United States Department of Labor
Office of Administrative Law Judges Law Library

 

DAVIS-BACON ACT INDEX

 

Prepared by

 

DIVISION OF FAIR LABOR STANDARDS

 

FEBRUARY 1990 (revised)

This document covers Heading topics beginning with "D" through "G"
Return to full Table of Contents

 

Dam Construction
Debarment - Current Compliance
Debarment - Davis-Bacon Act
(disregard of obligations to employees)
Debarment - Davis-Bacon Related Acts
(aggravated or willful violations)
Debarment - Employer responsible for actions of agents/employees/partners
Debarment - Failure to receive contracts from one agency not a defense to Davis-Bacon debarment
Default Judgment
Denial of Evidentiary Hearing
Disputes between Prime Contractors and Subcontractors
Dredging
Due Process
Estoppel
Evidence
Fringe Benefits
Grantee Liability

 

DAM CONSTRUCTION

 

McGee Creek Project
WAB 81-11 & 82-1, December 24, 1982

   The Board sees no sufficient reason at this time to direct any change in the routing and familiar practices of the Wage and Hour Division of excluding wage data from power plant construction when making a locality wage survey for dam projects.

 

Prevailing wage rates applicable to the construction of ountain Park Dam
WAB 73-4 and 13-5, May 16, 1973

   Where there was a dam 75 miles away and one county removed from the subject dam project, there was no need to consider wage data from three other dams located at least 200 miles tram the subject project.

   The Davis-Bacon wage predetermination standards are by statute oriented to geographic localities. No contention is made that the four dams used in the wage survey are in the same labor market area or that recruitment of workers for ountain Park Dam will be required from geographic areas that are more than 200 miles away and even in another state. It is not appropriate to include these three other dams within the wage orbit used for predetermination of rates for Mountain Park Dam.

 

Prevailing wage rates applicable to Clinton Dam Project
WAB 72-6, June 4, 1972

   A cardinal principle of Davis-Bacon administration is that the level of prevailing wages paid to a majority of laborers and mechanics by crafts and classifications is a hard fact payroll determination. In this case, the Administrator was on the right track when he considered not only the Helvern Dam in Osage County and the Kansas City Power and Light Dam in Linn County to predetermine wage rates for Clinton Dam in Douglas County, but he should have completed the triangle by including other heavy construction work currently in progress at the Perry Dam located in Jefferson County which is of a character similar to the work to be done on the Clinton Dam. The Administrator should have considered all heavy construction projects (disregarding local sewer and paving contracts not heavy in nature) in the surrounding counties.


DEBARMENT - CURRENT COMPLIANCE

 

Cosmic Construction Co., Inc .
WAB 79-19, Sept. 2, 1980

   Current compliance. may only be considered by Wage & Hour Administrator as a basis for shortening the 3-year period of debarment for violations under Davis-Bacon related Acts, 29 CFR 5.6(b)(1).

 

C.M. Bone, Acme Painting Co.
WAB 78-4, June 7, 1978

   Petitioner's claim that he has been effectively debarred because the Army did not award him contracts for the three years since the violations is not justified when at the same time he cites 11 government contracts which he has been awarded for purposes of showing current compliance. It is clear, therefore, that petitioner has not been effectively timely debarred.

 

Marvin E. Rirchert d/b/a M&R Construction Co.
WAB 77-17, Oct. 16, 1978

   Consideration of current compliance is not appropriate in a situation where the violations are of Section 3(a) of the Davis-Bacon Act.

   Although current compliance in the Tilo , WAB 76-1, and Vicon , WAB 65-3, cases and delays experienced by the contractor in Tilo before his appeal reached the Board were included among the reasons for not debarring the petitioners in those cases, in neither of those cases was there present the factual situation surrounding the violations existing in the present case, which included petitioner's substantial prior experience in government contracting and that it previously had to pay back wages on behalf of one of its subcontractors.

 

Tilo Company, Inc.
WAB 76-1, June 6, 1977

   The Board does not believe petitioner should be debarred where petitioner made full restitution, was not advised until 15 months later than debarment was contemplated, had instituted practices to assure compliance on future government contracts, had subsequently performed satisfactorily on government contracts, and it had been five years since the violations occurred.

 

Jen-Beck Associates, Inc.
WAB Case No. 87-2, July 20, 1987

   The administrative law judge (ALJ) erred in recommending against debarment for Davis-Bacon Act violations based on criteria not appealable to Davis-Bacon Act violations. The criterion of whether or not a contractor demonstrated current compliance, found at 29 CFR 5.12(c), only applies to violations under the Davis-Bacon related acts, not the Davis-Bacon Act itself. The Board remanded the matter to the ALJ for a Decision and Order In accordance with the proper standard for debarment for violations of the Davis-Bacon Act.

 

DEBARMENT - DAVIS-BACON ACT

(disregard of obligations to employees)

 

Ace Contracting Company. Inc.
WAB 76-23, May 30, 1980

   Although there was considerable delay between the date of the settlement of the underpayment and the letter frog Wage-Hour notifying petitioners of possible debarment, such delays were not unusual, and, in this case, were the fault of both parties. The present case is distinguishable from the Tilo case, WAB 76-1. Where the delay there involved had been caused mostly by the government, and where petitioners had taken immediate corrective measures. In the instant case, the delays have only served to benefit petitioner since in the meantime, by their own admission, petitioners have performed over 100 contracts with the government. Petitioners have used these delays to forestall debarment sanction as long as possible.

   There is ample evidence in the record to demonstrate petitioner's underpayment of their employees and their efforts to simulate compliance by falsification of the payroll records to justify the finding that they have disregarded their obligations to their employees under section 3(a) of the Davis-Bacon Act.

 

Thomas L. Moore, President, and T.A.M., Inc.
WAB 79-5, Aug. 16, 1979

   Submission by petitioner of reconstructed and erroneous certified payrolls cannot be explained by lack of intent or resulting from inexperience when petitioner was, in fact, simulating compliance with provisions of the Davis-Bacon Act. Such reconstruction of payroll records is an extreme form of disregard by petitioner of its obligations to its employees under Section 3(a) of the Davis-Bacon Act.

