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(6) Rights of action and intervention against contractors and sureties.
If the accrued payments withheld under the terms of the contract, as aforesaid, are insufficient to reimburse all the laborers and mechanics with respect to whom there has been a failure to pay the wages required pursuant to sections 327-332 of this title, such laborers and mechanics shall, in the case of a department or agency of the Federal Government, have the rights of action and/or of intervention against the contractor and his sureties conferred by law upon persons furnishing labor or materials and in such proceedings it shall be no defense that such laborers and mechanics accepted or agreed to accept less than the required rate of wages or voluntarily made refunds. (c) Right of contractors to appeal; limitations; administrative determina
tion; review by Secretary and issuance of final decision; filing claim in
Court of Claims. Any contractor or subcontractor aggrieved by the withholding of a sum as liquidated damages as provided in sections 327–332 of this title shall have the right, within sixty days thereafter, to appeal to the head of the agency of the United States or of the territory for which the contract work is done or by which financial assistance for the work is provided, or to the Commissioners of the District of Columbia in the case of liquidated damages withheld for the use and benefit of said District. Such agency head or Commissioners, as the case may be, shall have authority to review the administrative determination of liquidated damages and to issue a final order affirming such determination; or, if it is found that the sum determined is incorrect or that the contractor or subcontractor violated the provisions of sections 327–332 of this title inadvertently notwithstanding the exercise of due care on his part and that of his agents, recommendations may be made to the Secretary that an appropriate adjustment in liquidated damages be made, or that the contractor or subcontractor be relieved of liability for such liquidated damages. The Secretary shall review all pertinent facts in the matter and may conduct such investigations as he deems necessary, so as to affirm or reject the recommendation. The decision of the Secretary shall be final. In all such cases in which a contractor or subcontractor may be aggrieved by a final order for the withholding of liquidated damages as hereinbefore provided, such contractor or subcontractor may, within sixty days after such final order, file a claim in the Court of Claims: Provided, however, That final orders of the agency head, the Commissioners of the District of Columbia or the Secretary, as the case may be, shall be conclusive with respect to findings of fact if such findings are supported by substantial evidence. (d) Applicability of other laws.
Reorganization Plan Numbered 14 of 1950 shall be applicable with respect to the provisions of sections 327–332 of this title, and section 2 of the Act of June 13, 1934, as amended, shall be applicable with respect to those contractors and subcontractors referred to therein who are engaged in the performance of contracts subject to the provisions of sections 327-332 of this title. (Pub. L. 87–581, title I, § 104, Aug. 13, 1962, 76 Stat. 358.) 8331. Limitations, variations, tolerances, and exemptions.
The Secretary may provide such reasonable limitations and may make such rules and regulations allowing reasonable variations, tolerances, and exemptions to and from any or all provisions of sections 327-332 of this title as he may find necessary and proper in the public interest to prevent injustice or undue hardship or to avoid serious impairment of the conduct of Government business (Pub. L. 87–581, title I, $ 105, Aug. 13, 1962, 76 Stat. 359.)
$ 332. Violations; penalties.
Any contractor or subcontractor whose duty it shall be to employ, direct, or control any laborer or mechanic employed in the performance of any work contemplated by any contract to which sections 327–332 of this title applies, who shall intentionally violate any provision of such sections, shall be deemed guilty of a misdemeanor, and for each and every such offense shall, upon conviction, be punished by a fine of not to exceed $1,000 or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court having jurisdiction thereof. (Pub. L. 87-581, title I, § 106, Aug. 13, 1962, 76 Stat. 359.)
8 333 Health and safety standards in building trades and constructions in
dustry-Condition of contracts; proceedings for promulgation of regula
tions: hearing, consultation with Advisory Committee. (a) It shall be a condition of each contract which is entered into under legislation subject to Reorganization Plan Numbered 14 of 1950, and is for construction, alteration, and/or repair, including painting and decorating, that no contractor or subcontractor contracting for any part of the contract work shall require any laborer or mechanic employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards promulgated by the Secretary by regulation based on proceedings pursuant to section 553 of Title 5, provided that such proceedings include a hearing of the nature authorized by said section. In formulating such standards, the Secretary shall consult with the Advisory Committee created by subsection (e) of this section. Compliance with section and regulations: inspections, hearings, orders, find
ings of fact, and decisions; application of sections 38 and 39 of Title 41; opportunity for hearing; consequences of noncompliance; cancellation of contracts, completion contracts, additional costs, and withholding of
assistance; nonapplication of section 330 of this title (b) The Secretary is authorized to make such inspections, hold such hearings, issue such orders, and make such decisions based on findings of fact, as are deemed necessary to gain compliance with this section and any health and safety standard promulgated by the Secretary under subsection (a) of this section, and for such purposes the Secretary and the United States district courts shall have the authority and jurisdiction provided by sections 38 and 39 of Title 41. In the event that the Secretary of Labor determines noncompliance under the provisions of this section after an opportunity for an adjudicatory hearing by the Secretary of any condition of a contract of a type described in clause (1) or (2) of section 329(a) of this title, the governmental agency for which the contract work is done shall have the right to cancel the contract, and to enter into other contracts for the completion of the contract work, charging any additional cost to the original contractor. In the event of noncompliance, as determined by the Secretary after an opportunity for an adjudicatory hearing by the Secretary, of any condition of a contract of a type described in clause (3) of section 329(a) of this title, the governmental agency by which financial guarantee, assistance, or insurance for the contract work is provided shall have the right to withhold any such assistance attributable to the performance of the contract. Section 330 of this title shall not apply to the enforcement of this section.
