PEERLESS PRODUCTS, INC., WAB No. 80-04 (WAB May 4, 1984)
CCASE:
PEERLESS PRODUCTS
DDATE:
19840504
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
PEERLESS PRODUCTS, INC. WAB Case No. 80-04
Ft. Leonard Wood, MO. Dated: May 4, 1984
DECISION OF THE WAGE APPEALS BOARD
DECISION BY: Members Stuart Rothman and Gresham C. Smith;
Thomas X. Dunn, dissenting /FN1/
This case is before the Wage Appeals Board on the petition
of Peerless Products, Inc., seeking review of the decision of
the Assistant Secretary, Employment Standards Administration,
dated March 5, 1980, denying Petitioner's Motion to Dismiss and
reversing a decision of the Administrative Law Judge (ALJ) in
the above-captioned case. The Assistant Secretary also found
that the ALJ erred in concluding that rates other than ironworker's
rates could be paid for installation of replacement windows on
numerous buildings at Fort Leonard Wood, Pulaski County, Missouri.
The Assistant Secretary ruled, in addition, that the ALJ had no
authority to assess interest against the government for funds
withheld by the contracting agency. [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Board Chairman Alvin Bramow withdrew from consideration
of this appeal and did not participate in the decision
of the case. [1]
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[2] Peerless Products, Inc., is a manufacturer and installer
of aluminum windows and doors and was awarded a contract by the
Corps of Engineers to remove and replace 9000 windows on various
buildings at Fort Leonard Wood. Petitioner employed laborers
to unload materials including the windows, to carry materials
to the storage area and to the point of installation, and to
assist carpenters who removed the old windows, cleaned the
openings and installed the new windows.
The local union of the International Association of Bridge,
Structural and Ornamental Iron Workers protested to the Corps of
Engineers that the work in question was primarily ironworker's
work and should be compensated at the ironworker's wage rate
in accordance with their collective bargaining agreement and
a jurisdictional agreement with the carpenter's local union.
In order to resolve the question of area practice a hearing was
held on August 9, 1979 before an ALJ in Kansas City, Missouri.
At that time the Petitioner and representatives of the local
ironworker's and carpenter's unions testified fully regarding
the area practice concerning installation of metal replacement
windows in Missouri.
The ALJ issued a decision on August 27, 1979, in which
he held, inter alia, that Petitioner was entitled to employ
laborers to perform manual labor and that Petitioner could
choose between the carpenters and ironworkers for the installation
of the windows. The ALJ held that the choice between these crafts
could be made by the contractor and need not [2]
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[3] be made on the basis of existing jurisdictional agreements among
area building trades unions.
The Solicitor's Office filed a Notice of Intent to Appeal
and a motion for an extension of time on October 4, 1979, which
was granted by an order from the Office of the ALJ on October
10, 1979. On the same date Petitioner filed a Motion to
Dismiss the appeal for the reason that the Solicitor's Notice
of Intent to Appeal was untimely. On November 1, 1979, the
Solicitor filed a petition with the Assistant Secretary for review
of the Decision and Order of the ALJ pursuant to 29 CFR [sec]
5.11(b). The Solicitor of Labor argued that the conclusion
of the ALJ as to the lack of authority of the Department of Labor
to determine the appropriate craft whose wage rate must be paid
on contract work was contrary to law and established precedent.
Petitioner filed a response to the Petition for Review again
arguing that the petition should be dismissed as untimely and
that the decision of the ALJ should be affirmed on the merits.
On March 5, 1980, the Assistant Secretary for Employment
Standards overturned the Decision and Order of the ALJ and
remanded the case for a determination as to the amount of back
wages due employees. In addition the Assistant Secretary dismissed
Petitioner's Motion to Dismiss for untimeliness stating that the
Solicitor met the time limits established because the Office of the
ALJ granted the solicitor's request for an extension of time; this
request however, came after the 20 day [3]
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[4] appeal requirement of the Regulations, 29 CFR [sec] 5.11(b).
