*1 1412 crimes, Inns, (1st Cir.1979)).
comparisons
personal
Holiday
other
in
ment’s favor. “[although jury’s job it is because CONCLUSION inferences, nothing improper there is draw above, For the reasons described suggesting in in the Government’s which Ocampo-Guarin record reflects that ferences should be drawn.” United States trial, afforded a fair that the evidence was Mount, 612, (1st Cir.1990) v. 896 F.2d support jury’s verdict, sufficient to Cotter, (citing v. 425 F.2d United States by any that her conviction was not tainted 450, (1st Cir.1970)). Moreover, there prosecutor’s error in the summation or the support was sufficient evidence to each of judge’s charge. Thus, her conviction is prosecutor inferences for which hereby AFFIRMED. argued. appellant To the extent the now suggests prosecution mischaracterized evidence, properly the court and re
peatedly jury instructed the that its recol
lection, by lawyers, and not statements
controlling. Accordingly, there im was no propriety closing argument. in the VIGILANTES, INC., al., Petitioners, et Appellants, Jury C. The Instructions v. appellant’s final contention is AND ADMINISTRATOR OF WAGE instructing jury the court erred in DIVISION, DEPARTMENT HOUR U.S. deliberations, to use common sense LABOR, al., Respondents, Appel OF et implies because this that common sense lees. priority should take over evidence.4 No. 91-1809. However, object the defendant did not Appeals, this instruction at trial.5 raised for United Claims States Court of appeal the first time on will be con First Circuit. gross miscarriage jus
sidered “where a 8, Heard Jan. 1992. occur, tice” will and where “the new 9, July Decided ground compelling virtually is so in appellant’s sure success.” Hernandez- States,
Hernandez v. United 904 F.2d (1st Cir.1990) (quoting Johnston v. 4. The relevant instructions were as follows: room, jury Take it to the that common Now, understandings finding sense and those fact common is not not —does require certainty. ju- mathematical You as those fair beliefs to all evidence and that supposed your rors are to reach conclusions help you. will sense, on the understanding basis common common grounded and fair beliefs appellant’s attorney objected 5. The to several of presented during the evidence the trial and they given, the instructions before but did proof of the circumstances from which infer- object not to the instruction at issue here. After fairly ences can be drawn. given the instructions were he renewed the sense, your Don’t leave common common objections. same understanding hallway. and fair beliefs in the
George E. Cranwell with whom Cranwell O’Connell, & Arlington, Va., was on brief petitioners, for appellants.
Carol Arnold with whom David S. Fort- ney, Deputy Labor, Sol. of Monica Galla- gher, Sol., Associate Stone, William J. Counsel Appellate Litigation, Patricia Rodenhausen, M. Regional Sol., Associate Washington, D.C., Lopez-Romo, Daniel Atty., U.S. Sevillano, and Fidel Asst. U.S. Atty., P.R., Rey, brief, Hato respondents, appellees. TORRUELLA,
Before Judge, Circuit CAMPBELL, ALDRICH and Senior Circuit Judges. ALDRICH,
BAILEY Senior Circuit Judge.