Jurisdiction: cause shown: enforcement of compliance (c) The United States district courts shall have jurisdiction for cause shown, in any actions brought by the Secretary, to enforce compliance with the construction safety and health standard promulgated by the Secretary under subsection (a) of this section. Finding of ineffective protection against violations; transmission of names of
violators to Comptroller General; contract awards prohibition; termination of restriction and notification of Comptroller General and Govern
ment agencies; judicial review (d) (1) If the Secretary determines on the record after an opportunity for an agency hearing that, by repeated willful or grossly negligent violations of sections 327–333 of this title, a contractor or subcontractor has demonstrated that the provisions of subsections (b) and (c) of this section are not effective to protect the safety and health of his employees, the Secretary shall make a finding to that effect and shall, not sooner than thirty days after giving notice of the findings to all interested persons, transmit the name of such contractor or subcontractor to the Comptroller General.
(2) The Comptroller General shall distribute each name so transmitted to him to all agencies of the Government. Unless the Secretary otherwise recommends, no contract subject to this section shall be awarded to such contractor or subcontractor or to any person in which such contractor or subcontractor has a substantial interest until three years have elapsed from the date the name is transmitted to the Comptroller General. If, before the end of such three-year period, the Secretary, after affording interested persons due notice and opportunity for hearing, is satisfied that a contractor or subcontractor whose name he has transmitted to the Comptroller General will thereafter comply responsibly with the requirements of this section, he shall terminate the application of the preceding sentence to such contractor or subcontractor (and to any person in which the contractor or subcontractor has a substantial interest); and when the Comptroller General is informed of the Secretary's action he shall inform all agencies of the Government thereof.
(3) Any person aggrieved by the Secretary's action under subsections (b) or (d) of this section may, within sixty days after receiving notice thereof, file with the appropriate United States court of appeals a petition for review of such action. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary, who shall thereupon file in the court the record upon which he based his action, as provided in section 2112 of Title 28. The findings of fact by the Secretary, if supported by substantial evidence, shall be final. The court shall have power to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part, the order of the Secretary or the appropriate Government agency. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of Title 28. Advisory Committee on Construction Safety and Health; establishment;
membership; appointment; representation of interests; advice in formulation of standards, regulations, and policy matters; appointment of
experts or consultants; compensation, travel expenses, etc. (e) (1) The Secretary shall establish in the Department of Labor an Advisory Committee on Construction Safety and Health (hereinafter referred to as the “Advisory Committee") consisting of nine members appointed, without regard to the civil service laws, by the Secretary. The Secretary shall appoint one such member as Chairman. Three members of the Advisory Committee shall be persons representative of contractors to whom this section applies, three members shall be persons representative of employees primarily in the building trades and construction industry engaged in carrying out contracts to which this section applies, and three public representatives who shall be selected on the basis of their professional and technical competence and experience in the construction health and safety field.
(2) The Advisory Committee shall advise the Secretary in the formulation of construction safety and health standards and other regulations, and with respect to policy matters arising in the administration of this section. The Secretary may appoint such special advisory and technical experts or consultants as may be necessary to carry out the functions of the Advisory Committee.
(3) Members of the Advisory Committee shall, while serving on the business of the Advisory Committee, be entitled to receive compensation at rates fixed by the Secretary, but not exceeding $100 per day, including traveltime; and while so serving away from their homes or regular places of business, they may be allowed travel expenses, including per diem in lieu of subsistance, as authorized by section 5703 of Title 5 for persons in the Government service employed intermittently. Safety programs: promotion; prevention of injuries through reports, data,
and consultations with employers (f) The Secretary shall provide for the establishment and supervision of programs for the education and training of employers and employees in the recognition, avoidance, and prevention of unsafe working conditions in employments covered by sections 327–333 of this title, and to collect such reports and data and to consult with and advise employers as to the best means of preventing injuries (Pub. L. 87–581, Title I, § 107, as added Pub. L. 91–54, § 1, Aug. 9, 1969, 83 Stat. 96).
