CCASE:
MILLER INSULATION
DDATE:
19921230
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
MILLER INSULATION WAB Case No. 91-38
COMPANY, INC.,
Subcontractor
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
DATED: December 30, 1992
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of the Acting Administrator of the Wage and Hour Division for
review of an October 24, 1991 decision and order issued by
Administrative Law Judge ("ALJ") Jeffrey Tureck regarding issues of
unpaid wages and overtime compensation, and debarment of Miller
Insulation Company, Inc. ("Miller Insulation") and its president,
Bradley I. Miller. For the reasons stated below, the decision and
order of the ALJ is affirmed in part and remanded in part for
further proceedings consistent with this decision. [1]
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[2] I. BACKGROUND
A. Factual background
Miller Insulation performs construction and insulation work.
The company started out as a residential insulation business; the
firm hired Jerry Miller in 1973 to start a commercial insulation
division, and also expanded into oil field insulation work. The
company entered the industrial insulation market in 1986. The
firm's principal place of business is Bismarck, North Dakota.
Bradley I. Miller, the son of the founder of the corporation, has
been president of Miller Insulation since January 1, 1985.
Miller Insulation subcontracted to perform mechanical
contracts on five contracts with the federal government. (1)
Contract No. DACA 45-85-C-0172 ("Minot helicopter hangar contract")
was a contract with the Army Corps of Engineers to construct a
helicopter hangar at Minot Air Force Base ("AFB") in North Dakota.
The contract was subject to Wage Determination ND 85-5009, which
listed an asbestos workers wage rate totaling $19.91 ($18.03 plus
$1.88 in fringe benefits). Miller Insulation, as subcontractor,
performed mechanical insulation work on the project from June to
October, 1986.
(2) Contract No. DACA 45-86-C-0068 ("B-1B facilities
contract") was for construction of B-1B Support Facilities at Grand
Forks AFB in North Dakota. The applicable wage determination was
85-ND-0223, which listed an asbestos workers rate of $19.92 ($18.03
plus $1.89 in fringe benefits). Miller Insulation's work as
subcontractor involved insulation of new mechanical systems; Miller
Insulation performed the work from January through September, 1987.
(3) Contract No. DACA 45-87-C-0080 ("UEPH contract") was for
remodeling four UEPH buildings at Grand Forks AFB. The applicable
wage determination was ND 86-3, which contained an asbestos workers
rate totaling $19.92 ($18.03 plus $1.89 in fringe benefits).
Miller Insulation subcontracted to perform pipe and duct
insulation, and performed the work during August and September,
1987.
(4) Contract No. NGB 32-87-C-0002 ("Armory contract") was with
the U.S. Army National Guard for the State of North Dakota for
plumbing and heating construction of the National Guard Armory in
Bismarck, North Dakota. The applicable wage determination was ND
87-1, which listed an asbestos workers rate totaling $19.91 ($17.78
plus $2.13 in fringe benefits). Miller Insulation performed
insulation work on the project from June 1, 1987 through October,
1988. [2]
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[3] (5) Contract No. DACA 45-85-C-0112 ("Composite Medical
Facility contract") was for construction of a composite medical
facility at Minot AFB. The applicable wage determination was ND
85-5009, which contained an asbestos workers rate of $19.91 ($18.03
plus $1.88 in fringe benefits). Miller Insulation performed the
work of insulating the mechanical systems from July, 1986 through
April, 1988.
After conducting an investigation of Miller Insulation, the
Department of Labor issued an Order of Reference (Case No. 89-
DBA-90), which was later consolidated with a another Order of
Reference (Case No. 90-DBA-115). The orders referred this matter
to the Office of Administrative Law Judges for a hearing on the
issues of unpaid wages and overtime compensation, and debarment of
Miller Insulation and Bradley Miller for disregard of their
obligations to employees under the Davis-Bacon Act (40 U.S.C. [sec]
276a et seq.) and "aggravated or willful" violations of the
Contract Work Hours and Safety Standards Act (40 U.S.C. [sec] 327
et seq.; "CWHSSA"). /FN1/ A hearing on these issues was held
before the ALJ on October 16-19, 1990 and January 7-10, 1991.
