ARB CASE NO. 97-008
(ALJ CASE NO. 94-DBA-56)
DATE: January 20, 1998
In the Matter of:
TOTAL PROPERTY SERVICES OF NEW ENGLAND, INC.
General contractor
and
JAMES LAWSON, JOHN DAIGLE
and PETER DAIGLE
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This case arises under the provisions of the Davis-Bacon Act (DBA), 40
U.S.C. §§276a et seq. (1994), the Contract Work Hours and Safety
Standards Act (CWHSSA), as amended, 40 U.S.C. §§327 et seq. (1994),
and the regulations at 29 C.F.R. Parts 5 and 6 (1997). On September 6, 1996, an Administrative
Law Judge (ALJ) issued a Decision and Order (D. and O.) awarding back wages to several
employees and debarring from federal contracts James Lawson, Peter Daigle, Total Property
Services of New England, Inc. (TPS), and National Interior Contractors, Inc., including any firm
in which Lawson and Daigle have a substantial interest for a period of three years. Peter Daigle
filed a Petition for Review on September 12, 1996, asserting that he was not properly served with
the charging letter. The other parties did not petition for review. The Board has reviewed the
record as well as the submissions of the parties and now issues its final decision and order.
BACKGROUND
In 1990 and 1991 the Wage and Hour Division, Employment Standard
Administration, conducted an investigation of the performance of TPS on four contracts it had
[Page 2]
with the federal government. On August 23, 1993, the Regional Administrator of the Wage and
Hour Division sent John Daigle, James T. Lawson, Peter Daigle, and TPS a charging letter
stating that he had reasonable cause to believe that they had violated the DBA, and that those
violations constituted a disregard of their obligations under the DBA. ALJ Exhibit (ALJX) 1,
Letter from Walter P. Parker to John Daigle, James T. Lawson, Peter Daigle, and Total Property
Services of New England, Inc. The Regional Administrator, in accordance with the provisions
of 29 C.F.R. §5.12(b)(1) (1997) offered the Respondents an opportunity to request a
hearing before a Labor Department ALJ. The notification was sent to the Respondents by
Certified Mail, return receipt requested. ALJX 1.
On September 20, 1993, James Lawson, Peter Daigle and John Daigle
signed and sent a response to the Regional Administrator, which stated in part, "we hereby
certify and request that you forward our notice herein contain[ed] for hearing as prescribed under
section 29 CFR subtitle 5.11(b) 2." ALJX 1, Letter from James Lawson, Peter Daigle, and
John Daigle to Walter Parker. Thereafter the Regional Administrator issued an Order of
Reference to the Office of Administrative Law Judges (OALJ), authorizing a hearing regarding
DBA and CWHSSA violations. Id., Order of Reference, dated July 1, 1994.
1 Lawson had listed Peter
Daigle as a witness in his prehearing submission.
2 With regard to
John Daigle the ALJ found that "the Complainant acknowledges that there is insufficient evidence
to implicate John Daigle in the Davis-Bacon violations. Accordingly, Complainant does not seek the
debarment sanction against him." D. and O. at 14, n.12.
3 Neither did Peter
Daigle claim, as he now does in his unsigned affidavit, that he was not an officer of TPS. Petition, Ex.
A.
4 The ALJ
determined that the Respondents should be debarred pursuant to the DBA. D. and O. at 16, 17-18.
However, his order mistakenly refers to debarment under 29 C.F.R. § 5.12(a)(1) (which relates
to debarment under the so-called Davis-Bacon Related Acts, or DBRA) instead of 29 C.F.R. §
5.12(a)(2) (which relates to debarment under the DBA). We clarify his order here.