CCASE:
PROPERTY RESOURCES CORPORATION
DDATE:
19910829
TTEXT:
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WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
PROPERTY RESOURCES CORPORATION WAB Case No. 91-10
Prime Contractor
and
CREER INDUSTRIAL COMPANY
Subcontractor
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 matter is before the Wage Appeals Board on the petition
of Property Resources Corporation ("PRC") for review of the
September 13, 1990 Decision and Order ("D & O") of Administrative
Law Judge ("ALJ") Julius A. Johnson wherein PRC was debarred for
violations of the U.S. Housing Act of 1937, 42 U.S.C. [sec] 1437j
and the Contract Work Hours and Safety Standards Act, 40 U.S.C.
[sec] 327 et seq.; and found liable for some $162,000 in back
wages. For the reasons contained herein, the Decision and Order is
reversed on the issue of debarment and affirmed on the issue of the
back wage determination. [1]
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[2] I. BACKGROUND
PRC was the prime contractor and Creer Industrial Company
the subcontractor on three U. S. Department of Housing and Urban
Development-financed projects during 1983 and 1984. Seventy-five
Creer employees were engaged in interior demolition work, which
left only the exterior walls standing. (Tr 26-31). These employees
were paid at the lower "barman" rates, while the higher "mason
tender" or "power equipment operator" rates may have been
applicable. Both rates were available under the applicable area
wage determination.
No area survey had been conducted to determine which local
union had jurisdiction over the work in question, and both local
unions' collective bargaining agreements asserted jurisdiction over
the work in question.
A number of peculiarities attended the hearing: first, the
employees in question were not paid fringe benefits at the rates
for barmen and barmen's helpers (Tr. 109-110); secondly, one
Department of Labor ("DOL") compliance officer testified that
demolition of the roof of a building comes within the barmen's
classification (Tr. 122); and the testimony of the DOL expert on
the jurisdictional issue tended to support a finding that
jurisdiction probably resided with the barmen (Tr. 76-96). After
the hearing a number of affidavits were produced in support of the
proposition that the work in question belonged to the mason tenders
(D & O, at 8). PRC had no opportunity to cross-examine or otherwise
challenge the affiants.
ALJ Schoenfeld left the Office of Administrative Law Judges
after the hearings, but before a Decision was issued. ALJ Johnson
entered his Decision and Order on September 13, 1990. Although
debarment was not requested by the DOL, ALJ Johnson ordered a
three-year debarment for "aggravated or willful violation of the
Davis-Bacon Act" and ordered back wages in an amount consistent
with the mason tender's wage rates.
II. DISCUSSION
At the outset, the Board repeats the proposition that the
decision to seek debarment is an exercise of prosecutorial
discretion which is not reviewable by an ALJ or by the Wage Appeals
Board. Consequently, as candidly admitted by the Solicitor on
behalf of the Acting Administrator, "the order to debar Property
Resources went beyond the authority of the ALJ and must be reversed
as erroneous." (Statement of the Acting Administrator, at 16). See
also R. C. Foss & Son, Inc., WAB Case No. 87-46 (Dec. 31, 1990)
(Slip Op. at 9). [2]
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Although the Board is reluctant to affirm an ALJ opinion
which may be incorrect and appears to be heavily, if not entirely,
based on hearsay evidence to the contradiction of live testimony,
the back wage determination in this matter must be affirmed. It
appears that the Decision and Order's classification of the workers
as mason tenders is premised on the four affidavits. As ALJ Johnson
states:
At the conclusion of the hearing, the parties were given
a time frame within which to submit and respond to
documents which had been discussed during the hearing as
well as the opportunity to request a continuation of the
hearing. In a letter dated June 28, 1989, the Government
submitted these documents. Respondents made no response
to this submission. Subsequent to the hearing, neither
party requested a continuation of the proceedings. There
were no post-hearing briefs submitted by the parties.
(D & O, p. 3). Having failed to object to the affidavits at the
time of their submission, it is inappropriate for the Board to
review their contents de novo.
Accordingly, the Decision and Order is reversed in part and
affirmed 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]
