job site, leaving the shop around 3:30 p.m. with a half hour lunch break. (TR 16) Mr. Rozanski worked at the Charlestown project for ten or twelve days. (TR 20) When working at Roslindale, he would normally arrive at the shop at 6:15 a.m. and leave the shop at 4 p.m. with a half hour lunch. (TR 24-25) Some days he would work until 7:00 p.m. when the steel was being delivered to the site. (TR 25)

   Sometimes he was paid $32.25 an hour, or trade pay or the prevailing wage rate, and sometimes he was paid $12.50 an hour, or base pay. (TR 14) Mr. Rozanski testified that regardless of the number of hours worked, he would receive a maximum of five hours of trade pay. The remaining hours were compensated at the base pay rate of $12.50 an hour. (TR 14) Mr. Rozanski was paid $32.25 an hour for the first five hours and then $12.50 for the remaining time at Roslindale. (TR 29)

   He always worked with a partner, one of whom was named Steven Ladourette for six or seven days. (TR 18) He also worked with a man named Greg, but Greg was not a trained mechanic. (TR 20) He also worked with a man named Chris whose last name might be Walsh. (TR 21) He worked with Steve Ladourette, Greg, Chris and Aldo at Roslindale. (TR 27) Mr. Rozanski identified Aldo as Alfredo Poveda . (TR 39)

   Mr. Rozanski stated that Mr. Tomasi was in a car accident in December of 1994 or early 1995. (TR 29) At that point, Chris, the general manager, ran things and for some days paid the full rate of pay. (TR 30) He also had to punch in and punch out every day at the shop. (TR 34) Mr. Rozanski testified that he questioned Mr. Tomasi about a couple of weeks for which he only received five hours pay on some days. Mr. Tomasi replied that he did not care how long he was on the job he would only get five hours pay. (TR 36) On redirect, Mr. Rozanski said that conversation took place in the office in Malden and Chris the general manager and Aldo were also present. (TR 37) Mr. Rozanski said that a couple of guys named Joey and Dave asked about the pay rate and were fired on the spot. (TR 37) Mr. Rozanski said that was unfair and Mr. Tomasi said he could take it or leave it. (TR 38)

   Matthew Griffin testified at the reconvened hearing on March 17, 1999. He worked at Bay State Iron Works from September of 1994 until November of 1994. (TR 14) He was hired by Mr. Tomasi and was paid a salary of $600 per week. (TR 19) He did some work at the Charlestown site as a working foreman installing the stairs. (TR 20)

   Chris would arrive at the shop at 7 a.m. at the direction of Mr. Tomasi. (TR 20-21) He worked with a partner named William Wilson. (TR 22) He would leave the job site between 3:30 p.m. and 4:30 p.m. with a half hour for lunch. (TR 22) Mr. Griffin was questioned about his rate of pay by an investigator with the EDIC, but refused to answer because he did not want to cause turmoil. (TR 28) He was also told by Mr. Tomasi that since he was a salaried employee he was not entitled to the prevailing wage rate. (TR 28) He would usually work 40 hours week, but if he did work overtime he was not paid. (TR 28) He worked for approximately 15-16 days at the Charlestown site. (TR 29) He left because of problems with the way Mr. Tomasi treated his employees. (TR 29) On cross examination, Mr. Griffin stated that he did not have to punch a time clock, but he did fill out daily reports specifying his hours. (TR 33) He also kept a

separate logbook which listed all his hours worked. (TR 34) He left because there was a dispute as to how long it was taking to put the stairs in. Mr. Griffin agreed that it took a long time to put the stairs in, but states that was due to the fabrication errors. (TR 35) He does not recall if he worked twenty consecutive days on that site, but it would not surprise him. (TR 36) Mr. Griffin was told after he left the job by an investigator for EDIC that just because he was a salaried employee does not mean he was not entitled to the prevailing wage rate. (TR 38) Mr. Griffin identified a copy of the logbook he kept which was entered as CX 22. (TR 41) He also identified a document which was marked as CX 23 which was a summary of the information in his logbook. (TR 46)

