(per curiam)("The trial judge is charged with the responsibility of conducting the trial as impartially and fairly as possible.")
44 See Young v. Schlumberger Oil Field Servs., ARB No. 00-075, ALJ No. 2000-STA-028, slip op. at 9 (ARB Feb. 28, 2003) citing Jessica Case, Note: Pro Se Litigants at the Summary Judgment Stage: Is Ignorance of the Law an Excuse?, 90 KY. L.J. 701 (2002); Model Code of Judicial Conduct, Canon 3 (1990) (A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently).
45 Ray's Lawn also cites to a regulation that allows for a "window of correction" to correct violations under the Act. See Ray's Lawn Brief at 3; 29 C.F.R. § 541.118(a)(6), superceded by 29 C.F.R. § 541.603(c) (2007). Ray's Lawn's citation is misplaced, however, as this regulation implements the Fair Labor Standards Act and is inapplicable to the SCA. In addition, Ray's Lawn contends that they were unable to present evidence regarding problems with their employees using false identification. But because the ALJ correctly found that Ray's Lawn has "stipulated" to SCA violations for failing to pay service contract employees the wages and fringe benefits due them, as Ray's Lawn paid the back wages and fringe benefits it owed to its employees, any issue regarding employees using false identification is irrelevant.
46 Ray's Lawn Brief at 6-11.
47 Bishop d/b/a/ Safeway Moving & Storage, BSCA Case No. 92-12 (Sec'y Nov. 30, 1992).
48 See Hugo Reforestation, Inc., slip op. at 18 n. 18.
49 See 29 C.F.R. § 18.801(c)(Hearsay is a statement, other than one made by the declarant while testifying at the hearing, offered in evidence to prove the truth of the matter asserted.). Alternatively, the testimony of the Wage and Hour Division officials also falls within the "public records and reports" exception to the hearsay rule. See 29 C.F.R. § 18.803(a)(8)(iii)(exempting "[f]actual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness").
50 See 41 U.S.C.A. § 354(a).