CCASE:
RUST CONSTRUCTION CO.
DDATE:
19910103
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
RUST CONSTRUCTION CO., INC. WAB Case No. 87-15
JERRY RUST, President DATED: January 3, 1991
SANDRA RUST, Vice-President
ADDITIONAL VIEWS OF CHAIRMAN ANDREWS /FN1/
While these dissenting views will not change the result the
Board has reached herein and thus may be of little consolation to
the Petitioners, both the reasoning and the result reached by the
majority are so defective as to offend commonly held notions of
fairness, to be inconsistent with both law and practice, and thus
to constitute arbitrary and capricious abuse of Board discretion.
This case is currently before the Board on the petition of
Rust Construction Co. for reconsideration of the Board's previous
decision in this matter dated October 2, 1987 in which the Board
reversed the decision of the Administrative Law Judge who had
ruled [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Chairman Andrews' additional views were prepared and
submitted for publication prior to the end of his tenure on
December 31, 1990. [1]
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[2] that Rust Construction had not been guilty of aggravated or
willful violations of Davis-Bacon Related Acts' labor standards.
The Administrative Law Judge further ruled that Rust should not be
debarred as the Administrator had requested in the Order of
Reference which initiated this case.
In its October 2, 1987 decision the Board, without logical
explanation, summarily reversed the ALJ's specific finding that
violations by Rust Construction were neither "willful" [n]or
"aggravated." Concluding that the violations were intended "to
simulate proper payment" and thus were willful, the Board, without
explanation debarred Rust for a period of one year, not the three
years requested by the Wage and Hour Administrator. On May 5, 1989
the majority issued its opinion denying the Petitioner Rust's
motion for reconsideration. The majority's May 5, 1989 opinion is
as inscrutable as it is arbitrary and capricious.
A cursory review of the record and ALJ's decision in this
matter reveals that the Administrative Law Judge had not only
reasonable, but substantial, probative and credible evidence upon
which to base his decision that errors in payroll submissions were
not aggravated or willful violations of the Davis-Bacon Related
Acts requiring debarment pursuant to 29 C.F.R. 5.12(a)(1). The ALJ
at p. 7 concluded:
There is no evidence of a purposeful intent to profit
under this contract at the expense of employees' wage
rights, nor is there evidence that the Rusts
intentionally failed to ascertain whether their practices
were in compliance with the regulation.
Clearly, the credibility of witnesses is a determination properly [2]
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[3] within the scope of the trial official's duties. In Homer
Dunn Decorating, WAB Case No. 87-03 (March 10, 1989), the Board
stated at p. 5:
In reaching her findings and conclusions, it must be
remembered that the ALJ heard and observed the witnesses
during the hearing. It is for the trial judge to make
determinations of credibility, and an appeals body such
as the Wage Appeals Board should be loathe to reverse
credibility findings unless clear error is shown.
The Supreme Court stated in Universal Camera v. NLRB, 340 U.S.
474 (1950) at p. 494:
Conclusions, interpretations, law and policy should of
course, be open to full review. On the other hand, on
matters which the hearing commissioner, having heard the
evidence and seen the witnesses, is best qualified to
decide, the agency should be reluctant to disturb his
findings unless error is clearly shown.
Also:
. . . material facts in any case depend upon the
determination of credibility of witnesses as shown by
their demeanor or conduct at the hearing." [Id. at p.
496].
Yet in its denial of reconsideration, this Board without
explanation violates its own precedent on such matters. In light
of Universal Camera, as well as the standard enunciated by the
Supreme Court for defining "willful" violations in Richland Shoe v.
McLaughlin, 486 U.S. 128 (1988), both the majority's decision of
May 5, 1987 and the Board's decision of October 2, 1989, are in my
judgment, arbitrary, capricious, and an abuse of the Board's
discretion.
Of the nearly one hundred Davis-Bacon appeals which have come [3]
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[4] before me as Chairman of the Wage Appeals Board, this case
has troubled me the most because it is the most egregious example
of a failure of the Board to carry out its responsibility to
provide independent and legally sound review of agency decisions.
Rust Construction, Jerry Rust and Sandra Rust have, in my most
considered judgment, been denied due process of law not by any
failure of Department of Labor enforcement and compliance officials
nor by any mistake or lack of conscientiousness of the Secretary's
Administrative Law Judge, but by the arbitrary and capricious
arrogation by the Board majority of fact-finding powers rightfully
within the purview of the Administrative Law Judge. I regret the
decision of the majority as an abusive injustice to the Petitioners
herein. I would grant the petition and uphold the decision of the
Administrative Law Judge.
Jackson M. Andrews
Chairman [4]
