U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 96-186
(ALJ CASE NO. 94-DBA-50)
DATE: May 28, 1997
In the Matter of:
DELFOUR, INC., General Contractor
JAD, LTD.
GAETANO P. DELUCA, President
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
Delfour, Inc, JAD, Ltd. and Gaetano DeLuca (Petitioners) filed a petition
for review of the Administrative Law Judge's (ALJ) Decision and Order of July 31, 1996 (D. &
O.), 29 C.F.R. § 6.34 (1996), finding that Petitioners failed to pay prevailing wage rates
and misclassified workers under the Davis-Bacon and Related Acts (DBRA), 29 C.F.R. §
5.1, failed to pay overtime as required by the Contract Work Hours and Safety Standards Act, 40
U.S.C. § 327, 333 (1988), and failed to keep accurate records and submitted falsified
records under those acts. The Administrator of the Wage and Hour Division of the Department
of Labor sought over $42,000 in back wages for four employees as well as the debarment of
Petitioners from the award of further government contracts. The ALJ reduced the amount of back
pay due because of "inaccuracies" resulting from estimates and assumptions made by
the Wage Hour investigator, D. & O. at 21, and awarded some $24,000 in back pay,
id. at 23; he also held that Petitioners should be debarred for three years.
Id.
Petitioners excepted to the D. & O. on several grounds: that this proceeding
is barred by the two year statute of limitations in 29 U.S.C. § 255 (1988); that the ALJ's
findings of fact on the number of days and number of hours worked by the Petitioners' employees
are erroneous and not supported by a preponderance of the evidence; and that the ALJ improperly
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bases his findings on certain documents that should have been excluded from the record.
1 Delfour, Inc. was the contractor
listed on each contract and each was signed by Gaetano Deluca as Vice President of Delfour. Deluca
testified that Delfour was a general contractor and JAD supplied labor to Delfour. T (transcript of hearing)
668-69. Although Deluca testified that he had no role in JAD, T. 671, the certified payrolls submitted by
JAD were all signed by Deluca. C-6 and 10. We find that Delfour, JAD and Deluca were all jointly
responsible for compliance with the DBRA and CWHSSA.
2 In addition, the investigator did not
credit Delfour with some small payments to employees such as reimbursement for gas.