B-140984, OCT. 26, 1959

B-140984: Oct 26, 1959

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PRESIDENT: ATTACHED IS A COPY OF OUR FINDING OF TODAY THAT THE JOHN G. HAVE DISREGARDED OBLIGATION TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS BACON ACT. THESE NAMES WILL BE INCLUDED ON A LIST FOR PUBLICATION NOVEMBER 2. NO GOVERNMENT CONTRACT WILL BE AWARDED TO ANY OF THEM. OR ASSOCIATION IN WHICH THEY HAVE AN INTEREST. UNTIL THREE YEARS SHALL HAVE ELAPSED FROM SUCH DATE. TO WHICH THE UNITED STATES * * * IS A PARTY. - "* * * THE COMPTROLLER GENERAL OF THE UNITED STATES IS FURTHER 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.

B-140984, OCT. 26, 1959

TO MR. JOHN G. MONATH, PRESIDENT:

ATTACHED IS A COPY OF OUR FINDING OF TODAY THAT THE JOHN G. MONATH COMPANY AND JOHN G. MONATH AND GEORGE A. MONATH, INDIVIDUALLY, HAVE DISREGARDED OBLIGATION TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS BACON ACT, 40 U.S.C. 276A, IN THE PERFORMANCE OF A SUBCONTRACT UNDER CONTRACT NBY-7761, AWARDED TO CARL GONNSEN AND SON, INC., FOR CONSTRUCTION OF A U.S. MARINE CORPS RESERVE TRAINING CENTER AT BALTIMORE, MARYLAND.

PURSUANT TO THE PROVISIONS OF SECTION 3 (A) OF THE ACT, THESE NAMES WILL BE INCLUDED ON A LIST FOR PUBLICATION NOVEMBER 2, 1959, AND NO GOVERNMENT CONTRACT WILL BE AWARDED TO ANY OF THEM, OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH THEY HAVE AN INTEREST, UNTIL THREE YEARS SHALL HAVE ELAPSED FROM SUCH DATE.

FINDING

IN THE MATTER OF THE JOHN G. MONATH COMPANY AND JOHN G. MONATH AND GEORGE A. MONATH, INDIVIDUALLY, BALTIMORE, MARYLAND.

SECTION 1 OF THE DAVIS-BACON ACT OF AUGUST 30, 1935, 49 STAT. 1011, 40 U.S.C. 276A, PROVIDES IN PART THAT---

"THE ADVERTISED SPECIFICATIONS FOR EVERY CONTRACT IN EXCESS OF $2,000, TO WHICH THE UNITED STATES * * * IS A PARTY, FOR CONSTRUCTION, ALTERATION, AND/OR REPAIR, INCLUDING PAINTING AND DECORATING, OF PUBLIC BUILDINGS OR PUBLIC WORKS OF THE UNITED STATES * * * AND WHICH REQUIRES OR INVOLVES THE EMPLOYMENT OF MECHANICS AND/OR LABORERS SHALL CONTAIN A PROVISION STATING THE MINIMUM WAGES TO BE PAID VARIOUS CLASSES OF LABORERS AND MECHANICS * * * AND EVERY CONTRACT BASED UPON THESE SPECIFICATIONS SHALL CONTAIN A STIPULATION THAT THE CONTRACTOR OR HIS SUBCONTRACTOR SHALL PAY ALL MECHANICS AND LABORERS EMPLOYED DIRECTLY UPON THE SITE OF THE WORK, UNCONDITIONALLY AND NOT LESS OFTEN THAN ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR REBATE ON ANY ACCOUNT, THE FULL AMOUNTS ACCRUED AT TIME OF PAYMENT, COMPUTED AT WAGE RATES NOT LESS THAN THOSE STATED IN THE ADVERTISED SPECIFICATIONS, REGARDLESS OF ANY CONTRACTUAL RELATIONSHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR OR SUBCONTRACTOR AND SUCH LABORERS AND MECHANICS * * *.'

SECTION 3 (A) OF THE ACT PROVIDES THAT---

"* * * THE COMPTROLLER GENERAL OF THE UNITED STATES IS FURTHER 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 OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH SUCH PERSONS OR FIRMS HAVE AN INTEREST UNTIL THREE YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF THE LIST CONTAINING THE NAMES OF SUCH PERSONS OR FIRMS.'

