Northeast Nebraska Economic Development District v. Administrator, Wage and Hour Div., USDOL (agency decision, September 15, 2023)

Plain-English summary

The Northeast Nebraska Economic Development District sought a $25.00 hourly wage and $6.30 in fringe benefits for a glazier classification on a Davis-Bacon project. A Wage and Hour Division section chief instead approved $37.26 per hour and $17.76 in fringe benefits. The district petitioned the Board before the Wage and Hour Division Administrator issued a final decision. The Board ordered it to explain why the appeal was ripe and received no response. Exercising its docket-management authority, the Board dismissed the petition without prejudice.

Decision snapshot

• Cited authorities: 40 U.S.C. §§ 3141-3148
• Outcome: Petition for review dismissed without prejudice for failure to respond to the ripeness show-cause order.
• Key point: A petitioner must obtain a final Wage and Hour Division decision and respond to Board orders before review can proceed.

Full text (DOL official public release)

U.S. Department of Labor          Administrative Review Board
                                  200 Constitution Ave. NW
                                  Washington, DC 20210-0001

IN THE MATTER OF:

NORTHEAST NEBRASKA ARB CASE NO. 2023-0044 ECONOMIC DEVELOPMENT DISTRICT, DATE: September 15, 2023

          PETITIONER,

    v.

ADMINSTRATOR, WAGE
AND HOUR DIVISION, UNITED
STATES DEPARTMENT OF LABOR

           RESPONDENT.

Before HARTHILL, Chief Administrative Appeals Judge, and PUST, Administrative Appeals Judge

ORDER DISMISSING PETITION FOR REVIEW WITHOUT PREJUDICE

   This case arises under the Davis-Bacon Act and Related Acts (DBRA) and its

applicable implementing regulations. 1 This matter relates to Project No. 19 DTR- 101 in Platte County, Nebraska. After the Department of Labor’s Wage and Hour Division (WHD) issued a Wage Decision related to Project No. 19 DTR-101, 2 Petitioner Northeast Nebraska Economic Development District (NENEDD) proposed an additional classification and wage rate for the position of “Glazier,” requesting a wage rate of $25.00 per hour and $6.30 per hour in fringe benefits.

  On April 19, 2023, the WHD Section Chief for the Branch of Construction

Wage Determinations (WHD Section Chief) issued a letter denying the requested wage rates and approving a conformed wage rate of $37.26 per hour and $17.76 per hour in fringe benefits for the Glazier classification (WHD Determination Letter).

1 40 U.S.C. §§ 3141-3148; 29 C.F.R. Parts 5 and 7. 2 Wage Decision No. NE20230074 Mod 3. 2

 On August 16, 2023, NENEDD filed a Petition for Review with the

Administrative Review Board (Board) of the WHD Determination Letter.

   On August 24, 2023, the Administrative Review Board (Board) ordered

Petitioner to show cause no later than September 4, 2023, why this case should not be dismissed for lack of ripeness because the Administrator of WHD had not issued a final decision. As of the date of this Order, Petitioner has failed to respond.

   The Board dismisses the Petition for Review without prejudice because

Petitioner has failed to timely respond to the Order to Show Cause. The Board’s authority to effectively manage its docket, including authority to require compliance with the Board’s Orders, is necessary to achieve orderly and expeditious disposition of cases. 3 The Board has authority to issue sanctions, including dismissal, for a party’s failure to comply with the Board’s orders and briefing requirements. 4 Accordingly, in this case, the Board exercises its authority to manage its docket and dismisses the Petition for Review for failure to comply with the requirements of the Order to Show Cause.

  For the foregoing reasons, we DISMISS the Petition for Review without

prejudice.

   SO ORDERED.

                                       _____________________________________
                                       SUSAN HARTHILL
                                       Chief Administrative Appeals Judge



                                       _____________________________________
                                       TAMMY L. PUST
                                       Administrative Appeals Judge

3 Twyman v. TaxMasters, Inc., ARB No. 2011-0031, ALJ No. 2010-SOX-00055, slip op. at 2 (ARB Apr. 5, 2021) (citations and quotations omitted); see also Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (“The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”). 4 Twyman, ARB No. 2011-0031, slip op. at 2.