[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
ALL TEMP INSULATION CO.
CARLOS R. ESCOBAR, Co-Owner WAB Case No. 87-26
ARTURO S. ESCOBAR, Co-Owner
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: January 31, 1991
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the Petition of
All Temp Insulation Co. ("All Temp") and its co-owners, Carlos and
Arturo Escobar (collectively "Petitioners"), seeking review of the
June 1, 1987 Recommended Decision and Order (Attachment) of
Administrative Law Judge Joseph A. Matera ("ALJ") regarding issues
of prevailing wage violations and debarment. For the reasons set
forth below, the Board denies the petition for review.
I. BACKGROUND
All Temp was a subcontractor for the application of insulation
to the mechanical system at William Beaumont Medical Center at Fort
Bliss, Texas, between 1980 and 1982. As stipulated by the parties
at the hearing, the contract was covered by the Davis-Bacon Act, 40
U.S.C. 276a et seq. and the Copeland Anti-Kickback Act, 40 U.S.C.
276c. These statutes and the regulations thereunder were
incorporated into the contract, as was Wage Determination No.
[1][2] 4045, which included the applicable wage rate owed to
asbestos and insulation workers in the area where the contract was
to be performed.
In 1980 an Army Corps of Engineers compliance officer
determined that Daniel Alvarez, an employee of All Temp had
performed insulation work for which he was not properly
compensated. As a result, All Temp made restitution by giving
Alvarez a check for $555.11. A subsequent investigation by Wage
and Hour Compliance Officer ("CO") Larry Williams revealed that
three employees -- Daniel Alvarez, Ramon Gonzalez, and Enrique
Luevano -- had received hourly rates less than those mandated by
the wage determination during the February 1980 to February 1982
period, and that back wages in the amount of $8,636.73 were due to
them.
All Temp's in-house payrolls showed that the three employees
were paid at rates ranging from $3.35 to $6.00 per hour, but the
All Temp certified payrolls submitted to the Army Corps of
Engineers showed the employees being paid at rates of $6.84 to
$11.01 per hour. CO Williams' investigation also revealed that Mr.
Alvarez had cashed the All Temp back wage check for $555.11 and
returned the proceeds to one of the All Temp owners, Arturo
Escobar. CO Williams requested All Temp to pay the back wages,
which the Petitioners did.
After the investigation, All Temp was charged with having
committed violations in disregard of its obligations to employees
under the Davis-Bacon Act because of the underpayments and
falsified certified payrolls, and with a willful and aggravated
violation of the Copeland Act for requiring Daniel Alvarez to kick
back money to All Temp. Wage and Hour therefore sought debarment
against All Temp, Carlos Escobar, and Arturo Escobar.
After a hearing, the ALJ issued his Recommended Decision and
Order. It was based upon a review of the entire record, including
documentary and testimonial evidence. Although Petitioners never
submitted proposed findings of fact, conclusions of law, or a
proposed order, they did agree to a set of pretrial stipulations.
The parties stipulated to the payment of less than prevailing
wages, the submission of inaccurate payroll records, and the
falsification of payroll records relating to the $555.11 kickback.
In addition, ALJ Matera found that Petitioners instructed the
employees to tell the Department of Labor that they were being paid
at higher levels than the amounts actually received. Furthermore,
ALJ Matera specifically found that CO Williams had made no promises
or representations regarding possible debarment.
Following a recitation of applicable law, ALJ Matera concluded
Petitioners had disregarded their obligations to employees under
the Davis-Bacon Act and had committed a willful and aggravated
violation of the Copeland Act with regard [2][3] to the $555.11
kickback. ALJ Matera further concluded that Petitioners should be
debarred in accordance with the provisions of 29 C.F.R. 5.12, and
so ordered.
II. DISCUSSION
In the Petition for Review, Petitioners do not contest the
payment of less than prevailing wages, nor do they contest the
findings relating to the falsification of records. Petitioners'
allegations of error essentially contest ALJ Matera's credibility
resolutions and findings of fact, as well as the stipulations
Petitioners agreed to at trial. We find no basis on the record or
in the pleadings for disturbing ALJ Matera's findings of fact and
conclusions of law; indeed, we find them supported by ample
reliable and probative evidence.
It is well settled under Board precedent that falsification of
certified payrolls to conceal violations constitutes disregard of
the employer's obligations to employees under Section 3(a) of the
Davis-Bacon Act. See Marvin E. Hirchert d/b/a M & H Construction
Co., WAB Case No. 77-17 (Oct. 16, 1978). It is also well settled
that Copeland Act violations constitute "aggravated or willful"
violations of the Related Acts under 29 C.F.R. 5.12(a)(1). See
Homer L. Dunn Decorating, Inc., WAB Case No. 87-03 (Mar. 10, 1989).
Accordingly, the ALJ's decision and order is affirmed, and the
Petition for Review is denied.
BY ORDER OF THE BOARD: Charles E. Shearer, Jr., Chairman, Ruth E.
Peters, Member, Patrick J. O'Brien, Member, Gerald F. Krizan, Esq.
Executive Secretary [3]
