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<![CDATA[
CCASE:
WILFRED G. GOODEN CONSTRUCTION
DDATE:
19861001
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
WILFRED G. GOODEN CONSTRUCTION CORP. WAB Case No. 86-03
Contractor
& Dated: October 1, 1986
WILFRED G. GOODEN, President, Etc.
APPEARANCES: Lois C. Schlissel, Esquire, and Basil A. Paterson,
Esquire, for Gooden Construction Corporation
Wendy B. Bader, Esquire, and Linda Jan S. Pack,
Esquire, for the Wage and Hour Division, U.S.
Department of Labor
BEFORE: Alvin Bramow, Chairman, Thomas X. Dunn, Member, and
Stuart Rothman, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
Wilfred G. Gooden and Wilfred G. Gooden Construction Corp. seeking
review of the Administrative Law Judge's decision of November 26,
1985. See attachment.
The Administrative Law Judge found that the petitioners failed
to pay its employees applicable prevailing wages, proper overtime,
and falsified its certified payroll records. Consequently, the
Administrative Law Judge ordered that petitioners are liable in [1]
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[2] the amount of $162,266.83 /FN1/ for unpaid wages, including
overtime pay, and be debarred to receive any contracts or
subcontracts subject to any of the statutes listed at 29 CFR [sec]
5.1 for three years.
Upon review of the record of the case made before the ALJ,
the petitioners' briefs and the statement on behalf of the
Administrator of the Wage and Hour Division, along with the
arguments made at the oral hearing, the Board has concluded that
there was ample evidence in the record to support the findings
of the ALJ.
The Board has no problem with the Wage and Hour Division's
procedures of reconstructing wage payrolls from whatever best
evidence is available in instances where payrolls, either through
inadvertence or deliberately, are not kept or not made available
to the Wage and Hour investigator. Without it the Wage and
Hour Division must reconstruct the figures. This procedure has
been approved by the Supreme Court in Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680 (1946).
The mere fact that the ALJ found that the calculations of
the Wage and Hour investigator may be in error by approximately
25% does not in itself invalidate the entire process. In fact,
the ALJ did not just rely on the investigator's testimony and [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Counsel for the Administrator in her brief and at the oral
hearing conceded that compensation owed to Liebert Hall should be
reduced by $915.60. Petitioners' liability therefore should
be reduced to $161,351.23. [2]
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[3] calculations. He buttressed this evidence with the testimony
of individual workers. A disputing contractor is free to
contradict or disprove the reconstructed payrolls and the testimony
of witnesses. Here, the petitioners did not adequately rebut this
evidence.
The Board must therefore conclude that under all the facts
and circumstances of this case, the ALJ did a creditable job
and that his Order as to the underpayments is not arbitrary,
capricious, an abuse of discretion or unsupported by substantial
evidence.
With respect to the ALJ's recommendation for debarment,
the standard for debarment for violations of the labor standards
provisions of the National Housing Act, U.S. Housing Act of 1937
and the Contract Work Hours and Safety Standards Act is set forth
in the Department of Labor's Regulations, 29 CFR [sec] 5.12(a)(1)
which reads in pertinent part as follows:
Whenever any contractor or subcontractor is
found by the Secretary of Labor to be in [*]
aggravated or willful violation [*] of the labor
standards provisions of any of the applicable
statutes listed in [sec] 5.1 . . ., such contractor
or subcontractor . . . shall be inel[i]gible for a
period not to exceed 3 years . . . to receive any
contracts or subcontracts subject to any of the
statutes listed in [sec] 5.1. [*] Emphasis added. [*]
The Board has held that the submission of falsified payrolls
to simulate proper payment to be aggravated and willful violation
of the Davis-Bacon related Acts. See M. C. Morgan Contractors, Inc., [3]
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[4] WAB Case No. 84-18 (May 22, 1985) and the cases cited
therein. Here, there is no question that the payrolls were
deliberately and intentionally falsified. Besides not showing the
accurate number of hours worked and the true hourly rates paid,
they failed to show all the laborers and mechanics employed on the
project. The petitioners' failure to explain these falsifications
defeats any possible consideration toward relieving the petitioners
from, or diminishing, the debarment period. These failures to
disclose lead the Board to believe that the petitioners acted
deliberately and intentionally and the ALJ had sufficient evidence
to debar petitioners under 29 CFR [sec] 5.12(a)(1).
Accordingly, the Decision and Order of the Administrative
Law Judge is affirmed (except as to Leibert Hall - See Footnote 1)
and the petition herein is dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [4]
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