   He also recalled Steven Laderoute was brought in to work on the stairs on the other side of the building with another man. (TR 27) He believes that Steven Laderoute's partner was named Chris. (TR 30)

   Mr. William Wilson testified at the reconvened hearing. Mr. Wilson worked for Bay State Iron Works after hearing about the job from Matthew Griffin. (TR 52) He worked at the Charlestown site. (TR 52) Mr. Wilson worked with Mr. Griffin helping to erect the staircase. He also worked with someone name Chris Walsh for a day or two and Steve Laderoute one day. (TR 55) (TR 54) He also testified that he would work from 7 a.m. to 3:30 p.m. with a half hour lunch break. (TR 57) He believes he was paid $10.00 or $11.00 an hour. (TR 57) He left Bay State because problems began to arise once the union and the city clerk found out they were not being paid prevailing wages. (TR 58) On cross examination, Mr. Wilson was shown two documents which he does not recall signing, but he did identify his handwriting. (TR 60) They were admitted as RX-1 and RX -2. Mr. Wilson heard about the DOL investigation from Mr. Tomasi when he went back to work for him after the Charlestown project. (TR 68) Mr. Tomasi kept telling Mr. Wilson that he would work out the money owed him for the Charlestown project. (TR 69)

   Mr. Steven Ladourette testified at the reconvened hearing. Mr. Ladourette worked for Bay State Iron Works at the end of 1994 and the beginning of 1995 at the Charlestown site. (TR 76-77) Mr. Ladourette worked with Misters Griffin, Wilson and Walsh. (TR 78)

   Mr. Ladourette believes he was paid approximately $18.00 an hour. (TR 78) He agreed on that rate as a compromise with Mr. Tomasi because he needed the work. (TR 80)

   Mr. Ladourette stated he would arrive at the shop at 7:00 a.m. and finish work around 3:30 p.m. with a half hour lunch break (TR 81-83) He also worked at the project in Roslindale. (TR 83) At Roslindale he was installing lintels in the elevator shafts. (TR 84) He worked similar hours at Roslindale as he did at Charlestown. (TR 86) He believes he was paid $14.50 an hour for work on the Roslindale project. (TR 87)

   On cross examination, Mr. Ladourette recalled filling out daily time sheets. (TR 90) Mr. Ladourette testified that he did sign RX-4 because he needed to get his toolbox back which was locked in the shop. (TR 94) On redirect, Mr. Ladourette more fully explained the

circumstances which caused him to sign RX-4. He described the toolbox as something he made which stood six feet tall, was six feet wide and weighed close to 500 pounds. (TR 96) When he went back to retrieve the box he and Mr. Tomasi began to discuss the whole issue of prevailing wages. Mr. Tomasi asked him to put a letter together concerning that issue. Mr Ladourette explained that he is dyslexic and the letter he wrote was not coming out well so he hand copied a letter that had been written by Mr. Tomasi's accountant. (TR 96-97)

   Mr. Leon Yurko testified at the reconvened hearing. He stated that he worked for Bay State Iron Works during the last two weeks of October of 1994 at the Roslindale site as the downside supervisor erecting stairs. (TR 104) Mr. Yurko was paid at an hourly rate of $13.50 which was set by Mr. Tomasi. (TR 106) He worked with John Aldolpho, Chris Walsh and someone named Greg. (TR 106) Mr. Yurko worked from 7:00 a.m. to usually 4:30 or 5:00 p.m. with a half hour lunch break. (TR 108-109) Mr. Yurko also installed some lintels on the roof of the building. (TR 110)

   Mr. Yurko stated that about a week after starting he found out that the job was a prevailing wage rate job. (TR 111) He discussed this with Mr. Tomasi who denied it and said that he was not going to get paid that rate in any case. (TR 111) Mr. Yurko discussed the situation with a Mr. Larkin of HUD who informed him that it was indeed a prevailing wage rate job. He also discussed that pay rate with union stewards for the masons and the carpenters. (TR 112) Mr. Yurko stopped working for Mr. Tomasi when Mr. Tomasi received a fax from the aforementioned Mr. Larkin and discovered that Mr. Yurko had been in touch with him. (TR 113) On cross examination, Mr. Yurko stated that when he tried to pick up his last paycheck, Mr. Tomasi offered him money to make up part of the shortfall between his wage and the prevailing wage, but he refused the money. (TR 116)

