FACCHIANO CONSTRUCTION CO., et al., WAB No. 93-08 (WAB May 28, 1993)
CCASE:
FACCHIANO CONSTRUCTION
DDATE:
19930528
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
FACCHIANO CONSTRUCTION WAB Case No. 93-08
CO., et al.
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Anna Maria Farias, Member
DATED: May 28, 1993
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board pursuant to the
order of remand dated April 6, 1993 Order, issued by the United
States District Court for the Western District of Pennsylvania,
remanding Civil Action No. 91-1670 to the Board "for a
determination as to whether Michael Facchiano, Sr. ("Facchiano")
had the requisite knowledge for a `willful or aggravated
violation,"' as required by the March 8, 1993 decision of the
United States Court of Appeals for the Third Circuit in its Case
No. 92-3212. The District Court's remand requires reconsideration
of the Board's August 29, 1991 decision, in part ordering the
debarment of Facchiano. For the following reasons, this matter is
remanded to the Office of Administrative Law Judges for further
consideration.
DISCUSSION
On April 22, 1993, the Board directed the parties to file
briefs regarding their respective positions on the question of
whether the record of this matter --as presently constituted -- is
sufficient for the Board to consider and decide "whether Michael
Facchiano, Sr. had the requisite knowledge for a `willful or
aggravated violation."' The Acting Administrator, Wage and Hour
Division and Facchiano contemporaneously filed statements of
position and Facchiano subsequently filed a statement in reply to
that of the Acting Administrator. [1]
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[2] The Acting Administrator argues that the evidence of record
demonstrates that Facchiano had knowledge or, alternatively,
exhibited a "reckless disregard" of the violations sufficient to
support an order for debarment. See McLaughlin v. Richland Shoe
Co., 486 U.S. 128 (1988). Specifically cited is testimony --
characterized as "unrefuted" -- of a single former employee who
testified that he had informed Facchiano, who was the employee's
on-site supervisor, that he was not paid in full for his overtime
hours. Further, the employee testified that his complaints were to
no avail, resulting only in being "bounced around" between
Facchiano and one of Facchiano's sons. Additionally, the Acting
Administrator states that record evidence of four previous Wage and
Hour wage investigations (resulting in findings of violations,
payment of back wages and promises of future compliance)
demonstrates evidence of "actual knowledge." These two factors are
stated to be "substantial evidence." If the Board concludes
otherwise, the Acting Administrator requests a remand for
additional fact-finding before an administrative law judge ("ALJ").
Facchiano argues that the record conclusively establishes that
he did not have the required knowledge to support debarment. The
testimony of the former employee is discounted as "not provid[ing]
any support for the contention that Facchiano knew of or
participated in the alleged violations." /FN1/ Extensive testimony
-- exculpating Facchiano from knowledge of any violations or
participation in management or payroll matters -- by one of his
sons is cited as additional support for finding no knowledge
requisite to debarment. It is also argued that the Acting
Administrator -- having had the opportunity and information to
bring a knowledge-based debarment case against Facchiano at the
time of the ALJ hearing -- should be absolutely foreclosed from
pursuing another opportunity to seek debarment. A remand, states
Facchiano, is not appropriate in the absence of the Acting
Administrator's demonstration of information which to show that
additional proceedings would not be "futile."
The Board does not agree with the Acting Administrator that
the record now supports a final decision and order of debarment
under the Third Circuit's holding. The cited evidence does not
demonstrate to the Board's satisfaction that Facchiano had the
requisite level of knowledge or reckless disregard to support a
Davis-Bacon Related Act debarment for aggravated or willful
violations. The evidence, however, does indicate that a remand may
not be "futile," because it supports a reasonable conclusion that
there may be additional evidence to support debarment. The Board
acknowledges that the Acting Administrator did not seek to prove
liability for debarment based on evidence of actual knowledge or
reckless disregard at the time of the ALJ hearing. But this is not
significant given [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ At this point in these proceedings, it is beyond dispute that
the prevailing wage, overtime and payroll falsifications are
established as a matter of fact on the record. Only the question
of Michael Facchiano, Sr.'s culpability remains ``alleged.'' [2]
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[3] that no court decision required such a trial strategy at the
time of the hearing. Facchiano's position that the record
demonstrates a lack of knowledge or reckless disregard is not
persuasive, again for the reason that the record below was not
developed with an eye to those legal standards.
Accordingly, the Board concludes that the record as now
constituted is not sufficient to render a final decision and that
this matter should be remanded for additional proceedings. It is
therefore,
Ordered, that this case be remanded to the ALJ who shall
reopen the proceeding and that the parties shall have the
opportunity conduct discovery, present evidence and brief the
question of liability for Related Act debarment consistent with the
decision of the Third Circuit. It is further
Ordered, that consistent with the decision of the Third
Circuit, vacating the District Court affirmance of our previous
debarment ruling, the Acting Administrator shall act to remove the
name of Michael Facchiano, Sr. from the list of debarred bidders as
soon as administratively possible.
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]
