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<![CDATA[
CCASE:
AFGHAN CARPET CLEANERS INC. & Y. NUSRATY
DDATE:
19910228
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210
DATE: February 28, 1991
CASE NO. SCA-961
IN THE MATTER OF
AFGHAN CARPET CLEANERS, INC.,
A CORPORATION, YONUS NUSRATY,
INDIVIDUALLY AND AS PRESIDENT
OF AFGHAN CARPET CLEANERS, INC.,
RESPONDENTS.
BEFORE: THE DEPUTY SECRETARY OF LABOR /FN1/
FINAL DECISION AND ORDER
This case arises under the McNamara-O'Hara Service Contract
Act of 1965, as amended (MOSCA or the Act), 41 U.S.C. [secs]
351-358 (1988), and the Contract Work Hours and Safety Standards
Act, 40 U.S.C. [secs] 327-333 (1988). Respondents Afghan Carpet
Cleaners, Inc., and its president, Yonus Nusraty, were investigated
by the Wage and Hour Division, Employment Standards Administration,
between October, 1975, and May, 1976. An administrative complaint
was filed on July 7, 1978, alleging minimum wage, fringe benefit,
and overtime underpayments and recordkeeping violations under
government contracts awarded on August 26, 1974, August 27, 1975,
September 22, 1976, and May 3, 1977. /FN2/ Respondents completed
payment of all backwages computed due in [1]
/FN1/ The Deputy Secretary has been designated by the Secretary to
perform the functions of the Board of Service Contract Appeals
pending the appointment of a duly constituted Board. 29 C.F.R.
[sec] 8.0 (1990).
/FN2/ Respondents contracted to perform cleaning, repair,
alteration, and installation of rugs and carpets for the General
Services Administration. [1]
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[2] early 1981. The sole issue before me is whether circumstances
warrant relief from an ineligibility listing under MOSCA Section
5(a), 41 U.S.C. [sec] 354(a).
Relief from the ineligibility sanction is appropriate in the
presence of unusual circumstances, a determination which turns on
"the facts and circumstances of the particular case." Washington
Moving and Storage Co., Case No. SCA-168, Sec. Dec. issued March
12, 1974, slip op. at 3-4. Among those factors subject to
consideration are a respondent's history of violations, the nature,
extent, and seriousness of past or present violations, willful or
deliberate conduct, culpable neglect or disregard, or other
culpable conduct such as deliberate records falsification, and
demonstrated good faith, cooperation, and intention to comply.
Debarment is not appropriate "in situations where the violation was
a minor one, [*] or [*] an inadvertent one, [*] or [*] one in which
d[e]barment [is] wholly disproportionate to the offense." To Amend
the Service Contract Act of 1965: Hearings on H.R. 6244 and H.R. 6245
Before the Special Subcommittee on Labor of the House Committee on
Education and Labor, 92nd Cong., 1st Sess. 3 (1971) [*](emphasis
added)[*]. See also 29 C.F.R. [sec] 4.188(b)(2) (1990).
It is uncontroverted that several of the mitigating factors
listed above were met. Respondents cooperated fully with the
investigators, never sought to withhold records or other
information, and consistently implemented procedures designed to
avoid future violations. All amounts found due long since have [2]
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[3] been paid. In attempting to understand MOSCA requirements,
Respondents obtained specialized legal advice and employed
accountants who developed proper compensation systems and
instituted computer programs to prevent recurrence of the
recordkeeping violations. Hearing Transcript I (T.I) at 45-46,
53-56 (CPA Ewald). Respondents' "absolute" good faith,
cooperation, and intention to comply was the subject of
stipulation. See Stipulation Nos. 39 and 40; T. I at 100; Hearing
Transcript II (T. II) at 56-57. These considerations militate
against debarment. Two particular areas require additional
comment, however.
The Furniture Mover Controversy.
Violations apparently found prior to the Wage and Hour
compliance officer's April 16, 1976, and May 24, 1976,
investigation conferences continued to occur under the September
22, 1976, and May 3, 1977, contracts. At worst, this development
resulted from an honest misunderstanding.
