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<![CDATA[
CCASE:
C. M. BONE, ACME PAINTING
DDATE:
19780607
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
C.M. BONE, ACME PAINTING CO., WAB Case No. 78-04
Subcontractor,
Savannah, GA Dated: June 7, 1978
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 Mr. C.M. Bone, individually, and the Acme Painting Co. seeking
review of the Decision of the Administrator, dated October 27,
1977, and the Administrator's denial on January 17, 1978, of
petitioner's request for reconsideration. In his decision the
Administrator affirmed the recommendation of the Assistant Regional
Administrator for Wage and Hour that the C.M. Bone and Acme
Painting Co. [1]
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[2] should be placed on the ineligible bidders list
of the Comptroller General in accordance with Section 3(a) of the
Davis-Bacon Act (40 U.S.C. 276a et seq.) and 29 CFR [sec]
5.6(c)(1). The decision was based on a finding that petitioner's
violations of the Davis-Bacon Act constituted a disregard of his
obligations to his employees within the meaning of section 3(a) of
the Act.
This appeal arose from the fact that in mid-1974 Acme
Painting Co., wholly owned by C.M. Bone, subcontracted to paint 154
buildings at Hunter Army Airfield, Georgia. This subcontract
contained the labor standards provisions required by the
Davis-Bacon Act and the appropriate Department of Labor wage
determination.
Certified payrolls filed by Acme disclosed certain errors,
omissions and discrepancies when reviewed by the contracting
officer. On at least seven occasions these recurring errors were
called to he attention of either the prime contractor or C.M. Bone.
Because of the repetitious nature of the errors the contracting
officer requested the Regional Office of Wage and Hour to conduct
an investigation of the project. This investigation conducted in
the fall of 1974 disclosed that Petitioner had submitted falsified
payrolls and had underpaid and misclassified certain employees.
These labor standards violations were discussed in detail
at a conference held in November 1974 between the prime contractor,
C.M. Bone and representatives of the Department of Labor. When the [2]
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[3] contract was completed in December 1974, Wage and Hour again
reviewed the payrolls and additional violations were discovered
which resulted in a finding of 45 employees being due $4101.10
for the various violations. Thereafter Acme made restitution
to those employees it could locate and deposited $548.90 with the
United States for wages due 12 employees Petitioner could not
locate and $20.00 liquidated damage for contract work hour
standards violations.
In September 1976 the contracting agency forwarded its
final report to Wage and Hour for possible debarment proceedings.
On April 12, 1977, the Deputy Administrator advised Mr. Bone in
detail of the violations and noted that even after the violations
were brought to Petitioner's attention, Petitioner failed to take
sufficient corrective action to prevent repetition of the
violations. The Deputy Administrator also advised Petitioner that
there was reasonable cause to believe that the violations
constituted a disregard of Petitioner's obligations to his
employees and that there was offered an opportunity to submit
written arguments in rebuttal and to have an informal proceeding to
present evidence.
In July 1977, an informal proceeding was held with Mr. and
Mrs. Bone being present with their attorney, and the Assistant
Regional Administrator of the Wage and Hour Division. Three days
after the hearing the Assistant Regional Administrator sent a
letter to [3]
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[4] Petitioner stating he found that no facts or
circumstances had been presented at the hearing to explain the
submission of false payrolls and the underpayments. The Assistant
Regional Administrator decided that Petitioner should be debarred
as provided by Section 3(a) of the Davis-Bacon Act.
Petitioner appealed this decision to the Wage and Hour
Administrator claiming among other things the firm had performed
at least four government contracts since the contract in question
without error, and also, that the Department of the Army at Fort
Stewart had effectively barred Petitioner from performing
government contracts at the facility for approximately 3 years.
Petitioner claimed that Acme had demonstrated an ability to comply
with the labor standards and that the actions of Army
representatives at Fort Stewart had constituted sufficient
sanctions against Petitioner.
The Administrator affirmed the decision of the Assistant
Regional Administrator on October 27, 1977, and denied a subsequent
request for reconsideration on January 17, 1978. It is from the
Administrator's decisions that the Petitioner appealed to the Wage
Appeals Board on February 7, 1978.
The Board considered this matter on the basis of the
Petition for Review forwarded to the Board on behalf of C.M. Bone
and Acme Painting Company, the record of the case filed by the [4]
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[5] 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 petition it appears that Petitioner claims
that neither Mr. Bone nor his bookkeeper, Mrs. Bone, were
familiar with procedures for paying predetermined wage rates
on a Federal project, that the evidence was insufficient to
constitute a disregard of obligations to its employees under [29]
CFR 5.6(c)(1), that they have already been debarred for 3 years
by the action of the Army at Fort Stewart, and the debarment is
too harsh under these circumstances.
From the record of the case the Board finds a persistent
effort on the Petitioner's part to avoid paying his employees
either the proper predetermined wage rate for the appropriate
classification, or the holiday pay when required, and that the
payrolls were repeatedly altered to make it appear that the
predetermined wage rate had been paid. Petitioner claims that he
and his wife did not understand the procedure to obtain additional
classifications for workers and were not aware of how to compute
an acceptable composite wage rate. It does not appear that either
of these problems had any bearing on the violations that were
found to exist. Furthermore, allegations of inexperience do not
appear credible when Petitioner admits to having 25 to 30
government construction projects prior to the subject project
(Petition [5]
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[6] for Review, Exh C) and Mrs. Gail Bone admits that
for 2 years prior to this incident she had been preparing payrolls
which were submitted to the Army (Petition for Review, Exh A).
Finally, it was admitted by Petitioner that there was no
justification for submitting falsified payrolls and he has offered
no explanation to justify his conduct. In view of this, the Board
finds that the Petitioner's repeated underpayments to his employees
and his falsification of payrolls constitute a disregard of his
obligations to his employees within the meaning of Section 3(a)
of the Davis-Bacon Act.
Concerning Petitioner's claim that he has already in
effect been debarred for about 3 years since the alleged violations
because the Army denied Acme awards after that time, Petitioner
also admits to having performed 11 government construction
contracts since 1975 (Petition for Review, p. 3). Petitioner
cites his performance on these 11 contracts to support his claim
of current compliance. Petitioner cannot have it both ways.
It is obvious from his petition that he has not been effectively
debarred since his problems at Hunter Army Airfield. [6]
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[7] In view of these conclusions, the decision of the
Administrator, Wage and Hour Division, is hereby affirmed and the
petition is dismissed. [7]
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
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