SOUTHWESTERN FILM SERVICE, 1981-SCA-1390 (Dep. Sec'y Sept. 28, 1990)
CCASE:
S.W. JOHNSON & SOUTHWESTERN FILM SVC
DDATE:
19900928
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210
DATE: September 28, 1990
CASE NO. 81-SCA-1390
IN THE MATTER OF
SIDNEY W. JOHNSON, d/b/a
SOUTHWESTERN FILM SERVICE,
RESPONDENT.
BEFORE: THE DEPUTY SECRETARY OF LABOR /FN1/
FINAL DECISION AND ORDER
This matter is before me pursuant to the McNamara-O'Hara
Service Contract Act of 1965, as amended (MOSCA or the Act), 41
U.S.C. [secs] 351-358 (1982), and the rules and regulations
thereunder, 29 C.F.R. Parts 4, 6 and 8, (1989). /FN2/ The complaint
was filed by the Regional Solicitor charging Respondent with
minimum wage and recordkeeping violations under the Act. After a
hearing before Administrative Law Judge (ALJ) Ellin M. O'Shea, in
which each party was represented by counsel, the ALJ found that
Respondent had violated the Act by failing to pay employees the [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 (1989).
/FN2/ Part 4 of Title 29 of the Code of Federal Regulations was
revised effective December 27, 1983. Parts 6 and 8 were revised
effective March 21, 1984. Accordingly, as to the charges of
violation, this decision does not rely on any part of the
regulations effective after these dates unless the same language
was contained in the previous regulations or decisions. [1]
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[2] required minimum wage for all hours worked and by failing to
keep proper records. Decision and Recommendation (D. and R.) at 4
and 11. She ordered that backpay in the amount of $8,335.93 be
paid to five employees. The ALJ also found that there were no
"unusual circumstances" justifying relieving Respondent from the
ineligible list sanction of Section 5(a) of the Act, and she
recommended that such relief not be granted.
The main issue in this case is whether five employees of a
firm awarded contracts to carry United States mail were paid for
all hours worked. Four of the five employees, all truck drivers,
hauled mail to certain towns in New Mexico. There was a "layover"
period between trips ranging from two to four hours, after which
time the driver would depart with another shipment of mail. Cuba
and Bloomfield, New Mexico, the towns where the layovers occurred,
are small and rural, with no public transportation, and few
businesses or diversions. The Respondent did not pay these
employees for the layovers because, he states, they were free to
use the "waiting time" for their own purposes. The Solicitor
argues that, given the limited size and other circumstances of the
towns, there was, in fact, little if any opportunity for the
employees to use the layover time effectively for themselves. The
Solicitor therefore contends that the employees were "engaged to
wait," and were not "waiting to be engaged," and they should be
paid for the layovers.
The alleged violation pertaining to the fifth truck driver
employee is unrelated to the layover issue. As to this driver [2]
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[3] the Solicitor seeks payment for the balance of hours that
the employee worked but for which he was not paid. Respondent paid
him for no more than eight hours a day, while the government states
that he worked more than that. No record of hours was kept by
Respondent for this employee.
The Respondent filed Exceptions to the Decision and
Recommendation of the Hearing Officer, arguing in essence that:
(1) the case is barred by the two-year statute of
limitations of the Portal-to-Portal Act of 1947, 29
U.S.C. [sec] 255(a) (1982);
(2) the ALJ's findings regarding the four employees on
the issue of waiting time are not in accord with case
law, statutes and regulations;
(3) the ALJ's findings regarding the fifth employee on
the issue of unpaid hours are not supported by the
evidence;
(4) the ALJ's findings that the Respondent's records did
not reflect hours worked are not supported by the
evidence;
(5) the penalty of debarment is too severe; and
(6) the ALJ seeks to punish the Respondent for exercising
his due process rights.