Respondent Nusraty immigrated to this country in 1959. He was
not proficient in the English language. In the early 1970's,
Nusraty contracted with GSA to clean carpets, and in 1973 he began
performing carpet installation. The wage determinations for these
contracts set rates only for the classifications of carpet layer,
carpet cleaner, seamstress, and respective apprentices. The early
contracts required carpet installation in vacant offices and in
offices having negligible amounts of furniture. However, in 1974,
upon assuming a project requiring [3]
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[4] extensive furniture moving, Nusraty met with the GSA contracting
officer to determine a means of performing this additional aspect of
the job. In his affidavit, the contracting officer attests that he
advised Nusraty to employ high school students, at minimum wage rates,
to move the furniture on a part-time basis. The contracting officer
believed that this agreement among the interested parties, i.e., the
contracting agency, the contractor, and the furniture movers,
satisfied the conformance requirement as explained in the contract.
See Exh. No. 36-12, pars. 3, 6, 7. Nusraty followed this course
and, at the mid-1976 investigation conferences, the Wage and Hour
compliance officer explained that the furniture movers must be
compensated at the elevated journeyman carpet layer rate because
they were not classified separately on the wage determination.
Shortly thereafter, on June 24, 1976, Nusraty succeeded in adding
a furniture mover/laborer classification to the wage determinations
for the succeeding contracts.
The Administrator argues, however, that Nusraty failed to
address an additional aspect of the controversy, i.e., that
furniture movers continued to perform carpet layer job duties and
thus should have been compensated at the carpet layer rate.
Nusraty, his attorney, and his office secretary all deny that the
latter charge was raised at the investigation conferences. T. I at
130-132, 136; T.II at 3-4, 81-84, 107; Exh. Nos. 36-1; 36-2 at 2-5,
12-15; 36-9; 36-10; 36-11; 36-15; 47-3; 47-6. Their version that
only the former classification failure was discussed is [4]
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[5] supported by the subject matter that Wage and Hour personnel
highlighted in literature left with Nusraty and in subsequent
correspondence from Wage and Hour regarding compliance. T. II at
86-89; Exh. P-l; R-Exh. No. 36-8. The compliance officer issued no
written findings or charges at the investigation conferences. In
fact, her final directive to Nusraty was that he should compute and
submit his back wage liability amounts. T. II at 94-97.
I also am not persuaded that Nusraty otherwise should have
known that furniture movers sometimes performed carpet layer duties
or that any such occurrences were widespread or frequent. Carpet
installation demands skill and training. The necessary tools,
which are customized and cost between $300 and $600, are owned by
the individual carpet layers. Because of the speed and precision
required in installing carpet, experimentation by furniture movers
would have been unlikely. See T.II at 5-11, 46, 81-84. Moreover,
these findings of violation appear premised on selective interviews
with a small sampling of furniture movers. T. II at 70, 124-125.
Compare Exh. No. 36-22. I decline to find that Respondents engaged
in willful, deliberate, or culpable conduct with regard to these
violations, or that the violations were extensive or serious.
The Early 1977 Recordkeeping Violations.
During a five-week period in January and February, 1977, when
Respondent Nusraty suffered complications from heart surgery, one
of his brothers, normally a job foreman, performed [5]
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[6] Respondent's office duties, including the recordkeeping. Records
of daily and weekly hours worked were maintained at each job site.
These records were accurate for this time period. The violations
occurred in posting the various job site figures to the principal
office record. While Nusraty's brother was aware of weekly
overtime compensation requirements, he failed to understand that
overtime then also was computed daily under the CWHSSA on hours
worked in excess of eight. Accordingly, the office record of
weekly hours worked was accurate, but Nusraty's brother was not
careful in posting daily hours worked and these allocations were
inaccurate. See T. I at 64-65; Exh. No. R-26. A total of $323.13
was found due 12 employees. Respondents readily produced both the
job site and office records for Wage and Hour's inspection. No
similar recordkeeping practice occurred prior or subsequent to this
five-week period. I decline to find that Respondents engaged in
deliberate records falsification.
Accordingly, I find that unusual circumstances exist in the
instant case. Respondents shall be relieved from an ineligibility
listing under MOSCA Section 5(a), 41 U.S.C. [sec] 354(a), as the
result of the violations found in this case.
SO ORDERED.
[Roderick DeArment]
Deputy Secretary of Labor
Washington, D.C. [6]
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