A.O.K. CONSTRUCTION CORP., WAB No. 88-27 (WAB Mar. 29, 1991)
CCASE:
A.O.K. CONSTRUCTION
DDATE:
19910329
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
A.O.K. CONSTRUCTION
CORPORATION
and WAB Case No. 88-27
ANTHONY ODIERNO, President-
Treasurer
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: March 29, 1991
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
the above-captioned parties (hereinafter, "A.O.K.") from a decision
(attached) of Administrative Law Judge ("ALJ") George Fath finding
A.O.K. in violation of the Davis-Bacon Act and recommending
debarment. It raises the question of whether the often Draconian
consequences of debarment can be avoided following a finding of
disregard of obligations under the Davis-Bacon Act (40 U.S.C. [sec]
276a et seq.). As the Board has repeatedly held, Congress created
a "bright line test" in enacting the Act: disregard of obligations
results in a three-year debarment. For the reasons contained
herein, the Board has no choice but to affirm ALJ Fath's Decision
and Order.
The following facts are undisputed. For some twenty years
prior to 1983, and for the last five-some years, Mr. Odierno
engaged in government construction work without so much as an
allegation of wage-related violations -- [1]
~2
[2] indeed, he was the recipient of efficiency awards. However,
in 1983, Mr. Odierno's company was awarded a contract for repair
and replacement work at Stewart Army Subpost in New Windsor,
New York.
Mr. Odierno had worked exclusively in New Jersey for the
preceding three years, where "holiday pay" was not the local
custom. In addition, he employed a recent immigrant (a relative)
on the New York contract as a general helper; indeed, he saw that
his relative was driven to and from work. That relative was
engaged in a number of capacities, including that of a mason and a
carpenter.
When informed of the holiday pay requirement prevalent in New
York, and of the prevailing wage rate requirements applicable to
his relative, Mr. Odierno made back wage payments in short order.
His sole intentional violation was to adjust his certified payroll
records to reflect his relative's commuting time in order to offset
the higher prevailing wage rates applicable to that one employee.
A debarment proceeding was initiated, Mr. Odierno and A.O.K. were
found to have disregarded their obligations under the Davis-Bacon
Act, and debarment was recommended.
The Board has no choice but to affirm the ALJ's decision.
Congress did not contemplate other than a three-year debarment
following disregard of obligations. G & O General Contractors, WAB
Case No. 90-35 (Feb. 19, 1991). Accordingly, the Decision and
Recommendation is affirmed.
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 [2]