Vigilantes, Inc., government contrac- tor, president, and its Angel ap- Pedrosa peal dismissal, from the as a result of judgment, cross-motions for summary petition their to overturn a final decision Deputy Secretary order of the of La- bor (Secretary) under the McNamara- (SCA).1 O’Hara Service Contract Act
Background requires SCA independent contrac-
tors who perform service contracts for the seq. 1. 41 U.S.C. 351 et government pursuant with the government
federal to meet certain labor to Section 5(a) of the SCA.8 independent contractor is standards. The certain mini- The Administrative Law mum benefits and to Judge’s Decision safety standards of *3 meet certain minimum Vigilantes' The failure of a FAA working conditions.2 first contract with the 1, became effective on October 1977. The comply with SCA and contractor (ALJ) Judge Administrative Law found may thereunder3 regulations promulgated prior entering contract, that into that liability and debarment from con- result in Vigilantes, through president, Angel its Pe- tracting government for three with drosa, was aware of the existence of a years.4 bargaining agreement collective between program to the set aside Pursuant predecessor contractor and the Indus- 8(a) minority contractors of Section of the trial, Employees Technical and Professional Act,5Vigilantes Small Business was award- Division of the National Maritime Union of provide guard security ed ten contracts to (the Union). undisputed America It is services to the Federal Aviation Adminis- predecessor contractor and the Union (FAA) and the tration General Services Ad- knew, notification,” “informal No- (GSA) ministration in Puerto and the Rico predecessor vember of 1976 that the would Virgin period States Islands for the United not be awarded a renewal of the contract 1, beginning September either 1 or October since it had been set aside for to a award 1, ending May 1977 and 1982.6 minority pursuant to Section 8(a) Nevertheless, prede- of the A. SB 20, 1981, September Department On agreed cessor contractor and the Union (DOL) against complaint filed a Labor July supplemental 1977 to a collective Vigilantes president, Angel and its Pedro- bargaining agreement establishing high- sa, initially charging failing them with day er rate to become effective the pay wages service the minimum predecessor’s after the contract with the fringe SCA, and benefits mandated expire. FAA supplemental would This provided those bargain- or the collective agreement provided twenty for a cent raise ing agreement, failing proper and keep $3.20, hourly in the rate to with substantial employment pursuant records of to 29 fringe benefits. 4.6(g). complaint C.F.R. was amend- § 4(c) provides perti- of the SCA allegation ed in 1984 to include an part: nent pay failed to certain service em- ployees pay overtime under the No contractor or subcontractor under a Safety Contract Hours and Stan- Work which succeeds a contract sub- violations, dards Act.7 Based on these ject chapter to this and under which sub- appellants DOL claimed that were not stantially the same services are fur- owed, nished, they pay any employee liable for the amounts but that shall service contracting wages should also be barred from under such contract less than the 351(a)(1), (2), (3). Comptroller 2. 41 U.S.C. General is directed to § distrib- agencies ute a all list to Government seq. § 3. 29 C.F.R. 4.1 et giving persons or firms that the names of Secretary agencies Federal or the have found 354(a). 4. 41 U.S.C. § chapter. to have violated this Unless the Sec- seq. § 15 U.S.C. 637 et retary otherwise recommends because of un- circumstances, usual no contract the Unit- tripartite agreements 6. These were between the persons ed States shall be awarded to the government agencies contracting agen- as the appearing firms on this list ... until three cies, the Small Business Administration as the years elapsed publica- have from the date of contractor and as the sub-contractor. containing tion of the list the name of such seq. 7. 40 U.S.C. 327 et persons or firms. 41 U.S.C. 354. 5(a) provides pertinent part: 8. Section fringe benefits, and including accrued holiday calculation of and bene- wages fringe benefits, pro- fits owed under the Virgin Islands con- spective increases in tracts), the appellants’ AU assessed liabili- in a collective-bar- ty for these $70,- violations at more than gaining as result arm’s-length ne- 000. Notwithstanding finding his Vig- gotiations, to which such employ- ilantes had incurred in several violations in ees would they have been entitled if performance contracts, the ten employed predecessor con- AU concluded that Vigi- debarment of Provided, tract: That in any of the fore- lantes was unwarranted because Vigi- going obligations circumstances such lantes’ violations were not the result of shall not if finds “intentional wrongdoing” *4 hearing after a in regu- accordance with good made faith efforts to correct errors lations adopted by the Secretary that when notified of them. wages such benefits are sub- stantially at variance with those which The Decision the Secretary prevail for services of a character similar The petition DOL a filed with the Secre- in locality. the tary for review of the AU’ decision. The 353(c) (initial 41 U.S.C. emphasis sup- § Secretary reversed both findings. As to
