ABLE BUILDING MAINTENANCE AND SERVICE CO., INC., 1985-SCC-4 (Dep. Sec'y Feb. 27, 1991)
CCASE:
DOL V. ABLE BUILDING MAINTENANCE
DDATE:
19910227
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210
DATE: February 27, 1991
CASE NO. 85-SCC-4
IN THE MATTER OF
U.S. DEPARTMENT OF LABOR,
COMPLAINANT,
ABLE BUILDING MAINTENANCE AND
SERVICE CO., INC., A CORPORATION,
AND ALONZO REID, INDIVIDUALLY,
RESPONDENTS.
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), 41 U.S.C. [secs]
351-358 (1982), the Contract Work Hours and Safety Standards Act,
as amended (CWHSSA), 40 U.S.C. [secs] 321-333 (1982), and
regulations promulgated thereunder at 29 C.F.R. Parts 4, 5, 6 and
8 (1989). Respondents filed a petition for review of the Decision
and Order (D. and O.) of Administrative Law Judge (ALJ) Robert L.
Hillyard ordering that they not be relieved from the ineligible
list sanctions of Section 5(a) of the MOSCA, 41 U.S.C. [sec]
354(a), [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/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). [1]
~2
[2] and the CWHSSA. /FN2/ Respondents also contest the ALJ's
findings concerning the holiday pay violation under the Annapolis
contract and the minimum wage violation under the Dayton contract,
see infra, the conclusion that Respondent Alonzo Reid is a party
responsible /FN3/ and the finding that they are delinquent in
paying $5,310.80 in health and welfare benefits and minimum wage
payments. Respondents' Petition for Review and Supporting Brief
(Respondents' Petition) at 2. The Administrator filed a petition
for review contesting the finding that two employees were exempt
from the MOSCA and the CWHSSA as supervisors and challenging the
ALJ's failure to award overtime to nineteen employees.
BACKGROUND
Able Building Maintenance and Service (Able) provides
janitorial and custodial services throughout the United States.
Alonzo Reid is the President of Able, and his brother, Charles
Reid, is its Vice President. D. and O. at 2. In 1983, Able was
investigated for possible MOSCA and CWHSSA violations with respect
to work performed under three government contracts. D. and O. at
3; Transcript (T.) at 16. They are (1) a contract with Wright-
Patterson Air Force Base, Dayton, Ohio (the Dayton contract), [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ Although the CWHSSA does not specifically provide for
debarment as a sanction against violations, its structure and
legislative history support the Secretary of Labor's authority to
institute that remedy by regulation. [Janik] Paving &
Construction. Inc. v. Brock, 828 F.2d 84, 89-92 (2d Cir. 1987).
/FN3/ Respondents have not offered any argument in support of this
point of appeal. The ALJ's conclusion that Alonzo Reid is a party
responsible is therefore affirmed. [2]
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[3] Complainant's Exhibit (CX) 3; (2) a contract with the U.S.
Naval Academy, Annapolis, Maryland (the Annapolis contract), CX 1;
and (3) a contract with the Navy Aviation Supply Office,
Philadelphia, Pennsylvania (the Philadelphia contract), CX 2. The
total dollar amount of the three contracts was $1,051,594.90.
The Solicitor of Labor filed a complaint against Able and
Alonzo Reid on November 21, 1984, alleging that the Respondents
failed and refused to pay the service employees minimum monetary
and fringe benefits required by the contracts, Section 2(a)(1) and
(2) of the MOSCA, 41 U.S.C. [sec] 351(a)(1) and (2), and Section
4.6 of the regulations, 29 C.F.R. [sec] 4.6. The complaint also
alleged that Respondents failed and refused to pay proper overtime
for work in excess of eight hours per day and/or forty hours per
week in accordance with Section 102 of the CWHSSA, 40 U.S.C. [sec]
328. The complaint claimed that Respondents, by reason of the
alleged violations, were subject to Section 5(a) of the MOSCA, 41
U.S.C. [sec] 354(a), which provides that violators of the MOSCA
shall be denied the award of government contracts for a three year
period absent a determination that "unusual circumstances" exist.
