E & M SALES, INC., WAB No. 91-17 (WAB Apr. 28, 1992)
CCASE:
E & M SALES, INC.
DDATE:
19920428
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
E & M SALES, INC. WAB Case No. 91-17
With Respect to Application of
Wage Determination No. CO88-2 to
Corps of Engineers Contract No.
DACA45-88-C-0126, U.S. Army Hospital,
Fort Carson, Colorado
("E & M II")
BEFORE:/FN1/ Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
DATED: April 28, 1992
DECISION OF THE WAGE APPEALS BOARD
This case, which arose as an appeal from a conformance ruling,
is back before the Board after a decision to remand dated October
4, 1991 ("E & M I")(attached). In that decision the Board
ordered the Wage and Hour Division to add the September 7, 1988
contract in question to the official record; to explain to the
Board what procedures were used by Wage and Hour to ensure a full
and accurate administrative record, including whether petitioners
have the right to review, supplement or object to the contents of
records; and to modify the September 7, 1988 contract to include
the appropriate wage determination [1]
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[2]
consistent with 29 CFR 1.6(f), if necessary. The Board rejected
E & M Sales' argument that it had a legal and equitable right --
based upon the Portal-to-Portal Act, 29 U.S.C. [sec] 255, and the
Board's decision in Eurostyle Construction ("Eldon Flett"), WAB
Case Nos. 88-18 and 88-19 (Mar. 22, 1991) -- to rely on a conformance
ruling issued to a predecessor contractor.
Upon remand of this matter, the Acting Administrator submitted
a supplemental statement and contract documents to the Board, and
E & M Sales filed a response to the supplemental statement. The
Acting Administrator contends that a contract document -- Standard
Form 1442, Solicitation, Offer, and Award -- shows that the
solicitation was issued August 17, 1988 and specifically indicates
in Block 10 that "Wage Determination # CO88-2 . . . [is] attached
hereto and become[s] a part hereof." The Acting Administrator
further states that the form indicates that E & M Sales' vice
president signed the offer in the amount of $28,448.37 on August
31, 1988, and that a Corps of Engineer contracting officer made the
award on September 7, 1988. This information, states the Acting
Administrator, shows that "at the time E & M submitted its offer
it was on notice that the work was subject to Wage Determination
(WD) CO88-2." The Acting Administrator argues that modification
of the contract pursuant to 29 CFR 1.6(f) is inappropriate, and
also requests the Board to reconsider the portion of its order
regarding release of withheld monies.
E & M Sales responds that counsel for the Acting Administrator
does not indicate, "nor is it true, that E & M Sales ever received
a copy of any wage determination. In fact, the only evidence on
this issue . . . is the correspondence between E & M Sales and the
Corps of Engineers which indicates that E & M Sales [*] did not [*]
receive a wage determination, or the official contract documents,
until after the contract was awarded, the notice to proceed had
been received by E & M Sales, and a pre-job meeting was held."
[*](Original emphasis.)[*] E & M Sales also urges that in the
event the Board reconsiders its decision in E & M I, the Board
should also reconsider its rejection of E & M Sales' equitable
argument based on Eldon Flett and should direct the Acting
Administrator to take a non-enforcement position in this matter.
Upon consideration of the supplemental submissions by the
parties and of the entire record, the Board has reconsidered its
earlier decision in this matter, and hereby withdraws those
portions of its earlier decision regarding modification of the
contract and release of withheld monies. This matter, in its
present posture, is an appeal from a conformance ruling made by
Wage and Hour. E & M Sales has presented no legal or factual basis
for finding that the conformance ruling is substantively incorrect,
nor -- as discussed in E & M I -- has E & M Sales presented any
other legal or equitable argument that would convince the Board to
set aside the conformance ruling. The supplemental submissions of
the [2]
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[3] parties in this matter indicate to the Board that to
venture further at this stage of the proceeding than reviewing the
precise matter on appeal -- Wage and Hour's [2][3] conformance
ruling -- could possibly lead the Board into areas of disputed fact
(that is, whether and when E & M Sales received notice of, or an
actual copy of, the applicable wage determination). To the extent
that there are any factual questions in this case, resolution of
such questions would be more appropriate at the subsequent
enforcement stage of this proceeding than before the Board in the
instant appeal. Thus, the issue of contract modification may yet
need to be resolved at the enforcement stage of the Department of
Labor's proceedings. Or, E & M Sales may decide to pursue the
issue of the relief, if any, available to E & M Sales in a
different forum -- the contracting agency's contract appeals
procedure. However, in the context of the present appeal, and for
the reasons stated above, the Board has determined upon
reconsideration to limit its holding to affirmance of Wage and
Hour's conformance ruling.
BY ORDER OF THE BOARD: Charles E. Shearer, Jr., Chairman, Ruth E.
Peters, Member /// Gerald F. Krizan, Executive Secretary [3]
[ENDNOTE]
/FN1/ Member Patrick J. O'Brien participated in the oral argument
and in the first decision in this case ("E & M I") issued on
October 4, 1991, but did not participate in this decision.
