ARB Case No. 98-113
(Formerly ALJ Case No. 97-DBA-12)
DATE: June 30, 2000
In the Matter of:
Disputes concerning the payment
of prevailing rates by:
STAR BRITE CONSTRUCTION
COMPANY, INC.; KOSTAS SMILIOS,
President
Proposed debarment for labor standards
violations by:
STAR BRITE CONSTRUCTION COMPANY,
INC.; KOSTAS SMILIOS, President
With respect to Laborers and Mechanics
employed by the contractor on Contract No.
F28609-92-C-0020, McGuire Air Force Base,
Wrightstown, New Jersey.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Respondents-Petitioners:
Thomas J. Hirsch, Esq., Ocean, New Jersey
For the Complainant: Leif G. Jorgenson, Esq., Douglas J.
Davidson, Esq., Steven J. Mandel, Esq.,
Henry J. Solano, Esq., U.S. Department of Labor, Washington, D.C.
FINAL DECISION AND ORDER
This proceeding is before the Administrative Review Board pursuant to the
Davis-Bacon Act (DBA or the Act), 40 U.S.C. §276a et seq. (1994) and the
1 In this final decision and order, Petitioners
Star Brite and Smilios are referred to collectively as Star Brite.
2 Abbreviated reference to documents
contained in the record are:
Transcript of Hearing T.
Plaintiff's Exhibit PX
Petitioners' Brief in Support
of Petition for Review Pet'r Brf.
3 The amount claimed by the
Administrator to be due as back wages was later reduced to $18,814.51.
4 The ALJ rejected the
Administrator's back wage claim made on behalf of William Knecht, whom the ALJ found to be a
subcontractor, based on his testimony. D. and O. at 5. The Administrator did not appeal this determination.
5 The omitted footnote refers to the
testimony of Star Brite's supervisor on the site, Joseph Pellegrino, who testified that Steve Senerchia and his
fellow workers wasted time while working on the project. See T. 904; 920-928; 939-942. The ALJ
dismissed this testimony as not relevant to the defense, stating that it suggested "a confirmation, rather
than refutation, of hours worked as testified to by these employees. That these employees may have been
wasting time, does not mean that they were not spending time on the job, as claimed by
them!" D. and O. at 3, n. 8; emphases in original.
6 It is undisputed that for some of his
hours on the project, Steve Senerchia acted in the role of Star Brite's on-site manager and maintained his and
the other employees' hours of work on the calendar. The ALJ found credible Steve Senerchia's testimony that
his hours of work were spent as a laborer (75%), carpenter (10%), and supervisor (15%). D. and O. at 3.
7 The WAB issued final agency
decisions pursuant to the Act from 1964 until the establishment of this Board in 1996.
8 The period of delay could be
viewed from other perspectives, as well. The time from the close of the investigation to the official
notification was approximately 30 months. The elapsed time from the official notification to the first day of
hearing was approximately 18 months.
9 Laches is technically defined as
"neglect to assert right or claim which, taken together with lapse of time and other circumstances
causing prejudice to adverse party, operates as bar" to prosecution of the claim or action. Black's
Law Dictionary, 5th Ed. (1979). In Slotnik, the WAB also rejected the related claims that a
three-year statute of limitations applicable, inter alia, to court actions initiated under the DBA
did not apply to administrative investigations and hearings conducted to determine DBA back wage and
debarment liability. Slotnik, supra at 6-7.
10 In any event, it is not likely that the
Ken Senecheria's interview statement could have legally been disclosed prior to the hearing. The regulation
at 29 C.F.R. §6.5 provides that:
In no event shall a statement taken in confidence by the Department of Labor or another
Federal agency be ordered to be produced prior to the date of testimony at trial of the person
whose statement is at issue unless the consent of such person has been obtained.
11 Star Brite must be deemed to have
been aware of the calendar's existence given that Petitioners' contract supervisor, Gus Poiniros, also knew
that Steve Senecheria maintained it. T. at 80-82.