USDOL v. URBAN LABORATORIES, INC., 1981-SCA-1325, 1981-SCA-1394, 1984-SCA-31 (Under Sec'y May 20, 1986)
CCASE:
Raymond J. Donovan
DDATE:
19860520
TTEXT:
~1
[1] THE UNDER SECRETARY OF LABOR
WASHINGTON, D.C.
20210
In the Matter of
Raymond J. Donovan,
Secretary of Labor,
United States Department of Labor
Complainant
v.
Urban Laboratories, Inc., and Case No. 81-SCA-1325
Gerald G. Burke,
Respondents
In the Matter of
Urban Laboratories, Inc., a Case No. 81-SCA-1394
corporation, and Dr. Gerald G. Burke,
an individual, and Lemont Combs, Jr.,
an individual
Respondents
In the Matter of
Urban Laboratories, Inc., a Case No. 84-SCA-31
Corporation and Gerald Burke,
Respondents
ORDER /FN1/
Respondent Gerald G. Burke has applied for relief from the
ineligible list provisions under Section 5(a) of the
McNamara-O'Hara Service Contract Act of 1965, as amended (SCA), 41
U.S.C. [secs] 351-358 (1982).
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The Under 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 (1985). [1]
~2
[2] The record in the above cases indicates that respondent Gerald
G. Burke was the subject of three complaints filed by the Regional
Solicitor, United States Department of Labor, alleging monetary and
recordkeeping violations of the SCA.
In Case No. 81-SCA-1325, Administrative Law Judge (ALJ) Robert
L. Hillyard issued a Decision and Order on August 31, 1983,
recommending that respondents Gerald G. Burke and Urban
Laboratories, Inc., be placed on the Comptroller General's list of
ineligible bidders. No appeals were filed within the time period
allowed and respondents' names were placed on the debarred bidders
list effective November 1, 1984, for a period of three years. The
record contains a signed receipt showing that a copy of the ALJ's
Decision and Order dated August 31, 1983, was sent to Respondent
Burke by certified mail and received on September 26, 1983.
On September 28, 1983, ALJ Edward C. Burch issued a decision
in Case No. 81-SCA-1394 involving a different contract. In
addition to Gerald Burke and Urban Laboratories, Inc., another
principal in the corporation, Lemont Combs, was a respondent. The
ALJ found that violations had occurred and recommended that Urban
Laboratories, Inc. and Combs be debarred and that respondent Burke
be relieved from debarment. Burke has not been debarred for any
violations concerning this contract. [2]
~3
[3] On May 24, 1984, ALJ E. Earl Thomas issued a decision in Case
No. 84-SCA-31 involving Gerald Burke and Urban Laboratories, Inc.
In that case, respondents failed to answer the complaint and the
ALJ issued a default judgment, finding respondents liable for
$3,187.75 in underpayments and recommending debarment. No appeal
was filed within the time allowed and respondents' names were again
placed on the Comptroller General's list of ineligible bidders. The
effective date of debarment for that offense was January 2, 1985.
A party may file a petition for review within 40 days after
the date of the decision of the ALJ. 29 C.F.R. [sec] 6.20
(1985)./FN2/ The decisions finding that Respondent Burke's name
should be placed on the list of ineligible bidders were issued in
1983 and 1984, thus respondent's instant appeal is unquestionably
out of time. Respondent acknowledges that his appeal is untimely,
contending that he was not given notice of the debarment and,
therefore, could not file a timely appeal. However, the record in
Case No. 81-SCA-1325 establishes that Burke received actual notice
of the decision in that case. Further, the record in Case No.
84-SCA-31 contains an affidavit from Leighton A. Beers, Jr.,
attorney in the Regional Solicitor's office, stating that
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ These regulations became effective March 21, 1984: 49 Fed.
Reg. 10,627 (1984). Prior to this date, application for relief from
the SCA's ineligible list provisions under [sec] 5(a) could be
filed with the Secretary within 20 days from the date of service of
the ALJ's decision. 29 C.F.R. [sec] 6.12(a)(1983). [3]
~4
[4] numerous attempts were made to serve respondent notices by
certified and regular mail. These notices were sent to respondent's
current address and were returned "unclaimed" or "refused".
Respondent's contention that he was not given notice is without
merit. The regulations provide that service of documents shall be
to a party's last known address and that service by mail is
complete on mailing. 29 C.F.R. [sec] 6.3 (1985). The record
indicates that proper procedures were followed in all respects for
both cases in which debarment was recommended.
Accordingly, respondent's petition for review is DENIED.
SO ORDERED.
[Dennis E. Whitfield]
Under Secretary
Dated: MAY 20 1986
Washington, D.C. [4]
