WILLIAMS FENCE CO., WAB No. 87-23 (WAB Aug. 17, 1987)
CCASE:
WILLIAMS FENCE COMPANY
DDATE:
19870817
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
WILLIAMS FENCE COMPANY, INC. WAB Case No. 87-23
Subcontractor, et al.
Dated: August 17, 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 Williams Fence Company, Inc., seeking review of the Decision
and Order of the Administrative Law Judge (hereinafter ALJ) dated
April 6, 1987. /FN1/ The ALJ in his Order of April 6, 1987
recommended that Williams Fence Company, Inc., and Willie H.
Williams, individually, should be placed on the ineligible list
pursuant to the Davis-Bacon Act, 40 U.S.C. 276(a)-2(a).
The petitioner contends that the ALJ was in error in
recommending that it be placed on the ineligible list as the
petitioner was never provided with notice or a debarment hearing as
required in Department of Labor Regulations, 29 CFR sec. 5.12. The
Administrator in her statement of July 31, 1987 agrees with the
petitioner that the decision to debar Williams Fence Company, Inc.,
and Willie H. Williams was erroneous.
The Board in E.B. Fitzpatrick, WAB Case No. 87-17 (July 9,
1987) indicated that the authority for an ALJ to hold a hearing for
enforcement proceedings under the Davis-Bacon and related acts is
contained at 29 CFR sec. 6.30. That [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The Board has not considered the misclassification issue
involved in this case. If the petitioner still desires that issue
to come before the Board, it has 45 days from the date of this
decision to reinstate its petition including a definitive statement
setting forth supporting reasons in accordance with 29 CFR sec.
7.9(b).
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[2] section provides as follows:
(a) Upon timely receipt of a request for a hearing
under sec. 5.11 (where the Administrator has determined
that relevant facts are in dispute) or sec. 5.12 of Part 5
of this title, the Administrator shall refer the case to the
Chief Administrative Law Judge by Order of Reference, to
which shall be attached a copy of the notification letter
to the respondent from the Administrator and response thereto,
for designation of an Administrative Law Judge to conduct
such hearings as may be necessary to decide the disputed
matters. A copy of the Order of Reference and attachments
thereto shall be served upon the respondent.
(b) The notification letter from the Administrator and
response thereto shall be given the effect of a complaint
and answer, respectively, for purposes of the administrative
proceedings. The notification letter and response shall
be in accordance with the provisions of sec. 5.11 or sec.
5.12(b)(1) of Part 5 of this title, as appropriate.
29 CFR sec. 5.12 prescribes the debarment proceedings whereas sec.
5.11 relates to hearings concerning payment of wages.
The record in this case, as in E.B. Fitzpatrick, reveals that
the notification letter sent to the petitioner and the Order of
Reference which authorized the ALJ to hold a hearing referred only
to proceedings under sec. 5.11. Neither the Order of Reference nor
the notification letter from the Wage and Hour Division made any
mention of debarment.
Where the document which authorized the hearing only gave the
ALJ authority to decide the issue of whether the employees were
underpaid, the Board must agree that the order to debar petitioner
was beyond the ALJ's authority and, therefore, erroneous.
Accordingly, the order recommending Williams F[]ence Company,
Inc., and Willie H. Williams be debarred is vacated and they are
free to continue to bid and work on other Davis-Bacon and related
Acts construction projects.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [2]
