TEKONSHA MERCHANDISING BARN, INC., 1984-SCC-2 (Dep. Sec'y Aug. 7, 1987)
CCASE:
TEKONSHA MERCHANDISING BARN,
DDATE:
19870807
TTEXT:
~1
[1] U.S. DEPARTMENT OF LABOR
DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210
DATE: August 7, 1987
CASE NO. 84-SCC-2
IN THE MATTER OF
TEKONSHA MERCHANDISING BARN, INC.
A CORPORATION, AND CHARLES E.
DEEVERS, INDIVIDUALLY AND AS AN
OFFICER OF TEKONSHA MERCHANDISING
BARN, INC., RESPONDENTS
BEFORE: THE DEPUTY SECRETARY OF LABOR /FN1/
ORDER
On August 22, 1986, counsel for the Administrator, Wage and
Hour Division, filed a Motion for Clarification of the Deputy
Secretary of Labor's decision of July 28, 1986, in the
above-captioned matter, and on September 12, 1986, filed a Motion
to Withdraw Motion for Clarification and to Substitute Motion to
Vacate Decision of the Deputy Secretary. Counsel for Respondents
filed a response opposing the substantive provisions of
Administrator's Motion of September 12. There was no opposition to
the request to withdraw the August 22 Motion for Clarification,
etc., and the Administrator's motion to substitute IS GRANTED.
It is the Administrator's contention that Respondents [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/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 (1985); Department of Labor Executive Level Conforming
Amendments of 1986, Pub.L. No. 99-619 (November 6, 1986). [1]
~2
[2] failed to perfect their appeal from the decision of the
Administrative Law Judge (ALJ) and that consequently, the ALJ's
decision was the final agency action with respect to the
administrative process of this matter.
In my July 28, 1986, decision, I affirmed the ALJ's ruling
that Respondents were liable for $272,562.34 due as back wages
under the Act and that Respondents should be placed on the
Comptroller General's list of ineligible bidders. In addition to
the Respondents, the ALJ found that E.J.D. Supply, Inc., and its
sole incorporator, E. Joann Deevers, should also be placed on the
list of ineligible bidders because Respondent Charles E. Deevers
had a "substantial interest" in this firm. These two additional
parties were not named Respondents in the complaint and were not
before the ALJ in that proceeding. Consequently, I found that the
ALJ erred with regard to that finding and remanded the case to the
Administrator who is authorized under the regulations to make a
finding on the issue of substantial interest. 29 C.F.R. [sec]
4.12(d) (1) (1986).
At issue is whether or not Charles E. Deevers' letter dated
March 26, 1986, should be considered an actual appeal which lacked
supporting data or simply an intention to appeal which was never
perfected. Although Respondent's letter is somewhat ambiguous,
whether or not it should be considered an appeal or an intention to
appeal is subject to interpretation which is within my discretion.
Respondent, without counsel, [2]
~3
[3] and submitting his letter "pro se," can be afforded more latitude
than one who is represented by counsel. The letter states that "we are
going to appeal" and in a later paragraph states that "we will be
sending supporting reasons [*] for this appeal [*]" [*](emphasis
added)[*]. Although lacking the technical requirements for a perfected
appeal, I nevertheless did consider this a legitimate appeal for the
purpose of accepting the case for review and still consider it as such,
especially since the ALJ's decision contained a procedural error which
could be rectified in my decision. Therefore the motion to vacate my
decision is DENIED. /FN2/
The Respondents and counsel for the Administrator agree that
proper notice was not afforded E.J.D. Supply, Inc., and E. Joann
Deevers, and that their debarment was not appropriate in that
proceeding. During the hearing, when evidence was introduced which
suggested that there were parties responsible in addition to the
named Respondents, the Regional Solicitor could have amended the
complaint, adding these additional names and thus eliminating the
need for another proceeding, since the record indicates that the
Administrator's trial counsel [3]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ In view of this ruling, it is not necessary to consider the
contention of Respondents' new counsel that because the
Administrator forwarded Respondents names to be placed on the list
as provided in my July 26, 1986, order, the arguments of the
Administrator have become moot.
I take administrative notice that Respondents' names were
placed on the list of ineligible bidders effective November 25,
1986. [3]
~4
[4] was unaware of the new corporation at the time the original
complaint was filed. See M & R Allen, Inc., trading as Victor Rug
Company, et al., No. SCA 579-583, May 24, 1978. However, since the
complaint was not amended, neither E.J.D. Supply, Inc., nor E.
Joann Deevers was afforded the opportunity to be heard.
Counsel for the Administrator would interpret my previous
decision as meaning that 29 C.F.R. [sec] 4.12 requires a separate
hearing in all cases to determine substantial interest. This is
not the case. It is, of course, proper and most economical to seek
debarment of firms in which the principal respondents are known to
have a substantial interest in conjunction with the underlying
enforcement proceeding. It is only because this was not done that
section 4.12 becomes the appropriate procedure in the instant case.
Based on the above stated reasons, I decline to vacate my
previous decision of July 28, 1986, and the issue of "substantial
interest" as it applies to E.J.D. Supply, Inc., and E. Joann
Deevers is referred to the Administrator of the Wage and Hour
Division for such further consideration and action pursuant to the
regulations as the Administrator\deems warranted. 29 C.F.R. [sec]
4.12(d) (1).
SO ORDERED.
[Dennis E. Whitfield]
Deputy Secretary of Labor
Washington, D.C. [4]
