SUMMIT BARRICADE, INC., WAB Case No. 93-04 (WAB May 26, 1993)
CCASE:
SUMMIT BARRICADE INC.
DDATE:
19930526
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
SUMMIT BARRICADE, INC. WAB Case No. 93-04
Subcontractor
MEHER LAKHANY, Individually and as
President
ASHRAF LAKHANY, Individually and as
Vice President
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Anna Maria Farias, Member
DATED: May 26, 1993
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of Summit Barricade, Inc., Meher Lakhany (individually and as
President), and Ashraf Lakhany (individually and as Vice President)
("Petitioners"), seeking review of the December 7, 1992 decision
and order issued by Deputy Chief Administrative Law Judge ("ALJ")
John M. Vittone. The Acting Administrator, Wage and Hour Division
has filed a motion to dismiss the Petition for Review as untimely.
Petitioners have not filed a statement in response to the statement
of the Acting Administrator as ordered in the Board's Notice of
Appeal and Briefing Schedule, dated April 5, 1993. [1]
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[2] I. BACKGROUND
Petitioners were award three contracts subject to the
prevailing wage labor standards requirements of the Federal-Aid
Highway Acts (23 U.S.C. [sec] 113) -- a Davis-Bacon related Act --
and the overtime wage requirements of the Contract Work Hours and
Safety Standards Act (40 U.S.C. [sec] 327 et seq.).
ALJ Vittone ruled that Petitioners failed to comply with the
terms of a prehearing order requiring response to the Wage and Hour
Division's statement of charges and issues to be tried in the
underlying administrative law hearing. Further, the ALJ found that
Petitioners had failed to respond to an Order to Show Cause (dated
July 29, 1992), requiring them to file a response to the Acting
Administrator's response to the prehearing order. That Order to
Show Cause -- citing the regulation at 29 C.F.R. 18.5 --
specifically notified Petitioners that failure to respond would be
deemed to constitute a waiver of [their] right to appeal
and contest the allegations of the complaint and to
authorize the administrative judge to fine the facts as
alleged in the complaint and to enter an initial or final
decision containing such findings, appropriate
conclusions, and order.
Accordingly, the ALJ entered judgment by default against the
Petitioners and adopted findings and conclusions in his decision
and order which encompassed the specifics of the Acting
Administrator's allegations as set forth in the Order of Reference
referring this dispute for hearing to the Office of Administrative
Law Judges. In brief, the ALJ found that Petitioners had committed
prevailing wage and overtime violations of the above statutes and
that complete restitution of the wages due had been made. The ALJ
also found that the Petitioners had submitted falsified certified
payrolls to the concerned contracting agency, in violation of the
recordkeeping requirements of 29 C.F.R. 5.5(a)(3)(i), and
consequently entered an order that Petitioners be debarred for a
period not to exceed three years.
As noted, ALJ Vittone's decision and order was entered on
December 7, 1992. On February 1, 1993, Petitioners mailed an
appeal (dated January 28, 1993), of the decision and order
to ALJ Vittone /FN1/ and on April 2, 1993, the ALJ's office
transmitted the appeal to the Board, which treated the document as
a Petition for Review of the ALJ's decision and order. The
Petition primarily [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Petitions for review of an ALJ's decision and order under the
Davis-Bacon and related Acts are properly directed to the attention
of the Executive Secretary of the Wage Appeals Board. 29 C.F.R.
6.34. [2]
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[3] addressed the possibility of relief from debarment upon a
"restructuring" of Summit Barricade, Inc.'s management.
II. DISCUSSION
The regulations at 29 C.F.R. 6.34 specify requirements for
filing petitions for review from Administrative Law Judge decisions
and orders under the Davis-Bacon and Related Acts:
Within 40 days after the date of the decision of the
Administrative Law [J]udge (or such additional time as is
granted by the Wage Appeals Board)[,] any party aggrieved
thereby who desires review thereof shall file a petition
for review of the decision with supporting reasons. ....
Under this regulation, a petition (or a request for extension of
time to file a petition) should have been filed with the Board on
or before January 16, 1993. However, Petitioners mailed their
petition on February 1, 1993 --more than two weeks late under the
requirement of 29 C.F.R. 6.34 -- and the document was received by
the Office of Administrative Law Judges on February 5, 1993. No
explanation for the late filing is contained in the Petition.
The Board has recently addressed the question of timeliness of
appeals from ALJ decisions in the case of S.D.F., Inc., WAB Case
No. 92-12 (Order dismissing Cross-Petition for Review)(Mar. 31,
1993). In that case, the Board dismissed the cross-petition for
untimeliness, stating that dismissal was appropriate where "there
are no persuasive reasons to depart from the regulatory
requirements for filing a petition. . . ." Id. at p. 2. See also,
Cynthia Aiken, BSCA Case No. 92-06 (July 31, 1992). Here,
Petitioners have not stated any reasons why the Board should accept
their patently untimely Petition for Review. /FN2/ In view of this
-- compounding the history of noncompliance with the orders issued
by ALJ Vittone in the hearing process -- the Board has determined
that the Petition for Review should be dismissed as untimely.
It is noted in conclusion that the substance of Petitioners'
submission would more properly be addressed to the Wage and Hour
Division after serving a portion of the debarment term ordered by
ALJ Vittone. Persons and firms placed on the ineligible list
pursuant to 29 C.F.R. 5.12(a)(1) are permitted to [3]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ Moreover, the Petition for Review is deficient in: 1) not
referring to "the specific findings of fact, conclusions of law, or
order at issue;" and 2) failing to "state the aggravated or willful
violations ..., or lack thereof, as appropriate." 29 C.F.R. 6.34. [3]
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[4] 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).
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Anna Maria Farias, Member
Gerald F. Krizan, Esq.
Executive Secretary [4]
