G & O GENERAL CONTRACTORS, INC., WAB No. 90-35 (WAB Feb. 19, 1991)

USDOL/OALJ Reporter

CCASE: G & O GENERAL CONTRACTORS, INC. DDATE: 19910219 TTEXT: ~1 [1] WAGE APPEALS BOARD UNITED STATES DEPARTMENT OF LABOR WASHINGTON, D. C. In the Matter of: G & O GENERAL CONTRACTORS, INC. GEORGE GYFTOPOULOS, President WAB Case No. 90-35 ODISEAS GIFTOPOULOS, Vice President BEFORE: Ruth E. Peters, Presiding Member Stuart Rothman, Senior Member Patrick J. O'Brien, Member DATED: February 19, 1991 DECISION OF THE WAGE APPEALS BOARD This matter is before the Wage Appeals Board on the petition of the above-captioned parties (hereinafter, collectively, "G & O" or "Petitioner") seeking review of the Decision and Order ("D & O") (Attached) of Administrative Law Judge ("ALJ") Lawrence Brenner dated July 10, 1990. Ordinarily, this case would not warrant review; ALJ Brenner found and Petitioner admits the following Davis-Bacon Act violations: underpayments of over $40,000 to 32 employees on two government contracts (Petitioner's Memorandum in Support of the Petition for Review, or "Memorandum", p. 3; D & O, pp. 2-3); and falsification of certified payrolls (Memorandum, p. 3; D & O, p. 2 ). Although ALJ Brenner makes no mention of the matter, Petitioner apparently [1] ~2 [2] underpaid employees on subsequent government contracts (Memorandum, p. 3; Tr. 67-71); furthermore, G & O may have threatened employees with retaliatory discharge for questioning the rates at which they were paid (Tr. 130). Given the absence of any significant factual disputes, the Board could render G & O the shortness of the shrift to which it is entitled. However, for purposes of future debarment actions, and given the "clean" record before us, we take this opportunity to address the length of the debarment period under the Davis-Bacon Act. I. DISCUSSION The Petitioner does not question the factual determinations of ALJ Brenner; rather, it contends that the ALJ has discretion to deny debarment or to impose less than a three-year period of debarment in a case arising solely under the Davis-Bacon Act, 40 U.S.C. [sec] 276a et seq., and should have allowed the introduction of evidence on the subject. Secondly, G & O claims that it was somehow prejudiced by unspecified "inexcusable delay" by the Department of Labor in notifying Petitioner of the pendency of the action and the issuance of ALJ Brenner's decision (a period during which G & O obtained and apparently violated other government contracts). A. Debarment Under The Davis-Bacon Act The terms of the Davis-Bacon Act, 40 U.S.C. [sec] 276a- 2(a), are quite clear with regard to the consequences of a substantive violation of its provisions: . . . The Comptroller General of the United States is . . . authorized and is directed to distribute a list to all departments of the Government giving the names of persons or firms whom he has [*found to have disregarded their obligations to employees and subcontractors. No contract shall be awarded to the persons or firms appearing on this list . . . until three years have elapsed*] . . . . [*(Emphasis added)*]. Thus, the Davis-Bacon Act embodies a specific "bright line" test: if a contractor disregards obligations to employees and/or subcontractors, that party (and its related entities) are debarred for three years. The Act contains no language giving the Department of Labor or the Comptroller General discretion to impose a lesser period following the determination that a violation has occurred. See Bob's Construction Co., Inc., WAB Case No. 87-25 (May 11, 1989); Marvin E. Hirchert d/b/a M & H Construction Co., WAB Case No. 77-17 (Oct. 16, 1978). Unless and until Congress chooses to amend the Davis-Bacon [2] ~3 [3] Act, the Board and the ALJs have no discretion to consider or authorize a debarment period of less than three years. The regulations under the Davis-Bacon Related Acts do create a possibility of a debarment period of less than three years. See 29 C.F.R. 5.12. However, this possibility is predicated upon a demonstration of extraordinary circumstances. See A. Vento Construction, WAB Case No. 87-51 (Oct. 17, 1990)(29 WH 1685). In light of the clear expression of Congressional intent regarding the period of debarment contained in the Davis-Bacon Act, evidence regarding "mitigating factors" or "extraordinary circumstances" is irrelevant to that issue. Accordingly, evidence on the subject should be objected to and excluded pursuant to 29 C.F.R. 18.402 ("Evidence which is not relevant is not admissible"). We would not view an ALJ's sua sponte denial of admissibility as an abuse of discretion. B. "Inexcusable Delay" As noted, it is Petitioner's claim that the duration of this proceeding (during which they obtained additional government contract business) was somehow prejudicial. As the Petitioner made no showing on the record, other than unsubstantial allegations regarding planning uncertainties, there is no basis to question ALJ Brenner's determination. Where, as here, Petitioner was on notice of the possibility of debarment and nonetheless obtained additional federal contracting, we find it hard to believe a showing of prejudice could be made. II. DECISION Finally, we note that this was, at its inception, a "mixed case", involving both the Davis-Bacon Act and the Contract Work Hours and Safety Standards Act, 40 U.S.C. [sec] 327 et seq. ("CWHSSA"). CWHSSA is addressed in the Labor Department's charging letter and order of reference, as well as in the Solicitor's brief to the ALJ. Nevertheless, the Decision and Order is silent as to the CWHSSA violations. Perhaps the ALJ considered the matter moot in light of the Davis-Bacon Act debarment, as did the Solicitor in light of the lack of a challenge to the omission. For future reference we would prefer that the ALJ explicitly address all alleged violations. In an appropriate case we would remand for specific determinations. [3] ~4 [4] Senior Member Rothman, concurring On July 10, 1990, Administrative Law Judge Lawrence Brenner issued the decision attached hereto. G & O General Contractors, Inc. petitioned for review and filed a supporting brief. The Wage and Hour Administrator filed an answering brief. After considering the decision and the record in the light of the petition and the briefs, I would affirm the Judge's rulings, findings and conclusions and adopt the recommended order except that the ALJ incorrectly concluded (ALJ Decision, pp. 6-7) that the Board "vests itself with the power to impose" a debarment of less than three years under the Davis-Bacon Act. I note that the ALJ decision is consonant with my concurring opinion in A. Vento Construction, WAB Case No. 87-51 (Oct. 17, 1990)(29 WH 1685). For the reasons stated above, ALJ Brenner's Decision and Order is affirmed, the Petition is denied, and the request for oral argument is denied. BY ORDER OF THE BOARD: Ruth E. Peters, Presiding Member Stuart Rothman, Senior Member Patrick J. O'Brien, Member _____________________________ Gerald F. Krizan, Esq. Executive Secretary [4]

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