The Assistant Secretary also reversed the ALJ's order assessing
interest for sums withheld by the contracting agency. The Assistant
Secretary determined that no interest should be assessed stating
that this was beyond the jurisdictional authority of the administra-
tive proceeding.
Petitioner filed a Petition for Review of the decision of the
Assistant Secretary with the Wage Appeals Board on March 27, 1980.
Petitioner's argument to the Board is based on its assertion
that the Solicitor's Notice of Intent to Appeal was not timely.
Petitioner relies on the Department's regulation pertaining to the
ALJ hearings, 29 CFR [sec] 5.11(b), which provides:
The administrative law judge's decision shall be
sent to the interested parties and shall be final
unless a petition for review of the decision by
the Administrator of the Wage and Hour Division is
filed by any such parties in quadruplicate with the
Chief Administrative Law Judge . . . within 20 days
after receipt thereof.
Petitioner asserts that the decision was mailed to the parties
on August 30, 1979, and states that it was received no later
than September 4, 1979. It is argued that the time for filing
an appeal expired on September 24, 1979 and the ALJ's decision
became final not later than that date according to the Department's
own regulations. This is what the Regulations say. Petitioner
states that two weeks after that date, October 4, 1979, Wage and
Hour filed a Notice of Intent to Appeal claiming [4]
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[5] that the ALJ's decision had not been received until September
28, 1979 by the Solicitor's office in Washington, D.C., where the
appeals are prepared in the Division of [General] Legal Services.
Petitioner also claims that when the Office of the ALJs granted the
Solicitor's request for an extension of time it did at the same
time not consider the Petitioner's motion to the ALJ to dismiss
the Solicitor's Notice of Appeal for lack of timeliness.
The Assistant Secretary in his decision accepted the decision
of the Office of the ALJs granting the Solicitor's request for
an extension of time. The Petitioner argues that the Assistant
Secretary's ruling ignores the fact that the ALJ's decision had
become final prior to this time.
Petitioner argues at length that the ALJ's decision following
the hearing in Kansas City should not have been reversed by the
Assistant Secretary. It is claimed that in the hearing before
the ALJ no evidence was presented which showed that ironworkers
had performed window replacement anywhere in the area. Petitioner
relies on the fact that the Assistant Secretary did not controvert
a finding by the ALJ that the Administrator had failed to establish
a prevailing area practice calling for the use of ironworkers
exclusively. It also claims to have presented evidence showing
employment of carpenters on government and other projects
through[]out the State, from St. Louis to Kansas City. Petitioner
claims the record supports the decision of the ALJ and it was error
for the Assistant Secretary to have reversed it. [5]
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[6] The Solicitor argues on behalf of the Assistant Secretary that
area practice must be observed in determining the minimum wage
rates which must be paid for the work performed. Wage and Hour is
relying on decisions issued by this Board which have held that if
negotiated wage rates prevail with respect to the classifications
at issue (which was the case at Fort Leonard Wood) then union
practice as established in the various collective bargaining
agreements concerning the work performed by employees in those
classifications must be looked at to determine the prevailing area
practice. DeNarde Construction Co., WAB Case No. 78-03 (May 14,
1979) and Fry Bros. Corp., WAB Case No. 76-06 (June 14, 1977). For
this reason the Solicitor argues that union jurisdictional
agreements negotiated for the area would properly award the work to
the ironworkers and therefore that must establish the prevailing
area practice. The Solicitor further argues that the determination
of the proper classification is part of the wage determination
process which lies solely with the Department of Labor, and not the
contracting agency, and particularly not within the judgment
of the contractor without regard to prevailing area practice.
The Solicitor also supports the Assistant Secretary's
ruling that the Order of the ALJ granting the Solicitor an
extension of time to appeal was proper and further claims that
this issue is irrelevant to the issue before the Board. The
Solicitor asserts the Petitioner has not been prejudiced in [6]
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[7] any manner by the grant of an extension of time and also cites
several Federal and Supreme Court decisions which state that the
procedural rules can be relaxed by a court in the exercise of its
discretion when the ends of justice so require.
