U.S. FLOORS, INC., WAB Case No. 91-33 (Mar. 20, 1992)
CCASE:
U.S. FLOORS, INC.
DDATE:
19920320
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
U.S. FLOORS, INC. WAB Case No. 91-33
Prime Contractor
PETER COLEMAN, individually
and as President
VALENTINA COLEMAN, individually
and as Vice-President
BEFORE: Charles E. Shearer, Jr., Chairman
Stuart Rothman, Senior Member
DATED: March 20, 1992
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of U.S. Floors, Inc.; its president, Peter Coleman; and its
vice-president, Valentina Coleman (collectively, "Petitioners"),
from the August 29, 1991 decision (Attachment) of Administrative
Law Judge ("ALJ") Rudolf L. Jansen. Petitioners were debarred for
a period of three years. Petitioners argue that ALJ Jansen's
decision is incorrect in two respects. First, there was no basis
for debarring Peter Coleman in that there was no evidence he
personally maintained two sets of wage records. Second, alleged
breaches of the relevant contract by the contracting agency somehow
excused or mitigated petitioners' conduct. For the reasons
contained herein, ALJ Jansen's decision is affirmed in all
respects.
U.S. Floors was awarded a contract for renovation at
Wright-Patterson Air Force Base in Dayton, Ohio. As a result of a
Wage and Hour Division investigation, it was found that Petitioners
violated the Davis-Bacon Act and the [1]
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[2]
Contract Work Hours and Safety Standards Act in that they had
underpaid their employees by an amount in excess of $47,000 and
had falsified their certified payrolls to simulate Davis-Bacon
compliance. After the back wages were paid, an administrative
hearing before an ALJ was held on the issue of debarment. It was
and is undisputed that U.S. Floors underpaid its employees and that
it invariably submitted falsified payroll records. It is also
undisputed that the Petitioners had extensive exposure to the
requirements of the Davis-Bacon Act and related statutes.
The Petitioners contend that Peter Coleman should not be
debarred because there was "a lack of evidence to support . . . the
finding that Peter Coleman kept a duplicate set of records."
(Petition, p. 2). This argument is without merit for three
distinct reasons.
First, the finding is based on the testimony of a compliance
officer that Peter Coleman stated that he maintained two sets of
records (Transcript, p. 35). Petitioners characterized this
testimony as hearsay; however, as counsel for the Acting
Administrator correctly argues, Mr. Coleman's statement is more
properly characterized as an admission of a party opponent,
admissible under Rule 801(d)(2) of the Federal Rules of Evidence
and 29 C.F.R. 18.801(d)(2).
Second, even if the statement is hearsay, it may be
admissible under any of a number of exceptions to the hearsay rule.
See Permis Construction Corp., WAB Case No. 88-11 (July 31, 1991);
and M. C. Lazzinnaro Construction Corp., WAB Case No. 88-08 (March
11, 1991).
Mr. Coleman was the president and chief officer of U.S.
Floors; furthermore, he was intimately involved in the performance
of the contract in question. Were Mr. Coleman permitted to assert
an ignorance of the underpayments, a contractor could avoid its
Davis-Bacon responsibilities by effectively designating the
violator. Mr. Coleman's position of responsibility and personal
participation in the performance of the contract is sufficient to
warrant his debarment.
Petitioners' second argument may be summarized as follows:
by virtue of post-award adjustments to the contract requirements
(adjustments which the Petitioners argue were in violation of the
Federal Acquisition Regulations), the underpayment of the workers
and the submission of falsified certified payrolls is somehow
"mitigated," warranting less than a three year debarment.
Post-award modifications that reduce a contractor's profit
margins do not mitigate Davis-Bacon Act violations. The federal
acquisition system has independent remedies for problems of that
nature. Evidence related thereto is irrelevant in proceedings
related solely to the Davis-Bacon Act. [2]
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[3] Secondly, Petitioners ask the Board to reduce the debarment
period as a matter of discretion. However, the Davis-Bacon Act
does not permit such tolerances. There is no spectrum of debarment
time variations on Davis-Bacon Act projects as distinguished from
Davis-Bacon Related Acts' projects. See G&O General Contractors,
Inc., WAB Case No. 90-35 (Feb. 19, 1991).
It is undisputed that the petitioners underpaid their
employees and submitted falsified payrolls. The Board has
repeatedly ruled that these acts constitute disregard of
obligations under the Davis-Bacon Act. ALJ Jansen's Decision and
Order is affirmed in all respects.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Stuart Rothman, Senior Member
Gerald F. Krizan, Esq., Executive Secretary [3]
