WILLIAMS FENCE CO., WAB No. 87-23 (WAB Aug. 17, 1987)

USDOL/OALJ Reporter

CCASE: WILLIAMS FENCE COMPANY DDATE: 19870817 TTEXT: ~1 [1] WAGE APPEALS BOARD UNITED STATES DEPARTMENT OF LABOR WASHINGTON, D.C. In the Matter of WILLIAMS FENCE COMPANY, INC. WAB Case No. 87-23 Subcontractor, et al. Dated: August 17, 1987 BEFORE: Alvin Bramow, Chairman, Thomas X. Dunn, Member, Stuart Rothman, Member DECISION OF THE WAGE APPEALS BOARD This case is before the Wage Appeals Board on the petition of the Williams Fence Company, Inc., seeking review of the Decision and Order of the Administrative Law Judge (hereinafter ALJ) dated April 6, 1987. /FN1/ The ALJ in his Order of April 6, 1987 recommended that Williams Fence Company, Inc., and Willie H. Williams, individually, should be placed on the ineligible list pursuant to the Davis-Bacon Act, 40 U.S.C. 276(a)-2(a). The petitioner contends that the ALJ was in error in recommending that it be placed on the ineligible list as the petitioner was never provided with notice or a debarment hearing as required in Department of Labor Regulations, 29 CFR sec. 5.12. The Administrator in her statement of July 31, 1987 agrees with the petitioner that the decision to debar Williams Fence Company, Inc., and Willie H. Williams was erroneous. The Board in E.B. Fitzpatrick, WAB Case No. 87-17 (July 9, 1987) indicated that the authority for an ALJ to hold a hearing for enforcement proceedings under the Davis-Bacon and related acts is contained at 29 CFR sec. 6.30. That [1] � /FN1/ The Board has not considered the misclassification issue involved in this case. If the petitioner still desires that issue to come before the Board, it has 45 days from the date of this decision to reinstate its petition including a definitive statement setting forth supporting reasons in accordance with 29 CFR sec. 7.9(b). ~2 [2] section provides as follows: (a) Upon timely receipt of a request for a hearing under sec. 5.11 (where the Administrator has determined that relevant facts are in dispute) or sec. 5.12 of Part 5 of this title, the Administrator shall refer the case to the Chief Administrative Law Judge by Order of Reference, to which shall be attached a copy of the notification letter to the respondent from the Administrator and response thereto, for designation of an Administrative Law Judge to conduct such hearings as may be necessary to decide the disputed matters. A copy of the Order of Reference and attachments thereto shall be served upon the respondent. (b) The notification letter from the Administrator and response thereto shall be given the effect of a complaint and answer, respectively, for purposes of the administrative proceedings. The notification letter and response shall be in accordance with the provisions of sec. 5.11 or sec. 5.12(b)(1) of Part 5 of this title, as appropriate. 29 CFR sec. 5.12 prescribes the debarment proceedings whereas sec. 5.11 relates to hearings concerning payment of wages. The record in this case, as in E.B. Fitzpatrick, reveals that the notification letter sent to the petitioner and the Order of Reference which authorized the ALJ to hold a hearing referred only to proceedings under sec. 5.11. Neither the Order of Reference nor the notification letter from the Wage and Hour Division made any mention of debarment. Where the document which authorized the hearing only gave the ALJ authority to decide the issue of whether the employees were underpaid, the Board must agree that the order to debar petitioner was beyond the ALJ's authority and, therefore, erroneous. Accordingly, the order recommending Williams F[]ence Company, Inc., and Willie H. Williams be debarred is vacated and they are free to continue to bid and work on other Davis-Bacon and related Acts construction projects. BY ORDER OF THE BOARD Craig Bulger, Executive Secretary Wage Appeals Board [2]

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