B. The ALJ's decision and order
1. Classification of Miller Insulation's employees
In his October 24, 1991 decision and order, the ALJ
characterized the central issue in the case as "whether the
respondents violated the [Davis-Bacon Act] by failing to pay their
employees performing work under these [contracts] at the wage rate
for asbestos workers set out in the applicable wage determinations"
(ALJ's Decision ("ALJD") at p. 5). He stated that Miller
Insulation argued that the asbestos workers classification was not
applicable to all insulation work, but instead applied only to
workers (asbestos abatement workers) who actually handled asbestos
(Id. at p. 6). The ALJ also noted (Id.) that Miller Insulation
argued that in the absence of being granted an additional
classification for insulation workers through the conformance
procedure, the firm "paid their employees the wage rate they
believed was most applicable to insulation workers under the
various wage determinations, the carpenters rate."
The ALJ stated that the basis for the asbestos workers rates
in the applicable wage determinations was "obscure at best" (ALJD
at p. 8). He noted that the testimony of the Department's regional
wage specialist indicated that the wage rate was based on the union
contract of Local 133 of the International Association of Heat and
Frost Insulators and Asbestos Workers, and a finding that the union
rate prevailed for this classification in North Dakota. The ALJ
further [3]
/FN1/ This case was also referred for hearing regarding the
debarment of Jerry L. Miller (who is not related to Bradley I.
Miller), a former vice president of Miller Insulation. Jerry L.
Miller was dismissed as a party to this case on December 13,
1990.[3]
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[4] stated, among other things, that union workers do primarily
industrial, rather than commercial, insulation and that the Local
133 business agent acknowledged that most of the insulation work in
North Dakota is not performed under union contract, and that union
members were working under non-union contracts for $8-$10 per hour.
Finally, the ALJ stated, the union contract had a lower rate for
commercial insulation than the rate for industrial insulation. It
was undisputed, he said, that the work done under the five
contracts at issue was commercial insulation work, but the regional
wage specialist had failed to explain why the wage determination
rate reflected only the higher wage rate for industrial insulation.
(Id. at pp. 8-9.)
The ALJ acknowledged that "this is not the forum in which the
wage rates set out in the wage determination can be challenged"
(ALJD at p. 9). Instead, he said, "the question to be resolved in
this proceeding is whether [Miller Insulation's] insulation workers
were required to be paid at the asbestos workers rate set out in
the wage determinations. I find they were not." The basis for the
ALJ's determination was that "the Department has failed to prove
that the asbestos workers classification applies to mechanical
insulation workers; in fact, the evidence establishes that the
asbestos workers classification does not apply to insulation
workers." Rather, "at the time the applicable wage determinations
were approved and the contracts were put out for bid, I find that
`insulator' and `asbestos workers' were distinct crafts, and the
`asbestos workers' wage rate did not apply to [Miller Insulation's]
employees under these contracts." (Id. at pp. 9-10.)
2. Unpaid wages and overtime compensation
Because of his findings, described above, on the
classification issue, the ALJ concluded that Miller Insulation did
not violate the Davis-Bacon Act by paying its mechanical insulation
workers at the carpenters wage rate contained in the wage
determinations applicable to the five contracts involved in this
case. He likewise concluded that the alleged violations of the
CWHSSA for failure to pay overtime compensation at the asbestos
worker wage rate had not been established.
The ALJ also addressed other allegations of unpaid wages and
overtime. First, the ALJ agreed with the Department that Robert
Coronado, a laborer on the Minot Helicopter contract, was not paid
the proper wage rate for a laborer. Coronado should have been paid
at least $9.95 per hour, the ALJ stated, but Miller Insulation's
payrolls showed that he was paid $6.50 per hour for 15.5 hours of
work and, accordingly, was underpaid a total of $53.48. Second,
the ALJ stated that Christopher Kelly was employed as both a
carpenter and a laborer on the Composite Medical Facility contract
for the weeks ending July 18 through August 29, 1987. For the week
ending July 18 Kelly listed as a carpenter, but was listed as being
paid at the laborer rate. The ALJ concluded that for the week of
July 18 an inadvertent error was made, in that either Kelly was
mistakenly [4]
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[5]
listed as a carpenter, or he did work as a carpenter that week and
was unintentionally underpaid. The ALJ awarded Kelly a total of
$161.20 in back wages.
In addition, the ALJ addressed two sets of alleged overtime
violations (other than the violations based on the failure to pay
overtime at the asbestos worker rate). The ALJ stated that during
two pay periods in March 1988, three or four employees working on
the Composite Medical Facility contract were permitted, at their
request, to work overtime and use the overtime hours as
compensatory time so that they could attend a rodeo (ALJD at p.