DISCUSSION
Upon review and consideration of the record, including the
ALJ's Decision and Recommendation, the Respondent's Exceptions, and
the Solicitor's Response to the Respondent's Exceptions, I conclude
that the ALJ was correct in finding that Respondent should have
paid the four employees for the layover time and the fifth employee
for all hours worked. I also find, however, the [3]
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[4] existence of unusual circumstances within the meaning of Section
5(a) of the MOSCA which would relieve Respondent from debarment.
I now turn to Respondent's Exceptions.
Exception #1
Respondent contends this action is barred by the statute of
limitations of the Portal-to-Portal Act of 1947, 29 U.S.C. [sec]
255(a) (1982). However, the Portal-to-Portal Act's statute of
limitations by its own terms applies only to the Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. [secs] 201-219 (1988);
the Walsh-Healey Public Contracts Act, 41 U.S.C. [secs] 35-45
(1982); and the Davis-Bacon Act, 40 U.S.C. [secs] 276a-276a-7
(1982).
While the MOSCA contains no statute of limitations, the
general six-year statute of limitations in 28 U.S.C. [sec] 2415(a)
applies in MOSCA actions. United States v. Deluxe Cleaners and
Laundry, Inc., 511 F.2d 926 (4th Cir. 1975). Since the complaint
herein was filed within six years after the right of action
accrued, this action is not barred.
Exception #2
Respondent argues that the ALJ's compensability findings as
to layovers of the four employees are not in accord with the MOSCA
regulations and cases cited therein. These regulations specify
when employees must be paid for layovers:
Periods during which an employee is completely relieved
from duty and which are long enough to enable him to use
the time effectively for his own purposes are not hours
worked. He is not completely relieved from duty and
cannot use the time effectively for his own purposes
unless he is definitely told in advance that [4]
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[5] he may leave the job and that he will not have to
commence work until a definitely specified hour has
arrived. Whether the time is long enough to enable him
to use the time effectively for his own purposes depends
upon all of the facts and circumstances of the case.
29 C.F.R. [sec] 785.16(a).
Respondent argues that employees could have gone hiking,
fishing, or to a part-time job or movie, but there is ample
testimony in the record that such options were not readily
available to most employees. See, e.g., the testimony of
witness-drivers and of Department of Labor Compliance Officer
(C.O.) Robert Fortman, Hearing Transcript (T.) 64, 73-74, 82,
128-129, 131-132, and 183-184. Respondent testified that while
there was a movie house and a drive-in theatre in Cuba, he did not
know if movies were shown in the afternoon. T. 32.
Driver Felipe Jaramillo /FN3/ did testify that he found work
in Cuba, but also stated that "there really wasn't very much on
during those hours . . . ." T. 221-222. His part-time employment
was an anomaly and not a realistic expectation for other drivers.
See T. 180. As a practical matter, the prospects of finding a
part-time job during a two to four hour layover period in such a
small town was and is remote. I credit the uncontroverted
testimony of employee Manuel Sanchez, who stated that he had tried
but failed to find a part-time job at a gas station, a variety
store, a grocery store and a cafe. T. 64, 73. [5]
/FN3/ Felipe Jaramillo ended his employment with Respondent in
1976, T. 212, before the period covered in the instant
investigation, and he is not due any back wages. [5]
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[6] Sanchez also noted that it would be difficult to hold a second
job because truck breakdowns and bad weather often caused delays
and shortened the layovers. T. 74.
There are significant differences between opportunities for
effective use of layover time in New York City, an example used in
the regulations, 29 C.F.R. [sec] 785.16(b), and in the remote,
rural towns of Cuba and Bloomfield, New Mexico. New York is a
metropolis where a driver on layover could be expected to find some
way to use the time effectively for his own purposes. By contrast,
Bloomfield and Cuba, are communities whose roads, poor public
transportation, tiny population and a few gas stations and
convenience stores do not provide realistic opportunities in most
cases for employment, recreation, or other effective use of time
for one's own purposes. T. 30, 63, 88, 297; see T. 133-134 for
Chicago example.
Respondent refers to two decisions cited at 29 C.F.R. [sec]
786.16(b) to support his argument that these layovers are not
compensable. In Gifford v. Chapman, 6 WH Cases 806 (W.D. Okla.
