A. J. Bruno Construction Corp., ARB No. 96-103, 90-DBA-80
(ARB Oct. 25, 1996)
U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB Case No. 96-103 (ALJ Case No. 90-DBA-080) DATE: October 25, 1996
In the Matter of:
A. J. Bruno Construction Corp.
and
Alfred J. Bruno, President.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This matter is before the Administrative Review Board pursuant
to the Davis-Bacon Act, as amended (DBA), 40 U.S.C. § 276a et seq. and
the regulations at 29 C.F.R. Parts 5 and 7. The Administrator, Wage and Hour Division
(Administrator), seeks review of a portion of the April 3, 1996 Decision and Order (D. O.)
of the Administrative Law Judge (ALJ), who ordered the debarment of the Respondents from
future federal contracts for three years, the payment of back wages to three individuals, and
payment of $1000 on a contract that Respondents entered into with a subcontractor. The
Administrator seeks review of only that portion of the ALJ's D. and O. regarding payment
to the subcontractor. For the reasons set forth below, the Administrator's Petition for Review
is granted and the ALJ's D. and O. is reversed in part.
BACKGROUND
The General Services Administration (GSA) awarded Respondents
A. J. Bruno Construction Corporation and Alfred J. Bruno (collectively, Bruno) a contract to
secure a parking facility for the Drug Enforcement Administration. Performance began in
1987. Bruno entered into several subcontracts to perform the work on the contract, including
one with C & H Construction Corporation (C & H) for $9,500.
In 1989, Wage and Hour sent a charging letter to Bruno alleging
that it had violated the DBA by failing to pay five employees the appropriate prevailing wage
under the GSA contract and seeking debarment of Bruno for submitting falsified certified
payroll records. The matter was referred to the ALJ for a hearing pursuant to 29 C.F.R.
§ 5.11(b) and 5.12(b).
[Page 2]
The ALJ ordered debarment, found that Bruno owed back wages
to three individuals, and ordered Bruno to pay $1000 to C & H, the amount that the ALJ
determined Bruno still owed C & H under its subcontract.
DISCUSSION
The Administrator argues that the ALJ exceeded his authority
when he ordered Bruno to pay $1000 to C & H. Bruno does not oppose the Administrator's
position.
We agree with the Administrator that neither the regulations nor
the Order of Reference gave the ALJ authority to order Bruno to pay C & H monies allegedly
owed under their subcontract. The Administrator referred the matter to the ALJ for
enforcement proceedings pursuant to 29 C.F.R. § 6.30. That provision authorizes the
ALJ to decide issues arising under 29 C.F.R. § 5.11(b) (whether employees were
underpaid) and under 29 C.F.R. § 5.12(b) (whether contractor should be debarred).
See, e.g., Donahue FavretContractors, Inc., WAB Case No. 92-13
(April 30, 1993); R. C. Foss & Son Inc., WAB Case No. 87-46 (Dec. 31, 1990);
and Williams Fence Co., Inc., WAB Case No. 87-23 (Aug. 17, 1987). The ALJ
lacked authority to decide issues beyond the scope of the Order of Reference. Donahue
Favret, slip op. at 3; Foss, slip op. at 9.
Our decision in this case comports with the tenet that disputes
between subcontractors and prime contractors must be resolved outside the administrative
forum. See All Phase Elec. Co., WAB Case No. 85-18 (June 18, 1986) (claim
for damages by subcontractor against prime not the proper subject of Department
proceedings).
We find that the ALJ exceeded his authority. Accordingly, the
ALJ's D.O. is reversed as it relates to the order to pay $1000 to C & H.