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B-145606, AUG. 1, 1961

B-145606 Aug 01, 1961
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ESQUIRE: REFERENCE IS MADE TO YOUR LETTER OF JULY 5. DID NOT KNOW THAT THEY WERE FALSE AND INCORRECT. THE INVESTIGATION WAS CARRIED OUT WITH THE FULL COOPERATION OF THE CORPORATION AND MR. THEY TOOK IMMEDIATE STEPS TO CORRECT THE SITUATION WHICH WAS FOUND BY THE AIR FORCE OFFICERS. THERE IS NOT A SCINTILLA OF EVIDENCE TO SUPPORT AUTHORIZATION OF HIS ACTION. THE MATTER WAS GONE INTO FULLY BY OFFICIALS OF THE DEPARTMENT OF LABOR AND THE U.S. STATES THAT THE DEPARTMENT OF AIR FORCE AND THE DEPARTMENT OF LABOR HAVE BOTH RECOMMENDED DEBARMENT. FEEL CERTAIN THAT THIS IS NOT THE RECOMMENDATION OF THOSE OFFICERS OF EACH DEPARTMENT WHO WORKED CLOSELY WITH THE CORPORATION AND MR. SINCE THESE PERSONS ARE BEST ABLE TO STATE WHETHER OR NOT THE ACTS INVOLVED WERE AUTHORIZED ACTS.

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B-145606, AUG. 1, 1961

TO STANLEY Z. GOODFARB, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF JULY 5, 1961, AND PRIOR CORRESPONDENCE, CONCERNING THE DEBARMENT OF HAYS ROOFING AND SUPPLY, INC., AND WALLACE BYRD AND WAYNE COWAN, INDIVIDUALLY, FOR THREE YEARS FROM MAY 1, 1961, DUE TO VIOLATION OF THE DAVIS-BACON ACT, 40 U.S.C. 276A.

YOU REQUEST RECONSIDERATION OF THE DEBARMENT ACTION IN THE INSTANCE OF THE FIRM AND MR. COWAN, STATING IN PART (LETTER DATED JUNE 14, 1961) THAT:

"MR. COWAN, WHEN HE SIGNED THE WAGE AND HOUR REPORTS, DID NOT KNOW THAT THEY WERE FALSE AND INCORRECT, AND, WHEN HE FOUND THIS OUT, HE ACTED IN THE SAME MANNER AS THE CORPORATION. THE INVESTIGATION WAS CARRIED OUT WITH THE FULL COOPERATION OF THE CORPORATION AND MR. COWAN, AND THEY TOOK IMMEDIATE STEPS TO CORRECT THE SITUATION WHICH WAS FOUND BY THE AIR FORCE OFFICERS. IN LEGAL TERMS, IT CAN BEST BE STATED THAT MR. BYRD HAD EMBARKED UPON A COMPLETELY UNAUTHORIZED COURSE OF ACTION. THERE IS NOT A SCINTILLA OF EVIDENCE TO SUPPORT AUTHORIZATION OF HIS ACTION, EITHER BY HAYS ROOFING AND SUPPLY, INC., OR MR. WAYNE COWAN, THE GENERAL MANAGER.

"AT THE TIME OF THE HEARING AFOREMENTIONED, JANUARY 16, 1961, THE MATTER WAS GONE INTO FULLY BY OFFICIALS OF THE DEPARTMENT OF LABOR AND THE U.S. AIR FORCE, AND NOTHING CAME OUT WHICH SHOWED BY ANY STRETCH OF THE IMAGINATION THAT HAYS ROOFING AND SUPPLY, INC., OR MR. COWAN, IN ANY WAY, SHAPE, OR FORM, AUTHORIZED THE COURSE OF ACTION FOR WHICH YOUR OFFICE HAS IMPOSED SUCH A STRINGENT PENALTY.

