H. P. CONNOR AND CO., WAB No. 88-12 (WAB Feb. 26, 1991)
CCASE:
H. P. CONNOR AND COMPANY
DDATE:
19910226
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
H. P. CONNOR AND COMPANY
HERMAN P. CONNOR, President
WAB Case No. 88-12
GRAY ELECTRIC a/k/a GRAY
ELECTRICAL CORPORATION
HERBERT GRAY, President
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: February 26, 1991
DECISION OF THE WAGE APPEALS BOARD
This matter is before the wage appeals board on the petition of H. P.
Connor and Company, Inc. and its president, Herman P. Connor ("Connor" or
"Petitioner"), seeking review of Administrative Law Judge ("ALJ") Robert P.
Kaplan's Decision and Order ("D & O") finding Connor in violation of the
Davis-Bacon Act and other statutes, and recommending debarment in connection
with three federal construction contracts. Gray Electric a/k/a Gray
Electrical Corporation, and Herbert Gray do not appeal the Decision and
Order. Connor's pro se petition alleges, inter alia, that the decision was
somehow tainted with racial prejudice, that the procedure was tainted by the
presence of Gray, that various types of improper evidence were introduced,
that the Department of Labor somehow combined with local labor organizations
to injure Connor, and that Mr. Connor received harsher treatment than other
(white-owned) contractors. Our review of the record supports the [1]
~2
[2] findings and conclusions of ALJ Kaplan, and reveals Connor's arguments
to be without legal or factual basis. We therefore affirm the Decision
and Order and deny the petition for review.
I. BACKGROUND
From 1981 through 1983, Connor was the prime contractor on three
federally funded construction projects: interior painting of the Peter
Rodino Federal Building in Newark, New Jersey; reconstruction of a research
facility at the East Orange, New Jersey Veterans Administration ("VA")
Medical Center; and interior painting of the Westfield, New Jersey Post
Office. The first two contracts were subject to the Davis-Bacon Act, 40
U.S.C. [sec] 276a et seq., while the third to the Postal Reorganization Act,
as amended, 39 U.S.C. 410(b)(4)(c), a Davis-Bacon Related Act. Connor
enlisted subcontractors on all three projects.
At the Rodino Building, three individuals were listed as having received
prevailing wages, when in fact they were paid at a lower rate (Tr. 132, 263-
265; Complainant's Exhibit ("CX")-9). A Connor subcontractor, F. Foster and
Company, had also underpaid an employee and had submitted falsified certified
payrolls as to him (Tr. 174, 242-243; CX-7). The firm's president, Fred
Foster, informed Wage and Hour that he had given blank payrolls to Connor
(Tr. 248).
At the VA research facility, employees of Connor's subcontractor were
underpaid and required to give kickbacks to the subcontractor, Gray (Tr. 183,
190, 206, 216, 288-290; CX-14). All of Gray's payrolls were certified
jointly or exclusively by Connor (CX-14). [2]
~3
[3] The Westfield Post Office project was subcontracted to Stevens
Painting, the owner of which admitted to paying less than prevailing wages
(Tr. 69). Steven's certified payrolls, submitted in blank to and filled out
by Connor, showed the payment of the correct wages (Tr. 72-74; CX-1).
At the hearing, which was conducted with patience and objectivity (see,
e.g., Tr. 1-42), ALJ Kaplan found Connor liable for the underpayment to his
employees on the Rodino Building project; or, in the alternative, that Connor
had run afoul of 29 C.F.R. 5.5(a)(6), which renders a prime contractor liable
for the Davis-Bacon compliance of his subcontractors. The ALJ also made a
witness credibility determination that Connor had falsified the payrolls of
F. Foster and Company (D & O, pp. 5-6).
The ALJ also found Connor guilty and knowledgeable of subcontractor
Gray's underpayments at the VA facility, and that Connor had falsified the
Gray payrolls. ALJ Kaplan found the evidence insufficient to establish
Connor's [2][3] knowledge of and participation in Gray's kickback scheme.
These conclusions were reached after an evaluation of the credibility of
witnesses for both sides.
There was no dispute that the owner of Stevens Painting, Connor's
subcontractor on the Westfield Post Office project, underpaid his employees
and submitted blank payrolls to Connor (D & O, pp. 11-12). The ALJ found
that the Connor employee who falsified the payrolls did so knowingly and for
the benefit of Connor, and therefore attributed that employee's conduct to
Connor (Id.).
II. DISCUSSION
Our review of the record, Decision and Order, and subsequent pleadings
in this matter compels us to uphold ALJ Kaplan's Decision and Order.
Connor's repeated falsification of certified payrolls and knowing or grossly
negligent participation in the underpayment of direct and indirect employees
on the Rodino Building and VA Research Facility projects were clearly
violative of the Davis-Bacon Act and constitute disregard of obligations to
employees by any standard. Similarly, the wage underpayments and payroll
falsifications involved in the Westfield Post Office project constitute the
"aggravated or willful" violations of Davis-Bacon Related Acts referred to in
the Secretary's regulations and discussed in A. Vento Construction, WAB Case
No. 87-51 (Oct. 17, 1990)(29 WH 1685).
Our review of the transcript shows no injury to Connor flowing from the
participation of Mr. Gray, nor do we see anything which would support claims
of racial bias or improper influence by local labor unions. Accordingly, we
reject these aspects of Connor's petition, noting that some of these
allegations were made for the first time after the hearing.
Regarding Mr. Connor's claim of disparately severe treatment, we find no
evidence of any such pattern and advise Mr. Connor to wait and watch.
Accordingly, ALJ Kaplan's Decision and Order is affirmed and Connor's
petition is denied.
BY ORDER OF THE BOARD:
[MEMBERS]
[EXECUTIVE SECRETARY] [3]