   A lesser standard of compliance of labor laws should not exist for SBA Section eta) contractors, and there is no conflict in the public policy goals of the SEA program for assisting and training disadvantaged contractors/businessmen on the one hand and the Davis-Bacon Act provisions requiring payment of minimum prevailing wage rates to laborers and mechanics on the other.

   Petitioner's claim of inexperience after several years of work on government construction will not serve to excuse contractor for falsifying payrolls or paying less than the predetermined rate. See WAB 78-4, C.M.Bone, Acme Painting Co. .

 

Cosmic Construction Co., Inc.
WAB 79-19, Sept. 2, 1980

   By underpaying employees, violating regulations concerning overtime pay, falsification of payroll records and misclassification of workers, petitioners here "disregarded their obligations to their employees. within the meaning of §3 (a) of the Davis-Bacon Act and further, such violations were Aggravated and willful" within the meaning of 29 CFR 5.6(b)(1) for projects subject to the labor standards provisions of Davis-Bacon and related Acts.

 

Marco Construction Company and Joe R. Martinez
WAB 77-31, April 24, 1978

   The Administrator correctly ruled that petitioner's violations, including the failure to pay prevailing wage rates, the falsification of payroll records and the omission of names from the payroll constitutes a disregard of obligations under the Davis-Bacon Act.

 

Edwards Furnace Cowman, Inc.
WAB 77-28, Sept. 18, 1978

   In view of petitioner's consistent refusal to pay the prevailing wage rate or to agree to compliance with the Act in the future, the Administrator's recommendation that the contractor be included on the Comptroller's list of ineligible bidders for disregarding its obligations to employees as affirmed.

 

C.M. Bone, Acme Painting Co.
WAB 78-4, June 7, 1978

   Where the record indicates that petitioner persistently avoided paying his employees the proper predetermined wage rate for the appropriate classification, or holiday pay when required and where the payrolls were repeatedly altered to make it appear that the predetermined wage rates had been paid, petitioner disregarded his obligations to his employees within the meaning of Section 3(a) of Davis-Bacon.

 

Marvin E. Hirchert d/b/a M & H Construction Co.
WAB 77-17, Oct. 16, 1978

   Petitioner's actions in paying wage rates far below predetermined rate, submitting falsified certified payrolls and failure to pay overtime cannot be considered anything short of a disregard of petitioner's obligations to its employees within the meaning of the Davis-Bacon Act. These actions being taken after several years of experience with government construction contracts, after petitioner had paid $2.000 for violations of a subcontractor in 1973, tend entirely to nullify petitioner's attempts to justify these actions because of its burgeoning business and the errors of the bookkeeper.

   Consideration of current compliance is not appropriate in a situation where the violations are of Section 3(a) of the Davis-Bacon Act.

 

Jen-Beck Associates, Inc.
WAB Case No. 87-2, July 20, 1987

   The administrative law Judge (ALJ) erred in recommending against debarment for Davis-Bacon Act violations based on criteria not applicable to Davis-Bacon Act violations. The criterion of whether or not a contractor demonstrated current compliance, found at 29 CFR 5.12(c), only applies to violations under the Davis-Bacon related acts, not the Davis-Bacon Act itself. The Board remanded the matter to the ALJ for a Decision and Order in accordance with the proper standard for debarment for violations of the Davie-Bacon Act.

 

A. D. Roe, Inc., John P. Fox, d/b/a Fox Painting and Decorating Company
WAB Case No. 84-11, December 18, 1985

   Board adopted administrative law judge's (ALJ) decision, 83-DBA-15 (April 11, 1984), ordering a three year debarment under the Davis-Bacon Act and the Davis-Bacon related acts for willful violations by first time violator. Fox failed to pay prevailing wage or proper overtime and falsified certified payrolls. ALJ's decision also debarred Petitioner's successor business operation run by relatives in which Fox was "actively engaged in the management of the new corporation and . . . also an officer."

 

Martell Construction Co., Inc.
WAB Case No. 86-26, July 10, 1987

   Underpayment of employees, violating regulations concerning overtime pay or falsification of payroll records all constitute a disregard of a person's or firm's obligations to their employees under the Davis-Bacon Act. As the record shows, petitioners disregarded their obligations, and the administrative law judge's debarment order was not arbitrary, capricious or an abuse of discretion.

 

Williams Fence Co., Inc.
WAB Case No. 87-23 August 17, 1987

   Davis-Bacon debarment order of administrative law judge (ALJ) was vacated by the Board, because the Order of Reference only authorized the alp to decide the issue of wage underpayments, not debarment.

 

E. B. Fitzpatrick. Jr.. Construction Corp.
WAB Case No. 87-17, July 9, 1987

   The authority for an administrative law judge (ALJ) to hold a hearing for enforcement proceedings under Davis-Bacon and related acts is contained in the regulations at 29 CFR 6.30. The record reveals that the document which authorized the ALJ to hold the hearing only authorized the ALJ to decide the issue of whether the employees were underpaid. Thus the ALJ's order to debar the petitioner was beyond his authority and is vacated.

 

Stop Fire. Inc., Jan Remitz
WAB Case No. 86-17, June 18, 1987

   Board vacated and remanded the Davis-Bacon debarment action for the administrative law judge (ALJ) to make particular findings on credibility and for the Administrator to consider whether to request reopening the case for further evidence. The Board found that the record was deficient as a result of conflicting testimony. (N.B. No further action was taken.)

 

J & L Janitorial Services. Inc.
WAB Case No. 86-10, November 13, 1986

   The Board adopted the administrative law judge's (ALJ) findings and conclusions in their entirety, thereby upholding the ALJ's three year Davis-Bacon Act debarment for failure to pay prevailing wages, maintain adequate payroll records and falsification of payrolls.

 

Brighton Painting Company
WAB Case No. 87-9, September 20, 1989

   The Board affirmed the administrative law judge's decision that the contractor disregarded its obligations to employees under the Davis-Bacon Act and committed aggravated or willful violations of the Contract Work Hours and Safety Standards Act. The contractor paid on a piece rate basis which yielded hourly rates less than the required prevailing rates, failed to pay overtime compensation at the rate of one and one-half times the prevailing rate, and falsified the certified payrolls to simulate compliance.

