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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
MARCO CONSTRUCTION COMPANY WAB Case No. 77-31
and
JOE R. MARTINEZ
Albuquerque, New Mexico Dated: April 24, 1978
APPEARANCES: Joe R. Martinez for Joe R. Martinez and Marco
Construction Company
George E. Rivers, Esquire, K. Wayne Lauderdale,
Esquire for Wage and Hour Division, U.S. Department
of Labor
Decision by: Alfred L. Ganna, Chairman, William T. Evans, Member,
Thomas M. Phelan, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition
of Joe R. Martinez, individually, and the Marco Construction
Company seeking review of the October 17, 1977 decision of the
Administrator of the Wage and Hour Division affirming the
recommendation of the Assistant Regional Administrator for Wage and
Hour that Joe R. Martinez, individually, and Marco Construction
Company be placed on the ineligible bidders list published by the
Comptroller General [1][2] in accordance with Section 3(a) of the
Davis-Bacon Act and 29 CFR [sec] 5.6(b) of the regulations issued
thereunder. The decision was based on findings made pursuant to a
compliance investigation conducted by the United States Energy
Research and Development Administration (ERDA) that Marco
Construction Company had disregarded its obligations to its
employees in violation of the Davis-Bacon Act, 40 U.S.C. 276a, et
seq.
This appeal resulted from the fact that during the last half
of 1974 Marco Construction Company entered into contracts for
construction work at ERDA facilities at Kirtland Air Force Base-
East as subcontractor to Sandia Laboratories. These subcontracts
contained the labor standards provisions required by the
Davis-Bacon Act and the appropriate Department of Labor wage
determinations.
In mid-1975 ERDA investigated Petitioner's operations under
the subcontracts to determine whether employees were being paid the
applicable prevailing wage rates and whether the certified payroll
records submitted to ERDA were accurate. In addition to obtaining
statements from employees and duplicate copies of timecards from
some employees, ERDA compared the certified payrolls submitted by
Petitioner with records maintained by a base security guard service
which signed uncleared individuals in and out of security areas.
This investigation revealed that Petitioner had failed to maintain
accurate records of hours worked and also failed to pay the [2][3]
applicable prevailing wage rates. Also it appeared that the
certified payrolls contained false statements with regard to the
number of hours worked, the wage rates paid and omis[]sion of names
of some Marco employees who worked on the government project. A
total of $2,912.37 was found to be due five employees for a period
from December 1, 1974, to March 5, 1975, but no money was available
for withholding and no back wage payments were made.
The Deputy Administrator of Wage and Hour advised Petitioner
in mid-June 1976, of the apparent violations and his findings that
there was reasonable cause to believe that the alleged violations
constituted disregard of his obligations to his employees under
Section 3(a) of the Davis-Bacon Act unless they could be rebutted.
Petitioner was also advised of the possible imposition of
ineligibility sanctions and was afforded an opportunity to submit
a written statement or attend an informal proceeding to explain the
apparent violations.
In March 1977, a meeting was held between Petitioner and the
Albuquerque Area Director of Wage and Hour and two ERDA
representatives. At this meeting the nature of the violations was
explained to Petitioner and an explanation of the debarment
provisions was provided. Furthermore, Petitioner was provided with
copies of computation sheets showing the amounts due each employee,
the predetermined wage they should have been paid and the rates
they were actually paid. [3]
[4] On May 3, 1977, an informal proceeding was held in
Albuquerque by the Assistant Regional Administrator of the Wage and
Hour Division and Petitioner was again informed of the
investigation findings and invited to present explanation as to why
debarment action should not be taken against him. Also he was
provided with a copy of the security logs.
In the Assistant Regional Administrator's decision of June
15, 1977, he found reasonable basis for debarment on the facts
submitted at the hearing. As a result the Assistant Regional
Administrator recommended that Mr. Martinez, individually, and the
Marco Construction Company be [d]ebarred for a period of 3 years
pursuant to Section 3(a) of the Davis-Bacon Act.
The Petitioner appealed this decision to the Wage and Hour
Administrator in July 1977, and the Administrator affirmed the
Assistant Regional Administrator's decision on October 17, 1977.
It is from the Administrator's decision that Petitioner appealed to
the Wage Appeals Board on November 3, 1977.
The Board considered this matter on the basis of two
Petitions for Review forwarded to the Board by Mr. Martinez, the
record of the case filed by the Solicitor of Labor and the
Statement for the Administrator, Wage and Hour Division, also filed
by the Solicitor of Labor. From a review of the petitions it
appears that Petitioner claims that the information developed by
the investigation was not disclosed to [4][5] Petitioner, that a
case was not made against him by the claimants and that due process
was not adhered to.
From the record of the case it is apparent that Petitioner
was provided with a copy of the computations on which the
underpayments were based and he was given a copy of the security
logs. On three occasions the alleged violations were explained to
him, and he was invited to offer oral or written rebuttal of the
case which was developed against him. It does not appear anywhere
in the record that the discrepancies between the certified
payrolls, the security firm's logs and duplicate copies of some of
the timecards were ever explained by Petitioner. Furthermore,
neither document forwarded to the Board as Petitions for Review
contain any explanation of the facts alleged in the employees[']
statements which were disclosed at either of the two meetings held
with Wage and Hour representatives. Petitioner's objection to the
timing of ERDA's investigation after the contracts were completed
does not excuse Petitioner from paying the predetermined prevailing
wage rates and submitting accurate certified payrolls as required
by the labor standards provisions of the contract.
Petitioner's claim that he was not afforded due process:
that is, notification of the allegations against him and an
opportunity to be heard on these allegations, is simply not
supported by the record. On at least three occasions Petitioner
had the allegations explained to him by representatives of the Wage
and Hour Division. Also he was provided with copies of the Wage
and Hour computations [5][6] and security firm's logs, and was
given at least four opportunities to rebut this evidence. Although
Petitioner has not offered any rebutting evidence, this does not
constitute a showing of lack of due process.
In view of these conclusions, the decision of the
Administrator, Wage and Hour Division, is hereby affirmed and the
petitions are hereby dismissed.
BY ORDER OF THE BOARD
Craig Bulger, Executive Secretary
Wage Appeals Board [6]
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