The ALJ found that Respondents had underpaid a total of
$28,815.35 in health and welfare benefits under the Annapolis and
Philadelphia contracts and that this amount has been withheld by
the contracting agency pending the outcome of this case. D. and O.
at 8-9, T. at 9. With regard to the Dayton contract, the ALJ
concluded that Able had accrued $14,604.40 in health and welfare
benefits and had paid $11,102.00 to an insurance company in partial [3]
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[4] satisfaction of its health and welfare benefits liability.
D. and O. at 9. He noted that "there remains a deficiency of
$,502.40, although it is not clear from the record what period of
time this represents." D. and O. at 10.
In the area of holiday pay, the ALJ found that Respondents
were responsible for violations under the Annapolis contract in the
amount of $419.21 and under the Philadelphia contract in the amount
of $555.76, and that each amount remained unpaid. He also
concluded that Respondents had violated the MOSCA under the Dayton
contract by failing to promptly advise the employees who worked on
Good Friday, April 1, 1983, a scheduled holiday, that they were
entitled to receive a substitute holiday. Since a substitute
holiday was eventually provided in December 1983, however, the ALJ
reasoned that there was no liability for holiday pay as a result of
this violation. D. and O. 10-11.
The ALJ next determined that two employees at Annapolis who
allegedly were underpaid as a result of not receiving overtime,
Susan Thacker and Bruce Walker, were not entitled to overtime
payments because they were exempt supervisory employees under
Section 8(b) of the MOSCA /FN4/, 41 U.S.C. [sec] 351(b). D. and O.
at 11-14. He decided, however, that Respondents violated the
CWHSSA [4]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN4/ Insofar as the ALJ found that the alleged violation was
failure to pay overtime, the question as to whether these employees
were covered employees due overtime compensation should have been
addressed under Sections 102 and 103 of the CWHSSA, 40 U.S.C.
[secs] 328, 329 and the implementing regulation at 29 C.F.R.
[sec] 4.181(b). [4]
~5
[5] by failing to properly compensate some Philadelphia employees
for overtime worked in the amount of $404.73. D. and O. at 14.
The alleged minimum wage violation concerned student employees
at Dayton who were paid less than the other employees. The ALJ
found that Able violated the MOSCA by failing to pay these
employees the prevailing wage rate and that the underpayment
totalled $1,808.40. /FN5/ D. and O. at 15. He concluded that the
total underpayment for all violations was $35,505.85. D. and O. at
19.
Concerning the debarment issue, the ALJ concluded that the
health and welfare benefits violations at Annapolis and
Philadelphia were not willful or the result of culpable neglect. D.
and O. at 17. On the other hand, he found that Respondents'
conduct involving the health and welfare benefits violations at
Dayton did demonstrate culpable neglect. D. and O. at 17-18.
The ALJ decided that the underpayment of wages to the students
employed under the Dayton contract was willful. He did not
consider the holiday pay violation at Dayton involving Good Friday
to be due to willfulness or culpable neglect, in part because Good
Friday was the first day of the contract period. The ALJ found the
holiday pay violations at both Philadelphia and Annapolis to be due
to willfulness or culpable neglect. D. and O. at 18. Based
on [5]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN5/ The Administrator acknowledges, as Respondents argue, that
Able paid the full amount of the back wage obligations on the
Dayton contract prior to the hearing. Administrator's Petition for
Review and Response (Admin. Petition) at 10 n.6. I therefore
reverse the ALJ's determination that this amount and the $3,502.40
found unpaid for health and welfare benefits, a total of $5,310.80,
remain to be paid under the Dayton Contract. [5]
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[6] the entire facts and circumstances of the case, the ALJ decided
that he could not find unusual circumstances to relieve Respondents
from the ineligibility list sanction of the MOSCA and the CWHSSA.
D. and O. at 19.
DISCUSSION
A. Overtime under the Annapolis Contract
As the Administrator argues, Admin. Petition at 8, the ALJ
denied this claim because he erroneously concluded it was based on
the failure to pay overtime to two employees, Thacker and Walker,
who he found to be exempt from the overtime requirements as
supervisors. See D. and O. at 11-14. A review of the record
reveals that this claim was based on a failure to pay overtime to
nineteen other employees. See CX 6 and 7; Brief in Support of
Petitioner's Findings of Fact and Conclusions of Law at 10.