REORGANIZATION PLAN NO. 14 OF 1950
15 F.R. 3176, 64 Stat. 1267 Prepared by the President and transmitted to the Senate and the House of
Representatives in Congress assembled, March 13, 1950, pursuant to the provisions of the Reorganization Act of 1949, approved June 20, 1949 [sections 133z to 1332–15 of this title].
LABOR STANDARDS ENFORCEMENT In order to assure coordination of administration and consistency of enforcement of the labor standards provisions of each of the following Acts by the Federal agencies responsible for the administration thereof, the Secretary of Labor shall prescribe appropriate standards, regulations, and procedures, which shall be observed by these agencies, and cause to be made by the Department of Labor such investigations, with respect to compliance with and enforcement of such labor standards, as he deems desirable, namely: (a) The Act of March 3, 1931 (46 Stat. 1494, ch. 411), as amended [sections 276a to 276a-6 of Title 40]; (b) the Act of June 13, 1934 (48 Stat. 948, ch. 482) [section 276c of Title 40]; (c) the Act of August 1, 1892 (27 Stat. 340, ch. 352), as amended [sections 321-323 of Title 40]; (d) the Act of June 19, 1912 (37 Stat. 137, ch. 174), as amended [sections 324 and 325 of Title 40]; (e) the Act of June 3, 1939 (53 Stat. 804, ch. 175), as amended [sections 1703, 1708– 1711, 1713, 17150, 1716 of Title 12]; (f) the Act of August 13, 1946 (60 Stat. 1040, ch. 958) [sections 291–291m of Title 42]; (g) the Act of May 13, 1946 (60 Stat. 170, ch. 251), as amended [sections 1101-1119 of Title 49]; and (h) the Act of July 15, 1949 (ch. 338, Public Law 171, Eighty-first Congress, first session (sections 1416, 1451-1460 of Title 42]).
WAGE APPEALS BOARD, ESTABLISHMENT AND FUNCTIONS,
SECRETARY OF LABOR
[Secretary's Order No. 32–63]
DEPARTMENT OF LABOR, OFFICE OF THE SECRETARY 1. Authority. This order is issued pursuant to R.S. 161 (5 U.S.C. 22), Reorganization Plan No. 6 of 1950 (5 U.S.C. 611 note) and Reorganization Plan No. 14 of 1950 (5 U.S.C. 1332–15 note).
2. Purpose. The purpose of this Order is to establish a Wage Appeals Board and to authori: he Board to carry out certain functions of the Secretary of Labor under Reorganization Plan No. 14 of 1950 (5 U.S.C. 1337-15 note), any statutes subject to that Plan, which include Davis-Bacon Act (40 U.S.C. 276–7), and as extended to the Federal-Aid Highway Act of 1956 (23 U.S.C. 113); Copeland Act (40 U.S.C. 276c); Contract Work Hours Standards Act (40 US.C. 327–330); National Housing Act (12 U.S.C. 1713, 1715a, 1715c, 1715k, 17151(d) (3) and (4), 1715v, 1715w, 1715x, 1743, 1747, 1748b, 1748h-2, 1750g); Hospital Survey and Construction Act (42 U.S.C. 291h); Federal Airport Act (49 U.S.C. 1114); United State Housing Act of 1937 (42 U.S.C. 1416); Housing Act of 1949 (42 U.S.C. 1459); School Survey and Construction Act of 1950 (20 U.S.C. 636); Defense Housing and Community Facilities and Services Act of 1959 (42 U.S.C. 1592i); Federal Civil Defense Act of 1950 (50 U.S.C. App. 2281); Area Redevelopment Act (42 U.S.C. 2518); Delaware River Basin Compact (sec. 15.1, 75 Stat. 714) and also under the Federal Water Pollution Control Act (33 U.S.C. 4663); the College Housing Act of 1950 (12 U.S.C. 1749a), and the Housing Act of 1959 (12 U.S.C. 17019), and to carry out those functions under the rules promulgated pursuant to the Plan and other authority published in 29 CFR Parts 1 and 5. The establishment of the Board and the delegations of authority thereto also necessitate some changes in the delegations of authority to the Solicitor of Labor under the statutes involved. These changes are made in Paragraph 12 of this Order.