14). Apparently six or seven other employees, the ALJ added, also
decided to work overtime and to use the overtime hours as
compensatory time without requesting permission from Bradley
Miller. Thus, the ALJ stated, about 10 employees worked overtime
and were given compensatory time rather than receiving one and one-
half times their basic rate of pay. The ALJ noted that the
employees have since been fully compensated for their overtime
hours. He concluded, based on the testimony of Bradley Miller,
that "this was an inadvertent violation" of the Davis-Bacon Act.
(Id.)
Finally, the ALJ dealt with other allegations receiving
compensatory time for overtime hours worked instead of appropriate
overtime compensation. The ALJ stated that Jerry Hofstad, foreman
of the Composite Medical Facility project, testified that it was
necessary to have some employees work overtime on that project, but
that his supervisor (Jerry Miller) told him not to report the
overtime hours on the payroll (ALJD at p. 15). Instead, the
employees would be given compensatory time on an hour off for an
hour worked basis, or they would be given "bonus" checks on a
straight-time basis. The ALJ stated that Hofstad identified three
employees who had worked overtime -- Hofstad himself, Curt Hussey
and Kirk Carr. The ALJ determined that Hofstad was owed $290.08 in
unpaid overtime compensation, and Hussey was owed $470.40. After
summarizing Carr's testimony, however, the ALJ concluded that
"[a]lthough it is clear that [Carr] did work some overtime hours
for which he was paid only straight wages . . ., since Mr. Carr's
testimony is not accurate, and there is no other evidence of the
amount of overtime he worked, I cannot find that he is entitled to
back wages for unpaid overtime." (Id. at pp. 15-16.)
3. Debarment of Miller Insulation and Bradley Miller
The ALJ declined to debar Miller Insulation or Bradley Miller
for disregard of their obligations to employees under the Davis-
Bacon Act, for "aggravated or willful" violations of the CWHSSA (a
Davis-Bacon Related Act) (ALJD at pp. 16-18). With respect to the
request for debarment stemming from the classification issue, the
ALJ stated (Id. at pp. 16-17): [5]
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[6] The thrust of the Department's case was that [Miller
Insulation and Bradley Miller] willfully violated both
the [Davis-Bacon Act] and CWHSSA by paying their
insulator workers less than the asbestos workers wage
rate set out in the wage determinations and falsifying
its payrolls by listing these workers as carpenters
rather than as asbestos workers. I have found that
respondents paid their insulation workers at the correct
wage rate. But even if I had sustained DOL's position
regarding the classification issue, it is nonetheless
apparent that [Miller Insulation's] dispute with DOL in
this case was legitimate . . . . Moreover, the use of the
classification "carpenters" on [Miller Insulation's]
payrolls was not intended to be, nor was it, false or
deceptive. Respondents clearly were not trying to
mislead anyone into believing all of their skilled
employees were carpenters -- that would have been absurd
considering that [Miller Insulation] did not [employ] any
carpenters on these contracts. Instead, the insulators
were listed as carpenters because that is the
classification under which they were being paid absent an
insulator classification.
The ALJ then proceeded to determine whether debarment was
appropriate for one set of Davis-Bacon violations and two sets of
CWHSSA violations. With respect to the Davis-Bacon violations
involving employees Coronado and Kelly, the ALJ stated that the
violations "involving two employees and a total of $200 are clearly
de minimis" (ALJD at p. 17). With respect to the CWHSSA violations
stemming from employees being given compensatory time, instead of
overtime compensation, to attend a rodeo, the ALJ stated that this
incident "was a mistake made to help out respondents' employees.
It was not an aggravated and willful violation of the Act." (Id.)
The ALJ determined that the other overtime violations
(involving employees Hofstad, Hussey and Carr) and the related
falsification of payrolls, were "more serious violations" (ALJD at
p. 17). These violations, if they had been broader in scope, would
have been a reasonable basis for the Department's request for
debarment. However, the ALJ listed three reasons in refusing to
debar Miller Insulation and Bradley Miller for these violations.
First, the ALJ stated, the violations apparently involved "only a
handful of employees, and a relatively insignificant number of work
hours on a single contract." Furthermore, he added, "there is no
reason to believe that these practices ever came to the attention
of Brad Miller or were engaged in with his approval." Instead, the
ALJ noted, the failure to pay proper overtime compensation and the
related payroll falsifications were apparently done under the
direction of Jerry Miller, who left Miller Insulation at about that
time to establish a competing business. "It would be a grave
injustice to debar a business for unauthorized conduct by a single
individual who has not worked for that business for over four
years," the ALJ stated. Third, the ALJ concluded that "these
violations clearly [6]
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[7]
were incidental to the practice which led to this case. It seems
draconian to debar respondents when they have prevailed on the
overriding issue in contention." (Id.)
