ARB CASE NO. 00-050
ALJ CASE NO. 96-DBA-37
DATE: August 27, 2001
In the Matter of:
Disputes concerning the payment of
prevailing wage rates and overtime
pay:
THOMAS & SONS BUILDING
CONTRACTORS, INC., Contractor,
Petitioner,
and
ZAGARI & SONS CONSTRUCTION CORP.,
Subcontractor, JOSEPH ZAGARI, President
Proposed debarment for labor standards
violations by:
ZAGARI & SONS CONSTRUCTION CORP.
and JOSEPH ZAGARI, President
With respect to laborers and mechanics
employed by the subcontractor on Contract
No. F28609-90-D-0010 and Contract No.
F28609-93-D-0009 at McGuire Air Force Base,
Wrightstown, New Jersey.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances: For Petitioner Thomas & Sons Building Contractors: James H. Thomas, President, Thomas & Sons Building Contractors, Lakehurst, New Jersey
For Respondent Wage and Hour Administrator: Mary J. Rieser, Esq., Paul L. Frieden, Esq., Steven J. Mandel, Esq., U.S. Department of Labor, Washington, D.C.
FINAL DECISION AND ORDER
This proceeding commenced with the issuance of charging letters signed in May and June, 1996, by the Wage and Hour Administrator, U.S. Department of Labor ("Administrator") to Joseph Zagari and Zagari & Sons Construction Corporation (collectively, "Zagari") and Thomas & Sons Building Contractors, Inc. ("Thomas & Sons"). The charging letters resulted from a Wage and Hour Division
1 The CWHSSA is one of the Davis-Bacon Related Acts. See 29 C.F.R. §5.1 (2000).
2 The investigation was conducted by a compliance officer for the Southern New Jersey District Office, Wage and Hour Division, Department of Labor.
3See D&O at 5-8 for a detailed discussion of the investigator's methodology in reconstructing Zagari's payroll records and for computing the amount of back wages owed Zagari's employees.
4 The ALJ stated the underpayment amount as $143,362.96. See D&O at 3. This appears to be a clerical error, as we can find no support in the evidentiary record for the slightly variant figure used by the ALJ.
5 The Secretary of Labor's authority to institute debarment by regulation has been upheld based on the CWHSSA's structure and legislative history. See Sharipoff dba BSR Co., 88-SCA-32, slip op. at 2 n.3 (Sec'y Sept. 20, 1991) citingJanik Paving & Constr., Inc., 828 F.2d 84, 91 (2d Cir. 1987).
6 The ALJ did not distinguish between the "disregard of obligations" standard for debarment under the Davis-Bacon Act (governing prevailing wage and record-keeping violations) and the "aggravated or willful" standard under the CWHSSA (for overtime violations). This omission is not consequential in this case, however, because the penalty for the DBA violations (wage underpayments, record-keeping violations) brings us to the maximum debarment penalty of three years that could possibly result under CWHSSA.
7 Indeed, the accountant testified that it was impossible to tell from the home payroll records which men worked on which jobs, but only that the employees were paid. T. 5/19/99 at 549. In any event, while the ALJ may not have commented directly on the accountant's testimony in his decision, the ALJ did indicate during the hearing that the weight to be accorded the accountant's testimony was "very much of an open question." T. 642.
8 While we would view such a charge with concern if it were substantiated, it likely would have no impact on our resolution of the underlying question before us in this case, i.e., whether the workers on Thomas & Sons' McGuire AFB contracts received their proper pay, and whether Zagari submitted accurate payroll data.
9 Inasmuch as Zagari & Sons Construction Corporation and Joseph Zagari, its President, did not appeal the ALJ's Decision and Order of February 17, 2000, it may be the case that the Administrator has already referred their names to the Comptroller General. See 29 C.F.R. §§6.33-6.35. Should such referral have already occurred, this aspect of our order is necessarily rendered moot.