In re Pascack Builders, Inc. (Board decision, August 4, 2016)

Plain-English summary

The case involved prevailing wage, fringe benefit, record falsification, and proposed debarment disputes concerning Pascack Builders, Tri-State Building Company, and Franklin Petty Jr. Petty appealed to the Board but submitted a brief without proof that he had served the opposing party and counsel. The Board struck the brief and instructed him to provide the required service certificate. When he did not do so, it warned him that failure to answer a show-cause order could lead to dismissal. Petty did not answer, so the Board deemed his appeal abandoned and dismissed it.

Decision snapshot

• Cited authority: Brief service certification under 29 C.F.R. § 8.10(d).
• Outcome: Petty's appeal dismissed as abandoned after no response to the Board's order.
• Key point: The Board enforced its briefing and service requirements after giving notice and an opportunity to respond.

Full text (DOL official public release)

U.S. Department of Labor
Administrative Review Board
200 Constitution Ave., N.W.
Washington, DC 20210

IN THE MATTER OF:

Disputes concerning the payment of
ARB CASE NO. 16-045
prevailing wage rates, fringe benefits,
and falsification of records by:
ALJ CASE NO. 2015-DBA-017

PASCACK BUILDERS, INC.,
DATE: August 4, 2016

PRIME CONTRACTOR,

TRI-STATE BUILDING COMPANY,

SUBCONTRACTOR,
and

FRANKLIN PETTY, JR.,

OWNER,

Proposed debarment for labor standards violations by:

TRI-STATE BUILDING COMPANY,

SUBCONTRACTOR,
and

FRANKLIN PETTY, JR.,

OWNER,

RESPONDENTS.

USDOL/OALJ REPORTER
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BEFORE: THE ADMINISTRATIVE REVIEW BOARD

ORDER DISMISSING APPEAL

On April 15, 2016, the Administrative Review Board issued an Order Striking Initial Brief in this case because Respondent Petty had failed to serve it on the opposing party and its counsel and had failed to provide the Board with a certificate demonstrating such service, see 29 C.F.R. § 8.10(d) (2015). The Board instructed Petty that before it could accept his brief, he must serve the Administrator, Wage and Hour Division and his counsel with a copy of the brief and provide the Board with a certificate of service stating that he has served them.

Petty failed to provide evidence that he had served the Administrator with his brief.
Accordingly, on July 19, 2016, the Board issued an Order to Show Cause, requiring Petty to demonstrate why the Board should not dismiss his appeal for abandonment. The Board warned Petty that failure to timely respond to the order could result in the dismissal of his appeal without further order. Nevertheless Petty failed to respond to the Board’s Order.

The Board’s authority to effectively manage its docket, including authority to require compliance with Board briefing orders, is necessary to “achieve orderly and expeditious disposition of cases.” 1 This Board has authority to issue sanctions, including dismissal, for a

party’s failure to comply with the Board’s orders and briefing requirements. 2 Accordingly,

because Petty has failed to respond to the Board’s order to show cause why the Board should not consider his appeal to be abandoned, we consider the appeal abandoned and dismiss his appeal.

FOR THE ADMINISTRATIVE REVIEW BOARD:

Janet R. Dunlop
General Counsel

NOTE: Questions regarding any case pending before the Board should be directed to
the Board’s Paralegal Specialists:
Telephone: (202) 693-6200
Facsimile: (202) 693-6220

1
Link v. Wabash, 370 U.S. 626, 630-31 (1962).
2
Jessen v. BNSF Railway Co., ARB No. 12-107, ALJ No. 2010-FRS-022 (ARB July 26, 2013). See also Ellison v. Washington Demilitarization Co., ARB No. 08-119, ALJ No. 2005-CAA- 009 (ARB Mar. 16, 2009), aff’d sub nom. Ellison v. U.S. Dep’t of Labor, 09-13054 (11th Cir. June 17, 2010).

USDOL/OALJ REPORTER
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