   Mr. Gary Cowan, an investigator for the U.S. Department of Labor, testified at the reconvened hearing. He conducted an investigation of Delta Iron Works in 1998 which is headquartered on Maplewood Street in Malden and owned by Mrs. Tomasi. (TR 122) Mr. Tomasi told Mr. Cowan that there were two companies at that location, Bay State Iron Works and Delta Iron Works. (TR 123) Mr. Tomasi told him that Bay State subcontracts all its work to Delta Iron Works. (TR 123) Bay State had one employee in 1998, the rest were all transferred to Delta. (TR 124) Mr. Tomasi told him that his wife, Edna, was the president of Delta so that he could attract more minority contracts. (TR 124) On cross examination, Mr. Cowan stated that Delta was incorporated in 1996. (TR 126)

   Patricia Slate, an investigator for the Wage and Hour Division of the U.S. Department of Labor, testified at the reconvened hearing. Ms. Slate has conducted two investigations of Bay State Iron Works under the Davis-Bacon Act. (TR 129) The first one in 1994 revealed that three employees were not paid the proper prevailing wages under the DBA and at least one employee was not paid overtime as required by the Contract Work Hours and Safety Standards Act. (TR 129) Ms. Slate had obtained an agreement of future compliance from either Mr. Tomasi or one his general managers. However, she found out after the fact that two of the three employees who received back wages were forced to kick back their checks. (TR 129) Ms. Slate resolved this situation without seeking criminal charges or debarment because she felt that Mr. Tomasi would comply with the Act in the future. (TR 130)

   Ms. Slate began the investigation which led to this proceeding when she received complaints from several employees. (TR 133) Ms. Slate then contacted Mr. Tomasi and had a conference at his office where she obtained copies of certified payroll records along with contract and wage determinations applicable to Charlestown and Roslindale. (TR 134) Ms. Slate testified that the prevailing wage for ironworkers at Charlestown was $32.25 and $32.75 at Roslindale. (TR 136-137)

   The certified payrolls for subcontractors are submitted to the general contractor and then the general contractor submits them to HUD. (TR 144) Ms. Slate testified that in order to determine the back wages owed, she calculated the numbers of hours worked for each employee times the prevailing wage rate minus whatever they were actually paid. (TR 146) In order to determine the number of hours worked Ms. Slate used a variety of sources, including the certified payroll records, the company's own payroll records, time cards, daily reports, interviews with the employees, personal records of the employees and daily reports of the general contractors. (TR 146)

   Ms. Slate also testified that, in her opinion, the various records submitted indicated that the records were falsified. (TR 168) She also stated that the company "backed in" to the number of hours reported, i.e. the number of hours were determined by dividing the gross pay by the prevailing wage rate. (TR 174) This conclusion was buttressed by the fact that the time cards for the problematic weeks were missing. (TR 176) Ms. Slate stated that her back wage calculations have changed over time as she received additional records from the general contractor. (TR 180) On cross examination, Ms. Slate again testified that she used a variety of sources to reconstruct the actual number of hours worked by the employees, the actual pay rates and the back wages due. (TR 193) Ms. Slate came to the conclusion that Bay State was "backing in" the payroll records at first because Mr. Walsh told her that he was paid $20.00 an hour after Griffin and Wilson left. (TR 197) In Ms. Slate's experience, the general contractor's records don't show more people on the site than were actually present, but they do on occasion miss some workers. (TR 200) Ms. Slate, in explaining why the back wages allegedly owed to Mr. Walsh were not initially listed, candidly admitted that she may have made a mistake. (TR 202)