plied). the first he held that in considering the 4(c) issue, Under 4(c), the literal terms of Section the AU failed to consid- Vigilantes as the implementing successor er regulation, contractor under 29 C.F.R. the 1977 4.6(d)(2), appears provided, amended contract to 1978,9 have which per- been to employees part: its tinent $3.20 per hour. In the notice of of con- award If this contract succeeds a sub- given Vigilantes FAA, tract by the refer- ject to the Service Contract Act of 1965 ence was predecessor made to the collec- amended, under which substantially tive bargaining but neither the the same services were furnished and collective bargaining agreement nor its paid service employees wages supplemental version were In- attached. provided for in benefits a collec- stead, the 1977 contract an errone- included bargaining agreement, tive then ous minimum wage attach- determination absence of a minimum attachment ment, which listed the employees’ pay rate for this contract neither the contractor per hour, at $2.45 rather supple- than the any nor subcontractor under this con- mental bargaining collective agreement’s tract shall pay employee per- rate of $3.20. forming any of the contract work less than fringe benefits, pro- AU concluded that Vigilantes was vided for in predecessor’s bargaining not bound such collective collective bargaining agreements, agreement employee to which it such because was not negotiated entitled, “arms-length.” employed at would be if under the The AU contract_ predecessor found that appropriate wage rate No per hour. He or $2.65 further under this may held that with subcontractor contract respect to the other obligation relieved of the foregoing contracts had 4.1c(b) committed violations of the minimum unless the limitations of § wage fringe provisions unless the Secretary or or his of the Labor SCA, including overtime, violations for representative authorized holi- determines day pay, and vacation and that that bargaining agree- collective gun liable for the cost prior ment permits applicable to service em- to October expense and the ployed of obtain- predecessor contract guard a license and renewal of such was not into as entered a result of license. Using Vigilantes’ computa- arms-length negotiations, finds, own after tion of the (except SCA violation hearing a as provided Depart- in Labor 9. In current it is more Secretary. form favorable to the 4.10, Proper Wage Rate regulations, 29 C.F.R.
ment provided the 1977 Contract fringe benefits wages and are substantial- agreement for in such an outset, emphasize we At the prevail which those ly at variance with First, opinion is twofold. our focus this similar in the of a character for services contract—one out we examine locality. whether the ten contracts —to determine supplied.) (emphasis 29 C.F.R. § agree bargaining predecessor’s collective Vigilantes had Secretary, According Later in applicable. ment’s rate was hearing requesting burden of all of the opinion we ten focus to have Secre- sought they never since whether contracts determine bargain- collective tary determine from debarment. should be relieved was not entered at issue ing agreement portion of Sec Mindful of the italicized they negotiation, arms-length into after 4(c), ante,10 approached the AU tion statutory obli- of their not relieved “were question of fact. as a arms-length matter of per hour rate pay the gation $3.20 concluded, twenty because the largely He agree- bargaining in the collective year the final increase was for cents ment.” *5 began only that when contract the AU held that The further therefore did not to take over and was met concluding appellants had in that erred who had done the predecessor affect establishing the existence their burden of predecessor that the was un negotiating, re- to warrant “unusual circumstances” of bargaining. in its and carefree concerned as re- sanction lief from the debarment an to decide on such He failed to note that regulation, 29 implementing quired would, effect, meaning make inference 4.188(b)(3)(i). Although he found C.F.R. § negotiate for the right to less the Union’s Act, repeated of the history of violations no unless, conceivably, they were year, second Vigilantes’ violations he concluded also, in He select negotiating downward. nature, involving signifi- serious were $2.65, his conclu explain not how ing did many money affecting and of cant amount predeces that the invalidated the $3.00 sion employees. year, itself the accepted for sor had first if to the