JEN-BECK ASSOCIATES, INC., WAB No. 87-02 (WAB July 20, 1987)
CCASE:
JEN-BECK ASSOCIATES, INC.,
DDATE:
19870720
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
JEN-BECK ASSOCIATES, INC., WAB Case No. 87-02
Jen-Beck Associates, Jen-Beck
and Douglas Jensen, President Dated: July 20, 1987
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, Wage and Hour Division, seeking review of the
Administrative Law Judge's Decision and Order of December 4, 1986.
See attachment.
The record indicates that Jen-Beck Associates, Inc., et al.,
performed on six Federal contracts subject to the labor standards
provisions of the Davis-Bacon Act, 40 U.S.C. sec. 276a. The parties
stipulated that eleven of the employees involved were not listed on
the certified payrolls at all, and that the employees who did
appear on these payrolls were shown to have been paid at
Davis-Bacon wage rates, when in fact they were paid a lower amount.
All amounts found due the employees have been paid.
The only issue that remained for the Administrative Law Judge
(hereinafter ALJ) to decide was whether or not Jen-Beck and Douglas
Jensen, President, should be debarred. The ALJ found that the
violations were not willful and since the initial investigation of
its practices, Jen-Beck has made a concerted effort to stay in
compliance with the Act, and no further violations have occurred.
Consequently, the ALJ recommended that respondents be relieved [1]
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[2] from placement on the ineligible list 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 Board has considered this appeal on the basis of the
entire record before the ALJ, the petition for review submitted by
the counsel for the Administrator, Wage and Hour Division, and the
respondent's response to the petition for review.
The Administrator contends that the ALJ erred when he used the
criteria of willfulness and future compliance in recommending
relief from debarment. 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.*]
Also, the criterion of whether or not a contractor has
demonstrated a current responsibility to comply with labor
standards provisions is found at 29 CFR sec. 5.12(c). This standard
among others only applies to violations under Davis-Bacon related
acts, and not the Davis-Bacon Act itself. The provisions of sec.
5.12(c) are applicable for the removal of a person or firm debarred
under the related acts and as the Board stated in Early and Sons,
Inc., WAB Case No. 86-25 (January 29, 1987) and the cases cited
therein, such criteria may be used to justify a sanction of less
than three years for violations of those statutes.
Therefore, the Board agrees with the Administrator that the
ALJ erred in his recommendation that respondents be relieved from
placement on the ineligible list by using criteria not applicable
to Davis-Bacon Act violations.
In view of the above, this case is remanded to the ALJ for a
Decision [2]
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[3] and Order in accordance with the proper standard for debarment for
violations of the Davis-Bacon Act.
BY ORDER OF THE BOARD
Craig Bulger, Executive Secretary
Wage Appeals Board [3]
