H. P. CONNOR AND CO., INC., WAB No. 90-07 (WAB Feb. 26, 1991)
CCASE:
H. P. CONNOR AND COMPANY, INC.
DDATE:
19910226
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
H. P. CONNOR AND COMPANY, INC.
and WAB Case No. 90-07
HERMAN P. CONNOR, Owner
and 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 [W]age [A]ppeals [B]oard on the
petition of the above-captioned parties (hereinafter "Connor" or
"Petitioner") from the corrected Decision and Order ("D & O") of
Administrative Law Judge ("ALJ") Joel R. Williams dated December 5,
1989 (Attached). The Decision and Order found Connor in violation
of the Davis-Bacon Act, 40 U.S.C. [sec] 276a et seq., insofar as
he had underpaid employees and falsified certified payrolls during
May and July 1985 in connection with construction work at the Army
Reserve Center in Camden, New Jersey.
Petitioner raises many arguments similar to those contained in
H. P. Connor, WAB Case No. 88-12 with one crucial difference. In
the earlier case, although appearing pro se, Connor's petition
contained some factual assertions in support of the points on which
he relied. In this case the petition, although [1]
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[2]
signed by and presumably prepared by an attorney, says nothing
which could qualify as a statement of the factual or legal reasons
supporting the petition. The Statement of the Administrator
correctly cites 29 C.F.R. 6.34 and 7.9(b) for the proposition that
the Board should dismiss a petition where, as a result of the
absence of information in the petition or accompanying statements,
the Board is unable to assess the propriety of the ALJ's decision
without supplying the appropriate arguments itself. Such
deficiencies improperly place the Board in the position of both
advocate and tribunal.
Thus, we need not reach the merits of Connor's petition. Were
we to do so, we would rule against Connor on each of the points
raised, even though none is substantiated in the record. Connor
claims the Department of Labor failed to turn over unspecified
records prior to the hearing; yet the record clearly shows the
Department turned over all relevant materials despite the fact that
Connor never filed a single discovery motion (Tr. 13-15).
Similarly, Connor's unsubstantiated claim of witness tampering is
belied by the fact that the witnesses were sequestered at
Petitioner's request, instructed as to proper conduct, and had not
discussed the case (Tr. 228-29). Connor's claim of prejudice
because of the passage of less than one year from the end of the
hearing to the issuance of the Decision & Order is incredible in
view of his ability to bid on and receive contracts in the
intervening period. Connor's remaining "issues" relate to witness
credibility, evidentiary determinations, and the statutory duty of
a contractor to monitor the Davis-Bacon Act compliance of its
subcontractors. None of these "issues" are factually substantiated
in the petition; indeed, our review of the entire record reveals an
absence of any facts which would lead to conclusions other than
those reached by ALJ Williams.
For the foregoing reasons, the petition is dismissed.
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]