contract which remained Opinion District Court’s amendment was void. Vigilantes sought review of Secre- not point, in the United States the AU did note tary’s Final Decision More to the of Puerto of 29 C.F.R. emphasized portion for District District Court ante, provides that a Rico, asserting Secretary’s 4.6(d)(2), conclu- suc- that the § of its by the not be relieved Vigilantes was bound contractor shall sion that cessor predecessor bargaining agreement, set forth their predecessor’s rates bargaining agree- collective contractor’s or his Secretary of Labor au- unless debarring Vigilantes his order ment and determines that representative thorized 5(a) of the SCA were pursuant to Section not was entered agreement ... ... of discre- “arbitrary, capricious, an abuse negotia- arms-length of into as a result tion, in accordance with or otherwise not tions. 706(2)(A). In accordance 5 law.” U.S.C. § Secretary, who for the question SCA, 4(a) of the the district with determination,11 and no had made such applied “preponderance court for the AU at all. no there was issue affirmed the Secre- standard and evidence” It should not be good makes sense. F.Supp. This respects. in all tary’s decision to take it on open to a successor 57. claim, figure, See, also, 2(a). $3.00 it does answer this not § U.S.C. 10. arms-length, or not one think which no could says $2.45 now that the attachment explain $2.45 had come from. otherwise where was not $3.20 determination that an was a arms-length bargain. Passing lateness of predecessor its own to decide that his s If there could thought be any to be such agreement implication properly negotiated was not it fully seems an- swered 4.165(c). 29 C.F.R. suspense leave all in until there has been a (c) complaint The prevailing and a trial before an AU.12 rate established Rather, determination remedy: ap- there is an immediate under the Act is a minimum rate. A pre- contractor is not Secretary. to the ply cluded from paying wage rates in excess that, have it would even if of those determined to prevailing in duly negotiated, agreement not particular locality. Nor does the Act binding 4.6(d)(2). on it because of Section require or the changing any affect If this contract succeeds a provisions sub- union specify- contracts ject to the Service Contract higher monetary wages Act of 1965 fringe than amended, benefits those contained in an substantially appli- which cable However, determination. if a de- the same services were furnished and for a termination class of employ- service paid service wages ees contains a or fringe benefit benefits for in a collec- provision higher which is than speci- bargaining agreement, tive then in the fied in existing an union absence a minimum attach- provision determination’s prevail will ment this contract neither the con- any performed work on a contract sub- tractor nor subcontractor under this ject to the determination. contract pay any shall employee (Emphasis supplied). performing any the contract work less Our dissenting Brother asks what is the than the pro- purpose of the language italicized in 29 vided for in bargaining such collective *6 C.F.R. if not to raise the infer- agreement.... appellants ence that claim. respectful- We (Emphasis supplied.) The contention is ly suggest that he has properly inter- not that since there a wage was minimum at- preted 4.165(c). the last sentence of This tachment the pay contractor “shall ... less applies, believe, we when the collective bar- wages than the and benefits....” gaining agreement calls a wage lower Passing the fact that the $2.45 minimum than Secretary feels the mini- should be wage ringer attachment was a true —the agree mum. with the Secretary’s We con- wage $2.65, Puerto Rico minimum we appellants clusion that were bound to re- believe this was a negative preg- not lawful spect the terms of the bargaining collective nant, pregnancy but a produce that would which, concededly, they had illegitimate an telling result: a contrac- knowledge, though copy even a was not tor what is the wage you minimum are contracts, attached to their and without telling that, viz., him that he pay only must regard the erroneous wage to minimum less than the bargaining agree- collective attachment. Surely diminishing ment. bargaining A about our word Brother’s claim that agreements purpose is not the overall was unfair DOL in a 1978 because Rather, SCA. provide it is “intended to audit it to discover appellants’ failed under- safety protection payments. Passing the that it does fact working government service.” Sen- (the appear not bargaining when in 1978 (Labor Report Welfare) ate Public 92- agreement 1, only ran from October 1977 1131, reprinted, 3534, in 1972 U.S.C.A.A.N. 30, 1978) appellants to June learned of the (92nd Sess.), Cong. see, also, 3534 2nd Sen- audit, claiming estoppel against govern- (Labor Report ate Welfare) and Public 798 ment heavy carries a burden. Heckler v.
