Supervan, Inc., ARB No. 00-008, ALJ No. 1994-SCA-47 (ARB Sept. 30, 2002) (OALJ Case Number on caption below is in error, see Errata (ARB Nov. 5, 2002))
ARB CASE NO. 00-008
ALJ CASE NO. 94-SCA-14
DATE: September 30, 2002
In the Matter of:
SUPERVAN, INC., SPECIAL SERVICES
TRANSPORTATION, INC.,
DONALD S. RULLO and CHRISTINE RULLO,
Individually and Jointly,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For The United States Department of Labor: Joan Brenner, Esq., Paul L. Frieden, Esq., Steven J. Mandel, Esq., Eugene Scalia, Esq., U.S. Department of Labor, Washington, D.C.
For the Respondents:
Donald S. Rullo, pro se, Kailua-Kona, Hawaii
FINAL DECISION AND ORDER
This matter involves a dispute arising from a federal services procurement contract for taxi and other transportation services performed at Lackland Air Force Base. The contract was subject to the prevailing wage rate provisions of the McNamara-O'Hara Service Contract Act of 1965, as amended (SCA or the Act), 41 U.S.C.A. § 351 et seq. (West 2001) and the implementing regulations found at 29 C.F.R. Parts 4, 6 and 8. SuperVan, Inc. (SuperVan) and Donald S. Rullo (Rullo) (collectively Respondents) filed a Petition for Review seeking reversal of default judgments issued against them. The Administrator, Wage and Hour Division of the U.S. Department of Labor (Administrator), who was the prosecuting party below, opposes the Petition for Review. We hold that the Petition for Review warrants consideration by the Board and that the ALJ acted within his discretion when he entered default judgments against the Respondents. We therefore deny the Petition for Review.
BACKGROUND
The adjudicative facts herein consist of the procedural history surrounding the requests for, and the entry of, the default judgments against SuperVan and Donald S. Rullo. On November 24, 1997, the Administrator propounded a "First Set of Interrogatories" and a "First Request for Production of Documents." The Respondents failed to respond to these discovery requests, and on February 13, 1998, the Administrator filed a Motion to Compel responses to the requests for answers to interrogatories and production of documents. With the administrative hearing scheduled for September 15, 1998, the Administrator filed a motion to expedite the ALJ's consideration of the Motion to Compel. The Administrator also sought a continuance of the hearing on the ground that she did not have adequate time to receive the responses to the discovery requests and prepare for the hearing.
[Page 2]
On July 10, 1998, the ALJ issued an Order Granting Motion to Compel (July 10 Order). The Respondents were directed to comply with the Administrator's discovery requests by July 27, 1998. In the July 10 Order, the ALJ noted that almost eight months had elapsed since service of the discovery requests and that prejudice to the Administrator's case would result if the requests remained unanswered. Further, the ALJ warned the Respondents of the possibility of sanctions for failure to comply with the Administrator's discovery requests and the July 10 Order.
1 On August 18, 1998, the ALJ issued a Decision and Order Granting Partial Default Judgment against SST and Christine Rullo on the basis of their failure to participate in the proceeding. The ALJ held those parties liable for the full amount of back wages sought in the complaint and ordered both debarred. SST and Christine Rullo did not seek review of this order and Donald S. Rullo does not purport to represent Christine Rullo or SST. Accordingly, the ALJ's August 18, 1998 order is final as to SST and Christine Rullo. 29 C.F.R. § 6.20 (establishing a 40-day time limit for filing a Petition for Review from an adverse ALJ decision issued pursuant to the SCA).
2 Prior to the establishment of this Board in 1996, the Board of Service Contract Appeals was responsible for issuing final agency decisions under the SCA.
3 The regulations implementing the Act require contractors or subcontractors to keep records concerning the rate of monetary and fringe benefits paid to employees subject to the Act, the number of hours worked, and the total daily and weekly compensation paid to each employee. The contractor or subcontractor is required to maintain the records for three years from the completion of the work. 29 C.F.R. §§ 4.6, 4.185. SuperVan, Inc. was a subcontractor under the Concessionaire Contract at issue here (seeRespondents' Answers To The Department's First Set Of Interrogatories Under Order To Compel Answers Found To Be Inadequate Of Certain Questions at Response No. 6 Expanded) and was, therefore, required to keep these records. Rullo appears to argue that because he was served with the Request for Production of Documents more than three years after completion of the contract, neither SuperVan, Inc. nor he was required to produce the documents. Statement of The Respondents For The Petition For Review at 11. We reject this argument for two reasons. First, we concur with the ALJ who, in addressing this issue, correctly concluded that since the complaint herein was properly served on the Respondents, they therefore were "given notice that the records should be preserved." November 24, 1998 Decision and Order Granting Motion to Compel, Denying Motion For Summary Judgment, and Denying Motion For Default Judgment at 5. Moreover, Rullo himself "recognize[s] the responsibility to preserve records subject to litigation… ." Statement of The Respondents For The Petition For Review at 11.