Bay State Wiring Co., WAB No. 76-08 (WAB June 14, 1977)
CCASE:
BAY STATE WIRING COMPANY
DDATE:
19770614
TTEXT:
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UNITED STATES OF AMERICA
DEPARTMENT OF LABOR
BEFORE THE WAGE APPEALS BOARD
In the Matter of
BAY STATE WIRING COMPANY [OF] WAB Case No. 76-08
ARLINGTON, INC., a Subcontractor
On HUD Project No. 023-44180 Dated: June 14, 1977
EC/LDP, Village Court, Brighton, MA
Appearances: Mr. Joseph D. Giurleo, President, Bay State
Wiring Company of Arlington, Inc.
Ronald Robins, Esq., George E. Rivers, Esq.,
Office of the Solicitor, United States Department
of Labor
Before: Members Stuart Rothman and Clarence D. Barker /FN1/
DECISION AND ORDER
This case is before the Wage Appeals Board on the petition
of Bay State Wiring Company of Arlington, Inc. (herein Bay State)
and its president, Mr. Joseph D. Giurleo, seeking a review of the
February 10, 1976, decision of the Administrator of the [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ This case was heard and considered on June 28, 1976, and a
unanimous decision was reached prior to June 30, 1976. [1]
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[2] Wage and Hour Division. The Administrator affirmed the
November 13, 1975, recommendation of Associate Assistant Regional
Director George J. Regan that Bay State Wiring Co. of Arlington,
Inc., and its president, Mr. Joseph D. Giurleo, should be placed on
the ineligible bidders list of the Comptroller General in
accordance with Section 5.6(b)(1) of Title 29, Code of Federal
Regulations for violations of labor standards provisions of Section
212(a) of the National Housing Act.
To relate briefly the factual situation leading to this
appeal, beginning in April 1973 Bay State was the electrical
subcontractor on Department of Housing and Urban Development (HUD)
project No. 023-44180 - EC/LDP, Village Court, Brighton,
Massachusetts. An investigation by HUD revealed that Bay State
failed to pay the prevailing wage rate for electricians set forth
in Wage Decision 72-MA-304 applicable to the project. In addition,
one apprentice was employed who was not properly registered in
accordance with 29 CFR [sec] 5.5(a)(4) and therefore was not paid
the prevailing wage rate for electricians, and another apprentice
was employed who failed to receive the proper percentage of the
appropriate wage rate. Certified payrolls were falsified to
simulate the required prevailing wage rate. It was determined that
seven employees were underpaid in the amount of $7,504.10. [2]
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[3] On October 24, 1974, an indictment was brought by a Grand
Jury based on this investigation. Subsequently, both the company
and Mr. Giurleo pleaded "guilty" to one count relating to
violations of 18 U.S.C. [sec] 1012. The firm and Mr. Giurleo were
fined $350.00 and $250.00, respectively.
The Deputy Administrator of the Wage and Hour Division
forwarded a letter to Mr. Giurleo on September 2, 1975, charging
violations of the labor standards provisions and the submission of
payrolls containing apparently incorrect information, which
constituted willful and aggravated violations of the labor
standards provisions of Section 5.6(b) of the regulations. Mr.
Giurleo responded with written arguments and requested an informal
proceeding. This was held on October 28, 1975, before the
Associate Assistant Regional Director for the Wage and Hour
Division in Boston. Shortly thereafter the Associate Assistant
Regional Director issued a decision finding that the allegations
constituted aggravated and willful violation of the labor standards
provisions within the meaning of 29 CFR [sec] 5.6(b) and he
recommended that Bay State and Mr. Giurleo, individually, be placed
on the Comptroller General's ineligible bidders list pursuant to 29
CFR [sec] 5.6(c)(1).
The petitioner appealed to the Administrator of the Wage and
Hour Division and on February 10, 1976, the Administrator issued
a decision affirming the Associate Assistant Regional Director's
recommendation for debarment. [3]
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[4] It is from the decision of the Administrator that
petitioner sought review by the Wage Appeals Board. A hearing on
this matter was held on June 28, 1976, pursuant to a Notice of
Hearing and the petitioner was heard by two members of the Board.
The Board has given careful consideration to arguments
presented by the petitioner, but it agrees with the Deputy
Administrator that there is ample evidence in the record that the
labor standards violations were willful and aggravated. Statements
offered on behalf of the petitioner do not appear to the Board to
constitute circumstances which would exonerate him. Furthermore,
the decision of the Administrator to place Bay State Wiring Co. of
Arlington, Inc. and Joseph Giurleo, individually, on the
Comptroller General's ineligible bidders list was supported by
substantial evidence in the record and does not constitute an
arbitrary or capricious decision.
ORDER
The Board finds that the Administrator did not err in invoking
ineligibility as provided in Section 5.6(b) for violations of labor
standards provisions of Section 212(a) of the National Housing Act.
SO ORDERED:
Stuart Rothman, Member
Clarence D. Barker, Member [4]