reprinted 3737, in 1965 U.S.C.A.A.N. Community Health Services of Crawford (89th Sess.). 3737-38 1st Cong. Inc., 51, 2218, County, 467 U.S. 104 S.Ct. 1986, parties We do not have remind the to tember 1981 to October and we are still years, initial AU Sep- decision here five litigating. took 1418 (1984). present, 42 Here all bearing good
81 L.Ed.2d cumstances” are on faith. persist paying did less was to no than it should have. This was basis for Secretary’s findings We review the dissenting estoppel. Even our brother is preponderance determine whether a year penalty, post, satisfied with the three supports Vigi- evidence his conclusion that
quite apart particular from that action. bidding lantes should be barred from government contracts. To his determina- sum, agree stating In a we cannot obligated tion that stating read as minimum is to be predeces- rate established in the pass, accordingly, maximum one. We supplemental bargaining sor’s collective the second issue. agreement findings was added the AU’s Vigilantes’ deficiencies under the oth- Vigilantes’ The Debarment: er contracts were numerous and amounted Under the Performance $70,000. Vigilantes to more than failed to Ten Contracts aggravated show that the circumstances of legislative history of the SCA Part I of the debarment test were not makes clear that debarment of contractors present. Assuming that its failure to com- norm, who violated the should SCA ply with the labor standards of the SCA exception, not the the most com willful, was not the violations demonstrate pelling justifications should a vio relieve pattern culpable neglect. Vigilantes lating contractor from that In sanction. adequate had more than notice that viola- 1972, the SCA was amended to circum tions of the SCA would result in the debar- scribe the discretion of the sanction; investigated ment it was in 1978 granting relief from debarment. See comply and notified that failure to with the 4.188(b)(2) (citing Proposed C.F.R. § SCA would result debarment. This ear- Amendments to the Service Contract Act: warning ly was to no avail. Hearings on H.R. comply regulations failed to with the con- Before Spec. Subcomm. on Labor cerning payment holiday of overtime and of Labor, House Comm. on Education and pay, separately failed to state the basic (1971)). 5(a) Cong., 92d 1st Sess. benefits, rates and failed to that, provides “[ujnless the SCA Secre keep appropriate prior records *7 tary recommends otherwise because of un consistently employees failed to reimburse circumstances,” (1) usual gun prior the service contrac for licenses October (2) licenses, guard tor who violates the Act shall for be debarred and failed to 354(a). compensate employees years. for three Al for Ad- U.S.C. vacations. § ditionally, Vigi- the record though the Act does not establishes that define “unusual circumstances,” prerequisites lantes did not meet the of regulations at 29 II, prompt pay- Part one of 4.188(b) which is the part C.F.R. a establish three § due; ment of monies it had to sued in test. Part I asks whether the contractor’s Indeed, order for DOL to collect. after “willful, violations were deliberate of an conducting payroll an audit of a disburse- aggravated “culpa nature” or the result of ment for six of the ten in contracts culpable neglect ble conduct such as Vigilantes’ own accountant found that practices ascertain whether are in [or were] wage appeared for most em- “[deficiencies comply violation” or failure to with record- ployees.” keeping requirements. 29 C.F.R. 4.188(B)(3)(i). Part II calls for the fol § clearly The record shows that the AU lowing prerequisites present: good to be a did not the “unusual circumstances” compliance history, cooperation in the in 4.188(b)(3). test as formulated in Section vestigation, repayment due, moneys of Vigilantes sizable, operations fairly were compliance. sufficient assurances of future involving employees hundreds of and ten Finally, if in the conditions Part I and II contracts with FAA and GSA. Each of met, are a specified number of factors are con these contracts that the contrac- sidered to determine whether responsible complying “unusual cir- tor was for with the SCA, including furnishing equipment First, all istrative record. in the 1977 con- perform needed to satisfactorily the tract, armed Vigilantes was the sub-contractor services, guard yet Vigilantes committed and the Federal