|
<![CDATA[
CCASE:
MC ANDREWS COMPANY
DDATE:
19870326
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of WAB Case No. 86-32
MC ANDREWS COMPANY AND Dated: March 26, 1987
ROBERT MCANDREWS
APPEARANCES: Diane Burkley, Esquire, for McAndrews Company and
Robert McAndrews
Ellen Edmond, Esquire, for the Administrator, 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 the Administrator of the Wage and Hour Division seeking review
of the Administrative Law Judge's Decision and Order of October 3,
1986.
Briefly stated, the facts of this appeal are as follows:
In January, 1983 the McAndrews Company and its owner, Robert --
McAndrew[s], were awarded a contract by DHUD for the installation
of windows in a YWCA in Cincinnati, Ohio. The wage determination
applicable to the project specified a minimum hourly wage rate
for carpenters of $15.80 plus $2.07 in fringe benefits. The
employees on the job were not offered the predetermined prevailing [1]
~2
[2] wage rate as required by the contract, but instead were paid
$35.00 per window installed. In fact, the employees were actually
"paid about $5.00 to $10.00 an hour. The ALJ found that the con-
tractor intended to pay its employees in the form of a bonus when
the job was completed in September, 1983 the difference between
their actual pay and what they should have earned hourly.
The contractor admitted that it violated the certified
payroll requirements of the Davis-Bacon and related acts. These
violations resulted from the contractor regularly submitting
certified payrolls to DHUD which certified that employees were
receiving the specified minimum wages and fringe benefits for all
hours worked, when, in fact, such rates were not being paid during
the performance of the contracted services. As a result the con-
tractor incurred back wages in the amount of $11,189.27. These
back wages have been paid in full by the contractor. For a full
recitation of the facts of this appeal, see the attached ALJ
Decision and Order.
The ALJ found that the violations of the contractor, McAndrews
Company and Robert McAndrews, were neither willful nor aggravated
as there were considerations that made debarment inappropriate.
Therefore the ALJ concluded that the contractor should not be
debarred.
The Board has considered this appeal on the basis of the
entire record before the ALJ and the petition for review submitted
by the Solicitor of Labor, the respondent's response to the
petition [2]
~3
[3] for review, and a hearing before the Board held on February 25,
1987, at which all interested parties were present and represented by
counsel and participated.
The facts in this case are not unsimilar to those in Morris
Excavating Company, Inc., WAB Case. No. 86-27, decided February 4,
1987. In this case the principle and the basis for debarment
will be the same.
The company claims, and the ALJ found, that it would have
paid its employees at least the prevailing wage rate before the
job concluded. The payroll records do not support such conclusion.
As the Board indicated in Morris, full wages must be paid weekly.
Certification that such wages were paid is not a true certification
if they were not so paid weekly. For the Department of Labor
and this Wage Appeals Board to condone the falsification of
certified payrolls would undermine the enforcement of the
Davis-Bacon and related Acts. The Board concludes that having found
intentional pervasive falsification of payroll records, the ALJ did
not apply the appropriate test. The Davis-Bacon Act requires that
the employer not disregard its obligations to its employees. It
is required to pay them the full amounts accrued at the time of
payment. The violations here require a sanction.
In view of the facts of this case, the Decision and Order
of the ALJ is reversed and McAndrews Company and Robert McAndrews
shall be debarred for a period of six months and shall be
ineligible [3]
~4
[4] to receive any contract or subcontract subject to any of the
statutes listed in 29 CFR [sec] 5.1 during this period. Future cases in
which the contention is made that the employer intended to pay full
wages before the end of the job but nonetheless falsified payrolls will
be considered on an individual basis. The lenient treatment in Morris
and in this case should not be expected since it will now be understood
that this kind of excuse for nonpayment of weekly wages is not to be
tolerated.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [4]
]]>
|