The Wage Appeals Board considered this appeal on the basis of
the Petition for Review filed by the Petitioner, the Statement on
Behalf of the Assistant Secretary and the record of the appeal
before the ALJ filed by the Solicitor of Labor. No request for
oral argument was made.
A review of the record by the Wage Appeals Board discloses
that copies of the ALJ's decision were mailed by certified mail to
Mr. Housh, Regional Solicitor of the Department of Labor in Kansas
City, and to Mrs. Dorothy Come, Assistant Administrator, Employment
Standards Administration, on August 30, 1979, but the Board has
been advised that the Regional Solicitor received a copy of the
decision on September 10, 1979, and that the Wage and Hour Division
does not have a record of the date on which their copy of the ALJ's
decision was received.
It appears to the Board that at least one responsible official
of the Department of Labor received a copy of the ALJ's decision no
later than September 10, 1979 and that therefore the 20 day time
period for the appeal of this decision, 29 CFR [sec] 5.11(b), [7]
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[8] started then. This means that the decision became final on
September 30, 1979, five days prior to the date on which the
Solicitor filed a Notice of Intent to Appeal and requested an
extension of time.
The Board is not in agreement with the Chief Administrative
Law Judge who, by his action of granting the extension of time
requested by the Wage and Hour Division, waived or cancelled
out the express provision of Section 5.11(b) of the Regulations,
29 CFR Part 5. The Chief Administrative Law Judge exceeded his
authority with respect to this Regulation because the regulations
do not give him the discretion to modify Section 5.11(b) as was
done here.
Also, the Board is not in agreement with the Assistant
Secretary for Employment Standards in approving the order of
the Chief Administrative Law Judge, and independently, waiving
the requirement of Section 5.11(b).
While the Board does not preclude a ruling, if there are
exceptional circumstances, relieving a party for good cause
shown from an obligation to file an appeal from the final decision
of an ALJ within 20 days, there are no such circumstances in this
case. Here the Regional Solicitor in Kansas City, to whom the
decision of the ALJ was properly served, sent the decision on to
the Office of the Solicitor and the Counsel for the Wage and Hour
Division in Washington, D.C., but says Counsel for Wage and Hour,
its office did not receive the [8]
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[9] papers in time to process an appeal within the 20 day time limit.
Counsel for the Wage and Hour Administrator would complain
with rightful indignation if a contractor, after a final
Administrative Law Judge's decision, claimed that an on-site
project superintendent had failed to transmit a final decision to
his home office at some distance, or to the contractor's counsel.
We believe the same rules should apply in this situation when
one of the parties to an appeal is a governmental agency with
nationwide jurisdiction and the ALJ's final decision gets lost
in the agency's infrastructure.
As in the case of a judgment in the court of law, there
has to be finality to a final judgment. There may be exceptional
circumstances justifying a modification of the rule in a particular
case. Such a case, for example, could arise if the party alleged
fraud or improper conduct on the part of a party, or anyone else,
based on newly discovered evidence after the expiration of 20 days.
But here all we have is a lack of communication between the
governmental agency that duly received the ALJ's decision and the
counsel for the Wage and Hour Division in Washington. Counsel for
Wage and Hour asserts that the decision and necessary papers
were just late in coming in, but beyond that there is no
actual presentation that this is an extreme case justifying relief.
We do not know from the Solicitor's presentation [9]
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[10] whether the papers were in fact late in getting from Kansas
City to Washington, D.C.
The Board has considered whether it has jurisdiction and
authority to review the determination of the Chief Administrative
Law Judge and the Assistant Secretary for Employment Standards,
and has concluded that it has. In arriving at this decision on
jurisdictional grounds the Board does not reach the merits of
whether the decision of the ALJ was correct on either the facts
or the law.
