DATE ISSUED: November 15, 1994
CASE NO: 91-DBA-11
In the Matter of
Disputes concerning the payment of
prevailing wage rates and overtime
pay by:
HOWELL CONSTRUCTION, INC.,
Prime Contractor
and
Proposed debarment for labor standards
violations by:
HOWELL CONSTRUCTION, INC.,
Prime Contractor
MICHAEL LOVE HOWELL,
President
With respect to laborers and mechanics
employed by the contractor under
U.S. Department of Army Project No.
DABT-23-87-C-1075 (Ft. Knox, Kentucky)
DECISION AND ORDER ON REMAND
I issued a Decision and Order in this proceeding on April
30, 1993 in which I concluded that Howell Construction, Inc.
underpaid ten employees a total of $21,519.77 in back wages and
overtime under Contract No. DABT-23-87-C-1075. I therefore
directed that the Department of Defense, United States Department
of Army release $21,519.77 of the funds withheld under the
contract to the United States Department of Labor for distribu-
tion of the funds to the ten workers in the amounts respectively
[PAGE 2]
set forth in an appendix to that decision and that the remaining
funds withheld on the contract be released to Howell Construc-
tion, Inc. I further ordered that Howell Construction, Inc. and
its president, Michael Love Howell, be placed on the ineligible
list as provided in 29 C.F.R. § 5.12(a)(1) because of their
aggravated and willful violations of the Contract Work Hours and
Safety Standards Act [40 U.S.C. § 327 et seq.]. I
further recommended pursuant to 29 C.F.R. § 6.33(b)(2) that Howell
Construction, Inc. and its president, Michael Love Howell, be
placed on the ineligible list pursuant to Section 3(a) of the
Davis Bacon Act [40 U.S.C. § 276 et seq.] because of
their disregard of the obligations to the corporation's employees
in violation of that act. I also issued an Order on April 30,
1993 in which I denied the motion to dismiss, motion for a new
trial and motion to strike which were filed by Howell Construc-
tion, Inc. and Michael Love Howell.
Howell Construction, Inc. and Michael Love Howell filed a
petition for review of the decision I issued on April 30, 1993
and the order that I issued on that same date with the Wage
Appeals Board. That board issued its decision on May 31, 1994.
It affirmed my decision in all respects except my order that the
petitioners be barred for aggravated and willful violations of
the Contract Work Hours and Safety Standards Act. It explained
that the Order of Reference did not provide for a hearing on
debarment for such violations and therefore my conclusions on
this point were beyond the scope of my authority. For that
reason, it provided that my order was to be modified to strike
all references to debarment of the petitioners for aggravated and
willful violations of the Contract Work Hours and Safety Stan-
dards Act. The Wage Appeals Board also affirmed my conclusions
regarding the petitioners' motion to dismiss and motion for a new
trial.
The Wage Appeals Board, on September 21, 1994, remanded the
formal record for "further proceedings consistent with its
decision."
Conclusions
The Wage Appeals Board affirmed all of the conclusions set
forth in my Decision and Order and the separate Order of April
30, 1993, except for that portion of the decision concerning
debarment of Howell Construction, Inc. and Michael Love Howell
because of aggravated and willful violations of the Contract Work
Hours and Safety Standards Act. Since it remanded the formal
record for modification of the decision in this regard, I have
reconsidered the evidentiary record concerning this matter. I
agree that the Order of Reference does not provide for a hearing
on debarment for violations under the Contract Work Hours and
Safety Standards Act. Therefore, the final order of the decision
concerning debarment under that statute was beyond the scope of
my authority. The final order of my Decision and Order should be
modified to delete the sentence pertaining to such matters.
ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that my
Decision and Order dated April 30, 1993 is modified to delete my
conclusions regarding debarment of Howell Construction, Inc. and
Michael Love Howell for violations of the Contract Work Hours and
Safety Standards Act. IT IS FURTHER ORDERED that the final order
of that decision is modified to delete the sentence pertaining to
placing Howell Construction, Inc. and its president, Michael Love
Howell, on the ineligible list as provided in 29 C.F.R. §
5.12 based on aggravated and willful violations of the Contract
Work Hours and Safety Standards Act. IT IS FINALLY ORDERED that
the remaining provisions of the final order set forth in the
April 30, 1993 Decision and Order in this matter remain un-
changed.
____________________________
DONALD W. MOSSER
Administrative Law Judge
