CCASE:
LYLE AVERY, LTD.
DDATE:
19901231
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, DC
In the Matter of
LYLE AVERY, LTD., Subcontractor WAB Case No. 87-45
J. LAFAYETTE MORGAN, Owner
BEFORE: Jackson M. Andrews, Chairman, Stuart Rothman, Member,
Ruth E. Peters, Member
DATED: December 31, 1990
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the pro se
petition of Lyle Avery, Ltd., subcontractor, and J. Lafayette
Morgan, owner ("Morgan" or "Petitioner"), seeking review of the
July 28, 1987 decision and order of the Administrative Law Judge
("ALJ") regarding issues of prevailing wage and overtime
compensation violations and debarment. For the reasons set forth
below, the Board denies the petition for review.
I. BACKGROUND
On June 19, 1983 the prime contractor, D.R. Allen & Son, Inc.
("Allen"), contracted to construct a $1,491,000 addition to the [1]
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[2] general mail facility of the U.S. Postal Service ("USPS") in
Greensboro, North Carolina. Morgan performed the masonry work on
the project pursuant to a subcontract with the prime contractor.
The contract price for the masonry work was $170,430. Both the
contract and subcontract were subject to the labor standards
provisions of Davis-Bacon Related Acts -- the Postal Reorganization
Act (39 U.S.C. [sec] 410(b)(4)(C)) and the Contract Work Hours and
Safety Standards Act ("CWHSSA") (40 U.S.C. [sec] 327 et seq.).
The Department of Labor investigated Morgan's performance on
the subcontract, and concluded that Morgan failed to pay the
required prevailing wage rates for all hours worked and proper
overtime compensation. The USPS withheld contract payments in the
amount of $6,794.03 to cover payment of back wages to 38 former
Morgan employees. The Wage and Hour Division sent both the prime
contractor and Morgan a charging letter detailing the investigation
findings and notifying the parties of the opportunity to request a
hearing. The Administrator did not receive a hearing request
within the prescribed time period, and referred the names of Lyle
Avery, Ltd. and J. Lafayette Morgan to the Comptroller General for
inclusion on the ineligible list for a three-year period ending
June 17, 1988. In a subsequent letter Morgan stated that he had
not received the charging letter, and the Administrator granted the
request for a hearing.
After a hearing, the ALJ issued his decision and order. The
ALJ first resolved credibility issues, crediting the testimony of
the compliance officer and an employee witness called by the Solicitor
(ALJ's Decision ("ALJD") at 8-9). The ALJ found that the [2]
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[3] compliance officer noted discrepancies between the
representations made on the certified payrolls filed with the USPS,
and other time records (Id. at 8). The ALJ found that the
testimony and documentary exhibits presented by the compliance
officer, supported by the testimony of the employee witness, were
sufficient to establish a prima facie case that Morgan violated
prevailing wage and overtime compensation requirements (Id. at 9).
The ALJ accepted the compliance officer's computations of unpaid
wages due to 38 former employees as the amount for which Morgan was
liable (Id. at 11).
The ALJ turned aside Morgan's claim that the prime contractor
or its employees were responsible for racially motivated
impediments to Morgan's proper performance on the subcontract (Id.
at 9). Even if there had been this kind of improper activity, the
ALJ stated, Morgan was nevertheless obligated to pay employees in
accordance with law (Id. at 10). As to the debarment issue, the
ALJ determined that a three-year debarment was warranted (Id. at
11).
The ALJ ordered that the USPS release the contract payments
withheld from Petitioner to cover unpaid wages, and pay the
withholding over to the Wage and Hour Division for distribution to
the employees (ALJD at 11). The ALJ further ordered that Lyle
Avery, Ltd. and Morgan be continued on the ineligible list until
June 17, 1988 (Id. at 12). [3]
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[4] II. DISCUSSION
On review of the record in this case, the Board concludes that
the ALJ's decision and order should be affirmed. Morgan's petition
is essentially devoted to contesting the ALJ's credibility
resolutions and findings of fact. However, we find no basis for
disturbing the credibility determinations and the findings made by
the ALJ in this case.
The ALJ's decision and order is affirmed. The petition for
review is denied. /FN1/
BY ORDER OF THE BOARD:
_____________________________
Jackson M. Andrews
Chairman [4]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ When the ALJ issued his decision and order on July 28, 1987,
Petitioner had already completed more than two years on the
ineligible list. The petition does not expressly contest the ALJ's
order requiring Petitioner to complete the full three years on the
debarment list; furthermore, the debarment period has now expired
and the issue is moot. We note, however, that the Board recently
held in A. Vento Construction, WAB Case No. 87-51 (Oct. 17, 1990),
at p. 14 (29 WH 1685), that "aggravated or willful" violations of
the labor standards provisions of the Related Acts warrant an order
imposing a three-year debarment period absent extraordinary
circumstances. [4]
