MARCO CONSTRUCTION CO., WAB No. 77-31 (WAB Apr. 24, 1978)

USDOL/OALJ Reporter

[1] WAGE APPEALS BOARD UNITED STATES DEPARTMENT OF LABOR WASHINGTON, D. C. In the Matter of ARCO CONSTRUCTION COMPANY WAB Case No. 77-31 and JOE R. MARTINEZ Albuquerque, New Mexico Dated: April 24, 1978 APPEARANCES: Joe R. Martinez for Joe R. Martinez and Marco Construction Company George E. Rivers, Esquire, K. Wayne Lauderdale, Esquire for Wage and Hour Division, U.S. Department of Labor Decision by: Alfred L. Ganna, Chairman, William T. Evans, Member, Thomas M. Phelan, Member DECISION OF THE WAGE APPEALS BOARD This case is before the Wage Appeals Board on the petition of Joe R. Martinez, individually, and the Marco Construction Company seeking review of the October 17, 1977 decision of the Administrator of the Wage and Hour Division affirming the recommendation of the Assistant Regional Administrator for Wage and Hour that Joe R. Martinez, individually, and Marco Construction Company be placed on the ineligible bidders list published by the Comptroller General [1][2] in accordance with Section 3(a) of the Davis-Bacon Act and 29 CFR [sec] 5.6(b) of the regulations issued thereunder. The decision was based on findings made pursuant to a compliance investigation conducted by the United States Energy Research and Development Administration (ERDA) that Marco Construction Company had disregarded its obligations to its employees in violation of the Davis-Bacon Act, 40 U.S.C. 276a, et seq. This appeal resulted from the fact that during the last half of 1974 Marco Construction Company entered into contracts for construction work at ERDA facilities at Kirtland Air Force Base- East as subcontractor to Sandia Laboratories. These subcontracts contained the labor standards provisions required by the Davis-Bacon Act and the appropriate Department of Labor wage determinations. In mid-1975 ERDA investigated Petitioner's operations under the subcontracts to determine whether employees were being paid the applicable prevailing wage rates and whether the certified payroll records submitted to ERDA were accurate. In addition to obtaining statements from employees and duplicate copies of timecards from some employees, ERDA compared the certified payrolls submitted by Petitioner with records maintained by a base security guard service which signed uncleared individuals in and out of security areas. This investigation revealed that Petitioner had failed to maintain accurate records of hours worked and also failed to pay the [2][3] applicable prevailing wage rates. Also it appeared that the certified payrolls contained false statements with regard to the number of hours worked, the wage rates paid and omis[]sion of names of some Marco employees who worked on the government project. A total of $2,912.37 was found to be due five employees for a period from December 1, 1974, to March 5, 1975, but no money was available for withholding and no back wage payments were made. The Deputy Administrator of Wage and Hour advised Petitioner in mid-June 1976, of the apparent violations and his findings that there was reasonable cause to believe that the alleged violations constituted disregard of his obligations to his employees under Section 3(a) of the Davis-Bacon Act unless they could be rebutted. Petitioner was also advised of the possible imposition of ineligibility sanctions and was afforded an opportunity to submit a written statement or attend an informal proceeding to explain the apparent violations. In March 1977, a meeting was held between Petitioner and the Albuquerque Area Director of Wage and Hour and two ERDA representatives. At this meeting the nature of the violations was explained to Petitioner and an explanation of the debarment provisions was provided. Furthermore, Petitioner was provided with copies of computation sheets showing the amounts due each employee, the predetermined wage they should have been paid and the rates they were actually paid. [3] [4] On May 3, 1977, an informal proceeding was held in Albuquerque by the Assistant Regional Administrator of the Wage and Hour Division and Petitioner was again informed of the investigation findings and invited to present explanation as to why debarment action should not be taken against him. Also he was provided with a copy of the security logs. In the Assistant Regional Administrator's decision of June 15, 1977, he found reasonable basis for debarment on the facts submitted at the hearing. As a result the Assistant Regional Administrator recommended that Mr. Martinez, individually, and the arco Construction Company be [d]ebarred for a period of 3 years pursuant to Section 3(a) of the Davis-Bacon Act. The Petitioner appealed this decision to the Wage and Hour Administrator in July 1977, and the Administrator affirmed the Assistant Regional Administrator's decision on October 17, 1977. It is from the Administrator's decision that Petitioner appealed to the Wage Appeals Board on November 3, 1977. The Board considered this matter on the basis of two Petitions for Review forwarded to the Board by Mr. Martinez, the record of the case filed by the Solicitor of Labor and the Statement for the Administrator, Wage and Hour Division, also filed by the Solicitor of Labor. From a review of the petitions it appears that Petitioner claims that the information developed by the investigation was not disclosed to [4][5] Petitioner, that a case was not made against him by the claimants and that due process was not adhered to. From the record of the case it is apparent that Petitioner was provided with a copy of the computations on which the underpayments were based and he was given a copy of the security logs. On three occasions the alleged violations were explained to him, and he was invited to offer oral or written rebuttal of the case which was developed against him. It does not appear anywhere in the record that the discrepancies between the certified payrolls, the security firm's logs and duplicate copies of some of the timecards were ever explained by Petitioner. Furthermore, neither document forwarded to the Board as Petitions for Review contain any explanation of the facts alleged in the employees['] statements which were disclosed at either of the two meetings held with Wage and Hour representatives. Petitioner's objection to the timing of ERDA's investigation after the contracts were completed does not excuse Petitioner from paying the predetermined prevailing wage rates and submitting accurate certified payrolls as required by the labor standards provisions of the contract. Petitioner's claim that he was not afforded due process: that is, notification of the allegations against him and an opportunity to be heard on these allegations, is simply not supported by the record. On at least three occasions Petitioner had the allegations explained to him by representatives of the Wage and Hour Division. Also he was provided with copies of the Wage and Hour computations [5][6] and security firm's logs, and was given at least four opportunities to rebut this evidence. Although Petitioner has not offered any rebutting evidence, this does not constitute a showing of lack of due process. In view of these conclusions, the decision of the Administrator, Wage and Hour Division, is hereby affirmed and the petitions are hereby dismissed. BY ORDER OF THE BOARD Craig Bulger, Executive Secretary Wage Appeals Board [6]

Office of Administrative Law Judges