Date: August 18, 1995
Case No.: 94-DBA-69
In the Matter of:
Disputes concerning the payment
of prevailing wage rates by
and proper classification by:
Peabody Construction Company, Inc.
Contractor
and
HML Development Corporation,
James Xarras, President,
Eagle Drywall of New England, Inc.,
Gary Caruso, President,
A&J Drywall Systems, Inc.,
Jonathan Ling, President
Subcontractors
With respect to laborers and
mechanics employed by the
contractors under Contract #C-3344-91,
FHA 023-57005, for Boston City
Hospital, Phase III, Boston,
Massachusetts, and under Contract
#MA06-P002-008 for Cathedral Turnkey
Housing, Boston, Massachusetts.
ORDER GRANTING DEFAULT JUDGMENTAND SECOND ORDER TO SHOW CAUSEThis case arises under the Davis Bacon Act (DBA), as
amended, as denoted at 29 C.F.R. Part 5, the Contract Work Hours
and Safety Standards Act, 40 U.S.C. §327, et. seq.,
and the applicable regulations issued thereunder at 29 C.F.R.
Part 5.
[PAGE 2]
On December 10, 1993, Walter P. Parker, the Regional
Administrator of the Wage and Hour Division of the United States
Department of Labor ( DOL ) notified Peabody Construction
Company, Inc.; HML Development Corp., James Xarras, President;
A&J Drywall Systems, Inc., Jonathan Ling, President; and Eagle
Drywall of New England, Gary Caruso, President, that they had
breached a contract with the United States Government and
violated the aforementioned Acts and regulations.
On January 10, 1994, James Xarras, on behalf of himself and
HML Development Corporation, filed a timely request for a
hearing. On January 27, 1994, Edward Vena, Esq., on behalf of
Peabody Construction Corp., filed a timely request for a hearing.
On February 10, 1994, John Parigian, on behalf of Eagle Drywall
and Gary Caruso, filed a timely request for a hearing.
Subsequently, DOL filed an Order of Reference on August 17, 1994,
with the Office of Administrative Law Judges in Washington, D.C.
Judge John M. Vittone, Deputy Chief Administrative Law
Judge, issued a Pre-Hearing Order on October 27, 1994. The Pre-
Hearing Order instructed DOL to furnish the Prime Contractor and
any Subcontractors with certain information within thirty (30)
days. The Prime Contractor and any Subcontractors were then to
admit or deny this information within twenty (20) days of service
from DOL.
On November 25, 1994, DOL filed a response to the Pre-
Hearing Order and served a copy on all parties. On December 15,
1994, Peabody Construction Company, Inc. filed an Answer to the
Pre-Hearing Order and served a copy on all parties. On December
20, 1994, James Xarras, President of HML Development Corporation,
filed an Answer to the Pre-Hearing Order with the Office of
Administrative Law Judges in Washington D.C. This Answer was not
served on the other parties. To date, no answer to the Pre-
Hearing Order has been filed by A&J Drywall Systems, Inc. or
Eagle Drywall.
On February 16, 1995, counsel for DOL filed Secretary s
Motion for Default Judgment against HML Development Corporation,
James Xarras; Eagle Drywall, Gary Caruso; and A&J Drywall
Systems, Inc., Jonathan Ling.
On May 20, 1995, the undersigned issued an Order to Show
Cause giving HML Development Corporation, James Xarras; Eagle
Drywall, Gary Caruso; and A&J Drywall Systems, Inc., Jonathan
Ling, twenty days to show cause why a default judgment should not
be entered in this case and why the material facts alleged in the
Order of Reference should not be adopted as findings of fact
[PAGE 3]
herein.
The only response to the Order to Show Cause was a document
dated June 8, 1995, which was captioned Answer of Eagle Drywall
of New England, Inc. to the Order to Show Cause . [hereinafter
Answer ] The Answer ends with an illegible signature and
there is no identification of the name or position of this
person. In sum, the Answer stated that Eagle Drywall had
requested additional documentation from the Solicitor s Office of
the U.S. Department of Labor in December, 1994. According to the
Answer , Eagle Drywall had only recently received from the
Contractor background information which was substantially more
than that originally supplied by the U.S. Department of Labor.
The Answer stated that Eagle Drywall would finish its review of
the documentation within twenty (20) days and would then be in a
better position to answer, with specificity, the various claims
set forth in the complaint. Since June 8, 1995, no further
submission has been received from Eagle Drywall.
The regulations provide at 29 C.F.R. §18.6(d)(2)(v) that:
If a party or an officer or agent of a party fails to
comply with a subpoena or with an order, or any other
order of the administrative law judge, for the purpose
of permitting resolution of the relevant issues and
disposition of the proceeding without unnecessary delay
despite such failure, may . . . [r]ule that a pleading,
or part of a pleading, or a motion or other submission
by the non-complying party, concerning which the order
or subpoena was issued, be stricken, or that decision
of the proceeding be rendered against the non-complying
party, or both.
Accordingly, A&J Drywall Systems, Inc., Jonathan Ling,
President, having failed to file and properly serve an Answer in
response to the Pre-Hearing Order and the Order to Show Cause, I
find and conclude that they are in default, and the Secretary s
Motion for Default is hereby granted. With respect to these
respondents, the material facts as alleged in the Order of
Reference and in the Secretary s Response to Pre-Hearing Order
are hereby adopted as findings of fact. Further, A&J Drywall
Systems, Inc., Jonathan Ling, President, shall be debarred for a
period of three years in accordance with 29 CFR 5.12(b), and they
are found liable for the appropriate payments specified in
Exhibit A attached to the Secretary s Response to Pre-Hearing
[PAGE 4]
Order.
With respect to HML Development Corporation, James Xarras,
President, an Answer was filed but not properly served. No
response was filed in response to the Order to Show Cause. As to
Eagle Drywall of New England, Inc., Gary Caruso, President, no
response to the Pre-Hearing Order was filed. In response to the
Order to Show Cause, the reply in effect said they were not yet
in a position to file an Answer. I find that neither HML
Development Corporation, James Xarras, President, nor Eagle
Drywall of New England, Inc., Gary Caruso, President, have
properly filed and served an Answer as required by the Pre-
Hearing Order and the Order to Show Cause. Therefore, HML
Development Corporation, James Xarras, President and Eagle
Drywall of New England, Inc., Gary Caruso, President, are given
twenty (20) days from this Order to file and properly serve all
parties an appropriate Answer. The parties are advised that
failure to strictly comply with this Order will result in the
issuance of a Default Judgment.
By: JOEL F.
GARDINER
Administrative Law Judge
Boston, Massachusetts
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