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<![CDATA[
CCASE:
GOODALL'S CHARTER BUS SERVICE
DDATE:
19850313
TTEXT:
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[1] THE UNDER SECRETARY OF LABOR
WASHINGTON, D.C.
20210
In the Matter of
GOODALL'S CHARTER BUS
SERVICE , INC., a
California Corporation,
and JAMES C. RUANE, an Case No. SCA-1237
individual
Respondents
FINAL DECISION AND ORDER
This is an appeal to the Secretary under the Service Contract
Act, 41 U.S.C. 351 et seq., as amended, (SCA) seeking relief,
pursuant to 29 C.F.R. 6.12, from the ineligible list sanction
provided for by Section 5(a) of the SCA. In accordance with recent
revisions in the SCA Regulations at 29 CFR 8.0, 49 FR 10638 (March
21, 1984), final decisions and orders in these matters are now made
by the Under Secretary pending appointment of a Board of Service
Contract Appeals.
After a hearing before Administrative Law Judge Thomas
Schneider, (ALJ) at which it was stipulated that Respondents had
underpaid 28 employees a sum in excess of $18,000, the ALJ
recommended that the Secretary take "no action to relieve
respondent from the ineligible list provisions of [sec] 5(a) of the
Act, 41 U.S.C. [sec] 354(a)."
At the hearing Respondents attempted to establish that they
were unaware of the wage determination provisions of [1]
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[2] the several contracts that were violated. Respondent Ruane also
testified "that in pre-award conferences he had been told that the wage
determination applied only to union shops and were not applicable to
him." Decision and Order at 3. In addressing these protestations of
innocence the ALJ stated:
I find this testimony less than completely convincing.
More significantly, it appears that respondent did not
fully cooperate with the investigators from the
Department of Labor once possible descrepancies [sic] had
been called to his attention. Thus, Compliance Officer
Dean Smith testified that it was very difficult to get
Mr. Ruane to go through his records and segregate the
time spent on contract work from the time spent on non
contract work, as required by 29 C.F.R. [sec] 4.173. By
the time of trial claimant had cooperated with the
Department of Labor, but apparently he did not fully
cooperate until just prior to that time.
Decision and Order at 3
The essence of the ALJ's findings is th at the violations were
willful or at the very least the result of culpable neglect and
that Respondents failed to demonstrate good faith and cooperation
in the resolution of the issues. Respondents filed exceptions to
the ALJ's recommendation, arguing that by failing to apply the
principal factors to determine whether "unusual circumstances"
exist, /FN1/ the ALJ's [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The principal factors referred to by Respondents are those
set forth in Washington Moving and Storage Company, Decision of the
Secretary SCA-168 (March 12, 1974) and in the Administrator's
Decision: whether there is a history of repeated violations of the
Act; the nature, extent, and seriousness of past [2][FN1 CONTINUED
ON PAGE 3] /FN1/ (continued) or present violations; whether the
violations were willful, or the circumstances show there was
culpable neglect to ascertain whether certain practices were in
compliance, or culpable discretion [sic] (such as deliberate
falsification of records); whether the respondents' liability
turned on bona fide legal issues of doubtful certainty[;] whether
the respondent has demonstrated good faith, cooperation in the
resolution of issues, and a desire and intention to comply with the
requirements of the Act; and the promptness with which employees
were paid the sums determined to be due them. [END FN1][3]
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[3] recommendation "is arbitrary, capricious, an abuse of
discretion, and contrary to law." The issue raised by Respondents
was considered by the Administrator, Wage and Hour Division, who
concurred in the recommendation of the ALJ that relief from the
ineligible list should not be granted. (Decision of the
Administrator, January 13, 1984.) The Administrator concluded that:
There is no evidence in the record that the Judge failed
to apply the above-cited factors. [See fn. 1] Since
there is no single test which can be used, the totality
of circumstances must be considered. It is apparent that
the lack of cooperation and unconvincing testimony by
Respondent outweighed other considerations such as the
payment of back wages and the fact that it was a first
investigation. There is no requirement that each of the
criteria be recited and a finding made on each of them.
The Judge's findings are supported by the record. In
fact, the record is replete with indications of the
Respondents' lack of cooperation. For instance, Mr.
Ruane, President of the Corporation, admitted during his
testimony that he refused to cooperate with the Wage-Hour
investigator, stating (at page 31) that "I just don't
think I was cooperating too well [3]
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[4] at the time." Respondents' refusal to cooperate
and provide the records needed to complete the
investigation caused a delay in the completion of
the investigation.
The investigation was begun in September 1979 yet
pertinent payroll records were withheld from the
Department of Labor until the week of the hearing in July
1980 (TR. p. 53). Another indication that the
investigation was prolonged due to Respondents'
reluctance to cooperate was their refusal to segregate
the hours performed on the Government contract from the
non-Government contract hours. Respondents have not
demonstrated that the Judge's findings are clearly
erroneous or that his conclusions are not in accordance
with applicable law.
On appeal, the Respondents make the same arguments they made
to the Administrator, and further argue that "the unusual and
lengthy delay of the Administrator's decision, should be grounds
alone to permit Respondents the relief sought herein."
Respondents argue before me that their "violations were not
willful, and based solely upon the inadequate information provided
by the contracting officers." However, the only support for this
argument is the testimony of respondent James C. Ruane, whose
testimony the ALJ found "less than completely convincing." In
contrast, Diane Kerlin, a procurement agent at the San Diego Navy
Public Works Center, whose duties are to administer and award
maintenance service contracts, testified that four of the contracts
involved in this proceeding had wage determinations incorporated
when they were sent to the contractors, and that if a question
arises as to the interpretation of a wage determination, the party
is referred to the [4]
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[5] Department of Labor. She answered in the negative when asked
whether to the best of her knowledge Respondent ever called her to ask a
question about the wage determination. Transcript 41-44.
Thus, the credibility determination of the ALJ was neither
arbitrary nor capricious and is fully supported by the record.
Implicit in his credibility finding, as stated earlier, is a
conclusion that the violations committed by Respondents were
willful or, at the very least, the result of culpable neglect.
Having also found that Respondents had failed to cooperate it was
unnecessary, as the Administrator has indicated, for the ALJ to
recite the litany of principal factors which are considered in
determining whether "unusual circumstances" exist.
As to Respondents' argument that there should be no debarment
because of delay in the Administrator's issuance of his decision,
it must be rejected. There is no evidence of harm to Respondents
by the delay since during the period between the ALJ's decision and
the decision of the Administrator, the period complained of,
Respondents were able to continue to operate with legal impunity in
seeking government contracts.
For all of the foregoing I concur in the recommendation of the
Administrator that no "unusual circumstances" exist in this [5]
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[6] case to preclude Respondents' debarment and will advise the
Comptroller General to place Respondents on the ineligible list.
[Ford B. Ford]
Under Secretary of Labor
Dated: MAR 13 1985
Washington, D.C. [6]
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