1947), defendant had a contract with the U.S. government to provide
truck drivers to collect and deliver mail between the Oklahoma
City, Oklahoma, post office and the local railroad and bus depot
mail stations. The drivers made several mail runs each day, at
intervals of about one hour, during which they were free to pursue
their own purposes. The court ruled that, as the drivers "were not
engaged to wait any place for the defendant," they were not
entitled to compensation for the intervals. The [6]
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[7] time between runs "was free time to be employed by the
plaintiffs as they saw fit. 6 WH Cases at 809. But the court
recognized that an inflexible rule cannot be laid down for all
waiting-time cases, and that many factors must be considered: "it
is not always easy to determine [if waiting time is working time.]
Each case must rest upon its own facts." Id. Furthering this
point, the court quoted Skidmore v. Swift, 323 U.S. 134, 136 (1944):
We have not attempted to, and we cannot, lay down a legal
formula to resolve cases so varied in their facts as are
the many situations in which employment involves waiting
time. Whether in a concrete case such time falls within
or without the Act is a question of fact to be resolved
by appropriate findings of the trial court .... This
involves scrutiny and construction of the agreement
between the particular parties, appraisal of their
practical construction of the working agreement by
conduct, consideration of the nature of service, and its
relation to the waiting time, and all of the surrounding
circumstances.
The facts in Thompson v. Daugherty, 40 F. Supp. 279 (D. Md.
1941), were similar. Defendant had a contract to provide trucks
and drivers to collect and deliver mail from the post office in
Cumberland, Maryland, to the local railroad station, a distance of
about one-half mile. The services were performed entirely in the
city of Cumberland. The plaintiff-driver was free to do as he
pleased for one and three quarters of an hour, beginning at about
one or two o'clock each morning. The defendant refused to pay for
this time. The court ruled that the driver should not be paid for
his waiting time. "The employee was entirely free to follow his
own personal activities. During this interval he was [7]
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[8] not required to be at a particular place ...." 40 F.
Supp. at 284.
I conclude that Gifford and Thompson are not controlling in
the particular facts and circumstances of the instant case. First,
the mail runs in those two cases occurred within relatively large
cities. A driver there would likely be able "to use the time
effectively for his own purposes." 29 C.F.R. [secs] 785.15 and
785.16(a). In contrast, here the mail runs and layovers occurred
in small, rural towns, where there was little if any chance for the
stranded drivers to use the layover time for their own purposes.
Second, Gifford is weakened by its own citation of Skidmore, to the
effect that there can be no hard and fast rule for resolving
waiting-time cases, and that each case must be decided based on
"all of the surrounding circumstances." Skidmore v. Swift, 323 U.S.
at 136.
The key issue here is whether or not the length of time of
the layovers, in relation to their particular location, permitted
the employees to use their layover time "effectively." The record
supports the ALJ's finding that, due to the remoteness of the
layover locations and characteristics of the small towns, the four
employees were unable to use their time effectively. During his
testimony, C.O. Fortman stated "[e]ven though there was no question
about the fact that they were not required to stay there at their
truck, he was -- they were by actual situation required to stay
there because there was nothing that they could do effectively with
their time . . . ." T. 128-129. After[8]
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[9] listening to the testimony the ALJ concluded as follows:
This record establishes that the four hour Cuba, New
Mexico, layover, other than affording these employees an
opportunity for a lunch period in effect left them
stranded for this time in a rural New Mexico town, with
a population of a few hundred, with no means of
transportation to anything they might utilize their time
doing, in a town which was little more than a hamlet on
the side of the highway. A small rural town with
sidewalks only along the main business district,
consisting of a few convenience stores and gasoline.
stations, does not afford one who must spend three hours
"killing time" there daily, with no place to sleep, an
opportunity to effectively utilize this time to himself.