 

Phoenix Paint Co.
WAB Case No. 87-8, May 5, 1989

   The Board majority reversed the administrative law judge's (ALJ) decision which had relieved the contractor from debarment under the Davis-Bacon Act. The contractor admitted paying a piece rate which was insufficient to satisfy the prevailing wage requirements and knowingly submitted false certified payrolls. In relieving the contractor from debarment, the ALJ agreed with the arguments that the contractor was confused by conflicting advice and that belated debarment (the Administrator's letter charging debarment was sent 15 months after a business reorganization and the Order of Reference referring the matter for hearing occurred 16 months after restitution and the reorganization) would serve no worthwhile purpose and detrimentally impact on the contractor's ability to conduct business with the State and city governments as a recently certified minority business enterprise.

 

In overturning the ALJ, the Board majority stated

   If this is not a case for debarment and such a view were to spread to other ALJ debarment cases, employers who have deliberately adopted a business plan to underpay their employees may look upon Davis-Bacon enforcement only two ways:(l) The prospect of not being detected is good, and (2) if they are, all they need do is confess the violation and using the Department of Labor as their agent, make a back-pay restitution in the instances in which violation has been detected and proved. The prospect of the debarment penalty as a preventative, prophylactic tool for the enforcement of the Act will be lost.

 

* * * *

 

   The explanations that the employer had done the same thing before and had not been investigated or that others had done the same thing and has not been detected or that this was the employer's first Davis-Bacon contract, or that the employer with a substantial Davis-Bacon Act contract was deficient in intelligence to understand Davis-Bacon Act requirements, have a hollow ring and generally are not good excuses. There has to be a presumption that the employer who has the savvy to understand government bid documents to bid on a Davis-Bacon Act job knows what wages the company is paying its employees and what the company and its competitors must pay when it contracts with the federal government on a Davis-Bacon Act job.

Bob's Construction Co., Inc.
WAB Case No. 87-25, May 11, 1989

   The Board affirmed the administrative law judge's decision debarring the contractor and the president for three years for violations of the Davis-Bacon Act. The contractor failed to pay the required prevailing wages and submitted falsified certified payrolls to the contracting agency.

   The Board cannot permit debarment for a lesser period than three years as the Davis-Bacon Act does not provide for less than a three-year debarment.

 

Sealtite Corporation
WAB Case No. 87-6, October 4, 1988

   The Board affirmed the administrative law judge's (ALJ) default judgment against the contractor, which found the contractor liable for back wages and subject to debarment under the Davis-Bacon Act. The contractor failed to attend the scheduled ALJ hearing allegedly because of illness and because he was engaged in an investigation for the U.S. Attorneys office in Florida in a criminal matter; however, there was ample justification for the ALJ's decision rejecting these excuses.

   In affirming the ALJ's finding that the contractor was subject to Davis-Bacon debarment, the Board cited record evidence of the prevailing wage and overtime violations, the misclassification of employees and the untimely submission of certified payrolls. The only classification utilized by the contractor was one not listed on the wage determination, and the contractor did not seek to add that classification through the Department's conformance procedures. The contractor instead paid employees at rates well below those contained in the applicable wage determination.

 

Northwest Foam Systems. Inc.
WAB Case No. 88-15, February 17, 1989

   The Order of an Administrative Law Judge (ALJ) debarring a contractor was contrary to the intent of a consent agreement of the parties and exceeded the authority of the ALJ.

 

DEBARMENT - DAVIS-BACON RELATED ACTS

(aggravated or willful violations)

 

Bay State Wiring Co.
WAB 76-8, June 14, 1977

   Where there was ample evidence in the record that petitioner, a subcontractor on a ROD project, had failed to pay prevailing rates to electricians, that one of his apprentices we. not properly registered, that another apprentice was not paid the appropriate rate and that certified payrolls were falsified to simulate proper payment, the Administrator's finding of willful and aggravated violations was correct and his decision to debar was not arbitrary or capricious.

 

Cosmic Construction Co., Inc.
WAB 79-19, Sept. 2, 1980

   By underpaying employees, violating regulations concerning overtime pay, falsification of payroll records and misclassification of workers, petitioners here "disregarded their obligations to their employees" within the meaning of §3(a) of the Davis-Bacon Act and further, such violations were Aggravated and willful. within the meaning of 29 CFR 5.6(b)(1) for projects subject to the labor standards provisions of Davie-Bacon and related Acts.

 

Marvin E. Hirchert d/b/a M & H Construction Co.
WAB 77-17, Oct. 16, 1978

   The Board considers the submission of falsified payrolls to the contracting agencies, the omission of some of the employee's names from the payrolls, the failure to keep accurate records, or to pay the predetermined wage rates or the required overtime as an indication of aggravated and willful violations of the Davis-Bacon related acts involved.

 

Camilo A. Padreda General Contractor, Inc.
WAB Case No. 87-1, August 3, 1987

   The administrative law judge erred in recommending that respondents be relieved from debarment by using Service Contract Act criteria and that respondents were not responsible for the violations and falsified payrolls. Payrolls were falsified and therefore the violations were aggravated and willful.

   Partners must be responsible for all the acts of the partnership. Mr. Padreda wan more than an inactive partner, took part in everyday operations, and had knowledge of the first violations. However, there are factors justifying a lesser debarment period. Mr. Padreda and his fellow joint venturers apportioned tasks in connection with management of the project including the responsibility for employment related decisions and recordkeeping. A one-year period of debarment in imposed.

   The Board cannot agree that debarment would not be appropriate because of a delay of almost two years between the violations and notification that debarment proceedings were being initiated. This is not unusual in Davis-Bacon cases and in the absence of any disadvantage to the contractor the Board has not accepted this doctrine as appropriate in these cases.

 

Rust Construction Co., Inc.
WAB Case No. 87-15, October 2, 1987

   The respondents failed to pay employees the applicable prevailing wage rates and overtime, and submitted certified payrolls which were not signed, contained inaccurate and incomplete information and did not list two employees. Under the standard of debarment at 29 CFR §5.12(a)(1). the administrative law judge (ALJ) erred in finding that the violations were not aggravated or willful. However, under the criteria at 29 CFR §5.12(c). debarment for a period of only one year was appropriate.

 

Mast Construction, Inc. Dun-Rite Construction Corporation
WAB Case No. 84-22, March 14, 1986

   The Board affirmed administrative law Judge's (ALJ) order debarring subcontractor for failing to pay prevailing wages and falsifying certified payroll records.