   Mr. Anthony Tomasi testified at the reconvened hearing on March 18, 1999. Mr. Tomasi founded Bay State Iron Works in 1958 and ran it until his retirement in June of 1996. (TR 221) Bay State is in the business of fabrication and erection of miscellaneous structures of iron and steel. (TR 221) Bay State had done some work for the federal government over the years, but he did not specialize in that field. (TR 222) Mr. Tomasi was a vice-president in 1994 as he was recovering from a heart attack. (TR 223) Bay State was also in Chapter 11 at that point. (TR 223)

   Mr. Tomasi stated that he hired Mr. Griffin to supervise the job site because he was involved with the Chapter 11 proceedings and did not have the time. (TR 227) Mr. Tomasi

testified that he did not hire Mr. Griffin to do erection work, insisting that a man his size could not climb steel . (TR 228) Mr. Tomasi stated that mechanics do not get hired on salary. (TR 229) Mr. Tomasi paid Mr. Griffin a salary of $600 a week. (TR 229) He stated that he did not direct his work every day and that he "had no idea where he or anybody else was during that particular time." (TR 229) Mr. Tomasi stated that Mr. Griffin was responsible for directing the outside help. (TR 229) Mr. Tomasi testified that he had some discussion with Mr. Griffin about his wage and asked how his father handled it. (TR 230) He then had a subsequent discussion with him after Mr. Griffin left Bay State, but came back claiming he was owed money. (TR 231) Mr. Griffin told Mr. Tomasi that he and William Wilson were owed money from the wage jobs they worked. (TR 231) Mr. Tomasi again insisted that he did not send Mr. Griffin to wage jobs because he did not know where he worked. (TR 233) Mr. Tomasi testified that he agreed to settle Mr. Wilson's wage claims after reviewing his time cards with him. (TR 234) Mr. Tomasi stated that he did not coerce Mr. Wilson into signing anything and thinks he wrote the letter in question at home. (TR 234) Mr. Tomasi testified that he did not pay Mr. Wilson any money, but instead signed a vehicle over to him that he had repaired. (TR 235) Mr. Wilson had to pick the vehicle up from Sal's Auto because Mr. Tomasi never had the title signed over to him. (TR 236)

   Mr. Yurko had done work for Mr. Tomasi since 1986. (TR 236) He let him go the first time because he had a drinking problem and because he called "900" numbers from a company cell phone. (TR 237) Mr. Tomasi stated that Mr. Wilson was re-hired in 1994 and worked on the Roslindale project. However, he was again fired for drinking during working hours. (TR 238) Mr. Tomasi stated that he had a conversation with Mr. Yurko regarding his wages and Mr. Yurko admitted that he was not owed any money and that he did spend some time at a bar when he was supposed to be on the site. (TR 245)

   Mr. Tomasi testified that payroll is called in on Tuesday for the preceding week and the employees are paid on Friday. (TR 254) The hours and rates are determined by the daily work sheets filled out by the employees. (TR 251) Mr. Tomasi stated that he never told his employees that he only paid 5 and one-half hours for late jobs. (TR 256) Mr. Tomasi did tell them that they only get paid for time on the job, and not travel time, and that usually works out to less then eight hours a day. (TR 257) Mr. Tomasi stated that he never cut a deal with Mr. Ladourette where he agreed to pay him only $18.50 for rate jobs. (TR 259) He also claimed that he does not know what it means to "back in" hours. (TR 261) In Mr. Tomasi's experience, the daily reports generated by general contractors are not very accurate. (TR 262) Mr. Tomasi stated that he did have possession of Mr. Ladourette's toolbox for three or four months, but that was because Mr. Ladourette did not want to pick it up from the shop. (TR 273) Mr. Tomasi stated that E-7 was a check made out to Mr. Walsh for money owed on the Charlestown and Roslindale projects. (TR 274) However. Mr. Tomasi testified that he does not remember why that was necessary. (TR 275) Mr. Tomasi testified that as far as he knew Mr. Provado, along with all his other workers, were paid the prevailing wage and, if they were not, he corrected the situation as with Mr. Wilson. (TR 291)

   Delta Ironworks was incorporated in May of 1994. (TR 294) Mr. Tomasi stated that his wife owns Delta Ironworks and that he does not hold any position nor exercise any control over the operation. (TR 296) He also stated that Delta does work other than for Bay State including clean-up work and erection work. (TR 296)