The difference between the Board's recent decision in
Brunetti and Dorson Electric, WAB Case No. 80-09 (November 18,
1982) and the instant situation may be stated simply. In Brunetti
there was a Notice of Intent to Appeal filed within 20 days,
here there was not. It should be noted that the Regulation does
not specify that the contents of the appeal must be laid out
or detailed within the 20 day period. As to the contents,
the Assistant Secretary may have some leeway as a procedural
matter.
The government provides an administrative procedure and
selects ALJs to hear and determine cases. The government also
attaches certain conditions and regulations with respect to
bringing this administrative litigation to an end. The regulations
imposing a 20 day time limit upon an appeal from an ALJ's decision
is, to the majority of the Board, much the same [10]
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[11] as a provision, whether imposed by law or contract, that a
decision of an arbitrator shall be final and binding unless a party
moves timely to challenge it in the courts. See the provisions of the
United States Arbitration Act as well as state statutes requiring
appeals for review to be taken within a given number of days. This
is not a case in which employees of an employer in the construction
industry and subject to the Davis-Bacon Act have not had their full
day in court.
The Davis-Bacon Act affords protections to certain employees
with respect to wages under certain conditions. Its remedial
nature deserves careful evaluation, but this is not the place to
go into it. The Act was not designed to provide protection to
employees against their representatives not meeting filing
requirements. And as noted above, they were fully and properly
represented in the presentation of their case on the merits to
the ALJ.
The Wage and Hour Administrator and the union representing
employees and/or individual employees are not the only parties
to these proceedings. The Solicitor's Office may not be
prejudiced, nor may the employees and their union representatives,
but these are not the only parties to the proceeding. In this
case there is also an employer. In another case it may be a
union or the government. The purpose of the 20 day time limitation
is to provide a reasonable time in which to appeal and thus
avoid factual disputes as to what would be a reasonable time, case [11]
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[12] by case, so the other side can know when a case is over.
The Board operates in the context of the building and
construction industry. The time must come where the terms and
conditions applicable to the project are applied in an objective
way uniformly to close a case, no matter how badly the government
may feel about the merits of the outcome at a lower level.
The parties spent enough time before an ALJ and, if any
aggrieved party was interested in prolonging the dispute, it was
incumbent on that party to take the appeal in time. The counsel
for Wage and Hour simply has not furnished an adequate explanation
for the delay.
In view of these considerations, the Board has decided that
the decision of the Chief Administrative Law Judge and the
Assistant Secretary for Employment Standards determining that
counsel for the Wage and Hour Division shall have more than 20
days in which to request review of the final decision of the
Administrative Law Judge are vacated. The Decision and Order
of the Administrative Law Judge is reinstated and the petition
of Peerless Products, Inc., is hereby granted. [12]
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[13] Dissenting Opinion by Board Member Thomas X. Dunn
The majority, in dismissing this case because the Solicitor
filed his Notice of Appeal five days late, ignores well settled
principles of law to the detriment of the intended beneficiaries of
the Davis-Bacon Act -- the workers. The majority reasons that the
Chief Administrative Law Judge exceeded his authority under [sec]
5.11(b) when he granted the Solicitor's request for an extension of
time in which to file a Petition for Review after the allotted time
had passed. The majority also disagrees with the Assistant
Secretary's decision approving the Chief Administrative Law Judge's
Order.
29 CFR [sec] 5.11(b) provides that the administrative law
judge's decision in a dispute over prevailing wage rates is final
"unless a petition for review . . . is filed by any such parties
... within 20 days after receipt thereof." The 20 day time period
in [sec] 5.11(b) is not a jurisdictional prerequisite for obtaining
review. Rather, it is a procedural rule, comparable to a
statute of limitations, which allows for equitable considerations.