D. and R. at 8. Further, she states:
When the particular circumstances as to this Cuba layover
location unfolded at trial, so disparate and dissimilar
to the factual circumstances in any case where it has
been held the employee was waiting to be engaged, it
became obvious common sense these employees on the Cuba
layover were engaged to wait; and any realistic concept
of employment services rendered, any practical
construction of what these employees in fact agreed by
their Cuba conduct to do for respondent, mandates finding
these employees were engaged to wait for this layover
period. The circumstances into which drivers Sanchez,
Pettit and Garcia were placed on this Cuba layover, with
no avenues of effectively using this time for themselves,
if they had a car, which they did not, is evident from
the description of the town.
I find the description of Bloomfield, New Mexico, no more
indicative of circumstances affording Mr. Eakens the
opportunity to effectively utilize his little over
two-hour layover time there for his own purposes. Absent
public transportation, and reasonable proximity to
Farmington, New Mexico, he had no means of using this
time for himself.
Id. at 9.
I agree. [9]
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[10] Exception #3
Respondent contends that the ALJ's findings of hours worked by
driver George Jaramillo cannot be sustained on review. I disagree.
Findings of fact are conclusive under the MOSCA "if [they are]
supported by the preponderance of the [record] evidence . . . ."
41 U.S.C. [sec] 353(a); 41 U.S.C. [sec] 39. In particular, a
decision of an ALJ "shall be supported by reliable and probative
evidence." 29 C.F.R. [sec] 6.19(b)(1)(1989). An ALJ's factual
findings shall be modified or set aside on review "only when [they]
are not supported by a preponderance of the evidence." 29 C.F.R.
[sec] 8.9(b). The instant ALJ's findings of violation regarding
Mr. Jaramillo's pay and hours of work are supported by a
preponderance of the type of evidence deemed acceptable in cases
involving records violations. /FN4/ [10]
/FN4/ The current regulations at 29 C.F.R. Parts 6 and 8 became
effective on March 21, 1984, shortly following the ALJ's March 7,
1984, decision in this case. 49 Fed. Reg. 10,627, 10,637 (March
21, 1984). The regulations previously had required a decision to
be supported by "reliable," "probative," and "substantial"
evidence, and had stipulated that the decision "be made on the
basis of a preponderance of that evidence." 29 C.F.R. [sec] 6.10
(1983). On review the Administrator could modify or set aside
only those factual findings that were "clearly erroneous." 29
C.F.R. [sec] 6.14 (1983). The basic statutory preponderance of the
evidence standard has remained constant, however. I have applied
the current standard of review based on the principle that an
adjudicator "is to apply the law in effect at the time it renders
its decision, unless doing so would result in manifest injustice
or there is statutory direction or legislative history to the
contrary." Bradley v. Richmond School Board, 416 U.S. 696, 711
(1974). Here, the variation in regulatory language is not
significant. Because the statute contains a "preponderance of the
evidence" standard of review, the previous regulations cannot
have imposed any conflicting "substantial evidence" standard. See
e.g., Saavedra v. Donovan, 700 F.2d 496, 498 (9th Cir.), [FN4
CONTINUED ON PAGE 11] (continued...)(...continued) cert. denied,
464 U.S. 892 (1983). Rather, like "reliable" and "probative"
evidence, the term "substantial" apparently described the quality
of evidence as opposed to its quantum, and deletion of that
language in 1984 eliminates any ambiguity. [END FN4][11]
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[11] In violation of 29 C.F.R. [sec] 4.6(g)(3) (1983), Respondent
failed to record the hours actually worked by Mr. Jaramillo, who
attests to working hours in excess of those for which he was
paid. /FN5/ In this circumstance, the model articulated in
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), comes
into play. An employee generally must show that he performed work
for which he was compensated improperly.
When the employer has kept proper and accurate records,
the employee may easily discharge his burden by securing
the production of those records. But where the
employer's records are inaccurate or inadequate and the
employee cannot offer convincing substitutes, a more
difficult problem arises . . . . In such a situation . .
. an employee has carried 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. The burden then shifts to
the employer to come forward with evidence of the precise
amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the
employee's evidence. If the employer fails to produce
such evidence, the court may then award damages to the
employee, even though the result be only approximate.