 

A. D. Roe, Inc., John P. Fox, d/b/a Fox Painting and Decorating Company
WAB Case No. 84-11, December 18, 1985

   Board adopted administrative law judge's (ALJ) decision, __DBA-15 (April 11, 1984), ordering a three year debarment under the Davis-Bacon Act and the Davis-Bacon related acts for willful violations by first time violator. Fox failed to pay prevailing wage or proper overtime and falsified certified payrolls. ALJ's decision also debarred Petitioner's successor business operation run by relatives in which Fox was "actively engaged in the management of the new corporation and . . . also an officer."

 

Wilfred G. Gooden Construction Corp.
WAB Case No. 86-3, October 1, 1986

   Failure to pay prevailing wages and overtime and submission of falsified payrolls to simulate proper payment are aggravated and willful violations of Davis-Bacon related acts and sufficient grounds for debarment.

 

McAndrews Company & Robert McAndrews
WAB Case No. 86-22, March 26, 1987

   The Board reversed the administrative law judge's (ALJ) ruling that the contractor's violations were not aggravated or willful. The Board gave a six-month debarment period. The ALJ found that the contractor did not pay predetermined rates because he intended to pay employees in the form of a bogus upon completion of the Job. The Board stated that certification of wages paid is not true certification if the wages are not paid weekly. The Board reasoned that for the Department and the Board to condone falsification of certified payrolls would undermine the enforcement of the Davis-Bacon and related acts.

   Future cases in which the contention is made that the employer intended to pay full wages before the end of the job but nonetheless falsified payrolls will be considered on an individual basis, but the lenient treatment in this case should not be expected.

 

J & L Janitorial Services, Inc.
WAB Case No. 85-8, November 6, 1985

   The Board reversed the administrative law judge's (ALJ) imposition of an 18-month period of debarment for overtime violations of the Contract Work Hours and Safety Standards Act (CWHSSA). There was no falsification of payrolls with respect to the overtime violations and the overtime violations amounted to less than $500. As the violations were not willful or aggravated. debarment is not warranted.

 

Warren C. Manter Company
WAB Case No. 84-20, June 21, 1985

   Proper criteria to be followed to justify sanction of less than three years of debarment under Davis-Bacon related acts is found at 29 CFR 5.12(c). These criteria must be applied to the facts in each case.

   Board reversed decision of administrative law Judge (ALJ), which ordered two years debarment, rather than three years for intentional and willful violations of there related Acts. ALJ's lesser sanction was based upon his conclusion that the contractor had established compliance through its restitution and business practices. The Board reversed the AW and imposed debarment for three yearn as the violations were intentional, payrolls were falsified and record did not indicate firm had reformed its procedures. Full restitution was the only mitigating factor.

 

Early & Sons, Inc. Richard P. Early, Jr.
WAB Case No. 86-25 January 29, 1987

   Record does not support administrative law judge's (ALJ) conclusion that there were factors which Justified debarment of contractor for two years rather than full three year period. The only mitigating factor is that full restitution was made. Facts show that contractor was privy to or generated the payroll scheme which resulted in underpayment of overtime, and there in no evidence of present compliance or intent to comply in the future. Criteria to justify sanctions of less than three years are found at 29 CFR 5.12(a) and 5.12(c)

 

M.C. Morgan Constractors, Inc. William C. Morgan
WAB Case No. 84-18, May 22, 1985

   The Board reversed the administrative law Judge's (ALJ) ruling that debarment was not appropriate because the employer's mathematical pay formula did not result in profit for the employer. Board imposed debarment against contractor which had held government contracts since 1973, underpaid employees and falsified payrolls, and continued violations using a different payment scheme after being cited by Wage Hour for violations.

 

Janik Paving and Construction, Inc., William J. Janik
WAB Case No. 86-13, December 8, 1986

   The Board upheld the administrative law judge's (ALJ) shorter debarment period (two years) where the ALJ found that the contractor had no history of violations and was cooperative. The shorter debarment was upheld even though the A W found that the contractor's payment of straight time for overtime hours resulting in back wages of .128 and falsification of certified payrolls to simulate proper payment constituted aggravated and willful violation of the Davis-Bacon related acts.

   The Board considered the criteria at 29 CFR 5.12(c) and determined that the ALJ's conclusion that factors supported debarment period of less than three years wan not arbitrary. capricious. or an abuse of discretion.

 

Morris Excavating Company, Inc. & Steve orris
WAB Case No. 86-27, February 4, 1987

   The Board reversed decision of the administrative law Judge (ALJ) precluding debarment and imposed a minimum of six months debarment as a "matter of principle". Small contractor paid lower

"regular" wages weekly to employees with an oral agreement to pay remaining Davis-Bacon Act wages before completion of work; certified payrolls falsely showed full prevailing wage payment. Board ruled that prevailing wages must be paid weekly and certification that such wages were paid was not true; therefore, the violation required a sanction.

 

Abcon Sales Corp.
WAB Case No. 87-44, October 26, 1988

   The Board affirmed the administrative law judge's (ALJ) decision that the contractor, its president and vice-president committed aggravated or willful violations of Davis-Bacon Related Acts and should be subject to a three-year period of debarment. Concerning the conflicting testimony of witnesses, the Board found no compelling reason to reverse the ALJ's findings. Once the Wage and Hour Division presented testimony tending to establish that petitioners committed willful and aggravated violations, it was then incumbent upon petitioners to provide convincing testimony to refute the government's position. Petitioners failed to accomplish this before the ALJ.

 

Brite Maintenance Corp.
WAB Case No. 87-7, May 12, 1989

   The Board reversed the administrative law judge's (ALJ) imposition of a two-year debarment, and imposed a full three year debarment for the contractor's Davis-Bacon Related Act violations. The majority stated that "the Board has accepted, as a general rule, the Department's position that in the case of deliberate, willful falsification of payroll information, debarment under the Related Act (as is required by the Statute for Davis-Bacon Act violations) should be for the three year period." Although the ALJ found that the contractor had committed aggravated and willful violations, he imposed a two-year period of debarment on the basis that it was the contractor's first investigation, the back wages were paid in full, the contractor cooperated fully during the investigation and agreed to future compliance.