This interpretation of [sec] 5.11(b), that the 20 day period is
more akin to a statute of limitations than a jurisdictional
prerequisite to suit, is supported by Supreme Court precedent
interpreting comparable statutory provisions. [13]
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[14] The time limit for filing unfair labor practice charges under
the National Labor Relations Act, 29 U.S.C. [sec] 160(b), has
uniformly been construed by the courts as a statute of limitations
subject to the equitable doctrines of waiver, estoppel, and
tolling. /FN1/ In addition, the Supreme Court has recently held
that the timely filing of a discrimination charge with the Equal
Employment Opportunity Commission is a procedural matter and not a
jurisdictional prerequisite to a suit in federal court. /FN2/ The
Court, citing not only cases under the NLRA but also an
interpretation of a similar provision in the Age Discrimination in
Employment Act, /FN3/ held in Zipes v. TWA, 50 USLW 4238, 4241
(1982), that "[b]y holding compliance with the filing period to be
not a jurisdictional prerequisite to filing a Title VII suit, but
a requirement subject to waiver as well as tolling when equity so
required, we honor the remedial purpose of the legislation as
a whole without negating the particular purpose of the filing
requirement, to give prompt notice to the employer." In
addition, [14]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Laffey v. Northwest Airlines, Inc., 567 F.2d 429 (D.C. Cir.
1976), cert. denied, 434 US 1086 (1978); A.H. Belo Corp. v. NLRB,
411 F.2d 959 (5th Cir. 1969), cert. denied, 396 U.S. 1007 (1970).
NLRB v. Local 264, Laborers' Int'l Union, 529 F.2d 778 (8th Cir.
1976); Shumate v. NLRB, 452 F.2d 717 (4th Cir. 1971); NLRB v.
A.E. Nettleton Co., 241 F.2d 130 (2nd Cir. 1957); NLRB v.
Itasca Cotton Mfg. Co., 179 F.2d 504 (5th Cir. 1950).
/FN2/ Zipes v. TWA, No. 78-1545, 50 USLW 4238 (1982)
/FN3/ Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979) (Age
Discrimination in Employment Act of 1967, 29 U.S.C. [sec]
626(d)(1)); see House Conference Report No. 950, 95th Cong., 2d
Sess., at 12, reprinted [15] [FN3 CONTINUED ON PAGE 16] [(con't)]
in 1978 U.S. Code Cong. & Admin. News 504, 534 (footnote
omitted) which explicitly states that "the 'charge' requirement
is not a jurisdictional prerequisite to maintaining an action
under the ADEA . . ." [END FN3]
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[15] the Court reached the same conclusion concerning two other
federal statutes -- the Social Security Act and the Federal
Employers' Liability Act. /FN4/
Similarly, the courts allow administrative agencies equitable
leeway in the application of their filing provisions. Absent a
showing of substantial prejudice to the complaining party, agencies
have the discretion to waive their own time limits. As the Court
stated in National Labor Relations Board v. Monsanto Chemical Co.,
205 F.2d 763 at 764 (8th Cir. 1953):
It is always within the discretion of a court or an
administrative agency to relax or modify its procedural
rules adopted for the orderly transaction of business
before it when in a given case the ends of justice
require it. The action of either in such a case is
not reviewable except upon a showing of substantial
prejudice to the complaining party . . . . The rule
stated applies with especial force in cases before the
National Labor Relations Board. The Board acts in the
public interest and not in vindication of private rights.
This principle was approved and adopted by the Supreme Court
in American Farm Lines v. Black Ball Freight, 397 U.S. 532, 539
(1970). [15]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN4/ Matthews v. Eldridge, 424 U.S. 319 (1976) (Social Security
Act, 42 U.S.C. 405(g)); Weinberger v. Salf, 422 U.S. 749 (1975)
(Social Security Act, 42 U.S.C. [sec] 405(g)). Burnett v. New York
Central R. Co., 380 U.S. 424 (1965) (Federal Employers' Liability
Act, 45 U.S.C. [sec] 56). [15]
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[16] A provision similar to the filing requirement in 29 CFR
[sec] 5.11(b), in the Service Contract Act regulations, 29 CFR
[sec] 6.11, has frequently be interpreted to allow waiver of the 20
day filing period. See, Air Marine Inc., Case No. SCA-503, pp. 2-3
(August 19, 1977); Taskpower International Inc., SCA-264-265,
22 WH Cases 802, 803 (April 9, 1975); Industrial Crating &
Packing, Inc., Case No. SCA-162, [p]p. 1-2 (April 10, 1974) (no
prejudice could be shown in light of willful violations of the
Act). Such a waiver has been granted even in the absence of
filing a notice of intent to appeal or a request for extension
of time, Taskpower Int'l Inc. In addition, the time period
has been waived even after an extension of time has expired.
