JAMES HAMILTON CONSTRUCTION CO., WAB No. 94-04 (WAB May 20, 1994)
CCASE:
JAMES HAMILTON CONSTRUCTION CO.
DDATE:
19940520
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
JAMES HAMILTON WAB Case No. 94-04
CONSTRUCTION CO.
BEFORE: David A. O'Brien, Chair
Ruth E. Peters, Member
DATED: May 20, 1994
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition
of James Hamilton Construction Company for review of a
contracting agency decision assessing liquidated damages in the
amount of $840.00 for violations of the Contract Work Hours and
Safety Standards Act (40 U.S.C. [sec] 327 et seq.; "CWHSSA").
The Administrator has filed a motion to dismiss this petition on
the ground that there has been no final agency action and thus
the matter is not ripe for review pursuant to 40 U.S.C. 330(c)
and 29 C.F.R. 7.1(b). For the reasons stated below, the
Department of Labor's motion to dismiss is sustained and the
petition is dismissed without prejudice.
I. BACKGROUND
James Hamilton Construction was the general contractor on
Federal Highway Contract No. NH-018-1(23)162 funded by the
Federal Highway [1]
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[2] Administration (FHA). The Wage and Hour Division of the Department
of Labor ("DOL") conducted a concurrent Fair Labor Standards Act (29
U.S.C. 201 et seq.) Davis-Bacon Act (40 U.S.C. 276a et seq.) and
CWHSSA investigation of the petitioner regarding performance under the
contract. The DOL investigator determined in her report of August 10,
1993 that back wages were due two employees in the amount of $2,013.66,
but noted that petitioner had no history of previous violations and did
not recommend the assessment of liquidated damages. Petitioner
disagreed with the DOL determination, but agreed to pay the back wages.
On October 12, 1993 a letter was written by the Regional
Administrator of the DOL to the Regional Administrator of the FHA
indicating that liquidated damages in the amount of $840.00 would
be assessed. In December of 1993 petitioner was informed of the
assessment of liquidated damages and responded by sending its
objection to the New Mexico State Highway and Transportation
Department on January 5, 1994 and to the Regional Administrator
of the DOL on January 12, 1994. According to the record filed in
this matter the petitioner's letter of January 12, 1994 addressed
to the Regional Administrator of the DOL was returned to the
petitioner with directions to "mail the petition to the
contracting agency that is making the assessment." The record
reflects that the liquidated damages in dispute have been
withheld. James Hamilton Construction Company filed this
petition on February 7, 1994 and the Administrator filed her
motion to dismiss on March 8, 1994.
II. DISCUSSION
Pursuant to 29 C.F.R. 7.1 (b) the Wage Appeals Board has
jurisdiction to hear appeals only from "final" agency decisions.
A "final" decision in this case would come from the Secretary of
Labor through the Administrator of the Wage and Hour Division.
See 29 C.F.R. 5.8(c). The record is clear that no such "final"
determination has been made.
The petitioner must first seek a final order from the head
of the agency for which the contract work was performed, which in
this case is the Administrator of the FHA. See 29 C.F.R. 5.8(a)
and (b). That final determination by the FHA "Agency Head" is
then reviewable by the Administrator of the Wage and Hour
Division on behalf of the Secretary of Labor. See 29 C.F.R.
5.8(c). From that "final" decision the Wage Appeals Board would
have jurisdiction to review the matter if so requested by the
petitioner.
The Wage Appeals Board has on a number of occasions refused
to consider cases which were not ripe for review. See Hawpe
Brothers Painting and Drywall, Inc., WAB Case No. 92-05 (Nov. 30,
1992) and J.E. McAmis, Inc., [2]
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[3] WAB Case No. 92-18 (Dec. 30, 1992). For all the reasons stated
above the petition is dismissed without prejudice to the right of
petitioner to file a future petition for review of any final decision
that may be issued in this matter.
BY ORDER OF THE BOARD:
David A. O'Brien, Chair
Ruth E. Peters, Member
Gerald F. Krizan, Esq.
Executive Secretary [3]