Id. at 687-688. The Court expressly declined to apply any rule
precluding the recovery of "uncertain" and "speculative" damages.
It reasoned:
That rule applies only to situations where the fact of [11]
/FN5/ Respondent admitted that he did not pay his employee drivers
according to their actual hours of work. T. 27, 37-38 (Vol. 1);
T. 41, 45-46, 48, 53-55 (Vol. 3). See T. 154 (Vol. 1), Exhs. C-
1, C-2, C-3. [11]
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[12] damages is itself uncertain. [H]ere we are assuming that
the employee has proved that he has performed work and
has not been paid in accordance with the statute. The
damage is therefore certain. The uncertainty lies only
in the amount of damages arising from the statutory
violation by the employer . . . . It is enough under
these circumstances if there is a basis for a reasonable
inference as to the extent of the damages.
Id. at 688. The Mount Clemens model for the presentation of proof
has received widespread application and approval. See, e.g., Brick
Masons Pension Trust v. Industrial Fence & Supply, 839 F.2d 1333,
1338-1339 (9th Cir. 1988) (Employee Retirement Income Security Act,
29 U.S.C. [secs] 1001-1461 (1982)); Amcor v. Brock, 780 F.2d 897,
899-901 (11th Cir. 1986) (MOSCA); American Waste Removal Co. v.
Donovan, 748 F.2d 1406, 1409-1411 (10th Cir. 1984) (MOSCA);
Savering v. United States, 18 Cl. Ct. 704, 708-710 (1989) (overtime
compensation provision of Federal Employees Pay Act, 5 U.S.C. [sec]
5542 (1988)).
Here, the ALJ credited evidence of hours worked and pay
received by Mr. Jaramillo contained in a January, 1979, statement
provided by him to C.O. Fortman, which was proximate in time to the
period of claimed backpay, /FN6/ which generally comported with
independent testimony, and which did not appear to the ALJ to be
"overreaching." D. and R. at 11. Accordingly, Mr. Jaramillo
succeeded in showing, as a matter of just and reasonable
inference, the amount and extent of work performed for which he was
improperly compensated. The burden then shifted to [12]
/FN6/ Backpay was computed for the five-month period between July
27, 1978, and December 28, 1978. [12]
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[13] Respondent (1) to show the precise amount of work performed or
(2) to negate the reasonableness of the inference. As correctly
noted by the ALJ, id., Respondent failed to offer evidence
sufficient to satisfy either rebuttal criterion.
Respondent's particular exceptions center on the use of a
statement secured in the course of the compliance investigation
together with the fact that Jaramillo's lack of "present"
recollection at a hearing held five years later allegedly precluded
effective cross-examination. Examination of the investigation
statement and of the testimony taken at both the April and
November, 1983, hearings reveals the following:
(1) The "employee personal interview statement," Exh. R-1,
which was signed by Mr. Jaramillo and witnessed by the C.O., sets
forth a highly specific account of Jaramillo's daily haulage route,
including hourly increments, during the period July 17, to December
31, 1978. /FN7/ Jaramillo also attested:
During this five and one-half months . . . I worked
Monday through Friday (five days a week) for eleven and
one-half hours a day .... At each stop I had to unload
and load the mail from my truck except at the airport.
At the airport I unloaded but did not load.
During this time that I was working 57 1/2 hours a week
was only being paid for 44 hours a week. I did not [13]
/FN7/ The statement contains considerable detail. For example, the
route began with work scheduled at the main post office from 5:15
a.m. until 5:45 a.m. Jaramillo then traveled to Station B and
Alameda, returning to the main post office at 6:35 a.m. At 7:15
a.m. he traveled to station B, Alameda, Rio Rancho, and Corrales,
returning to the main post office by 9:00 a.m. The statement
continues in this mode throughout the remainder of the morning
and the afternoon until he "went home" at 5:45 p.m., documenting
trips between the main post office, the airport, Old Town, and
stations A, B, and C. [13]
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[14] keep a record of my hours of work for the company. On my
calendar at home I marked my total hours worked each day.