Respondents do not dispute the Administrator's claim for overtime
pay in the amount of $405.15. Response and Reply of Respondents at
2. Accordingly, I reverse the ALJ's determination that there was
no overtime violation on the Annapolis contract.
B. Exempt Employees under the Annapolis Contract
The compliance officer assessed underpayments totalling
$2,021.47 for MOSCA violations involving the two employees in
question, Susan Thacker and Bruce Walker. CX 4 and 5. Under
Section 8(b) of the MOSCA, 41 U.S.C. [sec] 357(b), employees are
exempt from the requirements of that Act if they are employed in a
bona fide executive, administrative or professional capacity. The
ALJ analyzed this issue under the criteria at 29 C.F.R. [sec] 541.1
and [6]
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[7] concluded that Thacker and Walker were exempt employees
because they exercised the necessary supervisory and managerial
authority, performed only incidental custodial work and satisfied
the salary requirements. /FN6/ D. and O. at 12-14.
The Administrator argues that Thacker and Walker do not meet
the requirement of being salaried employees because their income
varied depending on the number of hours they worked. Admin.
Petition at 11-13. Compensation on a salaried basis occurs when an
employee regularly receives, each pay period, a predetermined
amount, not subject to reduction because of variations in the
quality or quantity of work performed. Brock v. Superior Care,
Inc., 840 F.2d 1054, 1061 (2d Cir. 1988), citing 29 C.F.R. [sec]
541.118. But see Brock v. Claridge Hotel and Casino, 846 F.2d 180,
184 (3d Cir. 1988) (hourly wage cannot be transformed into payment
on a salary basis by virtue of a guaranteed minimum weekly
payment).
The payroll ledgers for Thacker and Walker support the ALJ's
finding that they were salaried employees. Thacker's payroll
ledger shows no instance where her compensation was reduced during
any pay period. Respondent's Exhibit (RX) 8. For Walker, however,
there appears to have been one instance in which his compensation
was reduced. For the two week pay period ending April 1, 1983,
Walker worked forty-two hours and his gross compensation was
listed [7]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN6/ As the Administrator notes, Admin. Petition at 7 n.3, the ALJ
nevertheless upheld the assessment of $2,021.47 for underpayments
to Thacker and Walker for MOSCA violations. D. and O. at 8-9; CX
4 and 5. [7]
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[8] as $330.50, rather than the $528.80 he usually received per
eighty hour pay period. RX 9. Upon closer inspection, however, it
is apparent that Walker received two payments for the period ending
April 15, 1983. One represents his normal compensation of $528.80.
The other is a payment of $198.30 and is not associated with any
period of work. If this figure is added to the $330.50 paid for
April 1, 1983, the total is $58.80 which equals Walker's normal
compensation.
Although not specifically /FN7/ argued by Respondents, I infer
from the payroll ledger that Able's intent in paying the $198.30
was to fully compensate Walker for the pay period ending April 1,
1983, notwithstanding that he had worked considerably less than
eighty hours. Inasmuch as there is no evidence to show that either
Thacker's or Walker's compensation was subject to reduction for
variations in the quality or quantity of work performed, I conclude
that they were paid on a salary basis.
The Administrator also contends that Thacker and Walker cannot
be exempt employees because Charles Reid's testimony /FN8/ [8]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN7/ Respondents simply contend that, with respect to Thacker and
Walker, "in no case does [sic] the payroll records indicate that
they were paid less than 40 hours." Response and Reply of
Respondents at 5.
