R. J. SANDERS, INC., WAB No. 90-25 (WAB Jan. 31, 1991)
CCASE:
R. J. SANDERS, INC.
DDATE:
19910131
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of:
R. J. SANDERS, INC.
and WAB Case No. 90-25
RAYMOND J. SANDERS, President
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: January 31, 1991
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the Petition of
R. J. Sanders, Inc. for review of the March 23, 1990 Decision and
Order (Attachment) of Administrative Law Judge ("ALJ") Martin J.
Dolan, Jr., whereby R. J. Sanders, Inc., and its president, Raymond
J. Sanders (collectively, "Petitioner") were found in violation of
the Davis-Bacon Act, 40 U.S.C. [sec] 276a et seq. and placed on the
Comptroller General's ineligible list for a period of not less than
three years. The Petitioner asserts three bases for reversal:
first, that the evidence does not support a finding of
"intentional" or "willful" disregard of Davis-Bacon obligations;
second, that ALJ Dolan "erroneously refused to recognize
appropriate mitigating factors in determining the issue of
debarment"; and finally, that ALJ Dolan's "failure to conduct the
entire hearing on the record constitutes a violation of Sanders'
due process rights." For the reasons stated below the Board denies
the Petition for Review. [1]
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[2] I. BACKGROUND
Petitioner was the prime contractor for the repair of certain
heating plant machinery at the Naval Submarine Base Power Plant #29
in Groton, Connecticut. A Department of Labor investigation
revealed that Petitioner had kept two sets of records and falsified
its certified payrolls to simulate compliance with the Davis-
Bacon Act. Back wages were calculated and paid. Thus, the only
issue before ALJ Dolan was the question of Petitioner's debarment.
At the hearing, evidence was introduced which showed that
Petitioner kept two sets of payroll records, the certified set
showing higher wage rates than actually paid (Tr. 13-25). One
employee, John Csizmesia, was paid $8.50 per hour under a contract
which called for total compensation of $21.60 per hour. After
Csizmesia reported this fact to a Navy inspector, he was fired by
Mr. Sanders.
Towards the end of the hearing counsel for Petitioner asked
for the opportunity to "voir dire" ALJ Dolan. A discussion between
counsel for Petitioner and ALJ Dolan occurred off the record. The
hearing then resumed without further reference to the "voir dire".
The parties were given the opportunity to make closing statements,
and allowed until January 30, 1990 to submit proposed findings of
fact and conclusions of law (Tr. 66-69).
ALJ Dolan's Decision and Order ("D & O") is based largely on
the testimony of the witnesses and the documentary evidence
relating to Petitioner's payroll practices. ALJ Dolan makes
specific reference to Raymond Sanders' admission that he knew and
understood that by signing the certified payrolls he was claiming
them to be true and correct; furthermore, Mr. Sanders was aware of
the requirement that his employees be paid at prevailing wage rates
(D & O, paragraph 8; Tr. 60-61).
II. DISCUSSION
Petitioner's claim that there was insufficient evidence to
support a finding of an intentional or willful disregard of
Davis-Bacon Act obligations borders on the frivolous. The Wage
Appeals Board has repeatedly held that failure to pay prevailing
wage rates, when coupled with submission of falsified payrolls
constitutes a disregard of Davis-Bacon Act obligations.
Furthermore, the submission of falsified payrolls raises a prima
facie case that the violations were intentional. See J & L
Janitorial Services, Inc., WAB Case No. 86-10 (Nov. 13, 1986);
Marvin E. Hirchert d/b/a M & H Construction Company, WAB Case No.
77-17 (Oct. 16, 1978); and C.M. Bone, Acme Painting Co., WAB Case
No. 78-04 (June 7, 1978), reconsideration denied, Sept. 13, 1978.
Like ALJ Dolan, we regard Petitioner's discharge of Mr. Csizmesia
as essentially retaliatory. Like [2]
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[3] ALJ Dolan, we find this conduct persuasive evidence of a willful
violation of the Davis-Bacon Act. In any case, it is the province
of the finder of fact to make credibility determinations, and we see
no reason to reverse ALJ Dolan.
Petitioner's second argument, that ALJ Dolan erroneously
refused to recognize appropriate mitigating factors in determining
the debarment question, also fails. Mitigating factors are only
relevant in Davis-Bacon Related Act cases. The case at hand arises
solely under the Davis-Bacon Act. Nevertheless, ALJ Dolan
permitted Petitioner to introduce such evidence over the objection
of counsel for the Administrator of the Wage and Hour Division,
(Tr. 47-54). The mere fact that Petitioner was unable to persuade
ALJ Dolan does not provide a basis for reversal.
Petitioner's third argument -- that due process was violated
by the failure to conduct an inquiry into possible bias on the
record -- is also without merit. Procedures for the
disqualification of an ALJ are contained in the regulations at 29
C.F.R. 18.31(b). These procedures were not followed by Petitioner.
Had Petitioner filed a motion for recusal supported by an
appropriate affidavit, that motion would be part of the record
before the Board.
We repeat that mitigating factors are not relevant to
proceedings solely under the Davis-Bacon Act. The administrative
hearing process would be simplified by the exclusion of extraneous
material. The reference to 29 C.F.R. 5.12(a)(1), which is
applicable to Davis-Bacon Related Acts, contained in the second
paragraph of ALJ Dolan's order, is unnecessary. We therefore
modify the Order to delete the second paragraph in the interest of
clarity and efficiency in the administrative process. Accordingly,
the Petition for Review is denied and ALJ Dolan's Decision and
Order of March 23, 1990 is affirmed in part and modified in part.
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]
