COPELAND CONSTRUCTION CO., WAB No. 94-20 (WAB Jan. 31, 1995)
CCASE:
COPELAND CONSTRUCTION
DDATE:
19950131
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of:
COPELAND CONSTRUCTION WAB Case No. 94-20
COMPANY
BEFORE: Karl J. Sandstrom, Member
James C. Riley, Member
Joyce D. Miller, Alternate Member
DATED: January 31, 1995
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition of Copeland
Construction Company ("Copeland" or "petitioner"). The Administrator
has determined -- in an administrative charging letter issued after a
protracted investigation -- that petitioner failed to pay statutorily
required prevailing wages for work building trails in a national forest.
In response to the charging letter, Copeland filed a timely request for
a hearing by an Administrative Law Judge ("ALJ") to determine whether
violations alleged in the Administrator s charging letter were
committed. The matter has yet to be referred by the Wage and Hour
Division to the Office of Administrative Law Judges ("OALJ"), a
prerequisite for the requested hearing to proceed. In the interim,
Copeland petitioned the Board for a hearing and decision. Counsel for
the Administrator urges the Board to grant her motion to dismiss on the
ground that the matter is not yet ripe for review. For the reasons set
forth below the motion to dismiss is granted.[1]
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[2] I. BACKGROUND
This matter arises under the Davis-Bacon Act ("DBA") (40 U.S.C.
276a et seq.), the Contract Work Hours and Safety Standards Act ("CWHSSA")
(40 U.S.C. 327 et seq.), and the implementing regulations at 29 C.F.R.
Part 5. Copeland Construction Company, doing business as a general
contractor, was awarded construction contracts 50-9JA9-1-1L039 and
50-9JA9-1-1L026 by the U.S. Department of Agriculture, National Forest
Service on September 18, 1991. The contracts -- for construction of
trails and comfort facilities in the San Bernardino National Forest --
incorporated prevailing wage and overtime requirements of the DBA and
the CWHSSA. Petitioner alleges to have discussed with the contracting
officer, at a pre-job conference, conformance of an additional work
classification and rate but failed to further pursue modification of the
wage determination as required by regulation at 29 C.F.R.
5.5(a)(1)(v)(A).
Subsequent investigation by the Administrator eventually resulted
in charges of prevailing wage, overtime and related violations durring
Copeland's performance on the contract. The contracting agency,
pursuant to a request from the Administrator, withheld partial payment
from Copeland in February of 1992 and again in July of the same year.
While the record is not clear, the investigation was apparently
completed in mid-1994. The Administrator's charging letter -- offering
Copeland the opportunity for an administrative hearing -- was signed on
July 27, 1994. Copeland requested a hearing on August 9, 1994. No
"Order of Reference" initiating the hearing process was subsequently
issued and, on November 26, 1994 Copeland filed the instant "petition
for review," seeking -- inter alia -- an order directing immediate
issuance of an Order of Reference.
II. DISCUSSION
It is well settled that the Board is "an essentially appellate agency."
29 C.F.R. 7.1(e); Associated Project Builders, Ltd., WAB Case No. 77-09
(Oct. 14, 1977); Francioni Construction Co., WAB Case No. 92-10 (Aug.
18, 1992). In the instant case, the petitioner has exercised
administrative due process rights, described in the regulations at 29
C.F.R. Parts 5.11 and 6, to request a hearing. Copeland first
requested a hearing prematurely on June 29, 1994, and again in a timely
manner on August 9, 1994, immediately after the Administrator's charging
letter was issued on July 27, 1994. Three months after petitioner's
first valid request for a hearing before an ALJ, Copeland wrote to the
Board, seeking "To Appeal Matters Of Undue Hardship And Injustice
Where-In Extraordinary Circumstances Have Caused Appellant Great Harm
And Denial Of Due Process And Conspiracy To Defraud."[2]
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[3] The motion of counsel for the Administrator correctly notes
petitioner has not presented facts or made adequate representations
necessary to invoke a challenge to the wage determination under 29
C.F.R. 7.2, nor would it be timely to do so now. Dairy Development,
Ltd., WAB Case No. 88-35 (Aug. 24, 1990). Similarly, there is no
indication that petitioner presented a written request to Wage and Hour
or any other agency to conform an additional work classification as
provided in 29 C.F.R. 5.5(a)(1)(v)(A)-(C). With respect to the
conformance process, petitioner alternately claims to have been ignorant
of conformance procedures (Copeland Petition for Review, November 26,
1994) and to have described conformance in detail to the contracting
officer and others at the pre-job conference (Copeland Request for
Hearing to William Buhl, Regional Administrator, U. S. Department of
Labor, Employment Standards Administration, Wage and Hour Division, June
29, 1994; identified in the record by petitioner as "First Request for
Hearing & Damage Claims").
Petitioner's briefs directly contradict Wage and Hour's allegations
of violations. In light of the petitioner's allegations of fraud and
denial of due process and because there are facts in dispute regarding
the Administrator's charges of violations, evidence and the credibility
of parties must be addressed in a hearing before an ALJ where the
trier-of-fact will receive evidence, observe witnesses, and make
appropriate judgements on matters of proof and veracity. While the
Board is concerned about the deleterious effects of delay in
investigating and adjudicating wage and hour cases, there are many
questions of fact and applicable law that can only be adequately and
fairly explored in a hearing before an ALJ.
The Board is sympathetic with the petitioner's objections to delay.
An unexplained, almost six month, delay in issuing an "Order of Reference"
suggests the need for Wage and Hour to review its procedures.
Other aspects of the chronology of this case are more troubling.
The case dates back to a Wage and Hour investigation which appears to have
begun in 1991. Contract funds -- alleged to be payable to Copeland --
were first withheld pursuant to 29 C.F.R. 5.9 in February of 1992. Yet
the charging letter -- the first formal statement of the Department's
allegations of violations (initiating administrative due process and
finally subjecting the Administrator's actions to review) -- was not
issued until July 27, 1994, almost two and one-half years later. The
three-year odyssey that resulted in the petition before the Board has
now been extended by several additional months waiting for the Order of
Reference to be transmitted to the OALJ. Reviewing this protracted case
history one can well understand the petitioner's frustration.[3]
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[4] The Board makes no judgement on the merits of the petitioner's case.
Indeed, as this decision makes clear, the matter is not yet properly
before this administrative appellate body.
Under the present circumstances, the Board hereby grants the Motion
To Dismiss for the reason set forth by counsel for the Administrator. The
Board reminds the Administrator of its recent decision and order in
Public Developers Corporation, WAB Case No. 94-02 (Jul. 29, 1994) and
urges her to expeditiously issue an Order of Reference in this matter.
For the foregoing reasons, it is hereby
Ordered, that the petition for review is dismissed without prejudice.
BY ORDER OF THE BOARD:
Karl J. Sandstrom, Member
James C. Riley, Member
Joyce D. Miller, Alternate Member
Gerald F. Krizan, Esq.
Executive Secretary[4]