   On cross examination, Mr. Tomasi stated that the bids by Delta are prepared by an independent contractor. (TR 301) Mr. Tomasi stated that his wife has worked in the business for twenty-five years and has worked in the shop. (TR 302) Mrs. Tomasi established Delta, but Mr. Tomasi did give advice if he was asked. (TR 303)

   Chris Osborn was hired to run the company in 1995 when Mr. Tomasi was recovering from an automobile accident. (TR 305) Mr. Tomasi thinks he hired Mr. Walsh for the Roslindale job, but he is not positive. (TR 305) Mr. Tomasi stated it was an "absolute lie" that he offered Mr. Walsh $20.00 an hour to work on the Roslindale job. (TR 306) Mr. Tomasi speculated that the statements from Chris Walsh and Provado were both dated June 21, 1995 because someone from his office contacted Provado after discussing the situation with Mr. Walsh. (TR 308)

   Ms. Slate was recalled to the stand. (TR 315) Ms. Slate explained the standard practice of transcribing a company's payroll and computing the wage rates paid. (TR 316) Ms. Slate testified that there was a discrepancy between RX-14 and CX-26, dealing with Mr. Comeau's wages, for the week ending December 10th. (TR 321) The certified payroll shows Mr. Comeau was paid $32.25 for five and one-half hours while the general payroll shows he was paid $6.50 for thirty-four hours. (TR 321)

Summary of Unpaid Wages (CX 10, CX 20)

Employee              From       To        Charlestown Roslindale     Total
Matthew Griffin       10/15/94   11/5/94   $3,107.24   NA         $3,107.24

Steven Laderoute      11/5/94    1/14/95   ,482.23   $97.50     ,579.73

Michael E. 
Rozanski              11/19/94   1/14/95   $869.93    $825.63     ,695.56

Christopher
Walsh                 11/12/94   12/3/94   $891.24   ,294.88    $2,186.12

William
Wilson                10/15/94   11/5/94   $3,009.21   NA         $3,009.21

David Comeau          12/3/94    12/10/94   NA         $144.38      $144.38

Adolfo E.
Poveda                10/22/94   12/24/94   NA         $812.38      $812.38

Leon P. Yurko         10/22/94   10/29/94   NA       ,553.00    ,553.00

Wage underpayments

   In order to determine the issue of underpayment in this case, this Court must consider the principles enumerated by the U.S. Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946).

   Under the principles set forth by the Supreme Court, an employee who seeks to recover unpaid wages "has the burden of proving that he performed work for which he was not properly compensated." 328 U.S. at 687. However, this burden is not intended to be "an impossible hurdle." Id. Indeed, "where the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes, ... the solution is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work." Id. In such circumstances, an employee meets his burden "if he proves that he has 'in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.'" Id.

   The employer then has the burden to demonstrate the precise number of hours worked or to present evidence sufficient to negate "the reasonableness of the inference to be drawn from the employee's evidence." 328 U.S. at 688. In the absence of such a showing, the court "may then award damages to the employee, even though the result be only approximate." Id.

   Thus, as the Ninth Circuit recognized in Brock v. Seto, 790 F.2d 1446, 1448 (1986), Mt. Clemens Pottery leaves no doubt that an award of back wages will not be barred for imprecision where it arises from the employer's failure to keep records. ..." Furthermore, Mt. Clemens Pottery provides specific guidance on the responsibilities of the trier of fact: "Unless the employer can provide accurate estimates [of hours worked], it is the duty of the trier of facts to draw whatever reasonable inferences can be drawn from the employees' evidence. ..." 328 U.S. at 693.