"I NOTE THAT YOUR FINDING OF ACT, PAGE 3, STATES THAT THE DEPARTMENT OF AIR FORCE AND THE DEPARTMENT OF LABOR HAVE BOTH RECOMMENDED DEBARMENT. FEEL CERTAIN THAT THIS IS NOT THE RECOMMENDATION OF THOSE OFFICERS OF EACH DEPARTMENT WHO WORKED CLOSELY WITH THE CORPORATION AND MR. COWAN TO CORRECT THE UNAUTHORIZED ACTS OF MR. BYRD. SINCE THESE PERSONS ARE BEST ABLE TO STATE WHETHER OR NOT THE ACTS INVOLVED WERE AUTHORIZED ACTS, THEY BEING IN THE BEST POSITION TO JUDGE FACTUALLY, I BELIEVE THAT THEIR RECOMMENDATION AND THEIR JUDGMENT WOULD BE THE MOST APPROPRIATE TO FOLLOW IN THIS CASE.

"ON BEHALF OF HAYS ROOFING AND SUPPLY, INC., AND MR. COWAN, I REQUEST THAT YOU RECONSIDER YOUR ACTION OF MAY 1, 1961, AND INVESTIGATE THE QUESTION OF AUTHORIZATION. I MUST FURTHER NOTE HERE THAT THERE IS NOTHING IN YOUR FINDING OF FACT TO SUBSTANTIATE THE AUTHORIZATION OF THE CORPORATION OR MR. COWAN. I PERSONALLY BELIEVE THERE IS NOTHING IN THE WHOLE RECORD WHICH WOULD SUBSTANTIATE SUCH AUTHORIZATION. CERTAINLY, THE QUESTION OF AUTHORIZATION IS AN APPROPRIATE QUESTION WHEN PUNISHING A CORPORATION FOR THE ACTS OF ITS EMPLOYEES, AND THIS QUESTION, I FEEL CERTAIN, HAS NOT BEEN GONE INTO IN THIS CASE.'

AS POINTED OUT IN THE FINDING DATED MAY 1, 1961, AND YOU ADVISE THAT "WE HAVE NO QUARREL WITH THE FACTS AS FOUND OR AS SET FORTH IN YOUR FINDINGS," BOTH THE AIR FORCE AND THE DEPARTMENT OF LABOR RECOMMENDED DEBARMENT. THE PAYROLL REPORTS FALSELY SHOWING A FULL PAYMENT OF REQUIRED WAGES WERE CERTIFIED BY MR. COWAN IN HIS CAPACITY AS VICE PRESIDENT, AND IN FURNISHING SUCH REPORTS TO THE GOVERNMENT RESPONSIBILITY THEREFOR WAS ASSUMED ON BEHALF OF THE FIRM. AS A MATTER OF LAW WHEN THE RELATIONSHIP OF EMPLOYER-EMPLOYEE EXISTS THE EMPLOYER IS LIABLE FOR THE WRONGFUL ACTS OF THE EMPLOYEE IN THE COURSE OF HIS EMPLOYMENT. 57 C.J.S. 266. NEGLIGENCE OF THE EMPLOYER TO INSTRUCT HIS EMPLOYEE AS TO THE PROPER METHOD OF PERFORMING HIS WORK OR TO SEE THAT THE EMPLOYEE OBEYS HIS INSTRUCTIONS RENDERS THE EMPLOYER LIABLE FOR INJURIES TO THIRD PARTIES RESULTING THEREFROM. 57 C.J.S. 272. THE EMPLOYER WILL BE LIABLE FOR ACTS OF HIS EMPLOYEE WITHIN THE SCOPE OF THE EMPLOYMENT REGARDLESS OF WHETHER THE ACTS WERE EXPRESSLY OR IMPLIEDLY AUTHORIZED. 57 C.J.S. 302. WILFUL AND MALICIOUS ACTS OF THE EMPLOYEE ARE IMPUTABLE TO THE EMPLOYER UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR ALTHOUGH THEY MIGHT NOT HAVE BEEN CONSENTED TO OR EXPRESSLY AUTHORIZED OR RATIFIED BY THE EMPLOYER. C.J.S. 572. IT HAS BEEN GENERALLY HELD THAT THE EMPLOYER IS LIABLE TO THIRD PARTIES BECAUSE OF CRIMINAL ACTS OF HIS EMPLOYEE WHERE SUCH ACTS CAN BE SAID TO HAVE BEEN WITHIN THE SCOPE OF THE EMPLOYMENT. 57 C.J.S. 573.

APPLICATION AND ENFORCEMENT OF THE STATUTORY DEBARMENT IS MANDATORY, AND WE HAVE NO DISCRETION TO VARY ITS DURATION OR TO REMOVE IT ONCE PROPERLY INVOKED.

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