TRADEMARK CONSTRUCTION CO., WAB No. 89-02 (WAB Mar. 29, 1991)
CCASE:
RICHARD D. WILSON
DDATE:
19910321
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
RICHARD D. WILSON, WAB Case No. 89-02
Individually, and d/b/a
TRADEMARK CONSTRUCTION
COMPANY AND TRADEMARK
CONSTRUCTION, INC.
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 matter revisits the question of whether, having found
that an employer has disregarded its obligations under the
Davis-Bacon Act, an Administrative Law Judge ("ALJ") has the
discretion to decline to recommend debarment. As the Board has
repeatedly held, no such discretion is possible under the Act.
This case is before the Wage Appeals Board on the petition of
the Administrator from the Decision and Order of ALJ Ellin M.
O'Shea dated September 14, 1988, wherein ALJ O'Shea found that Mr.
Wilson and his companies (hereinafter "Trademark") had repeatedly
underpaid employees in violation of the Davis-Bacon Act, 40 U.S.C.
276a et seq., and the regulations thereunder. It is uncontested
that Trademark had violated the Davis-Bacon Act on some sixteen
contracts and had falsified payrolls. It is further uncontested
that Trademark had paid back wages, had conducted a "self-audit"
and had paid additional back wages pursuant to that exercise, and
had (at least) offered to assist Wage and Hour and the Office of
the Inspector General in unrelated investigations. [1]
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[2] The record and pleadings in the case, viewed in the light
most favorable to Trademark, yields the following facts: Mr. Wilson
began a contracting business in and around Yuma, Arizona in 1979.
Within the next few years, his business increased geometrically.
But, by 1983, Trademark was under investigation for underpayments
and falsified payrolls. As soon as it became apparent that
criminal consequences were involved, Mr. Wilson cooperated
wholeheartedly with Wage and Hour. Back wages above and beyond
those suggested by Wage and Hour were paid, investigational
information was forthcoming, and future adherence to Davis-Bacon
requirements was promised and delivered. The ALJ who heard the
debarment action attributed Trademark's transgressions to naivete
and the "explosion" of Mr. Wilson's business volume.
In summary the record clearly states, and the parties do
not dispute, that Trademark underpaid its workers and falsified its
certified payrolls on numerous Davis-Bacon contracts. Nevertheless,
ALJ O'Shea "found and concluded" that Mr. Wilson had not
disregarded his obligations to his employees and therefore
declined to recommend debarment.
The Board has repeatedly held that underpayment of employees,
coupled with falsified payrolls, constitutes disregard of
obligations to employees under Section 3(a) of the Davis-Bacon Act.
See G & O General Contractors, WAB Case No. 90-35 (Feb. 19, 1991).
The sole question before the Board is whether an ALT has
discretion to preclude debarment upon finding underpayments and
falsified payrolls in violation of the Davis-Bacon Act. As the
Board held in G & O (Id.), Congress employed a bright line test.
Neither the Board nor an ALJ has the legal authority to supersede
an act of Congress. Accordingly, the Decision and Order is
reversed to the extent that debarment is not recommended; and the
order is amended to recommend debarment pursuant to Section 3(a) of
the Davis-Bacon Act for a period of three years.
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]
