MAJKA CONSTRUCTION CO., INC., WAB No. 91-05 (WAB Apr. 24, 1991)

USDOL/OALJ Reporter

CCASE: DECISION OF THE WAGE APPEALS BOARD DDATE: 19910424 TTEXT: ~1 [1] WAGE APPEALS BOARD UNITED STATES DEPARTMENT OF LABOR WASHINGTON, D. C. In the Matter of: AJKA CONSTRUCTION CO., INC. WAB Case No. 91-05 Subcontractor SIGMUND MAJKA, JR., President SIGMUND MAJKA, JR., Secretary-Treasurer BEFORE: Charles E. Shearer, Jr., Chairman Ruth E. Peters, Member Patrick J. O'Brien, Member DATED: April 24, 1991 DECISION OF THE WAGE APPEALS BOARD This matter is before the Wage Appeals Board on the petition of the Acting Administrator for review of a Decision and Order of Administrative Law Judge ("ALJ") Ainsworth H. Brown dated September 17, 1990. ALJ Brown, for reasons which remain unclear, refused to debar Majka Construction Company, Inc.; Sigmund Majka, Sr.; or Sigmund Majka, Jr. (hereinafter, collectively, "Majka") despite their admission that they had underpaid their employees and their inability or unwillingness to contest a charge of payroll falsification. For the reasons contained herein, the Board remands this matter for proceedings consistent with this opinion. On August 26, 1986, the Wage and Hour Division issued a charging letter to Majka claiming wage underpayments in violation of the Davis-Bacon Act and the Contract Work Hours and Safety Standards Act, and the submission of [1] ~2 [2] falsified certified payroll records. On February 4, 1987, the Deputy Chief ALJ issued a prehearing order requiring the Department of Labor to provide the particulars of its charges and requiring admissions or denials of Majka. When Majka's response to the November 4, 1987 prehearing order was never filed, the Department moved for an Order of Default. Finally, on May 26, 1988, Majka (through its attorney) sent a letter wherein it stated "Please be advised that we certainly have never tried to contest this matter as far the facts are involved." Despite this statement, the matter remained alive, thereby giving Majka's attorney another opportunity to concede the underpayments on July 17, 1990. Despite these statements, ALJ Brown, noting that restitution had occurred, refused to find disregard of obligations to employees, and refused to order debarment. The Board has repeatedly held that wage underpayments coupled with the submission of falsified certified payrolls constitutes disregard per se, and that an ALJ has no discretion to decline to order debarment for the full three years. See Richard D. Wilson, WAB Case No. 89-02 (Mar. 29, 1991); G & O General Contractors, WAB Case No. 90-35 (Feb. 19, 1990); and the cases cited therein. Had the November 7, 1987 prehearing order specifically ordered a response from Majka on the question of payroll falsification, this matter would be reversed. However, as it is unclear from the record whether the May 26, 1988 letter from ajka's attorney constitutes an admission, this matter is remanded. If the ALJ finds the May 26, 1988 letter to be an admission, debarment for three years is automatic. If the payroll falsification issue was never adequately litigated, further proceedings limited to that question are in order. BY ORDER OF THE BOARD: Charles E. Shearer, Jr., Chairman Ruth E. Peters, Member Patrick J. O'Brien, Member Gerald F. Krizan, Esq. Executive Secretary [2]

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