ARB CASE NO. 98-164
ALJ CASE NO. 96-DBA-33
DATE: October 19, 1999
In the Matter of:
Disputes concerning the payment of
prevailing wage rates and proposed
debarment for labor standards
violations by:
THOMAS AND SONS BUILDING
CONTRACTORS, Inc., a corporation and
JAMES H. THOMAS, individually
and as a corporate officer
With respect to laborers and mechanics
employed on Contracts No. N62472-90-C-
0410 for the Wilmington, Delaware Naval
Reserve Center and Contract No. F36629-
93-C-0007 for the Pittsburgh Air National
Guard
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Petitioners: J. Robert Steelman, Esq.,
Procurement Assistance
Corporation, Mount Holly,
New Jersey; James H. Thomas, pro se
For the Respondent:
Carol Arnold, Esq.; Paul H.
Frieden, Esq.; Steven J. Mandel, Esq.;
U.S. Department of Labor, Washington, D.C.
FINAL DECISION AND ORDER
This case arises under the Davis-Bacon Act, 40 U.S.C. §276a et
seq.(1994)(DBA or Act) and the Department of Labor's implementing regulations at 29 C.F.R. Parts
5, 6, and 7. The Petitioners are a construction company, Thomas and Sons Building Contractors, Inc.
(Thomas and Sons), and its president, James H. Thomas.
[Page 2]
Thomas and Sons held two roofing contracts with the United States at government
facilities in different cities. Both contracts were subject to the prevailing wage requirements of the Davis-
Bacon Act. The first contract was for the removal and replacement of the roof at the Naval and
Marine Corps Reserve Center at Wilmington, Delaware (the Naval Reserve contract) in 1991.
Government Exhibits (GX) 1a and 2. The second was for the repair and replacement of the roofs of the
gymnasium and the operations building at the Pittsburgh Air National Guard in Coraopolis, Pennsylvania
(the Air National Guard contract), to be performed in 1993 and 1994. GX 21.
At the request of the Navy, the Wage and Hour Division, U.S. Department of Labor
(Division), conducted an investigation to determine whether Thomas and Sons had complied with the Act
on the contracts. The Division found that workers on the contracts had been misclassified and underpaid,
and the matter was referred for hearing before an administrative law judge (ALJ) pursuant to 29 C.F.R.
§§5.11 and 5.12 (1999).
On July 30, 1998, the ALJ issued a Decision and Order Finding Violation of
Prevailing Wage Determinations and Recommending Debarment (D. & O.), finding that Thomas and Sons
had misclassified and underpaid workers and recommending that the Petitioners be debarred. A Petition
for Review of the ALJ's Decision and Order subsequently was filed with the Board. We have jurisdiction
pursuant to the Act, 40 U.S.C. §276a, and the implementing regulations at 29 C.F.R. §6.34.
The Petition for Review did not challenge the merits of the ALJ's finding that Thomas
and Sons misclassified and underpaid its workers, and that the Petitioners therefore should be debarred.
Instead, the sole question presented on appeal is a jurisdictional challenge, i.e., whether the ALJ
erred when he found that the Secretary of Labor had the authority to decide this labor standards dispute,
and therefore denied Petitioners' motions to stay the enforcement proceeding before the ALJ pending the
resolution of contract disputes claims that Thomas and Sons had filed against the contracting agencies.1
1 In a rebuttal brief dated November 17,
1998, the Petitioners attempt to raise several additional challenges to the ALJ's Decision and Order.
However, the regulations governing appeals to this Board require that "[w]ithin 40 days after the date of
the decision" of the ALJ, a petition for review can be filed referring to "the specific findings of fact,
conclusions of law, or order at issue." 29 C.F.R. §6.34. The ALJ's Decision and Order was
issued on July 30, 1998; therefore, the additional issues first argued in the November rebuttal brief are
raised out of time, and we decline to consider them.
2 The record in this case shows that
the tasks actually performed by the workers at the two sites were consistent with the scope of work
described in the contract documents. On the Naval Reserve contract, workers testified that they
"prepped" the roof area, put fiber board or insulation down, installed flashings, T. (transcript of
hearing) 21-22, 23-26, 36, ripped off the old roof, T. 45-46, 51, cut, ripped and replaced roof sections,
rolled plies, installed flashings, and cleaned up on the roof and the ground at the end of the day. T. 57-60.
Workers on the Air National Guard contract testified to similar duties: tearing off old rubberoid, paper, tar
and insulations, removing the roofing down to the subsurface decks, bringing hot tar from the kettle on the
ground up to the roof by bucket and crane, rolling plies of paper, laying rubberoid, mopping hot tar,
shoveling gravel into the crane bucket to be raised to the roof, spreading gravel on the roof with a machine
or a rake, installing flashings and copings, operating the kettle (which heats the tar), and helping with clean
up at the end of the day. See D. & O. at 25-28 (summarizing worker's testimony on duties
performed).
3 Based on these theories, during
the course of the litigation the Petitioners moved that the ALJ stay the Labor Department proceeding
pending resolution of Thomas and Sons' contract claims against the contracting agencies. The ALJ denied
the motions.
4 Thomas and Sons' Naval Reserve
and Air National Guard contracts each included such provisions.