   The debarment provisions of the Davis-Bacon and Related Acts are not to be viewed as punitive measures to be imposed after a violation is discovered, but as a preventive tool to discourage violation. * * * The purpose of the debarment provisions is to enlist the cooperation of the Davis-Bacon employer in selfenforcing compliance with the Act's requirements. Therefore, in the case in which no rational explanation can be given for an intentional falsification of the certified payroll report, the employer who does this should be aware of the full three year debarment."

 

Homer L. Dunn Decorating. Inc.
WAB Case No. 87-3, March 10, 1989

   The Board affirmed the decision of the administrative law judge (ALJ) debarring the contractor and its president and owner for willful and aggravated violations of the Copeland Anti-Kickback Act and for disregarding their obligations to employees under the Davis-Bacon Act.

   The Board upheld the ALJ's credibility findings stating "[i]t is for the trial judge to make determinations of credibility, and an appeals body such as the Wage Appeals Board should be loathe to reverse credibility findings unless clear error is shown."

 

Progressive Design & Build Inc.
WAB Case No. 87-31, February 21, 1990

   The Board reversed the conclusions of the Administrative Law Judge (1) that the subcontractor was not subject to the DavisBacon provisions and not liable for back wages because the labor standards provisions found in the prime contract were not physically included in the subcontract, and (2) that debarment of the subcontractor was not warranted.

   The subcontracts all contained references to the applicable labor standards provisions, albeit these provisions were marked 'do not apply', and incorporated them by reference into the subcontracts signed between Progressive and Halfway. Even if Halfway did not know what its obligations were under the labor standards provisions, it agreed to abide by these provisions in the subcontracts and cannot be permitted to avoid paying its employees the wages they were entitled to by operation of law by claiming ignorance of the provisions in question. These questions, if they were valid, could easily have been resolved by inquiries directed to the contracting agencies..

   The subcontractor had observed and was aware of the prevailing wage determination, yet paid its employees only about one-half of the predetermined rates. This constitutes aggravated and willful violations, as does the subcontractor's submission of false certified payrolls. However, the Board imposed a debarment of 18 months rather than the customary three years because of the mitigating circumstances, which were that the subcontractor prepared the falsified payrolls only after the prime contractor had threatened to remove the subcontractor from the project, use another contractor at much higher wages to complete the subcontract work, and sue the subcontractor for the balance if the subcontractor did not do as it was told.

 

Camilo A. Padreda General Contractor, Inc.
WAB Case No. 87-1, August 3, 1987

   Partners must be responsible for all the acts of the partnership. Mr. Padreda was more than an inactive partner, took part in everyday operations, and had knowledge of the first violations. However. there are factors justifying a lesser debarment period. Mr. Padreda and his fellow joint venturers apportioned tasks in connection with management of the project including the responsibility for employment related decisions and recordkeeping. A one-year period of debarment is imposed.

 

 

DEBARMENT - FAILURE TO RECEIVE CONTRACTS FROM ONE
AGENCY NOT A DEFENSE TO DAVIS-BACON DEBARMENT

 

Marvin E. Hirchert d/b/a M & H Construction Co.
WAB 77-17, Oct. 6, 1978

   The Board will not accept petitioner's claim that it has been effectively debarred for about 3 years because HUD in one or more cases has not accepted a bid from one or more of petitioner's companies because of the violations in the subject contracts. Petitioner admits that during this same time period it has received some limited government work from other agencies.

 

DEFAULT JUDGMENT

 

Sealtite Corporation
WAB Case No. 87-6, October 4, 1988

   The Board affirmed the administrative law judge's (ALJ) default Judgment against the contractor, which found the contractor liable for back wages and subject to debarment under the Davis-Bacon Act. The contractor failed to attend the scheduled ALJ hearing allegedly because of illness and because he was engaged in an investigation for the U.S. Attorneys office in Florida in a criminal matter; however, there was ample justification for the ALJ's decision rejecting these excuses.

 

DENIAL OF EVIDENTIARY HEARING

 

Coronado Wrecking and Salvage Co., Albuquerque, New exico
WAB 77-15, Feb. 7, 1978

   It was not an abuse of discretion for the Assistant Administrator to deny petitioner's request for a fact-finding hearing under 29 CFR 5.11(b). The authority to grant such hearings is discretionary and there is no indication in the record that the Assistant Administrator's denial of the hearing was either arbitrary or capricious.

 

Associated Project Builders, Ltd. and E.H. Beating and Cooling Company
WAB 77-9, Oct. 4, 1977

   It was not an abuse of discretion for the Assistant Administrator to deny petitioners' request for an evidentiary hearing under 29 CAR 5.11(b). The criteria contained in section 5.ll(b) that the dispute must concern the payment of prevailing wages or proper classifications, which involve significant sums of money, large groups of employees or novel or unusual cireumstances, have not been met.

 

Espana Gardens
WAB 76-15, May 4, 1977

   The Board recognizes that the authority delegated to the Assistant Administrator to grant hearings pursuant to section 5.ll(b) is discretionary. An aggrieved party does not have a right to such a hearing. There was no indication in the record that the Assistant Administrator's actions in denying the hearing were either arbitrary or capricious. The criteria contained in the regulations that the dispute must concern payment of prevailing wage rates or proper classifications which involves significant sums of money, large groups of employees, or novel or unusual circumstances, have not been met. The only practical beneficial effect that a section 5.ll(b) hearing could now provide to the petitioner would be to challenge the wage rate for carpenters after the project has been built. This is not a proper function of a section 5.11(b) hearing nor is it allowed under the regulations. Petitioner had ample opportunity to question the wage schedule before he chose to proceed with construction.

 

 

Bronx Park I, Bronx Park Atlantis Heating Corp.
WAB 80-6, April 16, 1984

   The Board finds that the authority to convene a §5.11(b) fact-finding hearing rests solely with the Secretary of Labor or his delegate, which in this case is the Assistant Administrator of the Wage and Hour Division. No other Departmental employee is authorized to commit the Department to convene a hearing in these circumstances. The Board cannot find an abuse of discretion in failing to grant a §5.11(b) hearing on the basin of the record submitted.

