CCASE:
TRIPLE B TRUCKING, INC. & F.L. BEECHER
DDATE:
19930127
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
TRIPLE B TRUCKING, INC. WAB Case No. 92-21
FRANCIS L. BEECHER
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Anna Maria Farias, Member
DATED: January 27, 1993
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of Triple B Trucking, Inc. and Francis L. Beecher ("Petitioners''),
seeking review of the November 10, 1992 final ruling issued by the
Deputy Assistant Administrator, Wage and Hour Division, U.S.
Department of Labor. Petitioners seek reversal of the Deputy
Assistant Administrator's denial of their request under 29 C.F.R.
section 5.12(c) for early removal from the list of ineligible
bidders. For the reasons stated below, the petition for review is
denied.
I. BACKGROUND
This appeal and the underlying disputes arise under the labor
standards provisions of the Federal-Aid Highway Acts, 23 U.S.C.
113, as amended by the Surface Transportation Assistance Act of
1982, Pub. L. 97-424 and the Contract Work Hours and Safety
Standards Act (40 U.S.C. 327 et seq.) -- both Acts related to
the Davis-Bacon Act, 40 U.S.C. 276a et seq. See 29 C.F.R. 5.1.
Petitioners -- second-tier subcontractors under Federal Highway
Administration Contract No. I-IR-88-1 (84) D500450 -- failed to pay
their [1]
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[2] employees the prevailing wage rates and fringe
benefits, and the proper overtime compensation required under the
terms of the wage determination made applicable to construction of
the subject construction project. These violations were committed
from approximately May 30, 1987 through October 10, 1987 and
resulted in assessment and restitution of backwages in the amount
of $30,454.98 to eleven employees.
On April 5, 1991 Petitioners and counsel for the Department
avoided further administrative proceedings for violation of the
cited Related Acts by signing a "Stipulation of Compliance and
Debarment.'' Petitioners stipulated that their wage and
recordkeeping violations were aggravated and willful violations of
the Acts and applicable regulations at 29 C.F.R. Part 5.
Petitioners consented to be debarred from future contracts for a
"three-year period from the date [of] publication by the
Comptroller General of the list containing [their names] in
accordance with 29 CFR Section 5.12(a)(1).'' (Record, Tab G,
Stipulation, 7). Petitioners further stipulated that their
debarment would be "construed broadly and that [they would] be
absolutely, conclusively and totally prohibited and debarred . . .
for the applicable debarment period.'' (Id., 9). Additionally,
in a related federal case (Criminal Action No. 91-CR-122,
Petitioner Francis L. Beecher entered into a plea agreement with a
United States Attorney to avoid further prosecution. Therein Mr.
Beecher pleaded guilty to one count of mail fraud in connection
with the underlying wage and recordkeeping disputes and agreed that
he would not "contest his three-year debarment from participating
in federally-funded projects.'' (Id. at Plea Agreement, p. 4).
Petitioners' names were submitted to the Comptroller General
for debarment on November 21, 1991 and the names were listed as
ineligible bidders effective January 2, 1992. On January 10, 1992,
Petitioners requested that Francis L. Beecher be removed from the
list under the procedure for "early removal'' at 29 C.F.R.
5.12(c)./FN1/ On November 10, 1992, the Deputy Assistant
Administrator ruled, denying the Petitioners' request for early
removal due to their agreement to a three year debarment.
II. DISCUSSION
A plain reading of Petitioners' April 5 settlement stipulation
demonstrates the parties' intent to agree upon a full, three-year
debarment -- with no preservation of a right to shorten the
debarment via early removal from the debarment list. Petitioner
Beecher's separate stipulation in the criminal action --that he
would not contest the three-year debarment -- similarly permits no
other [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The procedure allows for contractors debarred under the
related Acts to request removal from the list after a minimum of
six months' debarment. [2]
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[3] interpretation than that evidenced by the April 5 stipulation.
Petitioners' argument here, that their request for removal from
debarment does not constitute a form of contesting the debarment,
would undermine the settlement agreements and stipulations entered
into by the parties in Part 5 administrative proceedings and would
run counter to the labor standards provisions of the Davis-Bacon
Act and related Acts.
Accordingly, the Deputy Assistant Administrator correctly
ruled that, pursuant to the Stipulation and the plea agreement, the
petitioners had agreed to be debarred for the full three years
permitted under the related Acts. For the foregoing reasons this
petition is denied and the Deputy Assistant Administrator's ruling
is affirmed.
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]
