CCASE:
THOMAS L. MOORE
DDATE:
19791128
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
THOMAS L. MOORE, President, WAB Case No. 79-05
& T.A.M., INC. Dated: November 28, 1979
ORDER DISMISSING MOTION FOR RECONSIDERATION
The Wage Appeals Board is in receipt of a Motion for
Reconsideration and Clarification from Petitioner of the Board's
decision in the above-captioned appeal dated August 16, 1979. In
its decision the Board affirmed the Administrator's decision which
in turn affirmed a recommendation that Petition be placed on the
inel[i]gible bidders list of the Comptroller General for violation
of Section 3(a) of the Davis-Bacon Act.
Petitioner's present motion is based on its claims that the
Board failed to identify the factual predicate upon which it
affirmed the Administrator's decision, that the Board disregarded
Petitioner's right to due process of law, that the Board
erroneously relied on the precedent of In re Bone WAB Case No.
78-04 (June 7, 1978) and that the Board applied an unprecedented
rule of law that fails to consider the circumstances surrounding
the violations.
On October 23, 1979, the Solicitor of Labor filed a Response
to Petitioner's Motion for Reconsideration and [1]
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[2] Clarification. The Board considered the Petitioner's Motion and
the Solicitor's Response in executive session.
In affirming the Administrator's Order of October 6, 1978, the
Board was approving the Administrator's statement on page 2 of the
Order wherein he said:
The issue upon which the decision in this
case must be based is the issue of
falsification of records. If there was a
systematic and repeated misrepresentation
on the certified payroll records of hours
worked and wage rates paid, then the only
conclusion which can be reached is that the
violations were willful in nature, thus meeting
the criteria for d[e]barment.
The Administrator then reviewed the evidence presented at the
hearing before the Assistant Regional Administrator and found that
the Petitioner did not contest the fact that certified payroll
records had been falsified, that signed statements from
Petitioner's employees which indicated that they had been paid in
full the amounts due them had been falsified also, according to the
investigation by the Department of Labor. Furthermore, the
Administrator recognized that Petitioner had extensive experience
in the area of government contracts and awareness of compliance
procedures was inferred from the fact that two sets of payroll
records were compiled. From all of this evidence the Administrator
found that a falsification of certified payrolls did take place [2]
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[3] which he further found demonstrated a disregard of Petitioner's
obligations to its employees under Section 3(a) of the Davis-Bacon
Act.
This Board stated on page 7 of its decision: "The submission
to NASA of reconstructed and erroneous certified payrolls cannot be
explained by lack of intention or inexperience if this action is
done to make it appear that there was strict compliance with the
labor standards provisions of the Davis-Bacon Act, when in fact,
there was none. Such reconstruction of the payrolls by Petitioner
is an extreme form of disregard of its obligations to its
employees." It is difficult to understand how the Board could have
made it more clear that it agreed with the Administrator's
assessment of the evidence contained in the record.
The affidavits and statements filed with the Board on behalf
of the Petitioner after the Administrator's Order was issued were
considered but did not convince the Board that the evidence
obtained in earlier investigations by NASA and DOL was inaccurate.
It seems to the Board that Petitioner was granted considerable
latitude and placed in a beneficial posture by being permitted to
file the additional statements and affidavits, but the fact of
filing this new material does not mean that the Board should have
given it more weight than other evidence in the case. [3]
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[4] The Board considered the Administrator's approval of a
recommendation of debarment under the Contract Work Hours and
Safety Standards Act but excluded it from consideration as a result
of statements offered on behalf of the Administrator at the hearing
before the Board. The Board did not base its decision affirming the
Administrator's Order on any conclusions with reference to the
CWH[S]SA findings. The record fully supported the separate charge
of debarment under the Davis-Bacon Act which is why the Board only
affirmed the findings of disregard of Petitioner's obligations to
its employees.
With reference to Petitioner's claim of lack of due process of
law, the Board does not agree that Petitioner has suffered a lack
of fundamental fairness throughout the administrative process. It
seems to the Board that any documents that were the basis for the
Board's decision in this case, i.e.: the time records and various
payrolls, were prepared by Petitioner and therefore it cannot be
heard to complain that it did not have access to them or was
surprised by their introduction into the record. The aforementioned
affidavits submitted by Petitioner to this Board can only be
considered along with other evidence of record and be weighed for
whatever probity they may have in comparison to other evidence
already in the record, including the admittedly false payrolls also
prepared by Petitioner's employees. It does not seem to [4]
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[5] the Board that the delay[] between the time of the violations
occurring and DOL's institution of debarment proceedings has harmed
Petitioner or denied him due process of law. If employers were
free to make underpayments and then make restitution on only those
instances which are discovered there would be no incentive whatever
for the employer to pay in accordance with his contractual
obligations. The possibility of debarment is intended to enforce
the employer's obligations to pay the prevailing wage rate.
Petitioner also claims it is being penalized for violations
committed by its subcontractors on the projects. It is clear that
Petitioner was contractually required to assure observance of the
payment of the prevailing wages by his subcontractors.
Petitioner objects to the Board's reliance on In re Bone,
supra, to support the proposition that inexperience cannot be urged
to excuse underpayment and falsification of certified payrolls.
Petitioner characterizes its actions as ". . . a lack of
administrative communication occasioned by petitioner's
inexperience and the unusual circumstances of location and
subcontractors" (Motion at 17), but refuses to recognize these
actions resulted in repeated underpayment and alteration of the
payroll records. This appears to the Board to be quibbling over
words. The Board does not find that the [5]
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[6] statements and affidavits subsequently filed on behalf of
Petitioner and considered by the Board are so persuasive as to
require a remand to the Administrator, as was the case in In re
Vicon, WAB Case No. 65-03 (December 15, 1965).
Finally, the Board does not agree that it has established an
iron clad rule of law to be applied and resulting in debarment each
and every time an inaccurate payroll is discovered, as urged by
Petitioner. The entire record of this appeal before this Board
supports the conclusion that Petitioner intentionally permitted
payment to the workers of less than the applicable wage rate and
that he intentionally and deliberately completed and submitted
inaccurate payroll records. These conclusions support the
Administrator's finding that Petitioner had disregarded its
obligations to its employees within the meaning of Section 3(a) of
the Davis-Bacon Act and the Board concurs in that finding.
For the considerations set forth above the Motion for
Reconsideration and Clarification is dismissed and the Decision of
the Board is hereby affirmed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