Aviation Administration continuous violations of the SCA and its (“FAA”) was the contractor. This impor- is regulations, including deficiencies in the Vigilantes tant because played secondary payment pay, of holiday pay, overtime va- role in negotiating process and both the pay, cation keeping adequate FAA and Vigilantes DOL informed pay records, equip- and the reimbursement for Second, $2.45 rate. and most perform ment needed to the services. We important, DOL investigated Vigilantes in Secretary’s conclude that decision to 1978 for Fair Labor Standards Act and Vigilantes years debar for three is based SCA time, violations. At the DOL found preponderance on a of the evidence. compliance was in full with SCA, including provisions dealing
Affirmed. payment with the proper of a wage rate. TORRUELLA, Judge Circuit (concurring' This investigation raises an issue of basic part dissenting part). fairness; say how can we that the Secre- related, This case involves two ulti- but tary’s supported by decision is preponder- mately independent (1) perform- issues: ance of the evidence when appellant Vigilantes ance of under one con- by informed DOL in 1978—after a full in- (2) tract —the 1977 contract—and its overall vestigation payment virtue of its —that performance contracts, including under ten rate determined DOL— agree the 1977 I majori- contract. with the fully complying $2.45 was pro- with the —it ty Vigilantes’ performance overall un- visions of the SCA?14 der the ten supports contracts the Secre- respect, With all due I majori- believe the tary’s decision Vigilantes. to debar Never- ty’s analysis reads regulation out of the theless, I in concluding believe that following plain language of Section compelled pay a $3.60 4.6(d)(2): contract, rate under the 1977 majority overlooks facts. crucial Accord- If this contract succeeds a sub- majority, to the 29 C.F.R. & ject to the Service Contract Act of 1965 4.165(c) support would following amended, substantially under which holding; if a sub-contractor takes over a the same services furnished and were service contract and it is informed paid wages agency charge administering the Ser- a collec- (“SCA”) vice Contract Act Depart- —the bargaining agreement, tive then in the (“DOL”) ment Labor is the $2.45 —that absence a minimum attach- proper wage rate to under that service ment this contract neither the con- contract, the sub-contractor should never- *8 any tractor nor subcontractor under this disregard theless DOL’s determination pay any employee contract shall service pay and another agree. rate.13 I cannot performing any of the contract work less
I respectfully suggest majority fringe that the than the benefits ignored has two crucial in added). facts the admin- (emphasis Id. sense, majority’s given In this the Vigilantes conclusion that was "an erroneous
13. open wage should a Op. ”[i]t not be to successor contrac- minimum attachment.” at 1417. tor to take it on its own to decide that his predecessor's agreement nego- properly was not Contrary majority’s implicit to the character- suspense tiated and leave all in until there has views, my ization of I that do not claim DOL ALJ,” complaint Op. been a and a trial before an estopped bringing was from forth claims under 1416-17, at is a sound one. Yet it has no bear- Rather, Op. the 1977 contract. at 1418. the fact on the facts of this case because investigation that DOL’s Vigilantes in 1978 concluded that by was informed both the DOL and the FAAthat paying proper wage rate is pay wage it should determined in the Vigilantes' attach- supporting another fact claim that majority recognizes, ment. As the Secretary’s later supported by instead the preponderance decision is not a receiving copy bargaining of a of the collective of the evidence. majority significance The attributes no effect at the time the determination language. Regardless this clear of how we Department was made. The considers information_ characterize language, pertinent the underlined it The de- all unambiguous seems to me that it is and we may terminations be based on the wage dispositive should it.15 The fringe rates and issue con- benefits light here is whether in of Section agreements tained in union where there are facts sufficient to show that prevail such have been determined to grossly negligent DOL’s locality administration of specified occupation- a for a ignore we