 

DISPUTES BETWEEN PRIME CONTRACTORS AND SUBCONTRACTORS

 

Cherry Hill Construction, Inc.
WAB Case No. 85-27, October 2, 1987

   Monies were rightfully withheld from the prime contractor to satisfy back wages due employees of the petitioner subcontractor, which alleges it was not advised in a timely manner by either the contracting agency or the prime contractor that it was required to pay building, rather than heavy construction, wage rates.

   The Board rejects petitioner's contention that it is not the responsibility of subcontractors when submitting their proposals to prime contractor to determine whether the building or heavy schedule contained in the wage determination applies to the project. Bidding contractors must assume this responsibility and the applicable regulations at 29 CFR 1.6(b) and 5.13 provide procedures to follow when a bidding contractor has any doubt with respect to the way in which the Davis-Bacon Act and wage determinations will be applied.

   The Board reaffirms its holding in All Phase Electric Company, WAB Case No. 85-18, that the question of whether monies due the underpaid employee. should be paid by the prime contractor directly and not from funds retained from the subcontractor was not a proper subject for the Board to decide.

 

All Phase Electric Company
WAB Case No. B5-18, June 18, 1986

   The Board upheld the ruling by the Wage and Hour Division that employees of a subcontractor performing work required by the prime Contract subject to the Davis-Bacon provisions are entitled to prevailing wages irrespeetive of whether prime advised subcontractor of Davis-Bacon applicability, and any claim by subcontractor against prime for damages is not the proper subject of Department of Labor proceeding. The monies were rightfully withheld from the prime contractor to pay the back wages due employees of the subcontractor.

 

Northern Colorado Constructors. Ltd.
WAB Case No. 86-31, December 14, 1987

   The Board held the prime contractor liable for the full amount of its subcontractor's wage underpayment violations, including back wage amounts in excess of the amount withheld from the prime contractor by the contracting agency. The Board finds that the Davis-Bacon Act itself creates a contractual obligation on the part of the prime contractor to pay the sums which its subcontractor owes to the subcontractor 'a employees. The petitioner must look to the subcontractor for its recourse."

 

Irvinbilt Company
WAB Case No. 88-22, September 8, 1989

   The Board denied petitioner's untimely request for an extension of time, thereby affirming the finality of the Administrator's ruling. The Board noted that the history of the case showed an unusual number of filing extensions by petitioner. The Order further noted that there was no dispute concerning the amount of back wage liability, and that the Administrator had properly advised petitioner that claims among the developer, prime contractor and subcontractor as to who should bear ultimate responsibility for these violations was not an appropriate subject for DOL proceedings.

 

DREDGING

 

Jahocke Service, Inc. and T. L. James & Co., Inc.
WAB 73-10, Jan. 18, 1974

   Under a contract to construct 6.6 miles of grading and one bridge, and which contained both highway and dredging rates for crane operators, the crane operator should be paid the dredging rate for the off-shore work and the highway rate for the remainder of the work.

 

Determination of wage rates applicable to tunnel under obile River
WAB 69-4, July 18, 1969

   The wage determination schedules applicable to the subject project involving construction of a tunnel under a river including approach ramps, ventilation buildings, and all electrical and mechanical systems for tunnel operation, are as follows. A dredging rate schedule should be added to the wage determination. A highway schedule shall be applied to the two approaches which connect the ends of the tunnel under the river to the related highway project. All project work from portal-to-portal, including all work immediately adjacent to or in the immediate vicinity of the two portals, and all cofferdam work for the project shall be constructed pursuant to a heavy schedule.

 

DUE PROCESS

 

Structural Services
WAB 82-13, June 22, ,983

   Petitioner was not denied due process where it was aware of the violations which were uncovered in the investi- gation and had Ample opportunity to rebut the charges against it and was adequately represented by counsel. Precedent does not require that petitioner be able to cross-examine the Sources of all the information which formed the basis of the compliance officer's determination of back wages - petitioner could have cross-examined the compliance officer as to the methods he used.

 

Glenn Electric Co.. Inc.
WAB Case 79-21, March 22, 1983

   Where petitioner was given ample opportunity to rebut charges against it and was well represented by counsel at both the administrative law judge hearing and before the Wage Appeals Board, and where the document. upon which the Administrator based his decision consisted of time records and payrolls prepared by petitioner, the Board's procedures do not indicate an absence of basic fairness.

 

Cosmic Construction Co., Inc.
WAB 79-19, Sept. 2, 1980

   Departmental procedures involved in investigation of labor standards violations, namely, notifying the contractor of extent and nature of the alleged violations, providing contractor with opportunities to answer allegations and allowing contractors to appeal and try to rebut the debarment recommendations do not deny petitioners due process of law.

   Petitioners' claim of a right to cross-examine the government's witnesses, including their own employees who provided statements concerning wage payments, etc. conflicts directly with government's need to protect the employees from possibility of reprisals from employers and must be weighed against that possibility. In this case, where the information which petitioners claim to need from cross-examination of the employees is available to them from their own records, the need to protect witnesses outweighs the need to cross-examine the complainants in this type of proceeding.

 

Thomas L. Moore President, and T.A.M., Inc.
WAB 79-5, Aug. 16, 1979

   Petitioner was not denied due process of law in the administrative procedures where it was fully informed of the violations, given sufficient opportunity to correct underpayments, to rebut charges against it and was represented by counsel.

 

Marco Construction Company and Joe R. Martinez
WAB 77-31, April 24, 1978

   Petitioner's claim that he was denied due process because of a failure to notify him of the allegations against him and provide him an opportunity to be heard on the allegations is not supported by the record. On at least three occasions, petitioner had the allegations explained to him by representatives of Wage-Hour, he was provided a copy of the back wage computations and the security firm's logs, and he was given at least four opportunities to rebut this evidence.

 

Arbor Hill Rehabilitation Project
WAB Case No. 87-4, November 3, 1987

   Denial of an evidentiary hearing does not deprive petitioners of due process of law because none of the factual issues that petitioners wish to pursue are material to the resolution of the dispute in this case.

