E.B. FITZPATRICK, JR., CONSTRUCTION CORP., WAB No. 87-17 (WAB July 9, 1987)
CCASE:
E.B. FITZPATRICK CONSTRUCTION CORP.
DDATE:
19870709
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
E.B. FITZPATRICK, JR., CONSTRUCTION CORP. WAB Case No. 87-17
The Cobo Company, Inc., Subcontractor & Dated: July 9, 1987
Safety Sciences of Wisc., Subcontractor
BEFORE: Alvin Bramow, Chairman, Thomas X. Dunn, Member, Stuart
Rothman, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
the Cobo Company, Inc., seeking review of the Decision and Order of
the Administrative Law Judge (hereinafter ALJ) dated February 27,
1987. The ALJ in his Order of February 27, 1987 recommended that
the Cobo Company, Inc., be placed on the inel[i]gible list pursuant
to the Davis-Bacon Act.
The petitioner contends that the ALJ was in error in
recommending that it be placed on the ineligible list as the
petitioner was never provided with notice or a debarment hearing as
required in Department of Labor Regulations, 29 CFR sec. 5.12. The
Administrator in her statement of June 15, 1987 agrees with the
petitioner that the decision to debar The Cobo Company, Inc., was
erroneous.
The authority for an ALJ to hold a hearing for enforcement
proceedings under the Davis-Bacon and related acts is contained at
29 CFR sec. 6.30. That section provides as follows:
(a) Upon timely receipt of a request for a hearing under
[sec] 5.11 (where the Administrator has determined that
relevant facts are in dispute) or [sec] 5.12 of Part 5 of
this title, the Administrator shall refer the case to
the Chief Administrative Law Judge by Order of Reference,
to which shall be attached a [1]
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[2] copy of the notification letter to the
respondent from the Administrator and response thereto,
for designation of an Administrative Law Judge to conduct
such hearings as may be necessary to decide the disputed
matters. A copy of the Order of Reference and attachments
thereto shall be served upon the respondent.
(b) The notification letter from the Administrator and
response thereto shall be given the effect of a complaint
and answer, respectively, for purposes of the
administrative proceedings. The notification letter and
response shall be in accordance with the provisions of
[sec] 5.11 or [sec] 5.12(b)(1) of Part 5 of this title,
as appropriate.
29 CFR sec. 5.12 prescribes the debarment proceedings whereas
section 5.11 relates to hearings concerning payment of wages.
The record reveals that the notification letter sent to the
petitioner and the Order of Reference which authorized the ALJ to
hold a hearing referred only to proceedings under section 5.11.
Neither the Order of Reference nor the notification letter from the
Wage and Hour Division made any mention of debarment.
In view of the fact that the document which authorized the
hearing only gave the ALJ authority to decide the issue of whether
the employees were underpaid, the Board must agree that the order
to debar petitioner was beyond the ALJ's authority and, therefore,
erroneous.
Accordingly, the order to debar the petitioner, The Cobo
Company, Inc., and Safety Science of Wisconsin is vacated and they
are free to continue to bid and work on other Davis-Bacon and
related acts construction projects.
BY ORDER OF THE BOARD
Craig Bulger
Executive Secretary,
Wage Appeals Board [2]