CONTRACT NBY-7761, IN EXCESS OF $2,000, FOR CONSTRUCTION OF A U.S. MARINE CORPS RESERVE TRAINING CENTER AT BALTIMORE, MARYLAND, WAS ENTERED INTO JUNE 28, 1957, BY THE UNITED STATES (FIFTH NAVAL DISTRICT) WITH CARL GONNSEN AND SON, INC. A PORTION OF THE WORK WAS SUBCONTRACTED TO THE JOHN G. MONATH COMPANY, OF WHICH JOHN G. MONATH WAS PRESIDENT AND GEORGE A. MONATH WAS VICE PRESIDENT. THE CONTRACT AND SUBCONTRACT INCLUDED OR INCORPORATED PROVISIONS AND STIPULATIONS REQUIRED BY SECTION 1 OF THE ACT.

AN INVESTIGATION BY THE DISTRICT PUBLIC WORKS OFFICE OF THE FIFTH NAVAL DISTRICT OF COMPLIANCE WITH PERTINENT LABOR STANDARDS, INCLUDING PAYMENT TO EMPLOYEES OF PRESCRIBED MINIMUM WAGES, DISCLOSED THAT ELEVEN EMPLOYEES HAD BEEN UNDERPAID IN THE TOTAL AMOUNT OF $2,650.42 AND THAT, NONETHELESS, PAYROLL AFFIDAVITS HAD BEEN FURNISHED TO THE GOVERNMENT FALSELY SHOWING FULL PAYMENT OF REQUIRED WAGES. THE VIOLATIONS WERE ADMITTED BY JOHN G. MONATH ON BEHALF OF THE COMPANY AND NECESSARY WAGE ADJUSTMENTS WERE MADE.

MR. MONATH HAS REQUESTED CONSIDERATION OF HIS OVER-ALL ARRANGEMENT WITH THE EMPLOYEES AFFECTED AS A MITIGATING CIRCUMSTANCE. IN A STATEMENT DATED JULY 24, 1958, HE ADVISED THAT---

"THE MEN EMPLOYED ON THIS JOB HAVE ALL BEEN WITH US FOR A NUMBER OF YEARS AND HAVE BEEN RECEIVING AN AVERAGE OF 50 WEEKS WORK IN EVERY YEAR, AND DUE TO THE FACT THEY HAD A STEADY JOB GAVE ME TO UNDERSTAND THEY WERE SATISFIED TO WORK ON THIS JOB AT THEIR REGULAR WAGE.'

WHILE IT IS POSSIBLE THAT FOR AN ADEQUATE CONSIDERATION ARRANGEMENTS WITH EMPLOYEES ON AN ANNUAL PAYROLL BASIS MIGHT BE MADE TO DISTRIBUTE THE ANNUAL COMPENSATION UNEVENLY TO MEET THE REQUIREMENTS OF FEDERAL CONSTRUCTION WORK, THIS OBVIOUSLY WAS NOT DONE IN THE PRESENT CASE. SUCH ARRANGEMENT WAS DISCLOSED TO THE GOVERNMENT. THE UNDERSTANDING WITH EMPLOYEES WAS LIMITED TO AN AGREEMENT, PROHIBITED BY THE ACT, THAT THEY WOULD WORK AT THEIR REGULAR RATES.

IT IS CLEAR, PARTICULARLY IN THE LIGHT OF THE FALSE PAYROLLS SUBMITTED, THAT GOOD FAITH WAS NOT SHOWN IN COMPLYING WITH THE ACT AND CONTRACTUAL PROVISIONS. ONLY THROUGH INVESTIGATION AND DETECTION OF THE MISLEADING INFORMATION SUBMITTED IN AFFIDAVIT FORM WAS IT POSSIBLE FOR THE GOVERNMENT TO ADOPT MEASURES PROTECTING THE EMPLOYEES INVOLVED AND INSURING COMPLIANCE. THE DEPARTMENT OF THE NAVY AND THE DEPARTMENT OF LABOR HAVE RECOMMENDED IMPOSITION OF DEBARMENT.

WE THEREFORE FIND THAT THE JOHN G. MONATH COMPANY AND JOHN G. MONATH AND GEORGE A. MONATH, INDIVIDUALLY, HAVE DISREGARDED "OBLIGATIONS TO EMPLOYEES" WITHIN THE MEANING OF THE DAVIS-BACON ACT. ACCORDINGLY, THEIR NAMES WILL BE INCLUDED ON A LIST FOR DISTRIBUTION TO ALL AGENCIES OF THE GOVERNMENT AND, PURSUANT TO THE STATUTORY DIRECTION, NO CONTRACT SHALL BE AWARDED TO THEM, OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH THEY HAVE AN INTEREST, UNTIL THREE YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF SUCH LIST.