ED BIRD TRUCKING INC., 1982-SCA-144 (Dep. Sec'y Nov. 30, 1987)
CCASE:
ED BIRD & ED BIRD TRUCKING INC.
DDATE:
19871130
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210
DATE: November 30, 1987
CASE NO. 82-SCA-144
IN THE MATTER OF
ED BIRD AND ED BIRD TRUCKING, INC.,
RESPONDENTS.
BEFORE: THE DEPUTY SECRETARY OF LABOR
ORDER DENYING PETITION FOR
RECONSIDERATION AND REMAND
Respondents, Ed Bird and Ed Bird Trucking, Inc., on May 6,
1987, filed a Petition for Reconsideration and Remand (Petition for
Reconsideration) of my Decision and Order issued April 20, 1987.
That decision had held that there were no unusual circumstances in
the subject case to relieve Respondents from the ineligible list
provisions of Section 5(a) of the McNamara O'Hara Service Contract
Act of 1965, as amended (SCA or the Act), 41 U.S.C. [secs] 351-358
(1982).
The request for reconsideration challenges my ruling that the
Administrative Law Judge (ALJ) erred in his decision in considering
determinative the impact of debarment on a company's remaining
employees. Respondents claim that the cases cited by the ALJ,
which I analyzed in the April 20 decision and found did not support
the premise for which they had been cited, are not the only cases
that have cited the impact of debarment on [1]
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[2] employees in determining whether unusual circumstances exist.
Respondents cite one further ALJ decision, Lance Security Patrol Agency,
Inc., etc., SCA-1069, September 20, 1979, and assert that since that
decision, the Department has "given controlling consideration of the
effect of debarment on the employees employment with the service
contractor." Petition for Reconsideration at 3. Respondents
misread the ALJ's decision in Lance Security Patrol which found
that the violations charged were nothing more than "simple
negligence," that they were "corrected immediately and
voluntarily," and that the Respondents were "entirely cooperative
in the investigation." Slip op. at 5. The ALJ in Lance did not
find the issue of impact on employees controlling, as occurred in
the instant case.
The record establishes that in this case the ALJ went beyond
the criteria established in Washington Moving and Storage Company,
SCA-168, Decision of the Assistant Secretary, affirmed by the
Secretary, (March 12, 1974) and the Department's regulations under
Title 29 of the Code of Federal Regulations, Section 4.188, when he
relied upon the "impact of the debarment" as the determinative
criterion in his finding.
Respondents allege in their petition for reconsideration and
remand that my decision "improperly set aside findings on fact"
because I rejected the ALJ's judgement that there were not repeated
violations but a single group of violation". The thrust of
Respondents' argument is that because most of the dollar amount of
violations of $14,000 ultimately found under [2]
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[3] the second audit occurred during a period from July through October
in 1981 when the legal requirements at issue in the first audit were still
in dispute, that the second audit violations should not be regarded
as a repeat violation. Respondents' and the ALJ's analysis of the
record on this point simply is not supported by a preponderance of
the evidence. Although Respondents allege that $16,000 in
violations were shown in the second audit for the July-October
period, based on the disputed trip rate issue, Request for
Reconsideration at 6, the cross-examination testimony on this point
by Richard H. Messenger, the Wage and Hour Division Compliance
Officer who conducted the subject investigation, was as follows:
Q. A portion of the liability, then which you
ascertained, which I believe initially was in
the area of $16,000.00 dollars -- is that
correct?
A. Yes, that's correct.
Q. A good portion of that related to the period
of 7-1-81 through 9-3-82 according to the
break-down of the Department of Labor, which
was provided us, which shows a sum of
$8,820.00.
A. Yes.
Q. A portion of that, I take it, is attributable
to the fact that he had not changed to the
actual recordation of time until October of
1981.
A. There would be a portion of that that would be
a part of the back wage, yes.
Hearing Transcript (T.) at 66. If the total liability for the
fourteen month period from July 1, 1981, through September 3, 1982, [3]
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[4] were $8,820.00, the back wage liability for only the four
month period, July, 1981, through October, 1981, was substantially
less, undoubtedly closer to the estimate offered by Respondent's
counsel in closing argument as [*] between $5,000.00 and
6,000.00[*]. Independent of this issue, the record reflects that
the bulk of liability from the second audit derived from
Respondents' continued failure to pay proper base wages and fringe
benefits, violations which had been discussed with Respondents
following completion of the first audit.
In other respects, Respondents' Request for Reconsideration
reargues issues considered in my prior review and conclusions which
Respondents believe are supported by their interpretation of the
record. Upon consideration of these arguments I find that
Respondents have failed to carry their burden of showing that
unusual circumstances existed in this case, or that any matter has
been raised which warr[a]nts remand of this case to the ALJ.
Accordingly, I deny the Petition for Reconsideration and
Remand. The Comptroller General will be notified that there are no
unusual circumstances to relieve Ed Bird and Ed Bird Trucking, Inc.
from the sanction provided by Section 5(a) of the Service Contract
Act.
SO ORDERED.
[Dennis E. Whitfield]
Deputy Secretary of Labor
Washington, D.C. [4]
