B-151267, AUG. 27, 1963

B-151267, AUG. 27, 1963

TO MR. A. W. BERGERON:

ATTACHED IS A COPY OF OUR FINDING OF TODAY THAT A. W. BERGERON, DOING BUSINESS AS NIAGARA TREE EXPERTS AND LANDSCAPING SERVICE, AND NIAGARA TREE EXPERTS AND LANDSCAPING, INC., HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, IN THE PERFORMANCE OF CONTRACT NO. AF 30 (617/-378, FOR LANDSCAPING THE FAMILY HOUSING AREA AT THE NIAGARA FALLS MUNICIPAL AIRPORT, NIAGARA FALLS, NEW YORK (AIR FORCE PROJECT NO. NGF 59-0).

PURSUANT TO THE PROVISIONS OF SECTION 3 (A) OF THE ACT, THESE NAMES WILL BE INCLUDED ON A LIST FOR PUBLICATION SEPTEMBER 1, 1963, AND NO GOVERNMENT CONTRACT WILL BE AWARDED TO THEM OR TO ANY FIRM, CORPORATION, PARTNERSHIP OR ASSOCIATION IN WHICH THEY HAVE AN INTEREST UNTIL THREE YEARS HAVE ELAPSED FROM SUCH DATE.

FINDING

IN THE MATTER OF A. W. BERGERON, DOING BUSINESS AS NIAGARA TREE EXPERTS AND LANDSCAPING SERVICE, NIAGARA FALLS, NEW YORK, AND NIAGARA TREE EXPERTS AND LANDSCAPING, INC., NIAGRA FALLS, NEW YORK.

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, OR 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 IN PART 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 OBLIGATION 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 NO. AF 30 (617/-378, IN EXCESS OF $2,000, FOR LANDSCAPING THE FAMILY HOUSING AREA AT THE NIAGARA FALLS MUNICIPAL AIRPORT, NIAGARA FALLS, NEW YORK (PROJECT NO. NGF 59-0), WAS ENTERED INTO ON DECEMBER 22, 1959, BY THE UNITED STATES (DEPARTMENT OF THE AIR FORCE), WITH THE NIAGARA TREE EXPERTS AND LANDSCAPE (LANDSCAPING) SERVICE, OWNED AND OPERATED BY MR. A. W. BERGERON. THE CONTRACT CONTAINED THE STIPULATIONS AND REPRESENTATIONS REQUIRED BY SECTION 1 OF THE DAVIS BACON ACT.

INVESTIGATION BY THE DEPARTMENT OF THE AIR FORCE OF COMPLIANCE WITH LABOR STANDARDS, INCLUDING PAYMENT TO EMPLOYEES OF PRESCRIBED MINIMUM WAGES, DISCLOSED EVIDENCE THAT NINETEEN (19) EMPLOYEES HAD BEEN UNDERPAID AMOUNTS AGGREGATING $3,370.11 BY THE MAKING OF WAGE PAYMENTS TO THOSE EMPLOYEES AT RATES OF FROM $2.05 TO $2.95 PER HOUR AS COMPARED WITH THE APPLICABLE MINIMUM RATE OF $3.00 PER HOUR. RESTITUTION HAS BEEN MADE BY THE CONTRACTOR TO THE EMPLOYEES CONCERNED. THE INVESTIGATION BY THE DEPARTMENT OF THE AIR FORCE REVEALED, HOWEVER, THAT THE CONTRACTOR HAD SUBMITTED FALSE PAYROLL STATEMENTS INDICATING THAT HE WAS PAYING ALL OF HIS LABORERS $2.975 PER HOUR ALTHOUGH THE ACTUAL RATES PAID WERE FROM $2.05 TO $2.95 PER HOUR. THE INVESTIGATION ALSO REVEALED THAT MR. BERGERON DID NOT DISCUSS WAGE RATES WITH THOSE EMPLOYEES OR POST THE CONTRACT SCHEDULE "A" RATES OF WAGES, AS REQUIRED UNDER SECTION 1 OF THE DAVIS-BACON ACT AND SECTION 20 OF THE GENERAL PROVISIONS OF THE CONTRACT. THE INVESTIGATION FURTHER DISCLOSED THAT THE PRACTICE OF MAKING UNDERPAYMENTS OF WAGES TO THE CONTRACTOR'S EMPLOYEES CONTINUED AFTER THE MONTH OF JANUARY, 1961, WHEN MR. BERGERON'S LANDSCAPING BUSINESS WAS BEING CONDUCTED UNDER THE NAME OF NIAGARA TREE EXPERTS AND LANDSCAPING, INCORPORATED.

THE CONTRACTOR ALLEGED THAT HE HAD MADE A MISTAKE IN BID ON THE LANDSCAPING WORK AND THAT HE DELAYED PAYING HIS EMPLOYEES AT THE PRESCRIBED MINIMUM RATE OF $3.00 PER HOUR UNDER THE CONTRACT WHILE ATTEMPTING TO OBTAIN A CLASSIFICATION OF HIS EMPLOYEES BY THE NEW YORK STATE DEPARTMENT OF LABOR AND THE UNITED STATES DEPARTMENT OF LABOR WHICH WOULD AGREE WITH THE RATES APPROVED IN A LABOR UNION AGREEMENT. HE WAS NEVERTHELESS BOUND BY THE TERMS OF HIS CONTRACT WITH THE UNITED STATES TO PAY AT LEAST $3.00 PER HOUR FOR THE WORK PERFORMED BY THE NINETEEN (19) EMPLOYEES INVOLVED, AND APPROPRIATE WAGE ADJUSTMENTS WERE NOT EFFECTED UNTIL AFTER THE DEPARTMENT OF THE AIR FORCE HAD MADE A THOROUGH INVESTIGATION OF THE INFORMATION SET FORTH IN THE PAYROLL REPORTS WHICH WERE ACCOMPANIED BY SIGNED STATEMENTS THAT "THE PAYROLLS SUBMITTED * * * ARE CORRECT AND MPLETE.'

THE CONTRACTOR WAS AFFORDED A REASONABLE OPPORTUNITY BY THE DEPARTMENT OF LABOR TO QUESTION THE ALLEGED VIOLATIONS OF THE DAVIS BACON ACT, BUT THE CONTRACTOR DID NOT REPLY TO THE LETTER DATED OCTOBER 1, 1962, FROM THE DEPARTMENT OF LABOR, RELATIVE TO THE INVESTIGATION MADE BY THE DEPARTMENT OF THE AIR FORCE. THE DEPARTMENT OF THE AIR FORCE AND THE DEPARTMENT OF LABOR HAVE RECOMMENDED IMPOSITION OF DEBARMENT UNDER SECTION 3 (A) OF THE ACT.

WE THEREFORE FIND THAT A. W. BERGERON, DOING BUSINESS AS NIAGARA TREE EXPERTS AND LANDSCAPING SERVICE, AND THE SUCCESSOR CORPORATION, NIAGARA TREE EXPERTS AND LANDSCAPING, INC., HAVE DISREGARDED "OBLIGATIONS TO EMPLOYEES" WITHIN THE MEANING OF THE DAVIS-BACON ACT.

ACCORDINGLY, THESE NAMES WILL BE INCLUDED IN 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.