Helicopter pads contract The issue on the helicopter pads contract was whether three employees (Steven Hobson, Andrew Bertin, and foreman Jim Lacey) were paid for work on August 1, 1990. Hobson and Bertin testified at the hearing that although they were paid for some of their work on the helicopter pad contract on other days, they specifically did not receive any pay for 13 hours of work performed on August 1. R. D. and O. at 14. Their testimony is confirmed by a letter from Bonavire to one of the employees, Steven Hobson, in which Bonavire acknowledges the non-payment, attributing the problem to Lacey. CX 19. Notwithstanding his acknowledged failure to pay Hobson and Bertin for their work on August 1, the certified payrolls indicated that each employee received $80 in pay for eight hours of work that day.

   Bonavire could not produce canceled checks to demonstrate that these two employees were paid for work on August 1, 1990, and the ALJ found that the two employees had not been paid; however, he also found that there was no evidence showing that the third employee, Lacey, had not been paid. R. D. and O. at 15. Although the Administrator had alleged that the work performed by Hobson and Bertin (erecting simple forms, pouring and screeding concrete) properly should have been classified as the work of cement masons, the ALJ credited Bonavire's testimony that the work performed was properly classified as laborer's work, to be paid at the Laborer's rate ($4.76/hr.) under the wage determination applicable to the contract, ME88-3. Id., 15-16.

   The Administrative Review Board has jurisdiction to hear and decide appeals from decisions of Administrative Law Judges regarding questions of law and fact arising under the DBA and the Related Acts. 29 C.F.R. §7.1(b). Pursuant to the Administrative Procedure Act, in reviewing the ALJ's recommended decision the Board (as the designee of the Secretary) acts with "all the powers [the Secretary] would have in making the initial decision. . . ." 5 U.S.C. §557(b). Accordingly, the Board reviews the ALJ's findings de novo. See generally Mattes v. United States Dep't of Agriculture, 721 F.2d 1125, 1128-30 (7th Cir. 1983) (rejecting argument that higher level administrative official was bound by ALJ's decision); McCann v. Califano, 621 F.2d 829, 831 (6th Cir. 1980), and cases cited therein (sustaining rejection of ALJ's recommended decision by higher level administrative review body).

A. Violations of the Acts.

   Respondents argue that the ALJ did not properly weigh the evidence because he did not give sufficient weight to Bonavire's testimony that he paid the prevailing wage on the concrete slab contract, that he made tax payments for each employee and paid fringe benefits in cash. They also argue that the ALJ ignored W-2 forms submitted for each employee on the project (CX 21), as well as a signed statement by one of the employees declaring that he received prevailing wages from Sundex, that fringe benefits were paid in cash and that proper amounts were withheld for taxes.

   The central issue for us is whether the ALJ properly credited the testimony of the employees over that of Bonavire, the owner of Sundex. In the decision below, the ALJ made this assessment of Bonavire's testimony:

    Upon careful consideration of all of the evidence of record, and based on my observations of Mr. Bonavire's demeanor during his lengthy performance on the witness stand, I find his testimony that he paid his employees the applicable prevailing wage rates along with cash for the required fringe benefits, as reflected in the certified payroll records, to be as incredible as his assertion that he is the victim of some dark conspiracy on the part of the Administrator and/or his minions to prove violations of the federal prevailing wage and hour laws through perjurious employee testimony. He was argumentative and repeatedly failed to directly respond to questions, and he showed a disturbing proclivity to burden the record with digressions, obfuscations and sotto voce commentary. His lack of credibility in these critical areas is compounded by the complete absence of any corroborating records, a void that I find astounding for a well-educated man who has secured over 200 government contracts and who, at the time of the events at issue, employed the services of a certified public accountant. Equally incredible is his testimony that he meticulously completed certified payroll records reflecting payment of the appropriate prevailing wage and fringe benefits and then repeatedly made careless mathematical errors in making out the employee pay checks.

R. D. and O. at 12.

   In Universal Camera v. NLRB, 340 U.S. 474 (1950), the Supreme Court expressed its support for the following observation, quoted from a report of the Attorney General's Committee on Administrative Procedures, regarding appellate review of a trial hearing officer's findings:

Conclusions, interpretations, law and policy should, of course, be open to full review. On the other hand, on matters which the hearing commissioner, having heard the evidence and seen the witnesses, is best qualified to decide, the agency should be reluctant to disturb his findings unless error is clearly shown.

Id. at 494. In earlier cases under the Davis-Bacon Act and the Davis-Bacon Related Acts (including CWHSSA), our predecessor body, the Wage Appeals Board (WAB), followed this

admonition faithfully, observing that "it must be remembered that the ALJ heard and observed the witnesses during the hearing. It is for the trial judge to make determinations of credibility, and an appeals body such as the Wage Appeals Board should be loathe to reverse credibility findings unless clear error is shown." Homer L. Dunn Decorating, Inc., WAB Case No. 87-03 (Mar. 10, 1989), slip op. at 3; accord, Wayne J. Griffin Electric, Inc., WAB Case No. 93-05 (Oct. 29, 1993), slip op. at 6 ("The Board will not reverse credibility determinations where they are not clearly erroneous." citing Milnor Construction Corp., WAB 91- 21 (Sept. 12, 1991)); Trataros Construction Corp., WAB Case No. 88-08 (Mar. 11, 1991).