II. DISCUSSION
A. Classification of Miller Insulation's employees
The Acting Administrator has requested that the Board reverse
the ALJ's determination that the asbestos workers' wage rate in the
wage determinations did not apply to the Miller Insulation
employees who performed insulation work. The Acting Administrator
notes (Statement, at p. 21) that under the principles enunciated in
Fry Brothers Corporation, WAB Case No. 76-06 (June 14, 1977), "When
a wage determination is based on collectively bargained rates, job
classification must be governed by the classifications in the union
practice." At the time the wage surveys relevant to this case were
conducted, the Acting Administrator adds (Statement, at p. 23),
asbestos workers performed the work of insulating mechanical
systems. In sum, she argues (Id. at 26), "the DOL regulations
restricting untimely challenges to wage determinations and the
long-standing precedent of Fry Brothers Corp. compel reversal of
this ALJ decision."
Miller Insulation argues that the ALJ's decision should be
upheld, arguing first that under North Dakota law asbestos workers
perform asbestos abatement, whereas mechanical insulators do not
work with asbestos. Second, states Miller Insulation, "even more
clearly supported by the record and uncontestable by the Department
is the distinction between [*] industrial [*] and [*] commercial[*]
mechanical insulation work." (Statement in Opposition to Acting
Administrator's Petition for Review, at p. 18.) [*] (Original
emphasis)[*]. The asbestos worker classification in the wage
determinations, argues Miller Insulation, and the corresponding
wage rate, correlate with only one type of mechanical insulation
work under the relevant Local 133 collective bargaining agreement
-- industrial mechanical insulation (Id. at 21). However, Miller
Insulation adds, the work performed by its employees in this matter
was commercial mechanical insulation, for which an hourly rate
different from -- and lower than -- the industrial insulation rate
was specified in the collective bargaining agreement (Id. at 22).
Thus, states Miller Insulation, "the asbestos worker rate [in the
wage determinations] plainly does not cover [*] commercial [*]
mechanical insulating work" (Id.) [*](Original emphasis)[*].
Counsel for the International Association of Heat and Frost
Insulators and Asbestos Workers (the "Union") notes that Miller
Insulation is "technically correct" in stating that the applicable
wage determinations were deficient to the extent that they did not
contain the lower collectively-bargained wage rates for commercial
insulation, but adds that this deficiency did not justify Miller
Insulation's unilateral decision to pay its workers at the
"carpenter" wage rates [7]
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[8]
(Statement, at pp. 14-15). Instead, the Union states, the appropriate
way to remedy this deficiency is to utilize the conformance procedure at
29 C.F.R. 5.5(a)(1)(ii) to add "a conformed wage rate and fringe benefits
for each wage determination that reflects the collectively-bargained
wages and fringe benefits applicable to `Asbestos Workers' employed on
`commercial' projects" (Id. at 15). The Union requests that the
ALJ's decision be reversed and that this matter be remanded to the
Acting Administrator for consideration of requests by Miller
Insulation for conformed wage rates and fringe benefits
corresponding to the wages and fringe benefits for commercial
insulation work under the applicable Local 133 collective
bargaining agreement (Id. at 15-16).
Upon review, the Board concludes that the ALJ's decision with
respect to the classification issue must be set aside. The ALJ
essentially entertained and ratified an untimely challenge to a
wage determination (see Dairy Development, Ltd., WAB Case No. 88-35
(Aug. 24, 1990)), and we can not let this decision stand. At the
same time we recognize that there is another aspect to the
company's position on the classification issues, and that Miller
Insulation may have a legitimate complaint about the applicable
wage determinations -- the absence of a wage rate for commercial
mechanical insulation work. As noted by the Union, Miller
Insulation should be permitted to request through the conformance
procedure that a wage rate and fringe benefits corresponding to the
rate and benefits for commercial insulation work in the applicable
collective bargaining agreement be added to the wage determinations
(it may be that the absence of a rate for commercial insulation
work could also be resolved through the procedure set forth at 29
C.F.R. 1.6(d) for correction of clerical errors in wage
determinations). And while we do not suggest the outcome of the
conformance process, we do note that there is perhaps a larger
issue --appropriate for resolution through the conformance
procedure -- than the addition of collectively-bargained rate for
commercial mechanical insulating work to the wage determinations.