Air Marine. Inc.
Indeed, the Supreme Court has waived its own procedural
rules for timely filing of a petition for certiorari in Schact
v. United States, 398 U.S. 58, 63-64 (1970). In that case, the
Court waived Rule 22(2) which provides that a petition for
certiorari to review a court of appeals' judgment in a criminal
case "shall be deemed in time when . . . filed with the clerk
within thirty days after the entry of such judgment." The Court
waived the untimeliness of the petition stating, "The procedural
rules adopted by the Court for the orderly transaction of its
business are not jurisdictional and can be relaxed by the Court in
the exercise of its discretion when the ends of justice so
require." Id. [16]
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[17] I am not impressed by the reasons offered by the Solicitor
for his nondiligence in filing a timely petition for review in
this case. On the other hand, I am less impressed by the
majority's holding that this case must be dismissed even though
the Solicitor's nondiligence affects the rights of the Peerless
employees; i.e., the very people whom Congress intended to
benefit under the Davis-Bacon Act.
The majority ignores the principle of law recognized in
Monsanto, American Farm Lines and the other cases cited herein
that timely filing of petitions for review may be waived when
there is no showing that such waiver will cause the complaining
party substantial prejudice or harm. Instead, the majority
states that it is only in "extreme" cases that the 20 day filing
provision in [sec] 5.11(b) may be relaxed, such as for alleged
"fraud or improper conduct on the part of a party, or anyone else,
based on newly discovered evidence after expiration of 20 days."
That reasoning is not only unsound, it has no relevance to the
legal issue involved here. Moreover, it results in a holding that
the 20 day filing provision is jurisdictional and cannot be relaxed
or modified. It is my view that dismissal of this case for
untimeliness, in the absence of a clear showing by the complaining
party that it will suffer substantial prejudice or harm, is
contrary to this well settled principle of law.
The Department of Labor, like the National Labor Relations
Board and the Equal Employment Opportunity Commission, acts in [17]
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[18] the public interest and not in the vindication[] of private
rights. Its discretion is not to be controlled at the whim of a
private party to the neglect of the public interest. In light of
the purpose of the [sec] 5.11(b) review procedures, which is to
resolve disputes concerning alleged wage underpayments under the
Davis-Bacon Act, we have no right to take such a rigid position.
Waiver of the 20 day time limit in [sec] 5.11(b) should be
liberally granted in order to protect the interest of the workers
whose wages are in dispute. The majority's decision has the effect
of denying justice to the very people who are the intended
beneficiaries of the Davis-Bacon Act. Moreover, the majority's
opinion creates two completely different interpretations of
similar rules promulgated by the Department of Labor under the
Service Contract Act and the Davis-Bacon Act. /FN5/ This places
the Secretary of Labor in an unique, if not an incomprehensible,
position. [18]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN5/ See Decisions of the Administrator in Federal Food Services,
Inc., No. SCA 585-592, April 26, 1978, and Air Marine, Inc., et
al., No. SCA-503, August 17, 1977; Decision of the Assistant
Secretary in Taskpower International, Inc., No. SCA-264-265, 1975
(22 WH Cases 802). [18]
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[19] For these reasons, I strongly dissent to my colleagues'
decision not to waive the Solicitor's untimely filing of a
petition for review in this case.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
