HENDERSON, INC., WAB No. 88-42 (WAB June 16, 1989)

USDOL/OALJ Reporter

CCASE: HENDERSON, INC. DDATE: 19890616 TTETX: ~1 [1] WAGE APPEALS BOARD UNITED STATES DEPARTMENT OF LABOR WASHINGTON, D.C. In the Matter of HENDERSON, INC. WAB Case No. 88-42 Contract Nos. NAS1-17405(c); Dated: June 16, 1989 -17524(c); -17470(c); -17647(c) BEFORE: Jackson M. Andrews, Chairman, Thomas X. Dunn, Member, and Stuart Rothman, Member DECISION OF THE WAGE APPEALS BOARD This case is before the Wage Appeals Board on the petition of Henderson, Inc., (hereinafter Henderson or petitioner) seeking review of a decision of the Administrator, Wage and Hour Division, dated July 20, 1988. The petitioner seeks reversal of the Administrator's decision declining to modify the back wages assessed against petitioner for fringe benefit payment violations. The basis of the firm's petition is that part of the fringe benefits had been paid. It is Henderson's position that some of the disputed fringe benefits had been paid to the respective insurance carriers or fund trustees. It asserts, however, that it has no documentation to support its claims because a tornado struck and demolished its office and warehouse facilities, destroying its records. Henderson argues that it should be entitled to a [1] ~2 [2] rebuttable presumption that certain fringe benefits were paid even though the amounts paid cannot be established. In the alternative, Henderson requests that this case be remanded to the Administrator if it can promptly produce documentation of its fringe benefit payments. It does not contend, however, that it has such documentation or can produce any. The four construction contracts in question were located at the National Aeronautics and Space Administration's Research Center in Virginia. After NASA requested proof or information from the firm in June, 1984, showing that Henderson had satis[]fied its obligation to pay its fringe benefit payments to its employees on the four contracts in question, Henderson started to pay the fringes in cash, but no documentation was submitted to support Henderson's claim to have paid fringe benefits prior to July, 1984. NASA advised Henderson that NASA would retain funds to pay the employees the fringe benefits and also stated that it would turn the matter over to the Wage and Hour Division of the Department of Labor. In April, 1988, Wage and Hour served a charging letter on Henderson informing the firm that it owed $19,660.26 in back wages and offered Henderson a hearing if any relevant facts were in dispute. Henderson, through its counsel, claims that during the period before July, 1984, the firm had paid health insurance premiums to Blue Cross/Blue Shield, had instituted a "profit sharing retirement plan", and had [2] ~3 [3] funded educational programs for employees. On July 20, 1988, the Administrator issued her ruling which is the subject of this appeal. Her position was that it was Henderson's responsibility to demonstrate the amounts it paid to its employees. She stated that she would consider any information from Blue Cross/Blue Shield, or Henderson's employees and would credit Henderson for any proven payments. Nevertheless, the Administrator held that there was at that time no basis to compromise the amount of back wages computed to be due Henderson's employees. The Wage Appeals Board considered this appeal on the basis of the Petition for Review and affidavits filed with the Board by counsel for Henderson, and the Statement of the Administrator in response to the petition for review and the record of the case before the Wage and Hour Division filed by the Solicitor of Labor. Because neither party requested an oral hearing before the Wage Appeals Board, the Board issued its decision on the basis of the documents and record before it. - - - The Board recognizes that Henderson made a number of representations to the Wage and Hour Administrator and now asks the Board to remand the case to the Administrator because if given the opportunity Henderson could and would satisfy NASA and the Department of Labor that it had paid the disputed fringe benefit payments in accordance with the [3] ~4 [4] requirements of the Davis-Bacon Act and the regulations, in part, if not in whole. However, Henderson did not do so when given ample opportunity and Henderson does not provide any reasonable explanation why it will do now what it was required to do earlier. While Henderson claims that its records were destroyed in a tornado, it stands to reason that if payments were made to various funds and insurers there would be some records kept at the other end by which petitioner could trace the payments as represented by it. NASA and the Department of Labor presented the petitioner with a particularized itemization of Davis-Bacon violations and so far as the Board can determine, petitioner Henderson has failed to respond with any evidence of contrary facts establishing payments before July, 1984. Taking each such representation separately the Administrator accorded Henderson full opportunity to make at least a minimal showing by pertinent and relevant evidence that there was substance to the representation. Henderson has repeatedly failed to provide either NASA or the Administrator with any such evidence despite having had ample and repeated opportunity to do so. [4] ~5 [5] For these reasons the ruling of the Administrator issued July 20, 1988 is affirmed and the Petition for Review is hereby dismissed. BY ORDER OF THE BOARD Craig Bulger, Esquire Executive Secretary, Wage Appeals Board [5]

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