/FN8/ The Administrator additionally argues that the ALJ should not
have accepted Charles Reid's testimony that Thacker and Walker
performed primarily supervisory duties, see D. and O. at 13,
because, as the brother of Alonzo Reid and a partner in Able,
Charles Reid's testimony was self-serving. Admin. Petition at
14-15. I reject this contention. A witness's status as a relative
and business partner of a litigant does not automatically make his
testimony self-serving. It is the province of the ALJ as trier of
fact to make the assessments as to witness credibility. [8]
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[9] established that Thacker spent more than twenty percent /FN9/
of her time performing non-exempt duties. Admin. Petition at 11,
14. See 29 C.F.R. [secs] 541.1(e), 541.112(a). Although Reid
testified that Thacker spent an hour and a half to two hours per
day doing actual work, defined as hands on cleaning, T. at 226, he
also stated that Walker and Thacker would perform manual, custodial
work once or twice a week. T. at 201-02. In my view, this testimony
fails to establish that either Thacker or Walker performed
non-exempt work more than twenty percent of the time. Inasmuch as
the Administrator does not contend that Thacker or Walker failed to
satisfy any of the other criteria of 29 C.F.R. [sec] 541.1, I find
that both are executive employees exempt from the requirements of
the MOSCA. Accordingly, I modify the ALJ's conclusion that
Respondents are liable for $28,815.35 in health and welfare
benefits under the Philadelphia and Annapolis contracts by
subtracting the amount of $2,021.47 found due to Thacker and
Walker. Respondents' liability for that category is thus
$26,793.88.
C. Debarment under the MOSCA
Relief from the ineligible list sanction of Section 5(a) of
the MOSCA is possible only where there is a finding of unusual [9]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN9/ Respondents argue that, under 29 C.F.R. [sec] 541.119, as
high salaried executive employees, Thacker and Walker are not
subject to the twenty percent limitation on non-exempt work.
Response and Reply of Respondents at 4. While the record is not
clear that Thacker and Walker earned more than $250.00 per week
throughout the contract period, see CX 4, a prerequisite to the
application of Section 541.119, I need not address this contention
in view of my conclusion that there is no reliable evidence that
Thacker or Walker spent more than twenty percent of their time
performing non-exempt work. [9]
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[10] circumstances, and the burden of establishing their existence
rests with the violator. Section s(a) is a particularly
unforgiving provision of a demanding statute. A to Z Maintenance
Corp. v. Dole, 710 F. Supp. 853, 855 (D.D.C. 1989). A contractor
seeking an "unusual circumstances" exemption from debarment must,
therefore, run a narrow gauntlet. Id. at 856.
Relief from debarment cannot be in order where the
Respondent's conduct is willful, deliberate or of an aggravated
nature, or where the violations are a result of culpable conduct.
Prerequisites to relief include a good compliance history,
cooperation in the investigation, repayment of moneys due, and
sufficient assurances of future compliance. Even when the
prerequisites are satisfied, and none of the aggravated
circumstances exist, a variety of other factors must be considered.
Among these are whether the contractor previously has been
investigated; the contractor's efforts to ensure compliance: and
the nature, extent, and seriousness of any past or present
violations. 29 C.F.R. [sec] 4.188(b)(3).
1. Health and Welfare Benefits under the Dayton Contract
Respondents attempted to comply with the health and welfare
benefits requirement by setting up an insurance program with Mutual
Security in June 1983. D. and O. at 9. It was not until four
months after they allegedly sent the first premium payment that
Respondents became aware that the insurance program was not in
effect. D. and O. at 17; T. at 157. The ALJ concluded that since
four months had lapsed with no benefits program there was a lack of [10]
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[11] diligence on Respondents' part to ensure they were in
compliance with the contract, and that constituted culpable
neglect. D. and O. at 18.
In response, Able alleges that it had no reason to believe
coverage was not being provided and maintains that throughout the
contract Dayton employees had insurance coverage. /FN10/
Respondent's Petition at 12-13. Alonzo Reid testified that he paid
the premiums by check, but admits that he received no canceled
checks. T. at 157. Given these circumstances, Reid should have
inquired as to the status of the insurance account, certainly
before four months had passed. Moreover, contrary to Respondents'
allegations, and by their own admission, coverage was not provided
throughout the contract period because there was no coverage during
April and May, the first two months of the contract. See CX 3. I
therefore conclude that the ALJ properly found that Respondents'
conduct [11]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN10/ As additional evidence of its good faith, Able contends that
it overpaid health and welfare benefits in reliance upon the
Compliance Officer. Respondent's Petition at 11 n.5, 14-15. A
review of the record refutes this contention. The Compliance
Officer determined that Able owed $14,604.40 for health and welfare
benefits during the contract period. CX 14. To discharge its
responsibility, Able paid a total of $13,452.20 to Mutual Security
for insurance coverage from June 1983 to October 1983 for sixty-two
employees. CX 12. Of this amount, however, only $8,356.86 could
be credited to Able because that was all that the wage
determination required to be paid for those employees. T. at 48.
