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<![CDATA[
CCASE:
MARTELL CONSTRUCTION
DDATE:
19870710
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
MARTELL CONSTRUCTION CO., INC. WAB Case No. 86-26
&
J.E.M. CONTRACTORS Dated: July 10, 1987
Naval Air Engineering Ctr.
Lakehurst, NJ
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
Martell Construction Co., Inc., Frank Santucci, Vice-President, and
Eugene Martell, Secretary-Treasurer, seeking review of the
Administrative Law Judge~s decision and order rendered on August 7,
1986. See attachment.
The Administrative Law Judge (hereinafter ALJ) found that
petitioners, Martell Construction Co., Inc., Frank Santucci and
Eugene Martell, violated their obligations to employees under the
Davis-Bacon Act. Consequently, the ALJ ordered the petitioners be
debarred and placed them on the list containing the names and firms
who shall be ineligible to be awarded any contract or subcontract
subject to the labor standards provisions of the Davis-Bacon Act
and those other statutes listed at 29 CFR sec. 5.1.
The petitioners do not appeal from that portion of the ALJ's
decision that found back wages due employees for prevailing wage
and overtime compensation. It is the debarment issue and the
collateral issue of whether the statute of limitations contained in
the Portal-to-Portal Act, 29 U.S.C. sec. 255, from which the
petitioners seek relief. [1]
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[2] The Board considered this appeal on the basis of the Petition
for Review and the entire record before the ALJ./FN1/
With respect to the Statute of Limitations contained in the
Portal-to-Portal Act, the Wage Appeals Board has consistently held
that administrative proceedings before an ALJ and before this Board
are not barred. See Thomas J. Clements, Inc., WAB Case No. 84-12
(January 25, 1985), J. Slotnik Company, WAB Case No. 80-5 (March
22, 1983), Glenn Electric Company, Inc., WAB Case No. 79-21 (March
22, 1983). It has been the Board's position that this ruling
applies to Davis-Bacon Act cases as well as the related acts which
are not mentioned in the Portal-to-Portal Act. In so holding the
Board has been following the United States Supreme Court's ruling
in Unexcelled Chemical Corporation v. U.S., 345 U.S. 59 (1953)
which held that an administrative proceeding is not an "action"
within the meaning of the statute of limitations under the Portal-
to-Portal Act.
The Third Circuit in Glenn Electric Company, Inc. v. Donovan,
755 F.2d 1028 (February 21, 1985) stated in footnote 7 as follows:
As stated previously, because Judge Ziegler held,
as a matter of statutory interpretation and construction
that the Portal-to-Portal Act did not apply to the
U.S. Housing Act, he did not reach the Secretary's
alternative argument that the statute of limitations
applies only to actions brought in court and not before
administrative agencies. [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Counsel for the Administrator, Wage and Hour Division, filed
a Motion to Dismiss the appeal on the primary basis that the
petitioners failed to comply with the Board's Regulation, 29 CFR
sec. 7.9(b). That Regulation requires that a "petition shall be
accompanied by a statement setting forth supporting reasons." No
statement ever accompanied the petition filed on September 15, 1986
or thereafter. The petitioners, by letter of January 16, 1987,
referred the Board to its Brief and Proposed Findings of Fact and
Conclusions of Law submitted to the ALJ on June 13, 1986 as its
statement with supporting reasons.
While the Board believes that the Motion to Dismiss has merit,
nevertheless, the Board has decided to rule on this appeal based
upon the record made before the ALJ. [2]
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[3] Although we hold this case as Judge Ziegler did
and ground our holding on statutory construction,
as an alternative basis for affirmance, we rely on
Unexcelled Chemical Corp. v. U.S. 345 U.S. 59
(1953), wherein the United States Supreme Court
ruled that the Portal-to-Portal Act statute of
limitations is tolled only when a court action
is filed, not by the commencement of an
administrative proceeding. That case involved an
administrative proceeding by the Department of
Labor to collect child labor liquidated damages
under the Wash-Healey Act, one of the three
statutes expressly covered by the Portal-to-
Portal Act statute of limitations.
Inasmuch as the Secretary's enforcement action has
been entirely administrative, i.e., neither complaint
nor counterclaim filed, the limitations provisions
of the Portal-to-Portal Act do not apply even if the
Act is construed as governing the Davis-Bacon Related
Acts. See Ready-Mix Concrete Co. v. United States,
130 F. Supp. 390, 313 (Ct.Cl. 1955)(withholding actions
by the government are not subject to the Portal-to-
Portal Act.)
From the above language, the Third Circuit clearly found that
the Portal-to-Portal Act statute of limitations applies only to
court actions under the Davis-Bacon Act and not to administrative
actions before an administrative law judge or this Board.
Therefore, the Board finds that the ALJ did not err in ruling
that claims arising under the Davis-Bacon Act are not barred by the
statute of limitations in the Portal-to-Portal Act.
The remaining question before the Board is whether the ALJ
erred in his recommendations that petitioners be placed on the
ineligible bidders list. The petitioners contend that they did not
willfully or deliberately violate the Act and, therefore, should
not be debarred. The standard for debarment for violations of the
Davis-Bacon Act is set forth in the Act, 40 U.S.C. sec. 276a-
2(a), which reads in pertinent part as follows:
. . . and the Comptroller General of the United
States is further authorized and is directed to
distribute a list . . . of persons and firms whom
he has found to have disregarded their obligations
to employees and subcontractors. (Emphasis added). [3]
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[4] The Board has held that the underpayment of employees,
violating regulations concerning overtime pay or falsification of
payroll records all constitute a disregard of a person's or firm's
obligations to their employees under the Davis-Bacon Act. See Ace
Contracting Company, Inc., WAB Case No. 76-23 (May 30, 1980) and
Cosmic Construction Co., Inc., WAB Case No. 79-19 (September 2,
1980).
The record is replete with examples that show that petitioners
disregarded their obligations. Under these circumstances the ALJ's
debarment order is not arbitrary, capricious or an abuse of
discretion.
In view of the foregoing, the decision and order of the ALJ is
affirmed and the petition is dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [4]
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