CCASE:
DOL V. WILLIAM A. CIMPI
DDATE:
19861031
TTEXT:
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[1] THE UNDER SECRETARY OF LABOR
WASHINGTON, D. C.
20210
In the Matter of
U.S. DEPARTMENT OF LABOR,
Complainant
v. Case No. 83-SCA-49
WILLIAM A. CIMPI, an Individual
d/b/a CIMPI TRANSPORTATION CO.,
Respondent
DECISION OF THE UNDER SECRETARY
This matter is before me pursuant to the McNamara-O'Hara
Service Contract Act of 1965, as amended (SCA or the Act), 41
U.S.C. [secs] 351-358 (1982), and the rules and regulations
thereunder, 29 C.F.R. [secs] 6.15 - 6.21 and Part 8 (1986). /FN1/
Respondent has for many years been the recipient of mail haul
contracts awarded by the United States Postal Service. This case
involves violations which took place between 1980 and 1982 under
contracts to deliver mail, on a route between New York City and
Binghamton, Syracuse, Elmira, and Rochester, New York.
In his decision the Administrative Law Judge (ALJ) has quite
fully outlined the facts in this matter. With one exception, I [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Section 8.0 of 29 C.F.R. (1985) provides that the Secretary's
designee shall perform the functions of the Board of Service
Contract Appeals during the interim period prior to the appointment
of a duly constituted Board. On February 24, 1984, the Secretary
assigned this responsibility to the Under Secretary. [1]
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[2] concur with his findings regarding the underpayment of wages
and fringe benefits to the five employers affected. The $1,356.96
paid to Howard Randall by Respondents' insurance agent following
commencement of the Department's investigation, although within the
violation, should have been credited against Respondents'
underpayment total. Respondent's Exhibit C. Accordingly, the
ALJ's order is modified to reflect a new total underpayment of
$5,689.49, $216.66 of which is designated to be paid to Howard
Randall.
With respect to the issue of debarment, I concur with the
conclusion of the ALJ that "Respondent's delinquency ... does not
fall within the 'unusual circumstances' proviso." ALJ's Decision,
Order and Recommendation (ALJ's Decision) at 8. The guidelines for
determining whether there are unusual circumstances which would
warrant relief from the sanction of Section 5 of the Act are
established in Washington Moving and Storage Co., No. SCA-168,
March 12, 1974, as follows:
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 seriousness of past 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 disregard of whether they were or not, or
other culpable conduct (such as deliberate falsification
of records); whether the Petitioner's liability turned on
bona fide legal issues of doubtful certainty; [2]
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[3] whether the petitioner 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 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
recordkeeping provisions, does not permit a finding of
"unusual circumstances."
Moreover, these guidelines "provide a rational and lawful approach"
for making the requisite determination. Federal Food Service, Inc.
v. Donovan, 658 F.2d 830, 833 (D.C. Cir. 1981).
Here, Respondent had a history of repeated violations; six
sep[a]rate compliance investigations and findings of underpayments,
dating back to 1967. These included wage and fringe benefit
violations identical to those in this case. The regulations are
specific that there cannot be relief from debarment where a
contractor has a history of similar violations. 29 C.F.R. [sec]
4.188(b)(3)(i).
The regulations also provide, id., that relief from debarment
cannot be in order where the circumstances are a result of culpable
conduct such as culpable neglect to ascertain whether practices are
in violation. The variety and persistent [3]
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[4] extent of Respondent's violations all seemed to be directed towards
the single objective of more income for Respondent at the expense of the
employees. These employees were deliberately deprived, in a variety of
ways, of wages and benefits to which they were entitled. Respondent's
explanations for withholding fringe benefits, miscalculation of vacation
time and trip hours, and the adoption of a punitive "breakdown" policy,
fall considerably short of adequate. Respondent's claim that he relied
on the advice of a former Government employee for adoption of his
vacation payment practices and implemented other negative employee wage
and fringe benefit practices without first officially ascertaining
whether those practices were in compliance, and in fact, disregarding
whether they were or not, is simply not reasonable conduct for an
experienced business person, especially one whose business has been
based on these same type of Federal contracts for a period exceeding
twenty-five years.
In summary, I find that the decision of the ALJ, except for the
credit Respondent was due for the payment to Howard Randall, was
correct regarding the substantive violations, and Respondent IS
ORDERED to pay to the Employment Standards Administration
$5,689.49, representing underpayment to employees. This order
shall be carried out immediately. [4]
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[5] In addition, I agree with and adopt the ALJ's recommended
conclusion that there are no unusual circumstances to justify
relief from being placed on the list of ineligible bidders pursuant
to SCA Section 5(a). 41 U.S.C. [sec] 354(a). The Comptroller
General shall be notified accordingly.
SO ORDERED.
[Dennis E. Whitfield]
Under Secretary of Labor
Dated: OCTOBER 31, 1986
Washington, D.C. [5]
