Conclusion
The ALJ determined that R & W failed to establish that a deduction of its agreed back wages liability was warranted and had failed to pay the back wages the DOL found that it owed in accordance with the terms of the Consent Findings and Order. Thus, the ALJ determined that R & W should be debarred from entering into a service contract with the United States. Since the ALJ's determinations were reasonable, supported by a preponderance of the evidence and in accordance with the SCA and its implementing regulations, the ALJ's Decision and Order is AFFIRMED.
SO ORDERED.
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 See 41 U.S.C.A. § 351 et seq. (West 1994) and its implementing regulations at 29 C.F.R. Parts 4, 6 and 18 (2007).
2 See Pre-Hearing Telephone Conference Transcript at 13-15; Hearing Transcript (HT) at 8.
3 The SCA generally requires that every contract in excess of $2,500 entered into by the United States, the principal purpose of which is to provide services through the use of service employees in the United States, must contain a provision which specifies the minimum hourly wage and fringe benefit rates which are payable to the various classifications of service employees working on such a contract. See 41 U.S.C.A. § 351(a)(1)-(2). These wage and fringe benefit rates are predetermined by the Wage and Hour Division acting under the authority of the Administrator, who has been designated by the Secretary of Labor to administer the Act.
4 HT at 93.
5 See Consent Findings and Order at 4, ¶ 14.
6 See Consent Findings and Order at 4-5, ¶ 15.
7 See Consent Findings and Order at 5, ¶ 16.
8 See Consent Findings and Order at 5, ¶ 16.
9 See 41 U.S.C.A. § 354(a); 29 C.F.R. § 4.188(a)-(b).
10 See Pre-Hearing Telephone Conference Transcript at 15-16.
11 See Pre-Hearing Telephone Conference Transcript at 13-15; HT at 8.
12 See Consent Findings and Order at 5, ¶ 16.
13 See D. & O. at 6-14.
14 See Respondent's Exhibits 1-38.
15 See HT at 39, 46-47, 52, 56, 59-61.
16 See HT at 77.
17 See HT at 87, 97.
18 See HT at 97-98, 135.
19 See HT at 100-119.
20 D. & O. at 11, 14.
21 D. & O. at 12; see also 29 C.F.R. § 4.166 ("Failure to pay for certain hours at the required rate cannot be transformed into compliance with the Act by reallocating portions of payments made for other hours which are in excess of the specified minimum.").
22 See 29 C.F.R. § 4.170(a)("Fringe benefits required under the Act shall be furnished, separate from and in addition to the specified monetary wages" and "[a]n employer cannot offset an amount of monetary wages paid in excess of the wages required under the determination in order to satisfy his fringe benefit obligations under the Act.").
23 D. & O. at 12-14.
24 See HT at 81-83; 111-112; D. & O. at 13-14.
25 D. & O. at 12-14.
26 D. & O. at 11, 13, 15.
27 See Adm'r, Wage and Hour Div. v. Groberg Trucking, Inc., ARB No. 03-137, ALJ No. 01-SCA-22, slip op. at 2-3 (ARB Nov. 30, 2004).
28 See Groberg Trucking, Inc., ARB No. 03-137, slip op. at 2-3 (quoting Homer L. Dunn Decorating, Inc., WAB No. 87-003, slip op. at 2 (Mar. 10, 1989)).
29 See HT at 56, 59-61, 96; D. & O. at 7, 10, 13.
30 D. & O. at 14-16.
31 D. & O. at 16.
32 The terms of the Consent Findings and Order sets forth, in relevant part, the following:
If, during the relevant time period, representatives of the Department of Labor have reason to believe that any action by Respondents [Brown and R & W] during the relevant time period has violated the SCA or any of its associated regulations, other than an inadvertent clerical error, or if the Respondents fail to comply with the installment payment agreement set forth in paragraph 15 herein, the Department of Labor may institute proceedings for the purpose of determining whether a violation has occurred. If through the administrative proceeding and appeal process it is determined that a violation, other than an inadvertent clerical error, has occurred, Respondents shall pay to the Department of Labor the amount of wages and benefits determined to be owing together with interest thereon at the short-term rate plus 3 percent as provided in 26 U.S.C. §6621(a)(2), and Respondent shall agree to the entry of an order placing them on the list of persons who have violated the SCA and associated regulations and who are to be denied the award of any contract with the United States for the period provided in 41 U.S.C. §354(a). The effect of this paragraph is that in any case in which the Department of Labor demonstrates that either Respondent has committed violations of the SCA during the relevant time period, that Respondent has waived the right to attempt to show the existence of "unusual circumstances" within the meaning of 41 U.S.C. § 354(a) and 29 CFR § 4.188 as it pertains to the defense in any such proceeding.
