CCASE:
CLINTONVILLE CONSTRUCTION
DDATE:
19801028
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
CLINTONVILLE CONSTRUCTION, INC. WAB Case No. 79-18
Whitestone, New York Dated: October 28, 1980
ORDER DENYING MOTIONS FOR RECONSIDERATION
The Wage Appeals Board is in receipt of two Motions for
Reconsideration of the Board's decision in the above-captioned
appeal dated May 19, 1980. One motion was received from the
Solicitor of Labor on behalf of the Administrator, Wage and
Hour Division, and the other motion was filed on behalf of the
Petitioner. In its decision the Board found that there was a
mutual mistake as to what was encompassed in a Settlement
Agreement concluded between the Administrator and the Petitioner
and therefore the Board ordered that the Settlement Agreement
be set aside and the parties return to the status quo before
the Agreement was entered into. The Board also ordered that a
[sec] 5.11(b) hearing be rescheduled and that Petitioner be
credited with the $30,000 paid under the Settlement Agreement to be
applied to the final determination of the dispute by the
Department of Labor.
In his Motion for Reconsideration the Administrator
presents the argument that a settlement cannot be repudiated
by either party and will be summarily enforced by the courts [1]
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[2] in the absence of exceptional circumstances. The Administrator
points out that there was no question but that the Settlement
Agreement resolved the back wage dispute, the only question
between the parties is whether or not it also foreclosed the
additional action of debarment. It is then urged that the Board's
statement that "[i]t is clear to the Board that this concept
of the two hearings for enforcement of alleged labor standards
violations reflects the Wage and Hour Division's practices..."
resolves the question of whether Petitioner could reasonably
have believed that the question of debarment was properly within
a [sec] 5.11(b) proceeding. Relying on this statement the
Administrator says that Petitioner's belief that the debarment
issue was resolved was not reasonable. He asserts that Petitioner
had a duty to inquire as to its understanding of the scope of
the settlement. It is asserted that at the time of the
Settlement Agreement, Wage and Hour had made no decision
whether or not to pursue debarment. Therefore, since the
settlement didn't mention debarment, nor was it in controversy
according to the Administrator, debarment should not
be considered to be included in the settlement.
Wage and Hour disputes the Board's conclusion that this
was actually a question of mutual mistake, but states it was a
matter in which Petitioner did not necessarily understand that
applicable regulations still contained the possible sanction
of debarment and is now anxious to repudiate its bargain.
Finally, the Administrator points out that the $30,000 tendered [2]
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[3] by Petitioner has been distributed and the matter insofar as
back wages due has been considered closed for over two and one-
half years. Considering this, it is asserted that the parties
cannot be put back in the status quo as ordered by this Board.
On the other hand Petitioner asks the Board on
reconsideration to modify its decision to find that all issues upon
which the [sec] 5.6 hearing would be based are deemed settled and
disposed of by virtue of the Settlement Agreement and that the
settlement not be set aside. It is Petitioner's position that
there was no mutual mistake. Petitioner argues that the language
of the Settlement Agreement clearly indicated that the agreement
disposed of all issues raised by the [sec] 5.11(b) hearing,
including the debarment issue, and that the Board found to this
effect.
The Wage Appeals Board does not agree with either part[y']s
views of its May 19, 1980 decision. The Board does not concur
with the Administrator's position that Petitioner would have a duty
to inquire as to the scope of the Settlement Agreement which by its
terms appears to be quite unambiguous. And the Board finds,
contrary to Petitioner's interpretation, that the settlement of the
[sec] 5.11(b) issues did not resolve all of the issues raised in
the case.
The Board does find that it was not unreasonable for
Petitioner to think the issue of false recordkeeping was included
in the settlement (not by the language of the agreement but because
of the earlier order of reference from the Chief [3]
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[4] Administrative Law Judge. The Board has found it possible that
the Notice from the Chief ALJ misled the Petitioner into believing
that the Settlement Agreement disposed of the debarment issue. The
Board cannot condone a party being misled as a result of the
Department of Labor's action, whether this action was inadvertent
or not, and cannot permit either party to gain an unfair advantage
because of it.
Justice in this situation dictates that the parties return
to their relative positions before the Settlement Agreement to the
extent that this is possible, as originally directed by the Board.
The Board's instruction to credit Petitioner with the $30,000 paid
under the Settlement Agreement was to assure that if, as a result
of a determination from a [sec] 5.11(b) hearing or further
negotiations between Petitioner and the Wage and Hour Division,
Petitioner was found to owe the government a sum of money, he would
be protected from being required to pay the $30,000 twice.
For the reasons set forth above, both Motions for
Reconsideration are dismissed and the decision of the Board is
hereby affirmed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
