CCASE:
HAWPE BROTHERS PAINTING
AND DRYWALL, INC.,
DDATE:
19921130
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
HAWPE BROTHERS PAINTING WAB Case No. 92-05
AND DRYWALL, INC.,
Prime Contractor
U.S. Department of the Air Force Contract No.
FO-5611-89-D-0106 Preventive Coating Maintenance,
U.S. Air Force, Academy, Colorado
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Anna Maria Farias, Member
DATED: November 30, 1992
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the
petition of Hawpe Brothers Painting and Drywall, Inc. ("Hawpe").
On December 4, 1988 the Department of the United States Air Force
("USAF") awarded Hawpe a contract to provide preventive coating
maintenance work on some buildings at the USAF Academy. The
contract was subject to the Davis Bacon Act, as amended (40 U.S.C.
[sec] 276a et seq.), and the Contract Work Hours and Safety
Standards Act (40 U.S.C. [sec] 327 et seq.) ("CWHSSA"). [1]
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[2] On October 10, 1991 the Denver Regional Administrator for
the Wage and Hour Division sent a letter advising Hawpe of the
results of an investigation by Wage and Hour. The letter stated
that the investigation disclosed that Hawpe had failed to pay the
required wage rates to employees who worked as painters and
laborers on the project; failed to pay some employees for
preliminary and postliminary work activities; failed to pay some
employees for overtime hours, in that the preliminary and
postliminary activities resulted in some employees working more
than 40 hours in a week; and falsified the certified payrolls by
not reporting all hours worked. The letter also stated that Wage
and Hour had determined that Hawpe owed a total of $38,385.36 in
back wages ($29,660.66 for Davis-Bacon violations and $8,624.69 for
CWHSSA violations), and that Wage and Hour had computed liquidated
damages totaling $5,720 for the CWHSSA violations.
Wage and Hour subsequently advised the USAF of the results
of the investigation and of the back wages and liquidated damages
calculations, and directed the USAF to transfer funds to the United
States General Accounting Office ("GAO") for disbursement to
affected employees. By letter dated November 27, 1991 to Hawpe,
the USAF stated, among other things, that its was withholding
$5,720 in liquidated damages, and notified Hawpe of the right to
appeal the liquidated damages assessment to the Secretary of the
Air Force within 60 days of receipt of the letter. Hawpe filed an
appeal, and the USAF responded that there was no basis for waiving
or reducing the liquidated damages. Hawpe filed a second request
for waiver of the liquidated damages, and the USAF also denied that
request.
Hawpe filed a petition for review dated March 12, 1992 with
the Wage Appeals Board, seeking reversal of the USAF ruling on
liquidated damages. The Acting Administrator of Wage and Hour
filed a motion to dismiss Hawpe's petition on April 14, 1992,
arguing that in the circumstances of this case the Board lacked
jurisdiction to review the liquidated damages assessed by the head
of the contracting agency. Hawpe responded on May 6, 1992, arguing
that the Board did have jurisdiction in this matter. Hawpe also
filed a motion to dismiss this matter without prejudice, since Wage
and Hour had not yet responded to Hawpe's request for a hearing
filed March 5, 1992. "This request for hearing," Hawpe stated,
"specifically concerns the underlying wage rate/overtime violations
which serve as the immediate basis for the assessment of liquidated
damages, the issue before the Board. Thus, any hearing on the
liquidated damages issue by the Board would be premature at this
time."
The Board subsequently requested reports from Wage and Hour
on the status of Hawpe's hearing request. On November 4, 1992
counsel for the Acting Administrator advised the Board that Wage
and Hour issued a letter on October 23, 1992, granting Hawpe's
request for a hearing pursuant to 29 C.F.R. 5.11(b). The Acting
Administrator also renewed the motion to dismiss Hawpe's petition
for review on the ground that there was no final decision under 29
C.F.R. Parts 1, 3 or 5 for the Board to review.
Upon consideration of the pleadings filed by the Acting
Administrator and Hawpe, it is hereby
ORDERED that the petition for review is dismissed without
prejudice to the right to file a petition for review of any final
decision that may be issued in this matter.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Anna Maria Farias, Member
Gerald F. Krizan, Esq.
Executive Secretary [3]