That is, while -- as the Acting Administrator notes (Statement at
pp. 20-21) -- the regional wage specialist testified that "in each
applicable wage determination, the union rates prevailed for
asbestos workers," it is not clear from the record before us that
it was determined that the union rate for asbestos workers
performing commercial mechanical insulation work was the prevailing
rate for that type of work. In the absence of such a
determination, it seems at least arguable that Miller Insulation
should be able to propose a wage rate other than the collectively
bargained rate for commercial mechanical insulation work. At the
very least, it is appropriate to raise and address such issues
through the conformance procedure.
For the reasons stated above, the decision of the ALJ
regarding the classification of Miller Insulation's employees is
set aside and this matter is remanded to the ALJ, who shall hold
abeyant this aspect of these proceedings for 60 days. During this
60-day period, Miller Insulation shall be permitted to request
reconsideration with respect to those wage determinations and
contracts [8]
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[9] for which the company previously made a
conformance request which was denied, and to initiate conformance
requests with respect to the remaining wage determinations and
contracts. /FN2/ If Miller Insulation fails to initiate resolution
of the above-described issues in the conformance forum during that
60-day period, then the ALJ is instructed to award back wages, as
requested by the Acting Administrator, for the company's failure to
pay its employees at the asbestos workers rate listed in the
applicable wage determinations.
B. Debarment of Miller Insulation and Bradley Miller
1. Debarment for disregard of obligations to employees
under the Davis-Bacon Act
The Acting Administrator has also requested that the Board
reverse the ALJ's determination that Miller Insulation and Bradley
Miller should not be debarred. We consider first the request for
debarment under Section 3(a) of the Davis-Bacon Act for disregard
of the employer's obligations to its employees. Pursuant to this
debarment standard the Board has, in a number of cases, affirmed
debarment of a contractor or subcontractor who has failed to pay
its employees the prevailing wage and has accompanied this failure
with falsification of the certified payroll records in order to
simulate compliance with the Davis-Bacon Act or to conceal
violations. See, e.g., R.J. Sanders, Inc., WAB Case No.90-25 (Jan.
31, 1991). The Acting Administrator argued to the ALJ and to this
Board that Miller Insulation's submission of certified payrolls
listing its employees as carpenters rather than as asbestos workers
justifies debarment, under Section 3(a) and Board precedent, for
disregard of Davis-Bacon Act obligations. However, the ALJ
disagreed with the Acting Administrator and so does this Board.
The company's unilateral decision to list its employees as
carpenters and pay them the carpenters' wage rate may have been a
wrong-headed response to the company's dispute with the Department
over the appropriate wage rate for those employees, and it
certainly has prolonged the resolution of that classification
issue. However, we agree with the ALJ that the company's action
can not appropriately be viewed as an effort at deception or an
attempt to cover up violations of the Davis-Bacon Act. As stated
by the ALJ (ALJD at p. 17):
Respondents clearly were not trying to mislead anyone
into believing all of their skilled employees were
carpenters -- that would have been absurd considering
that [Miller Insulation] did not [employ] any carpenters
on these contracts. Instead, the insulators [9]
/FN2/ We recognize that this matter is at the enforcement stage.
However, the Department's regulations do not contain a time
limitation on initiation of conformance actions (or requests for
reconsideration), and conformance requests can be made after
enforcement proceedings have been initiated. See, e.g., National
Structures, Inc., WAB Case No. 90-04 (Aug. 30, 1991). [9]
~10
[10] were listed as carpenters because that is the classification
under which they were being paid absent an insulator
classification.
Accordingly, the Board affirms the ALJ's decision on this point.
We also agree with the ALJ that debarment should not be invoked for
the Davis-Bacon violations involving Coronado and Kelly, although
we disagree with the ALJ that the reason debarment is inappropriate
is because the violations involved only two employees and a small
amount of money. Rather, it is the Board's view that debarment
would be inappropriate because those violations appear to have been
inadvertent and were not accompanied by an attempt to falsify
records so as to simulate compliance with Davis-Bacon requirements.
2. Debarment for "aggravated or willful" CWHSSA
violations
The ALJ also refused to debar Miller Insulation and Bradley
Miller for violations of the CWHSSA, a Davis-Bacon Related Act.
