CCASE:
PROPERTY RESOURCES CORPORATION
DDATE:
19910429
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
PROPERTY RESOURCES CORPORATION WAB Case No. 90-24
Prime Contractor
JEROME CHATSKY, President and
Chairman of the Board
JEFF GOLDBERG, Vice-President
and Controller
MYRNA STERN,
Corporate Secretary
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: April 29, 1991
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on cross-petitions
for review of a Decision and Order ("D & O") by ALJ George R.
Pierce on February 2 1, 1990, wherein the above-captioned parties
(hereinafter, collectively, "PRC") were debarred for only three
months after a finding of a "willful and intentional" violation of
the prevailing wage requirements of a Davis-Bacon Related Act
(specifically, the National Housing Act, 12 U.S.C. [sec] 1715c).
PRC disputes the finding of willful violation (and hence, the
subsequent debarment), while the Wage and Hour Division contends
that the [1]
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[2] violations were willful and a three-year debarment
is mandatory. For the reasons contained herein, the Board affirms
the ALJ's decision to the extent a finding of willfulness was
warranted, but reverses and modifies the decision to the extent a
debarment period of less than three years is ordered.
I. BACKGROUND
From as early as 1972, PRC engaged in over 45 government
contract projects (PRC Brief, p. 17). Nevertheless, Compliance
Officer Louis Graziano testified that in 1982 he reviewed PRC
payroll records on three active jobsites and found that 42 workers
were not paid fringe benefits totaling $61,333.00 (TR 355-357).
Several months after the final compliance conference, these
employees were paid the backwages due (TR 366).
Similarly, Compliance Officer Joseph Petrecca investigated
5 PRC jobsites in early 1983 and found that 49 non-union employees
had not been paid $48,486.33 in fringe benefits (TR 387-400). Mr.
Petrecca's investigation included specific instructions on
prevailing wage requirements and the receipt of assurances as to
future compliance.
Nevertheless, the investigation culminating in the matter
under consideration, conducted in late 1983, revealed that fringe
benefits amounting to $30,971.96 had not been paid to 16 workers on
still another job-site (TR. 478-495).
The sole justification offered by PRC for these repeated,
selective violations of the requirement to pay prevailing
compensation was the assertion that current payment of base wages
plus a cash supplement equal to the fringe benefits would cause
jobsite friction between union and non-union employees. No
adequate explanation was proffered for the failure to establish
pension, welfare, or vacation plans for non-union employees.
Based on the foregoing, ALJ Pierce found that "Respondents
intentionally and willfully violated the Act as charged and should
be debarred." (D & O, p. 12). However, he limited the debarment
period to three months, apparently in light of the fact that PRC
only hired union employees on projects after those under
consideration.
II. DISCUSSION
Given the pattern of underpayments by PRC, and given his
assessment of the credibility of the witnesses, ALJ Pierce's
finding of willful violation of [2]
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[3] the prevailing wage requirements is supported by reliable and
credible evidence. The Board sees no basis on the record or in PRC's
pleadings to reverse that finding.
However, in A. Vento Construction, WAB Case No. 87-51 (Oct.
17, 1990) (29 WH 1685) the Board held that the debarment period for
"aggravated and willful" violation of Davis-Bacon Related Act
prevailing wage requirements is three years, absent a showing of
extraordinary circumstances (Slip Op., at 14). Furthermore, in
Salazar Construction Company, WAB Case No. 87-35 (Feb. 19, 1991),
the Board held that "a history of repeated violations of identical
minimum wage provisions . . . [precludes] a finding of unusual
circumstances" (Slip Op., at 3). Accordingly, the Decision and
Order is reversed to the extent it provides for less than a
three-year debarment period.
Pursuant to 29 C.F.R. 5.12(a)(1), PRC and the above-captioned
individuals shall be ineligible to receive any contracts or
subcontracts subject to any of the statutes listed in 29 C.F.R. 5.1
for a period of three years. PRC may request removal from the
ineligible list after completing six months of the debarment period
pursuant to the procedure set forth at 29 C.F.R. 5.12(c).
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 [3]
