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<![CDATA[
CCASE:
MORRIS EXCAVATING
DDATE:
19870204
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
MORRIS EXCAVATING COMPANY, INC. WAB Case No. 86-27
STEVE MORRIS, PRESIDENT Dated: February 4, 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
of August 29, 1986. See attachment.
The Administrative Law Judge found that the violations of
the Respondents, Morris Excavating Company or Steve Morris,
President, were neither willful nor aggravated as there were
considerations to mitigate the seriousness of the violations.
Therefore, the ALJ concluded that the Respondents should not be
debarred.
The Board considered this appeal on the basis of the
entire record before the ALJ, the Petition for Review, and
Respondents' response to the Petition for Review. The Administrator
and the Respondents do not desire an oral hearing before the Board.
* * * [1]
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[2] The contractor is a small company. The contract amounts
involved are also relatively small, $420,000 and $155,000. The
work is localized specialty work, street and sidewalk repairs.
But the problems for Davis-Bacon Act administration are not
small.
The Company says and the ALJ found, that it and its laborers,
truck drivers, and operators agreed that it would pay them their
regular wages now and the additional Davis-Bacon amount later.
It would pay them at their "regular rate of pay" each week and
the balance required under the Davis-Bacon Act before the end
of the job but not later than December 25, 1983. There is
nothing in writing on this.
Full wages must be paid weekly under the Act. Certification
that such wages were paid is not true if they were not. Even
a clear agreement not to pay weekly makes the certification
valueless for purposes of the Davis-Bacon Act administration,
particularly where the contracting agencies are not notified in
advance as to what is going on.
For the Department of Labor and this Wage Appeals Board to
excuse such an arrangement would establish a principle that each
contractor doing this gets one free shot at underpaying laborers
and mechanics on a Davis-Bacon project until the time of
enforcement. [2]
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[3] In this case there was the coincidence that the Company was just
about to make full payment when the Department of Labor investigator
came in. If this were condoned for this Company, would not the
Department of Labor and this Board have to make a similar exception in
each future case in which a similar claim would be made? The violation
here requires a sanction.
The Board would impose, as a matter of principle, a minimum
debarment. In view of the facts of this case, the decision of the
ALJ is reversed and Morris-Excavating Company, Inc. and Steve
Morris shall be debarred for a period of six months and shall
be ineligible to receive any contract or subcontract subject to
any of the statutes listed in 29 CFR [sec] 5.1 during this period.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [3]
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