The difference was excess insurance coverage. The additional
$6,247.54 was assessed against Able for coverage due all employees
for April and May 1983 and for nineteen employees who were not
insured for June 1983 to October 1983. CX 14.
Concerning the reliance issue, Respondents state only that the
insurance company represented that the insurance program had been
approved by the Compliance Officer. Respondents' Petition at 12.
The Compliance Officer denies having approved the program, T. at
113, and Respondents do not take issue with his testimony. I
therefore find that this contention is without merit. [11]
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[12] concerning the health and welfare benefits under the Dayton
contract amounted to culpable neglect which precludes relief from
the debarment sanction. See 29 C.F.R. [sec] 4.188(b)(3).
2. Minimum Wage Violation under the Dayton Contract
Able hired several student workers and paid them $4.00 per
hour rather than the prevailing rate of $6.64 per hour, reasoning
that they were extra help and did not perform work under the
contract. The ALJ noted, however, that Alonzo Reid admitted that
the students performed contract work. The ALJ therefore found that
the underpayment was willful. D. and O. at 15, 18.
Able again argues that the students were not performing tasks
required by the contract and further notes that no regular
employees were replaced. Respondents' Petition at 16, 18. The
record, however, plainly confirms the ALJ's conclusion that Alonzo
Reid conceded that the students performed work under the contract.
T. at 163, 176. As such, they are service employees under the
MOSCA entitled to the prevailing wage established by the wage
determination. 29 C.F.R. [sec] 4.150. Inasmuch as Respondents
were aware that the students were performing work under the
contract, I find that the evidence supports the ALJ's determination
that this violation was willful.
3. Holiday Pay under the Annapolis and Philadelphia
Contracts
The ALJ found that the holiday pay violations at Annapolis
stemmed from Respondents' not paying employees who were off duty
the day before and day after a holiday. Able followed this policy [12]
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[13] which allegedly was permitted under an existing collective
bargaining agreement (CBA). The ALJ noted that no CBA was offered
as evidence and the wage determination did not place any
restrictions on holiday pay. D. and O. at 10. As a result, he
attributed this violation to willfulness or culpable neglect.
Able argues that the ALJ erred because the wage determination
itself states that it is based on a CBA. Respondents' Petition at
19. Able's argument must fail. Any restrictions upon receipt of
holiday pay must appear on the wage determination, 29 C.F.R. [sec]
4.174(a), and, as the ALJ observed, this wage determination had
none. Moreover, if Able intended to rely on the provisions of a
CBA, it was incumbent on it to introduce the CBA into evidence.
Concerning the Philadelphia contract, the ALJ concluded that
Able's only defense to the underpayment of holiday pay was that the
underpayment was a small amount. From this, the ALJ found that the
omission could be due only to willfulness or culpable neglect. D.
and O. at 11, 18. Able contends that this underpayment related
only to the appropriate number of holiday pay hours due certain
part time employees. Respondents' Petition at 20. This statement
is insufficient because it fails to provide any reasons for the
underpayment and there is, therefore, no basis for concluding that
the violation was due to unusual circumstances. Accordingly, I
affirm the ALJ'S conclusion that this violation was due to
willfulness or culpable neglect. See In the Matter of James B.
Hewette, Individually and Doing Business As James Hewette Mailer
Hauler, Case No. SCA-1229, slip op. at 9, Dep. Sec. Decision [13]
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[14] January 19, 1989 (admission of violations with no
justification supports characterization of conduct as culpable
neglect).