I did not ask for my extra pay because I was afraid I
would be fired. All of my work is on the mail contract.
I do not carry newspapers, film or any non-mail items.
I have read the above and it is true.
Mr. Jaramillo subsequently retired from his employment with
Respondent, which had commenced in 1966.
(2) At the April, 1983, hearing Mr. Jaramillo testified to
having worked a slightly longer workday than specified in his
statement. /FN8/ An examination of Respondent Johnson's testimony,
T. 24-25 (Vol. 33) suggests possible confusion on Mr. Jaramillo's
part in that his (Jaramillo's) testimony may have pertained to
hours worked on an earlier route. Mr. Jaramillo exhibited some
lack of present recollection during his April testimony.
Respondent was afforded full opportunity for, and conducted,
cross-examination. T. 115-118 (Vol. 1).
(3) Mr. Jaramillo's lack of recollection at the November
hearing was substantial.
The testimony of Messrs. Johnson and Jaramillo suggests
genuine confusion on the part of Mr. Jaramillo, rather than evasion
and hostility as Respondent now asserts. Resp. Exceptions at 7-8.
Compare T. 24-25. (Vol. 3). Moreover, I agree with the ALJ that
the 1979 statement is sufficiently probative to establish the
amount and extent of work performed. Finally, I note that
Respondent's rebuttal evidence is markedly deficient. [14]
/FN8/ The statement documents a workday beginning at 5:15 a.m. and
ending at 5:45 p.m., whereas the testimony describes work beginning
at 4:50 a.m. and ending between 5:30 and 6:00 p.m. [14]
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[15] See T. 37, 52 (Vol. 1); T. 48, 55-56, 65 (Vol. 3). While
Respondent's opportunity to refine Mr. Jaramillo's accounting may
have been impaired by his failed recollection, "[an] employer
cannot be heard to complain that the damages lack the exactness and
precision of measurement that would be possible had he kept records
in accordance with the requirements . . . of the Act." Amcor Inc.
v. Brock, 780 F.2d at 900.
Exception #4
Respondent excepts to the ALJ's conclusions that records
maintained by the Respondent were not in compliance with 29 C.F.R.
[sec] 4.6(g) (1983), and specifically [sec] 4.6(g)(3), and did not
accurately reflect actual hours worked. Respondent claims such
conclusions are not supported by the evidence. The regulations
required a MOSCA contractor to keep records containing an
employee's "daily and weekly hours [*] so worked.[*]" 29 C.F.R.
[sec] 4.6(g)(3) [*](emphasis added)[*]. I credit the testimony of
C.O. Fortman that, in violation of the recordkeeping regulations,
Respondent recorded the post office schedule of hours, and not the
number of hours that the employees actually worked. T. 126. When
an employer pays by the trip, MOSCA is violated if the pay so
determined does not equal the amount a driver would be due on his
hourly MOSCA rate basis. Ray v. U.S. Department Labor, 26 WH Cases
1244, 1245 (C.D. Ill. 1984); Griffith v. Marshall, 24 WH
Cases 267, 268, 269 (S.D. Ohio 1979). Respondent may have
maintained time cards, but I agree with the ALJ that they did not [15]
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[16] constitute an accurate record of hours, as required by the
regulations. This exception is denied.
