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<![CDATA[
CCASE:
EARLY & SONS
DDATE:
19870129
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
EARLY & SONS, INC., and WAB Case No. 86-25
RICHARD P. EARLY, SR. Dated: January 29, 1987
BEFORE: Alvin Bramow, Chairman, Thomas X. Dunn, Member,
Stuart Rothman, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition
of the Administrator of the Wage and Hour Division seeking
review of the Administrative Law Judge's Decision and Order
rendered on August 5, 1986. See attachment.
The Administrative Law Judge found that Richard P. Early, Sr.,
as an individual, and Early & Sons, Inc., as a corporate entity,
willfully and aggravatedly violated the labor standards provisions
of the Housing and Community Development Act of 1974, 42 U.S.C.
[secs] 5310, 1440(g) and the Contract Work Hours and Safety
Standards Act, 40 U.S.C. 327, et seq. Consequently, the
Administrative Law Judge ordered that Richard P. Early, Sr., and
Early & Sons, Inc., be debarred for a period of two years, instead
of the standard three year sanction. It is this issue that the
Administrator [1]
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[2] has brought to the Board with this appeal.
The Board considered this appeal on the basis of the Petition
for Review and the record of the case made before the ALJ.
The respondents, through their attorney, have determined not to
file a response since they claim the issue is clearly stated and
that the Board has sufficient information upon which to base a
decision. The Administrator and the respondents do not desire
an oral hearing before the Board.
The only question before the Board is whether the
Administrative Law Judge erred in holding that Richard P. Early,
Sr., and Early & Sons, Inc., should be debarred for a period of two
years, rather than a period of three years, as a result of the
aforementioned violations.
The standard for debarment for violations of the labor
standards provisions of 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 ineligible 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.
The Board has held that the submission of falsified payrolls
to simulate proper payment to be aggravated and willful violation[2]
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[3] of the Davis-Bacon related Acts. See Wilfred G. Gooden
Construction Corp., WAB Case No. 86-3 (October 1, 1986) and Janik
Paving and Construction, Inc., WAB Case No. 86-13 (December 8,
1986).
The Board stated in Warren E. Manter Company, Inc., WAB
Case No. 84-20 (June 21, 1985) and Janik Paving and Construction,
Inc., supra, that the proper criteria to be followed to justify
a sanction of less than three years is found at 29 CFR [sec]
5.12(c). However, one must examine the facts in each case to
determine if they fall within the criteria set forth in 29 CFR
[sec] 5.12(c) which states as follows:
(c) . . . In cases where the contractor or
subcontractor failed to make full restitution to
all underpaid employees, a request for removal will
not be considered until such underpayments are
made. In all other cases, the Administrator
will examine the facts and circumstances
surrounding the violative practices which caused
the debarment, and issue a decision as to
whether or not such person or firm has
demonstrated a current responsibility to comply with
the labor standards provisions of the statutes
listed in [sec] 5.1, and therefore should be removed
from the ineligible list. Among the factors to
be considered in reaching such a decision are
the severity of the violations, the contractor's
or subcontractor's attitude towards compliance
and the past compliance history of the firm.
In no case will such removal be effected
unless the Administrator determines after
an investigation that such person or firm is
in compliance with the labor standards
provisions applicable to Federal contracts and
Federally assisted construction work subject
to any of the applicable statutes listed in
[sec] 5.1 and other labor statutes providing wage
protection, such as the Service Contract Act,
the Walsh-Healey Public Contracts Act, and the
Fair Labor Standards Act. . . . [3]
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[4] The record does not support the ALJ's conclusion that there
are factors which justify a lesser debarment period. Here, the
only evidence toward consideration of the lessening of the
debarment period is that full restitution has been made to all
underpaid employees. The record is explicit in that Mr. Early
was privy to or had to have generated the scheme of paying the
employees working on the federal projects less than the wages
mandated by law and contained in the contract agreements.
The mere fact that the practice may not have been as
widespread as the Administrator has alleged does not in itself
justify a lesser debarment period. Certainly, the record shows
that the scheme was more widespread than to encompass only the
two employees that testified at the ALJ hearing. Also, the
record is void of any indication that Mr. Early and/or the company
is presently or will in the future comply with the Davis-Bacon Act
and other labor standards.
In view of the foregoing, the decision of the ALJ is reversed
and Richard P. Early, Sr., and Early & Sons, Inc., shall be
debarred for a period of three years and shall be ineligible to
receive any contract or subcontract subject to any of the
statutes listed in 29 CFR [sec] 5.1, with leave to petition for [4]
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[5] removal from the list if circumstances should change in the
future./FN1/
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Department of Labor's Regulations, 29 CFR [sec] 5.12(c) also
provides for the removal from the debarment list after six months
from the date of publication by the Comptroller General of such
persons or firm's name on the ineligible list. [5]
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