The debarment standard for the Related Acts is set forth at 29
C.F.R. 5.12(a)(1), which provides:
Whenever any contractor or subcontractor is found by the
Secretary of Labor to be in [*] aggravated or willful
violation [*] of the labor standards provisions of any of the
applicable statutes . . . other than the Davis-Bacon Act,
such contractor or subcontractor or any firm,
corporation, partnership, or association in which such
contractor or subcontractor has a substantial interest
shall be ineligible for a period not to exceed 3 years
(from the date of publication by the Comptroller General
of the name or names of said contractor or subcontractor
on the ineligible list . . .) to receive any contracts or
subcontracts subject to [the Davis-Bacon Act or Related
Acts]. [*](Emphasis supplied)[*].
Board precedent makes clear that failure to pay employees the
appropriate wage rate or overtime compensation, accompanied by
falsifying certified records in an effort to conceal Related Acts
violations, warrants debarment under Section 5.12(a)(1). See A.
Vento Construction, WAB Case No. 87-51 (Oct. 17, 1990), at p. 7
n.4; Gaines Electric Service Company, Inc., WAB Case No. 87-48
(Feb. 12, 1991).
As noted earlier, the ALJ did not order debarment for the
CWHSSA violations stemming from employees being given compensatory
time, instead of overtime compensation, to attend a rodeo, stating
that this action by Bradley Miller "was a mistake made to help out
respondents' employees. It was not an aggravated or willful
violation of the Act." (ALJD at p. 17.) The ALJ also declined to
order debarment for another set of CWHSSA violations, involving
[10]
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[11] Jerry Miller's instructions that employees working
overtime hours on the Composite Medical Facility project should not
report their overtime hours on the payroll. Instead, the employees
would be given compensatory time on an hour off for an hour worked
basis, or they would be given "bonus" checks on a straight-time
basis.
Contrary to the decision of the ALJ, the Board concludes that
this second set of overtime violations, accompanied by patent
efforts to conceal those violations by falsifying certified
payrolls, warrants debarment for "aggravated or willful" violations
of the CWHSSA. The ALJ erred in attempting to characterize these
violations as de minimis. These violations were no less willful or
deliberate because they involved three employees and one
contract./FN3/ Furthermore, debarment for these violations is not
made inappropriate because company president Bradley Miller gave
Jerry Miller authority to administer the contracts in question.
Board precedent makes clear that a corporate officer can not avoid
debarment by placing the blame for violations on employees or
business associates. See, e.g., Marc S. Harris, Inc., WAB Case No.
88-40 (Mar. 28, 1991), and cases cited therein; Marques Enterprises
d/b/a Lisbon Contractors, Inc., WAB Case No. 91-34 (Sept. 29,
1992). Furthermore, while debarment for the first set of CWHSSA
violations committed by Bradley Miller -- involving compensatory
time to attend a rodeo -- could, if those violations stood in
isolation, be a close question, it can not be ignored that those
violations bear a strong similarity to the overtime violations
carried out under Jerry Miller's instructions. [11]
/FN3/ The ALJ stated that "[a]lthough it is clear that [employee
Kirk Carr] did work some overtime hours for which he was paid only
straight wages . . ., since Mr. Carr's testimony is not accurate,
and there is no other evidence of the amount of overtime he worked,
I cannot find that he is entitled to back wages for unpaid
overtime." (ALJD at pp. 15-16.) The Board concludes that by
failing to award Carr back wages after finding that Carr did work
uncompensated overtime hours, the ALJ failed his duty as trier of
fact under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680
(1946), to approximate an award of damages where the employer has
failed to keep an accurate record of wages paid and hours worked.
See, e.g., P.B.M.C., Inc., WAB Case No. 87-57 (Feb. 8, 1991);
Apollo Mechanical, Inc., WAB Case No. 90-42 (Mar. 13, 1991).
Accordingly, this matter is remanded to the ALJ for reconsideration
of the back wages owed to employee Carr. [11]
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[12] III. ORDER
1. This case is remanded to the ALJ for further proceedings
consistent with this decision.
2. It is ordered that Miller Insulation Company, Inc. and
Bradley I. Miller shall be ineligible, pursuant to 29 C.F.R.
5.12(a)(1), 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. /FN4/
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Gerald F. Krizan, Esq.
Executive Secretary [12]
/FN4/ Persons and firms placed on the ineligible list pursuant to
29 C.F.R. 5.12(a)(1) are permitted to 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).[12]
