CCASE:
BECHTEL CONSTRUCTORS CORP. & RODGERS CONSTRUCTION CO.
& BALL, BALL AND BROSAMER INC.
DDATE:
19930223
TTEXT:
~1
WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
BECHTEL CONSTRUCTORS WAB Case No. 93-02
CORPORATION
RODGERS CONSTRUCTION
COMPANY
BALL, BALL AND BROSAMER, INC.,
Prime Contractors
THE TANNER COMPANIES
Subcontractor
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Anna Maria Farias, Member
DATED: February 23, 1993
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition of The
Tanner Companies (``Tanner'') for review of the November 4, 1992 order
by Administrative Law Judge (``ALJ'') Jeffrey Tureck denying Tanner's
motion for summary judgment. The Acting Administrator of the Wage and
Hour Division has moved to dismiss the petition for review for lack of
jurisdiction, arguing that the ALJ's denial of summary judgment was not
a final appealable decision. For the reasons stated below, the motion
to dismiss is granted.
This matter arose under the Davis-Bacon Act (40 U.S.C. 276a et seq.)
and the Contract Work Hours and Safety Standards Act (40 U.S.C. 327 et
seq.). The Acting Administrator filed an Order of Reference with the
Office of Administrative Law Judges on September 28, 1990, alleging that
Tanner was liable for back wages due to prevailing wage and overtime
violations. Tanner moved for summary judgment on October 5, 1992. The
Acting Administrator opposed Tanner's motion and filed a cross-motion
for partial summary judgment.
The ALJ denied both summary judgment motions on November 4, 1992,
stating in his order that ``neither party has established that summary
judgment is appropriate.'' The ALJ also noted the existence of
``several key factual issues over which the parties disagree, including
calculation of back wages.'' He added that since an ALJ is without
authority to invalidate an agency's regulations, ``the primary basis for
Tanner's motion -- that 29 C.F.R. 5.2(l)(2) is invalid -- is something
I cannot decide it its favor.'' Finally, the ALJ stated that ``in the
interest of completing this case before the relevant time period becomes
so remote that none of the affected employees can be found to testify or
to receive any back wages ordered . . ., it would be counter-productive
to decide this case without holding a full evidentiary hearing prior to
issuing a dispositive decision.'' Tanner then filed a petition for
review of the ALJ's order, and the Acting Administrator filed a motion
to dismiss.
The Board concludes that the petition for review must be dismissed.
The regulations pertaining to practice before the Wage Appeals Board state
at (29 C.F.R. 7.1(b)) that this Board shall have jurisdiction ``to hear
and decide appeals concerning questions of law and fact from final
decisions . . . .'' (Emphasis supplied.) See also, Cleveland B.
Sparrow, Sr., WAB Case No. 86-09 (Mar. 18, 1986). As noted by the
Acting Administrator, the denial of a motion for summary judgment is not
a final decision, but instead is an interlocutory ruling. Furthermore,
the dismissal of Tanner's premature petition does not preclude Tanner
either from filing an appeal with this Board once the ALJ issues a final
decision and order in this matter or from raising any issue on appeal
that Tanner considers pertinent.
Accordingly, the petition for review is denied, without prejudice to the
filing of a timely petition for review from a final decision and order 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