   The Secretary argues that the back wages should be awarded as the evidence establishes that the employees were not paid the prevailing wage rate at either Charlestown or Roslindale. The fact that the investigator was not able to identify with precision the exact hours worked is not a bar to recovery as Baystate's improper record keeping and falsification of records

made this task impossible. Moreover, the fact that all the affected employees did not testify does not preclude their recovery. Secretary of Labor v. DeSisto, 929 F. 2d 789, 791 (1st Cir. 1991); Marshall v. Presidio Valley Farms, Inc., 512 F. Supp. 1195, 1198 9W.D. Tex. 1981)

   Respondent counters by arguing that the evidence relied upon by Ms. Slate is not credible. Respondent points to numerous facts to support this argument including the fact that the back wages claimed in the Order of Reference differed from those claimed in the Secretary's pre-hearing report. Respondents attempts to rebut the Secretary's argument that perfection is not required by relying on the case of Cope v. Freyn, 8 FRD 620 (1949) which stands for the proposition, according to the Respondent, that "as a matter of fundamental fairness, the employee requesting additional compensation must provide the employer a complete list of dates and hours allegedly worked." (Respondent's Brief at 5)

   To begin, Respondent's reliance on Cope is misplaced. The District Court in Cope was responding to a motion requesting a more definite statement as to the particular days and hours worked by the employees and the additional compensation due. The court ruled that the motion was reasonable and held that the employees "in so far as they have knowledge" should supply the requested information. Cope at 621. The court did not enunciate any kind of requirement that "as a matter of fundamental fairness, the employee requesting additional compensation must provide the employer a complete list of dates and hours allegedly worked" as suggested by Respondent's attorney. In relying on this argument, Respondent failed to rebut the salient points made by the Secretary regarding the level of evidence required to prove wage underpayments.

   Secondly, and more importantly, Respondent relies on an illogical syllogism in attempting to show that the Secretary has not carried their burden. Respondent first argues that the investigation by Ms. Slate was inaccurate as she had to rely on numerous records which are not credible such as general contractor reports, daily time sheets, employee's records, etc. Respondent then relies on those same records in an attempt to refute the wage calculations made by the investigator. This is nonsensical as it has clearly been shown that the records produced in this case are not precise due to the at best shoddy record keeping practiced by Mr. Tomasi.

   Accordingly, I find and conclude that the Secretary has shown that the back wages owed are a reasonable approximation of the back wages definitively owed pursuant to the Supreme Court's decision in Anderson, supra. This conclusion is buttressed by the testimony of Ms. Slate who conducted the investigation and determined that the payroll records were falsified. It is also supported by the testimony of the five employees who appeared at the hearing. Mr. Rozanski testified that Mr. Tomasi explicitly told him that regardless of the number of hours he worked, he would only receive the prevailing wage for the first five hours. Mr. Griffin testified that he was paid a salary of $600 per week even though he was doing ironworker's work. Mr. Wilson testified that he was only paid $10.00 or $11.00 an hour. Mr. Laderoute testified that he was paid $18.00 an hour, a compromise rate agreed to by Mr. Tomasi. Mr. Yurko testified that he was paid $13.50 an hour. When he discovered the job was a prevailing wage rate job, he discussed this with Mr. Tomasi who told him he was not going to get that rate regardless.

   In the face of this testimony from these five employees, Respondent relied on the aforementioned shoddy and falsified records of Baystate and the incredible and self serving testimony of Mr. Tomasi. Mr. Tomasi stated that he hired Mr. Griffin as a supervisor, was not aware he was erecting steel and that a man of Mr. Griffin's size was not physically capable of doing the requisite work. This testimony would be laughable if it were not insulting. Respondent also offered various statements signed by employees allegedly attesting to the fact that they were not owed any wages. Mr. Laderoute signed such a statement, but testified that he only did so in order to retrieve his toolbox which was being held at Mr. Tomasi's shop. A similar statement was signed by Mr. Wilson after receiving a vehicle allegedly from Mr. Tomasi to compensate him for any wages owed. Even if this were the case, it does not relieve Mr. Tomasi of his responsibility to pay the prevailing wage. Respondent finally submitted a statement allegedly signed by Mr. Poveda stating he was not owned any wages. However, as Mr. Poveda did not testify at the hearing it is impossible to authenticate this document and therefore find it is entitled to no weight. The same argument is made and the same conclusion is reached regarding the statement purportedly signed by Mr. Walsh. Moreover, Respondent avers that there was no evidence offered to indicate that Mr. Walsh worked at the Roslindale site. This argument is simply inaccurate as Mr. Rozanski testified that he worked with someone named Chris whose last name might have been Walsh at the Roslindale site.

