CCASE:
JANIK PAVING AND CONSTRUCTION
DDATE:
19861208
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
JANIK PAVING AND CONSTRUCTION, WAB Case No. 86-13
INC., and
WILLIAM J. JANIK, President Dated: December 8, 1986
APPEARANCES: Thomas E. Brydges, Esquire, for Janik Paving and
Construction, Inc., and William J. Janik
Leif Jorgenson, Esquire, for the Administrator, Wage
and Hour Division, U.S. Department of Labor
BEFORE: Alvin Bramow, Chairman, Thomas X. Dunn, Member, and
Stuart Rothman, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the cross-
petitions of Janik Paving and Construction, Inc., and William J.
Janik, President, and the Administrator of the Wage and Hour
Division seeking review of the Administrative Law Judge's
decision rendered on May 1, 1986. See attachment.
The Administrative Law Judge found that petitioners, Janik
Paving and Construction, Inc., and William J. Janik, failed to
pay certain of their employees proper overtime in violation of the
Contract Work Hours and Safety Standards Act, 40 U.S.C. [secs]
327-332, and falsified their certified payroll records.
Consequently, [1]
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[2] the Administrative Law Judge ordered that petitioner Janik Paving
and Construction, Inc., pay back wages for overtime work performed in
the amount of $1128.62, and that petitioners Janik Paving and
Construction, Inc., and William J. Janik be debarred for a period of two
years to receive any contracts or subcontracts subject to any of the
statutes listed at 29 CFR [sec] 5.1. /FN1/
Upon review of the record of the case made before the ALJ,
the petitioners' briefs and the arguments made at the oral hearing,
the Board finds that there was ample evidence in the record to
support the findings of the ALJ.
With respect to the ALJ's order for debarment, the standard
for debarment for violations of the labor standards provisions of
the Contract Work Hours and Safety Standards Act is set forth
in the Department of Labor's Regulations, 29 CFR [sec] 5.12(a)(1),
which reads in pertinent part as follows:
Whenever any contractor or subcontractor is
found by the Secretary of Labor to be in [*]
aggravated or willful violation [*] of the labor
standards provisions of any of the applicable statutes
listed in [sec] 5.1..., such contractor or subcontractor
. . . shall be inel[i]gible for a period not to exceed
3 years . . . to receive any contracts or subcontracts
subject to any of the statutes listed in [sec] 5.1.
[*Emphasis added*].
The Board has held that the submission of falsified payrolls
to simulate proper payment to be aggravated and willful
violation [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The Administrator of the Wage and Hour Division seeks
debarment for the full three year period rather than the two years
ordered by the ALJ. [2]
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[3] of the Davis-Bacon related Acts. See Wilfred G. Gooden
Construction Corp., WAB Case No. 86-3 (October 1, 1986).
Therefore, the remaining question before the Board is
whether Janik Paving and Construction, Inc., and William J. Janik
should be debarred for a lesser period than three years.
The Board stated in Warren E. Manter Company, Inc., WAB
Case No. 84-20 (June 21, 1985) that the proper criteria to be
followed to justify a sanction of less than three years is
found at 29 CFR [sec] 5.12(c). /FN2/ However, one must examine the
facts in each case to determine if they fall within the criteria
set forth in 29 CFR [sec] 5.12(c) which states as follows:
(c) . . . In cases where the contractor or
subcontractor failed to make full restitution to
all underpaid employees, a request for removal will
not be considered until such underpayments are
made. In all other cases, the Administrator
will examine the facts and circumstances
surrounding the violative practices which caused
the debarment, and issue a decision as to
whether or not such person or firm has
demonstrated a current responsibility to comply
with the labor standards provisions of the statutes
listed in [sec] 5.1, and therefore should be removed
from the inel[i]gible list. Among the factors to
be considered in reaching such a decision are
the severity of the violations, the contractor's or
subcontractor's attitude towards compliance, and the
past compliance history of the firm. In no case will such
removal be effected unless the Administrator determines
after an investigation that such person or firm is in
compliance with the labor standards [3]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ This section also provides for the removal from the debarment
list after six months from the date of publication by the
Comptroller General of such person or firm's name on the ineligible
list. [3]
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[4] provisions applicable to Federal contracts and
Federally assisted construction work subject
to any of the applicable statutes listed in
[sec] 5.1 and other labor statutes providing wage
protection, such as the Service Contract Act,
the Walsh-Healey Public Contracts Act, and the
Fair Labor Standards Act....
The record in this case does support the ALJ's conclusion
that there are factors which justify a lesser debarment period.
Under these circumstances his debarment order for a debarment
period of two years is not arbitrary, capricious or an abuse
of discretion.
In view of the foregoing, the Decision and Order of the
ALJ is affirmed and the petitions herein are dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [4]