D. Debarment under the CWHSSA
The ALJ did not discuss the CWHSSA violations in relation to
debarment, see D. and O. 17-18, but concluded that the overtime
violations at Philadelphia, along with the other violations
demonstrated, if not willfulness, at least culpable neglect. D.
and O. at 19. Under Section 5.12(a) of the applicable regulations,
29 C.F.R. [sec] 5.12(a), a contractor "shall" be debarred for a
period not to exceed three years whenever found to be in aggravated
or willful violation of the CWHSSA.
In order to meet its payroll, taxes, and supply expenses for
the first few months of the Philadelphia and Annapolis contracts,
Able entered into a financial arrangement with Thomas Funding of
New York City, a factor. Under the arrangement, Able assigned all
monies due on the contracts to Thomas Funding which advanced a
percentage of the billings to Able. D. and O. at 3. Able argues
that the overtime violation at Philadelphia was a minimal amount
responsibility of Thomas Funding. Respondents' Petition at 20. I
disagree. Unlike an agreement to recognize a successor in
interest, see, e.g., 41 C.F.R. [sec] 26.402(d) (1983), in which the
successor assumes all obligations under the contract, where there
is only an assignment of proceeds, the responsibility for
fulfilling contractual obligations remains with the contractor.
Able states that the overtime violations at both Annapolis
and Philadelphia were due to a failure to compensate employees for
time [14]
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[15] and one-half after eight hours work in a day. Response and Reply
of Respondents at 2. See 40 U.S.C. [sec] 328(a) (1982). /FN11/ The
fact that no employees were paid daily overtime would seem to preclude
these violations from being inadvertent. In view of the clear statutory
command requiring the payment of overtime after eight hours of work in a
day and the absence of any legitimate explanation as to why the overtime
was not paid, I conclude that the overtime violations are aggravated or
willful violations /FN12/ of the CWHSSA.
CONCLUSION AND ORDER
In accordance with the foregoing discussion, Able remains
liable for $26,793.88 in health and welfare benefits under the
Philadelphia and Annapolis contracts, $419.21 in holiday pay under
the Annapolis contract, $555.76 in holiday pay under the
Philadelphia contract, $404.73 in overtime pay under the
Philadelphia contract and $405.15 in overtime pay under the
Annapolis contract, for a total liability of $28,578.73. The
contracting agency is hereby ordered to release to the Wage and
Hour Division $28,578.73 of the $28,815.35 being withheld under the
Philadelphia and Annapolis contracts to satisfy this liability.[15]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN11/ Section 102 of the CWHSSA was amended in 1985, after these
contracts had expired, to dispense with the daily overtime
requirement. Pub. L. No. 99-145, 99 Stat. 734 (1985).
/FN12/ Under some circumstances, relief from debarment may be
appropriate where the amount of the violations is de minimis. See
Federal Food Service, Inc. v. Donovan, 658 F.2d 830, 834 (D.C. Cir.
1981). Where, however, as in this case, the violations are found
to be aggravated or willful rather than inadvertent, their de
minimis nature will not preclude application of the debarment
sanction. A to Z Maintenance, 710 F. Supp. at 860. [15]
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[16] As the ALJ found, there are several substantial violations
of the MOSCA for which Respondents have failed to demonstrate
unusual circumstances /FN13/ as well as aggravated or willful
violations of the CWHSSA. Accordingly, the ALJ's order is affirmed
and, pursuant to Section 5(a) of the MOSCA and my authority under
the CWHSSA, the Comptroller General will be notified to place the
names of Respondents on the list of those ineligible to enter into
contracts with the Government.
SO ORDERED.
[Roderick DeArment]
Deputy Secretary of Labor
Washington, DC [16]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN13/ Additionally, Respondents have admitted to previously being
investigated for MOSCA violations, T. at 169, and contrary to the
ALJ's conclusion, D. and O. at 17, the Administrator presented
information regarding past violations resulting in debarment by
providing a case citation, In the Matter of Able Building
Maintenance and Service Co., Inc., SCA 389-390, ALJ Decision, May
29, 1975, in his post-hearing brief. Brief in Support of
Petitioner's Findings of Fact and Conclusions of Law at 23. In
that case, as in the instant ease, Respondents were found liable
for holiday pay violations. The Secretary of Labor forwarded their
names to the Comptroller General on March 19, 1976, a fact of which
I take administrative notice. [16]
