MAJKA CONSTRUCTION CO., INC., WAB No. 91-05 (WAB Apr. 24, 1991)
CCASE:
DECISION OF THE WAGE APPEALS BOARD
DDATE:
19910424
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
MAJKA CONSTRUCTION CO., INC. WAB Case No. 91-05
Subcontractor
SIGMUND MAJKA, JR.,
President
SIGMUND MAJKA, JR.,
Secretary-Treasurer
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: April 24, 1991
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of the Acting Administrator for review of a Decision and Order of
Administrative Law Judge ("ALJ") Ainsworth H. Brown dated September
17, 1990. ALJ Brown, for reasons which remain unclear, refused to
debar Majka Construction Company, Inc.; Sigmund Majka, Sr.; or
Sigmund Majka, Jr. (hereinafter, collectively, "Majka") despite
their admission that they had underpaid their employees and their
inability or unwillingness to contest a charge of payroll
falsification. For the reasons contained herein, the Board remands
this matter for proceedings consistent with this opinion.
On August 26, 1986, the Wage and Hour Division issued a
charging letter to Majka claiming wage underpayments in violation
of the Davis-Bacon Act and the Contract Work Hours and Safety
Standards Act, and the submission of [1]
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falsified certified payroll records. On February 4, 1987, the Deputy
Chief ALJ issued a prehearing order requiring the Department of Labor
to provide the particulars of its charges and requiring admissions or
denials of Majka.
When Majka's response to the November 4, 1987 prehearing
order was never filed, the Department moved for an Order of
Default. Finally, on May 26, 1988, Majka (through its attorney)
sent a letter wherein it stated "Please be advised that we
certainly have never tried to contest this matter as far the facts
are involved." Despite this statement, the matter remained alive,
thereby giving Majka's attorney another opportunity to concede the
underpayments on July 17, 1990.
Despite these statements, ALJ Brown, noting that restitution
had occurred, refused to find disregard of obligations to
employees, and refused to order debarment.
The Board has repeatedly held that wage underpayments
coupled with the submission of falsified certified payrolls
constitutes disregard per se, and that an ALJ has no discretion to
decline to order debarment for the full three years. See Richard
D. Wilson, WAB Case No. 89-02 (Mar. 29, 1991); G & O General
Contractors, WAB Case No. 90-35 (Feb. 19, 1990); and the cases
cited therein.
Had the November 7, 1987 prehearing order specifically
ordered a response from Majka on the question of payroll
falsification, this matter would be reversed. However, as it is
unclear from the record whether the May 26, 1988 letter from
Majka's attorney constitutes an admission, this matter is remanded.
If the ALJ finds the May 26, 1988 letter to be an admission,
debarment for three years is automatic. If the payroll
falsification issue was never adequately litigated, further
proceedings limited to that question are in order.
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]