   On the record before us, we find no error in the ALJ's credibility findings, and therefore adopt them. We note further that Respondents did not otherwise challenge the ALJ's findings of violation of the Acts. We therefore affirm the ALJ's findings that the Acts were violated, and deny this aspect of the Petition for Review.

B. Debarment.

   The Davis-Bacon Act, which applies specifically to construction contracts entered into directly by the United States or the District of Columbia, mandates a 3-year debarment for "persons or firms . . . found to have disregarded their obligations to employees and subcontractors." 40 U.S.C. §276-2(a)(emphasis added). The debarment procedures for violations of the DBA are found at 29 C.F.R. §5.12(a)(2). "Disregard for obligations" under the Act has been interpreted to mean a level of culpability beyond mere negligence, involving some element of intent. Structural Concepts, Inc., WAB Case No. 95-02 (Nov. 30, 1995). However, once a violation is established, the standard for debarment is a "bright line" test, i.e., a 3-year debarment period is mandatory, without consideration of mitigating factors or extraordinary circumstances. G & O General Contractors, Inc., WAB Case No. 90-35 (Feb. 19, 1991).

   In addition to the statutory debarment requirement of the Davis-Bacon Act, the Labor Department's regulations include a separate regulatory debarment provision for violations of the Davis-Bacon Related Acts (listed at 29 C.F.R. §5.1), including the CWHSSA. As noted above, Respondents' failure to pay overtime wages to several employees constituted a CWHSSA violation. See 40 U.S.C. §328. The regulatory debarment mechanism for violations of the Related Acts provides that:

Whenever any contractor or subcontractor is found . . . to be in aggravated or willful violation of the labor standards provisions of any of the applicable statutes listed in §5.1 other than the Davis-Bacon Act, such contractor or subcontractor or any firm, corporation, partnership, or association in which such contractor or subcontractor has a substantial interest shall be ineligible for a period not to exceed 3 years . . . to receive any contracts or subcontracts subject to the Davis-Bacon or Related Acts.

29 C.F.R. §12(a)(1)(emphasis added).

   The ALJ held that Respondents' failure to keep accurate records and submission of falsified records to the government justifies debarment under the Davis-Bacon Act

and the regulation at 29 C.F.R. §5.12(a)(2). R. D. and O. at 16. The ALJ did not address the question of debarment under 29 C.F.R. §5.12(a)(1) for violation of the Related Acts, such as CWHSSA.

   Respondents assert that the evidence fails to show any falsification of records but at most shows some "small vagrencies [sic]" between the paychecks and the certified payrolls, and that debarment therefore is not warranted. We cannot agree. Crediting the statements of the employees who testified at the hearing, see discussion above, there were significant differences between what the employees were actually paid and the certified payrolls. In addition, the canceled checks in the record corroborate the employees' testimony that they were paid a straight $10 or $12 per hour without deductions for taxes or payments for benefits, and without payment for overtime for work in excess of 40 hours per week. We concur with the ALJ's finding that Respondents failed to keep accurate records and submitted falsified payroll records to conceal the fact that the prevailing wages were not paid to their employees.

   Underpayment of wages and falsification of records are serious violations of law, fully justifying debarment. Miller Insulating Company, Inc., WAB Case No. 91-38 (Dec. 30, 1992)(Related Acts violation under §5.12(a)(1)); A. Vento Construction, WAB Case No. 87-51 (Oct. 17, 1990) (Related Acts violation under §5.12(a)(1)); Phoenix Paint Co., WAB Case No. 87-08 (May 6, 1989) (DBA violation under §5.12(a)(2)). Based on the record before us, we find that debarment of Respondents is warranted in this case both under §5.12(a)(1) and (2). Accordingly, the Petition for Review is DENIED.

   It is hereby ORDERED:

   1. Respondents shall pay unpaid wages to the employees who worked on the Natick, MA, concrete slabs job as calculated by the ALJ:

               
              Paul Mandziak    $232.94
              Robert Coburn     499.69
              Joseph Boyle      239.66
              Mark Houle        716.76
              Scott Greeley     180.98
              Tim Greeley       311.52
              Paul Houle        158.39
              Sean Greeley      130.24
              John Shield        54.76
              Steven Hobson     567.39
              Andrew Bertin     888.03

See R. D. and O. at 17, Part III(1).

   2. Respondents shall pay unpaid wages to the employees who worked on the helicopter pad job as calculated by the ALJ:

              Steven Hobson     $61.88
              Andrew Bertin      61.88

See R. D. and O. at 17, Part III(2).

   3. The Administrator shall transmit the names of Sundex, Ltd. and Joseph J Bonavire to the Comptroller General for placement on the list of persons and firms ineligible to receive government contracts or subcontracts for a period of three years.

   SO ORDERED.

       PAUL GREENBERG
       Chair

       E. COOPER BROWN
       Member