 

ESTOPPEL

 

Jos. J. 8runetti Construction Co. & Dorson Electric & Supply Co., Inc.
WAB Case No. 80-9, November 18, 1982

   The Board does not agree with the position demonstrated in Comp. Gen. Decision B-158511 to the effect that the Wage and Hour Division is estopped from enforcing a higher wage rate when the contractor has relied upon the advice from the contracting agency that payment of the lower electrician's rate was permissible. The Secretary of Labor was given the power to regulate the interpretation and enforcement of the Davis-Bacon Act and related acts by Reorganization Plan No. 14 of 1950.

 

Metropolitan Rehabilitation Corp.
WAB 78-25, Aug. 2, 1979

   Petitioner's reliance on contracting officer's advice regarding the appropriateness of wage rate does not relieve petitioner of responsibility to pay the correct wage rates to employees for two reasons -- (1) the contracting officer's advice is not binding on the Department of Labor and does not estop DOL from requiring the payment of proper wages. Reorg. Plan No.14 gives DOL final authority in this regard, (2) the estoppel argument would not be binding on the laborers and mechanics themselves so as to cut off any individual rights they may beve under the Davis-Bacon Act to receive the proper wage rate.

 

Tollefson Plumbing and Heating
WAB 78-17, Sept. 24, 1979

   The Department of Labor is not estopped from requiring payment of plumber's rates because HUD misled the contractor and delayed in advising the contractor that its apprentices were not being properly paid. Advice by a contracting agency is not binding on the Department of Labor as DOL has the final authority in this regard under the statutes and Reorga- nization Plan No. 14 of 1950.

 

American Mutual Protective Bureau
WAB 77-5, Sept. 13, 1978

   While the four years it has taken for this appeal to reach the Board is an extremely long time, it does not appear that petitioner's position has been unduly prejudiced as a result, and the government is not estopped from pursuing its claim.

 

Fry Brothers Corporation
WAB 76-6, June 14, 1977

   Under the Portal-to-Portal Act (29 USC 259) only a written ruling of :he Secretary of Labor can be relied upon as a defense against liability for wages which must be paid under the Davis-Bacon Act. "Reliance" on an oral Statement by a local official of the contracting agency cannot be a basis for finding that the contractor has complied with the labor standards requirement. of the National Housing Act, which does not provide any "good faith" exception.

 

Sentinel Electric Company
WAB 82-9, April 5, 1984

   Wage and Hour is not estopped from enforcing payment of the electrician's rate. Even if the contracting agency had acquiesced to the contractor's proposed classification and payment of a lower rate, which the record indicates it did not, it would not relieve the contractor of its responsibility to pay the correct rate. The Secretary of Labor was given the power to regulate the interpretation and enforcement of the Davis-Bacon Act and related acts by Reorganization Plan No. 14 of 1950. This authority has been reinforced by two opinions of the Attorney General of the United States. Jos. J. Brunetti Construction, and Dorson Electric and Supply Co., Inc. , WAB Case No. 80-9 (November 18, 1982). See also Metropolitan Rehabilitation Corp ., WAB Case No. 78-25 (August 2, 1979) and Tollefson Plumbing and Co. , WAB Case No. 78-17 (September 26, 1979).

 

Warren Oliver Company
WAB 84-8, November 20, 1984

   The Government is not estopped from requiring payment of the sprinkler fitters' rate of $25.55 even though the name contracting agency had recently permitted the contractor to pay a labor installer rate of $11.08 per hour for the name type of work in the same area. Reliance upon the advice of a contracting agency does not relieve a contractor from paying the required Davis-Bacon wage rate.

 

Thomas J. Clements, Inc.
WAB 84-12, January 25, 1985

   The Board affirmed the administrative law judge's conclusion that the doctrine of estoppel is not applicable.

 

Tap Electrical Contracting Inc. & Calcedo Construction Corp. Expert Electric, Inc.
WAB 84-1, March 4, 1985

   The failure of the City of New York to register the contractor's employees as trainees does not estop the administrator of the Wage and Hour Division from enforcing the Davis-Bacon Act and related statutes.

 

Werzalit of America, Inc.
WAB Case No. 85-19, April 7, 1986

   Facts do not support Wersalit's claim that it was misled by advice from Wage and Hour wage specialist. The advice was given filth reservation' and the city was correctly advised by HUD prior to the wage specialist's advice that employees did not qualify for the "force account" exception. The Board cannot visualize a reasonable or prudent person relying on the Inconclusive advice given by the wage specialist.

 

Bright Construction Company, & Trac Excavating Company
WAB Case No. 85-3, October 1. 1985

   Estoppel may not be invoked against the government where it would result in defeating the effective operation of policies embodied in legislation designed to protect the public. Certainly, the Contract Work Hours and Safety Standards Act (CWHSSA) is a statute designed to protect the public.

 

Arbor Hill Rehabilitation Project
WAB Case No. 87-4, November 3, 1987

   The Government is not estopped from enforcing Davis-Bacon prevailing wage requirements on the Arbor Hill Project.

 

Ross Brothers Construction Inc.
WAB Case No. 87-36, November 21, 1988

   Petitioner contended Umpqua wee a supplier or materialman, that it had performed two earlier State projects on which it did not pay Davis-Bacon wages, and that prior to starting the project, it relied on an Oregon Dept. of Transportation ruling that Davis-Bacon rates were not applicable to their operation. However, the Board agreed with the Administrator that the inadvertent failure to assert coverage on the two earlier federally assisted State highway projects, cannot effect coverage of this project, and the fact that Umpqua's permit was specifically limited to use on State projects (thus inhibiting sale of aggregate to the public) is determinative.

   Concerning the alleged advice given by the State (which the State representative denied), the Board Stated it had held in a line of cases that only the Secretary of Labor has the power to make rulings on Davis-Bacon issues, including coverage, and further noted that it had previously held that advice by a lowerechelon Wage and Hour official would not estop the subsequent, imposition of coverage.

 

EVIDENCE

 

Structural Services
WAB 82-13, June 22, 1983

   Contractors and subcontractors who undertake contract. covered by the Davis-Bacon and related acts have an obligation to keep accurate records of wages, overtime and fringe benefits. Failure to keep such records is done at their peril. Without proper payroll records, Wage & Hour compliance officers are compelled to invoke the criteria set forth in Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680 (1964) which requires the employer to produce evidence of the precise amount of work performed or evidence to rebut the reasonableness of the inferred extent of violations, otherwise employees may be awarded back wages even though the result may only be approximate.