choose to group. SCA —unless al conclusive. Section led it was the DOL plicable provisions ing higher monetary wages of those determined affect minimum rate. A The The cluded wage contract gave Vigilantes particular locality. majority’s prevailing wage or from determination under the Act is a than those contained in an determination.... proper wage require of paying union finds 29 C.F.R. § informed 4.165(c) provides: contractor is not a lower to be rate established contracts more than once— changing wage Nor does the Act rates in excess prevailing rate for the wage specify- 4.165(c) of rate. pre- ap- by who most recent tions for bids issued of the the minimum contract of the determined contractors are determinations of the Act are subcontractors on contracts (c) Informing Contractors and ble determinations. [*] the award fringe will benefits [*] perform apprised benefits.... applicable contractors of by specification contracting agency, monetary wages [*] applicable or advised, for service the contract negotiation of the [*] determinations in the invita- at the time Prospective wage Secretary’s employees [*] subject applica- papers in the work, rates [*] of added). (emphasis majority relies on added). (emphasis 4.164(a) (c) Sections & 4.165(c) to conclude that a sub- conclusively Secretary’s show that the deci- compelled second-guess is supported by preponderance sion is not provided directives by DOL relative to the evidence. As the AU concluded: wages. language 4.165(c), of Section “[Vigilantes] contradictory, received incor- however, merely restates princi- the basic rect, many instances; or no information in ple that the minimum determination and that must be taken into account preclude does not payment higher evaluating [Vigilantes’] performance.” A wages by means of a post-wage determi- provision supports further Vigi- SCA nation union importantly, contract. More argument lantes’ that DOL misled it at the time the 1977 contract negotiat- providing an erroneous determina- ed, regulations other then in effect showed 2(a) provides every tion. Section con- inexperienced that an sub-contractor like tract for services entered into the Unit- Vigilantes was rely entitled to on the ed shall States contain: determinations by DOL. provision A (1) specifying the mini- 4.164(a) (c) (1977), C.F.R. & preced- which monetary wages paid mum to be 4.165, provided: ed Section various classes Making 4.164 determinations performance the contract or any *9 informing contractors thereunder, subcontract as determined (a) considered. Secretary, rep- or his authorized Information resentative, minimum monetary wages prevail- in accordance with benefits set forth in determinations of rates for such in the locali- or, are based on information ty, where a collective-bargaining as to rates and agreement benefits in covers such service em- fact, presence 15. In agreement of a negotiated length determination at arm's little, any, attachment here renders significance. the issue of whether not of if ployees, in accordance with the rates for employees provided
such such including prospective wage agreement increases in such arm’s-length negotiations. as a result of 351(a) added). (emphasis U.S.C. Nei- ther majority the district court nor the 2(a), although
mention Section this Sec- together regulations with other tion— previously conclusively discussed show — determination attached to the 1977 contract would have led a reason-
able contractor to believe that he or she obliged rate as estab- lished DOL.16 goal protect of SCA is to labor. But goal case; has no relevance in this question here is who should bear the re-
sponsibility for mistakes made
DOL? It seems axiomatic under basic principles of administrative law that a SCA penalized
contractor should for not following DOL’s determinations. If agency responsible
DOL—the for the ad- ministration of the SCA—informs a sub- complying it is with the
statute, should the go sub-contractor out of way question agency’s determina- tion?
I respectfully dissent. NAVARRO-AYALA,
Roberto et al., Plaintiffs, Appellees,
v. NUNEZ, Defendant, Appellant. Jose A.
No. 91-2084. Appeals, United States Court of First Circuit. 4,May Heard 1992. July Decided argument case, government they 16. At oral conceded and that in this included an errone- *10 obligation it had an to include a ous rate determination. determination attachment to the 1977