Exception #5
Respondent excepts that there is not substantial support for
the ALJ's decision to place Respondent on the list of ineligible
bidders. A leading debarment case is Washington Moving and Storage
Co., et al., No. SCA-168, Decision of the Secretary (1974), which
sets forth the criteria for finding unusual circumstances necessary
to relieve a contractor from debarment. In that case the Secretary
quoted with approval the following conclusion of the Assistant
Secretary:
Whether "unusual circumstances" are present in a case
within the meaning of the Act must be determined on the
basis of the facts and circumstances of the particular
case. Some of the principal factors which must be
considered in making this determination are whether there
is a history of repeated violations of the Act; the
nature, extent, and the seriousness of past or present
violations; whether the violations were willful, or the
circumstances show there was culpable neglect to
ascertain whether practices were in compliance, or
culpable disregard of whether they were or not, or other
culpable conduct (such as deliberate falsification of
records); whether the respondent's 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. It is clear that the mere
payment of sums found due employees after an
administrative proceeding, coupled with an assurance of
future compliance, is not in itself sufficient to
constitute "unusual circumstances" warranting relief [16]
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[17] from the ineligible list sanction. It is also
clear that a history of recurrent violations of identical
nature, such as repeated violations of identical minimum
wage or record keeping provisions, does not permit a
finding of "unusual circumstances". On the other hand,
where a bona fide legal question of doubtful certainty
exists, and an employer reasonably chooses to litigate
such question in order to resolve it, this should not
prevent a finding of "unusual circumstances."
Sec. Dec. at 3-4. See also Quality Maintenance Co. et al., No.
SCA-119, 21.~H Cases 1094 (1973), decision of the Assistant
Secretary.
I am also mindful of Congress' intent concerning the
authority to relieve MOSCA violators from the ineligible list.
During the debate on the 1972 amendments to the Act, Rep. O'Hara
stated that:
The Act also contains . . . a provision allowing the
Secretary of Labor to relieve employers from that
penalty. The authority was intended to be used in
situations where the violation was a minor one, or an
inadvertent one, or one in which disbarment [sic] from
bidding on government contracts would have been wholly
disproportionate to the offense. We did not intend in
1965 that relief from the penalties of the Act should be
given automatically, or lightly. We intended then, and
we intend now that the full vigor of the law should
be.felt by those who repeatedly and callously violate it.
The rights of government contractors are important and
deserve full procedural safeguards. The rights of the
workers performing these contract services are no less
important, and deserve no less vigorous protection.
To Amend the Service Contract Act of 1965: Hearings on H.R. 6244
and H.R. 6245 Before the Special Subcomm. on Labor of the House [17]
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[18] Comm. on Education and Labor, 92nd Cong., 1st Sess. 3
(1971).
Applying the above to this case, I find that the Respondent
should be relieved from the ineligible list provisions of the Act.
As in another decision issued today involving layover time, In the
Matter of Joy R. Manning d/b/a Manning Mail Service, Case No.
82-SCA-136, waiting time in these circumstances was a "bona fide
legal question of doubtful certainty" for this Respondent. Layover
periods have historically received varied interpretations.
Skidmore v. Swift, 323 U.S. at 136. I also acknowledge a degree of
confusion attributable to the court decisions in Gifford and
Thompson. See supra at 6-8. Reliance on those analyses and
holdings might reasonably have influenced Respondent in his belief
that the waiting time in the instant case was noncompensable. The
decisions issued in this case and in the Manning Mail Service case
are intended to clarify this issue.
As to the remaining violation regarding underpayments to Mr.
Jaramillo, I find that it was not sufficiently significant to
dictate Respondent's debarment. It involved but a single employee.
Moreover, a comparison of the amount due this employee with the
extent of Respondent's government contracting business, see D. and
R. at 3, suggests that the transgression may be negligible.
Federal Food Service v. Donovan, 658 F.2d 830, 833- 834 (D.C. Cir.
1981). Finally, Respondent's recordkeeping violation apparently
arose largely as the result of [18]
~19
[19] miscommunication and misunderstanding, and was not willful or
deliberate. See, e.g., T. 37-38 (Vol. 1).
Exception #6
In light of the above, there is no need to consider further
this Exception.
ORDER
Wherefore, upon consideration of the entire Record and
submissions of the parties, and with due regard for the purposes of
the debarment sanction in MOSCA, I find that "unusual
circumstances" relieve Respondent from the ineligible list
provisions of Section 5(a) of the Act. I AFFIRM the Decision of
the ALJ in all other respects.
SO ORDERED.
[Roderick DeArment]
Deputy Secretary of Labor
Washington, D.C. [19]