 

James Parker d/b/a Parker Painting
WAB Case No. 86-23, March 17, 1987

   The administrative law judge applied the standard from Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680 (1946), and did not draw required inferences from the falsification of certified payrolls. The administrative law judge found back wages for five employees who testified, but not for 11 employees who did not testify, although all employees were paid on a piece-rate basis. The case is remanded with instructions for the Wage and Sour Administrator to prepare back-pay specifications for each of the 11 non-testifying employees if this has not already been done, and the contractor is to have full opportunity to respond to the employee-by-employee back-pay specification.

 

Wilfred G. Gooden Construction Corp.
WAB Case No. 86-3, October 1, 1986

   Reconstruction of wage payrolls from best evidence where payrolls, inadvertently or deliberately, are not kept or made available to Wage-Hour investigator is adequate evidence. The mere fact that the administrative law judge (ALJ) found that the calculations of the Wage Hour investigator may be in error by approximately 25% does not in itself invalidate the entire process. ALJ relied on evidence in addition to investigator's testimony that was not adequately rebutted by petitioner.

 

Northern Colorado Constructors, Ltd.
WAB Case No. 86-31, December 14, 1987

   In affirming the decision of the administrative law judge, the Board concluded that the Wage and Hour Division properly relied on the hours listed on the certified payrolls by petitioner's subcontractor as the best evidence available to establish the employees' underpayments. The Board stated Wage and Hour had met its burden of prima facie proof under Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680 (1946).

 

Henderson Inc.
WAB Case No. 88-42, June 16, 1989

   The Board affirmed the Administrator's ruling that the contractor is liable for fringe benefit payment violations. Although the contractor claimed to have made certain fringe benefit payments, it presented no documentation to support its claim and was given ample opportunity to do so.

 

FRINGE BENEFITS

 

Collinson Construction Company
WAB 76-9, April 20, 1977

   A contractor's own administrative expenses in providing bona fide fringe benefits to employees are not creditable toward the discharge of the contractor's obligation to pay prevailing wages under the Davis-Bacon Act. These coats are a part of the general overhead expenses of doing business and should not serve to decrease the direct benefit going to employees. The language of the statute makes it clear that the term "costs" refers to the costs of benefits under an unfunded plan, not costs of administration under a funded plan, such as was involved in the instant case.

   A contractor's contribution to a bona fide fringe benefit plan are creditable toward discharging his obligation to pay prevailing wages under the Davis-Bacon Act, regardless of whether such bona fide fringe benefit is of a type listed on the applicable prevailing wage determination.

 

Johnson Electric Co.
WAB 80-3, April 11, 1983

   Apprentices are due the full amount of fringe benefits listed on the wage determination, and not just a percentage of such fringe benefits.

 

G & C Enterprises, Inc.
WAB 83-7, Feb. 8, 1984

   A contractor on a project subject to the Davis-Bacon Act is required to pay fringe benefits to employees for all hours worked on the project, including overtime hours.

   To allow a contractor to exclude the payment of fringe benefits from overtime hours worked would reverse the intent of Congress. This exclusion would penalize those contractors who pay fringe benefits into trust funds. They would be at a disadvantage in bidding Government contracts. The whole purpose of the 1964 Amendments to the Davis-Bacon Act would be defeated by the petitioner's interpretation of the overtime provisions in section 1(b) of the Act.

 

Roy L. Houck Sons Corporation, Contractor
WAB Case No. 69-1, April 28, 1969

   With the new evidence that payment was made into the various funds for all employees regardless of union membership and that benefits may be paid to an individual whether or not that individual is a member of any union, it appears the employer may be in conformance with prevailing wage requirements. The case was referred back to the Solicitor's Office for the purpose of consideration in light of this new evidence.

 

Holloway Construction Company
WAB Case No. 85-9, July 9, 1985

   Board grants Motion to Decline to Review Petition, under its Rules of Practice at 29 CFR 7.1(b) and (c). The same question of law, ( i.e. whether a contractor must pay fringe benefits for all hours worked, including overtime hours, under the Davis-Bacon and related acts) was previously decided in G & C Enterprises. Inc. , WAB Case No. 83-7, February 9, 1984.

 

Builders. Contractors. and Employees Retirement Trust and

Pension Plan
WAB Case No. 85-6, December 17, 1986

   The Administrator's ruling that neither the Copeland Act nor Department of Labor regulations at 29 CFR 3.5(d) require that employer (as opposed to employee) contributions to a pension plan be either voluntarily consented to in writing or provided for in a bona fide collective bargaining agreement is reasonable and proper.

 

Henderson Inc.
WAB Case No. 88-42, June 16, 1989

   The Board affirmed the Administrator's ruling that the contractor is liable for fringe benefit payment violations. Although the contractor claimed to have made certain fringe benefit payments, it presented no documentation to support its claim although it was given ample opportunity to do so.

 

Miree Construction Corp.
WAB Case No. 87-13, February 17, 1989

   A majority of the Board affirmed the Administrator's rulings (1) that only the actual costs necessary to provide apprenticeship training for apprentices registered in the ABC Apprenticeship Plan and employed by the contractor are creditable towards Davis-Bacon prevailing wage obligations, (2) that payments to the apprenticeship plan for workers in one craft may not be used to offset Davis-Bacon obligations to workers employed by the contractor in other crafts, and (3) that Davis-Bacon credit is allowed at an "effective annual rate of contribution," which is computed by dividing the total annual contribution made for each class of workers for which apprentices were being trained by the total number of hours worked in the year by journeymen and apprentices in that same classification on both government and non-government work.

 

GRANTEE LIABILITY

 

Colby Cooperative Starch Company
WAB Case No. 84-21, June 3

   Under the Public Works and Economic Development Act of 1965, the Department of Labor regulations and the grant agreement, labor standards violations render the grantee liable for underpayment to employees. The sanction of withholding can only be applied against the grantee and such action is proper under the Act and regulations promulgated by the Department of Labor.

   The Department has the authority to request Economic Development Administration (EDA) to transfer the withheld grant funds to the Department for disbursement to the employees. The matter of disbursement is strictly between the Department and the federal agencies and so long as the disbursement is carried out in a proper manner there can be no basis in law to challenge such disbursement.