Debarment

Section 3(a) of the Davis-Bacon Act in pertinent part states,

The Comptroller General of the United States is . . . authorized and is directed to distribute a list to all departments of the Government giving the names of persons or firms whom he has found to have disregarded their obligations to employees and subcontractors. No contract shall be awarded to the persons or firms appearing on this list or to any firm, corporation, partnership, or association in which such persons or firms have an interest until three years have elapsed.

40 U.S.C. §276a-2(a). The Regulations at 29 C.F.R. §5.12(a)(2) in pertinent part provide,

(2) In cases arising under contracts covered by the Davis-Bacon Act, the Administrator shall transmit to the Comptroller General the names of the contractors or subcontractors and their responsible officers, if any (and any firms in which the contractors or subcontractors are known to have an interest), who have been found to have disregarded their obligations to employees, and the recommendation of the Secretary of Labor or authorized representative regarding debarment. The Comptroller General will distribute a list to all Federal agencies giving the names of such ineligible person or firms, who shall be ineligible to be awarded any contract or subcontract of the United States or the District of Columbia and any contract or subcontract subject to the labor standards provisions of the statutes listed in Sec. 5.1.

Violations of the DBA do not per se constitute a disregard of an employer's obligations within the meaning of section 5.12(a)(2). Rather, the evidence must establish a level

of culpability beyond mere negligence. Framlau Corp., WAB Case No. 70-05 (April 19, 1971), slip op. at 4-5; Structural Concepts, Inc., WAB Case No. 95-02 (November 30, 1995), slip op. at 3-4. Failure to keep accurate records as to what employees were paid and the submission of falsified records satisfies this requirement and justifies debarment. Delfour, Inc., ARB Case No. 96-186 (May 28, 1997). See also, P.B.M.C., Inc., WAB Case No. 87-57 ( February 8, 1991) (creation of fictitious payroll records in lieu of the keeping of accurate payroll records); Phoenix Paint Co., WAB Case No. 87-08 (May 6, 1989) (misstatements concerning the pay rates actually paid).

   The record in this case convincingly establishes that the Respondents failed to keep accurate payroll records and instead submitted falsified records to the Government as part of a scheme to feign compliance with the DBA. Several of the employees testified that Mr. Tomasi explicitly told them that he would not pay the prevailing wage or would not pay it for more than five hours per day, specifically, Michael Rozanski and Leon Yurko. Regarding the debarment of Delta Ironworks and Edna Tomasi, the only evidence offered by the Secretary that Delta is nothing more than a front for Baystate and Mr. Tomasi was the fact that they share the same address and the testimony of Gary Cowan that Mr. Tomasi told him that Delta was established with Mrs. Tomasi as the President so they could acquire more minority contracts. Mr. Cowan's testimony that Mr. Tomasi admitted this to him is a hearsay statement, however, I find it has a sufficient indicia of reliability as an admission. Moreover, it is only rebutted by the testimony of Mr. Tomasi which I find and conclude is utterly unbelievable. Accordingly, I find and conclude that debarment of all of the Respondents is warranted to prevent evasion of the statutes involved herein.

   Having determined that the Respondents violated the Davis-Bacon Act, it is hereby ordered that:

   1. The Respondents, Baystate Iron Works, Inc., Anthony Tomasi, Delta Iron Works, Inc. and Edna Tomasi, shall pay the back wages owed under contract number 023-EE-010 and contract number 023-EH-351in accordance with the findings of Wage and Hour Administration entered into the record as CX 10 and CX 20.

   2. The Secretary shall transmit to the Comptroller General the names of Baystate Iron Works, Inc., Anthony Tomasi, Delta Iron Works, Inc. and Edna Tomasi to be placed on the debarment list for a period of three years.

      LAWRENCE P. DONNELLY
      Administrative Law Judge

Dated: April 18, 2000
Camden, New Jersey