JAMES PARKER D/B/A PARKER PAINTING, WAB No. 86-23 (WAB Mar. 17, 1987)
CCASE:
JAMES PARKER
DDATE:
19870317
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
JAMES PARKER D/B/A WAB Case No. 86-23
PARKER PAINTING Dated: March 17, 1987
APPEARANCES: Arnold Kessler, Esquire, for James Parker d/b/a
Parker Painting
Carole Arnold, Esquire, for the 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 petition
of the Administrator of the Wage and Hour Division seeking review
of the Administrative Law Judge's Decision and Order rendered
in the above-captioned matter on July 11, 1986. See attachment.
The Administrative Law Judge found that the contractor failed
to pay the applicable prevailing wage rate to five of his
employees, but denied back wages to eleven employees who did not
testify at the hearing. The ALJ also found that the contractor,
James Parker, failed to maintain adequate payroll records and
falsified his certified payroll records. However, the ALJ ordered
no debarment for these violations under the Contract Work Hours and [1]
~2
[2] Safety Standards Act (40 U.S.C. 327 et seq.) and recommended
that the Secretary of Labor take action to relieve James Parker
from the ineligible list provision of the Davis-Bacon Act, as
amended (40 U.S.C. 276a et seq.). It is these issues, back pay
for 11 employees and debarment, that the Administrator has brought
to the Board with this appeal.
The Board considered this appeal on the basis of the entire
record before the ALJ, the petition for review, a brief on behalf
of the contractor, James Parker, a brief from the Solicitor of
Labor, and a hearing before the Board held on February 24, 1987,
at which all interested parties were present or represented by
counsel and participated.
The Board concludes that under the facts and circumstances
as found by the ALJ, the Wage and Hour Administrator proved at
the ALJ's hearing that the employer had and manifested a policy
(running beyond the five employees for which underpayments were
found) not to pay the full Davis-Bacon predetermined wage rates.
The Administrative Law Judge misapplied Anderson v. Mt.Clemens
Pottery Co., 328 U.S. 680 (1946) and did not draw required
inferences from the falsification of certified payrolls as part of
the company's deliberate policy to underpay employees.
The company started out by paying the prevailing wage rates.
It departed from this practice by adopting a policy based on
a claim to be made that the employees were to be paid on
a piece-rate basis. The result was a falsification of payroll
records. The ALJ found this with respect to five employees [2]
~3
[3] who testified. But the policy as found applicable to the five
employees was also pervasive with respect to all employees on a
piece-rate basis. The purpose of the conversion of an hourly
rate of pay to the claimed piece-rate basis was to reduce labor
costs. The inference is that since there was falsification as
to the five employees to achieve this purpose, there were
falsifications of certified payrolls as to the others, because all
employees were placed on the piece-rate basis.
For this reason we believe that the Wage and Hour
Administrator showed that the falsification permeated all weekly
payroll certifications. On this basis we believe the ALJ should
have applied the Mt. Clemens Pottery Co. case, supra, differently,
and should have required, but also have permitted, the
company to show that it had not falsified the weekly payrolls
to the other 11 employees resulting in their proper payment.
For this reason we will grant the Wage and Hour Administrator's
request for a remand subject to the following directions.
The case will be remanded to the Chief Administrative Law
Judge with instructions along the following lines:
The Wage and Hour Administrator shall prepare a back-pay
specification on an [] employee-by-employee basis if this has
not already been done.
The Wage and Hour Administrator must first make such
calculation as to what it claims is due each employee for which a [3]
~4
[4] back-pay claim is made. In the absence of such calculation
on an individual employee basis, the company is not required to
respond and the Department of Labor should release an equivalent
amount to the company of monies withheld from payment.
The company shall have full opportunity to respond to the
Wage and Hour Division's employee-by-employee back-pay
specification.
The Board does not conclude at this time that the company
did or did not falsify its certifications with respect to the
11 other employees. This remains to be proven one way or
the other pursuant to established Davis-Bacon Act enforcement
principles and procedures.
The Wage and Hour Administrator should lose no time in
preparing the back-pay specification and should seek to complete
it within 30 days. An additional 30 days should be allowed to
see whether the Wage and Hour Administrator and the company
can resolve this dispute without additional ALJ hearings. If
it cannot be so resolved, the Office of the Chief Administrative
Law Judge should assign the case to an ALJ for a supplemental
hearing with respect to the amount of back wages, if any, due
to each employee and the debarment issue, as discussed below.
This should be done expeditiously.
Over $50,000 has been withheld in this matter for over
three years. This case should be cleared up so that the company [4]
~5
[5] can be paid all monies due it not needed for restitution to
employees, if any. For the release of monies not required for
additional restitution, if any, the cooperation of the company
is also required.
Since the enforcement proceedings in this matter by reason
of this remand have not been concluded, the Board does not
decide the Wage and Hour Administrator's request to place the
contractor on the ineligible list as provided in the Davis-
Bacon Act, Section 3(a). We do not pass upon debarment at
this time. In the meantime the contractor is free to bid
other Davis-Bacon jobs.
Depending on the outcome by reason of this remand, either
party will be in a position to bring this matter before the Board
with a request to reinstate the present petition or by filing a
new petition seeking such relief or enforcement as may be requested
at that time. The issue of non-debarment by the ALJ may be
reconsidered by the Wage and Hour Administrator depending on
what additional facts of underpayment or nonunderpayment
come to light. The issue of debarment may be reconsidered by
an ALJ if the matter goes back to an ALJ for supplemental hearing
on the back-pay specification. [5]
~6
[6] In view of the foregoing, this matter is remanded to the
Chief Administrative Law Judge for proceedings consistent with
this decision.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [6]
