CCASE:
PHOENIX PAINT COMPANY
DDATE:
19901231
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
PHOENIX PAINT COMPANY, Contractor WAB Case No. 87-08
LORENE TRUMAN KUIMELIS, Owner
DATED: December 31, 1990
ADDITIONAL VIEWS OF CHAIRMAN ANDREWS
I would remand this case to the Administrative Law Judge for
further consideration. The ALJ has written a reasonable and
thorough opinion except that her decision leaves unclear whether
the correct legal standard was applied for debarment under the
Davis-Bacon Act. I would remand to the Judge for a specific
finding in light of the standard for defining "willful" enunciated
by the Supreme Court in Richland Shoe v. McLaughlin, 486 U.S. 128
(1988) as to whether inaccurate payroll information submitted by
the respondent, Phoenix Paint, rises to the level of willful violation
of the Davis-Bacon Act so as to constitute "disregard of [1]
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[2] obligations to . . . employees", requiring debarment under
the Act.
The majority opinion is so conclusory as to a number of issues
which are rightfully the purview of the trial judge that it is
clearly arbitrary and capricious. Member Rothman, writing for the
majority, states in his first sentence "that the decision of the
Administrative Law Judge showed little comprehension of the Davis-
Bacon Act requirements in terms of enforcement, and less
comprehension as to what the facts . . . mean . . . ." In its very
next sentence (p. 5) the majority totally misstates the ALJ's
finding of facts while misidentifying the petitioner in the case.
It is simply not an accurate reflection of the record before the
ALJ for the majority to conclude that the respondent "admitted to"
facts constituting debarrable "disregard of obligations." Not only
is the majority opinion cavalierly loose with the facts and
contemptuous toward the Secretary's Administrative Law Judge, it
constitutes, in my judgment, an incomprehensible reversal of the
Board's own position on the appropriate role of the trial official
expressed not a month earlier in Homer Dunn Decorating, WAB Case
No. 87-03 (March 10, 1989), at p. 5:
In reaching her findings and conclusions, it must be
remembered that the ALJ heard and observed the witnesses
during the hearing. It is for the trial judge to make
determinations of credibility, and an appeals body such
as the Wage Appeals Board should be loathe to reverse
credibility findings unless clear error is shown.
The Supreme Court stated in Universal Camera v. NLRB, 340
U.S. 474 (1950) at p. 494:
Conclusions, interpretations, law and policy
should of course, be open to full review. On
the other hand, on matters which the hearing
commissioner, having heard the evidence and [2]
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[3] seen the witnesses, is best qualified
to decide, the agency should be reluctant to
disturb his findings unless error is clearly
shown.
Also:
. . . material facts in any case depend upon the
determination of credibility of witnesses as shown by
their demeanor or conduct at the hearing." [Id. at p.
496].
In view of Universal Camera and the very factual nature of all
such proceedings before Administrative Law Judges, the majority's
claim to having looked "at the whole ball of wax" and conclusion
that "credibility . . . has little if anything to do with this
case" can only be charitably described as fanciful whimsy clearly
constituting arbitrary and capricious abuse of the Board's
discretion.
The Administrative Law Judge's decision was reasonable, and
judicially written except as to its failure to clearly address the
Davis-Bacon standard for debarment as discussed. I would remand
this case for reconsideration consistent with the views expressed
herein.
Jackson M. Andrews
Chairman [3]