See Consent Findings and Order at 3-4, ¶ 11 (emphasis added).
33 41 U.S.C.A. § 354(a); 29 C.F.R. § 4.188(a), (b).
34 Hugo Reforestation, Inc., ARB No. 99-003, ALJ No. 1997-SCA-020, slip op. at 9 (ARB Apr. 30, 2001).
35 Sharipoff dba BSA Co., No. 1988-SCA-032, slip op. at 6 (Sec'y Sept. 20, 1991). Accord Colorado Sec. Agency, No. 1985-SCA-053, slip op. at 2-3 (Sec'y July 5, 1991); Able Bldg. Maint. & Serv. Co., No. 1985-SCA-004 (Dep. Sec'y Feb. 27, 1991); A to Z Maint. Corp. v. Dole, 710 F. Supp. 853, 855-856 (D.D.C. 1989). See also Vigilantes, Inc. v. Adm'r of Wage & Hour Div., U.S. Dep't of Labor, 968 F.2d 1412, 1418 (1st Cir. 1992) ("The legislative history of the SCA makes clear that debarment of a contractor who violated the SCA should be the norm, not the exception, and only the most compelling of justifications should relieve a violating contractor from that sanction.")
36 The SCA does not define "unusual circumstances." Relevant regulations, however, establish a three-part test that states the criteria for determining when relief from debarment is appropriate. The contractor has the burden of proving "unusual circumstances" and must meet all three parts of the test to be relieved from the debarment sanction. 29 C.F.R. § 4.188(b)(1); Hugo Reforestation, slip op. at 12-13. Under the first part of this test, the contractor must establish that the conduct giving rise to the SCA violations was not willful, deliberate, aggravated, or the result of culpable conduct. Moreover, the contractor must demonstrate the absence of a history of similar violations, an absence of repeat violations of the SCA, and that any previous violations were not serious. 29 C.F.R. § 4.188(b)(3)(i).
If the contractor succeeds on the first part, the second part of the test requires that it demonstrate a good compliance history, cooperation in the investigation, repayment of the moneys due, and sufficient assurances of future compliance. If the contractor succeeds on the first and second parts, the third part lists other factors that must be considered, including whether the contractor has previously been investigated for SCA violations, whether the contractor has committed recordkeeping violations that impeded Wage and Hour's investigation, whether the determination of liability was dependent upon the resolution of a bona fide legal issue of doubtful certainty, the contractor's efforts to ensure compliance, and the nature, extent, and seriousness of any past or present violations. See 29 C.F.R. § 4.188(b)(3)(ii).
37 41 U.S.C.A. § 351 et seq.; Consent Findings and Order at 4, ¶¶ 14-15.
38 41 U.S.C.A. § 354(a).
39 See D. & O. at 15-16; Consent Findings and Order at 3-4, ¶ 11.
40 See Consent Findings and Order at 3, ¶ 11.
41 See 41 U.S.C.A. § 351 et seq.; Consent Findings and Order at 4, ¶ 11.
42 See Canterbury v. Administrator, Wage & Hour Div., USDOL, ARB No. 03-135, ALJ No. 2002-SCA-011, slip op. at 3 (ARB Sept. 2003); Dickson v. Butler Motor Transit/Coach USA, ARB No. 02-098, ALJ No. 2001-STA-039, slip op. at 4 (ARB July 25, 2003); Supervan, Inc., ARB No. 00-008, ALJ No. 1994-SCA-047, slip op. at 4-5 (ARB Sept. 30, 2002); Khandelwal v. Southern Calif. Edison, ARB No. 98-159, ALJ No. 1997-ERA-006, slip op. at 2 (ARB Nov. 30, 2000).
43 See Consent Findings and Order at 4, ¶¶ 14-15.
44 D. & O. at 16.
45 See D. & O. at 2; Consent Findings and Order at 4, ¶¶ 14-15.
46 See Pre-Hearing Telephone Conference Transcript at 13-15; HT at 8, 93.
47 Id.
48 See D. & O. at 17; see also Consent Findings and Order at 3, ¶ 11 (pay interest "at the short-term rate plus 3 percent as provided in 26 U.S.C. §6621(a)(2)"); Pre-Hearing Telephone Conference Transcript at 13-15; HT at 8.