3. Rescission of previous Order. General Order No. 41 of the Secretary of Labor (18 F.R. 2609) is hereby rescinded.
4. Establishment of Wage Appeals Board. There is hereby established a Wage Appeals Board which shall be directly responsible to the Secretary of Labor for the proper performance of the delegated authority conferred in Paragraph 8 of this Order. The Board shall operate under the rules of the Secretary of Labor interpreting or applying the statutes listed in Paragraph 2 of this Order.
5. Composition. The Board shall consist of three public members, one of whom shall be designated Chairman. The members of the Board shall be appointed by the Secretary of Labor, and shall be selected upon the basis of their qualifications and competence in matters within the authority of the Board.
6. Voting. The Chairman of the Board may, in his discretion, designate
himself or any other member of the Board to decide any appeal provided the interested persons or parties have consented to the disposition of the appeal in this manner. The Chairman may also direct that any appeal may be decided by a panel of any two members of the Board, but if they are unable to agree upon a decision, the case will be decided by the full Board. When an appeal is decided by all three members of the Board, a majority vote shall be necessary for decision. Any decision in any other matter shall also be by a majority vote.
7. Location of Board proceedings. The Board shall hold its proceedings in Washington, D.C., unless for good cause the Board orders that proceedings in a particular matter be held in another location.
8. Authority of the Board. The Board shall act as the authorized representative of the Secretary of Labor in deciding appeals, concerning question of fact and law, taken in the discretion of the Board, from wage determinations issued under the Davis-Bacon Act and its related minimum wage statutes and under 29 CFR Part 1; appeals taken, in the discretion of the Board, in debarment cases arising under 29 CFR Part 5; disputes coming before the Board, in its discretion, concerning the payment of prevailing wage rates or proper classifications which involve significant sums of money, large groups of employees, or novel or unusual situations; and, in its discretion, in reviewing the recommendations of a Federal agency for appropriate adjustment of liquidated damages which are assessed under the Contract Work Hours Standards Act. On any question of law, the Board shall act on the advice of the Solicitor.
9. Rules of practice and procedure. The Board may recommend to the Secretary such rules as it deems necessary or appropriate for the conduct of its proceedings. The Secretary shall issue rules implementing the recommendations of the Board.
10. Department Counsel. The Solicitor or his designee shall represent the Department in each proceeding before the Board.
11. Authority of Solicitor. Except: (1) as provided in Paragraph 8 of this Order and (2) in the promulgation of general rules pursuant to Reorganization Plan No. 14 of 1950, the Solicitor of Labor shall act as the authorized representative of the Secretary of Labor in carrying out the duties and responsibilities of the Secretary of Labor under the Davis-Bacon Act (40 U.S.C. 276a-7), Federal-Aid Highway Act of 1956 (23 U.S.C. 113), Copeland Act (40 U.S.C. 276c), Contract Work Hours Standards Act (40 U.S.C. 327-330), National Housing Act (12 U.S.C. 1713, 1715a, 17150, 1715k, 1715(d) (3) and (4), 1715v, 1715w, 1715x, 1743, 1747, 1748b, 1748h-2, 1750g), Hospital Survey and Construction Act (42 U.S.C. 291h), Federal Airport Act (49 U.S.C. 114), United States Housing Act of 1937 (42 U.S.C. 1416), Housing Act of 1949 (42 U.S.C. 1459), School Survey and Construction Act of 1950 (20 U.S.C. 636), Defense Housing and Community Facilities and Services Act of 1951 (42 U.S.C. 1592i), Federal Civil Defense Act of 1950 (50 U.S.C. App. 2281), Area Redevelopment Act (42 U.S.C. 2518), the Housing Act of 1959 (12 U.S.C. 17019), Delaware River Basin Compact (sec. 15.1, 75 Stat. 714), Federal Water Pollution Control Act (33 U.S.C. 466e), College Housing Act of 1950 (12 U.S.C. 1749a), the Tennessee Valley Authority Act (16 U.S.C. 831b), Reorganization Plan No. 14 of 1950, and the rules published in 29 CFR Parts 1, 3, and 5. The Solicitor may subdelegate his duties and responsibilities under this paragraph. Signed at Washington, D.C., this 30th day of December 1963.
W. WILLARD WIRTZ,
Secretary of Labor. DEPARTMENT OF LABOR 1
Office of the Secretary
[Secretary's Order 21-67] LABOR STANDARDS ON FEDERALLY FINANCED OR ASSISTED WORK
Delegation of Enforcement Responsibility 1. Purpose. The purpose of this order is to delegate authority and to assign responsibility for performance of functions of the Secretary of Labor under the wage standards provisions of each of the laws referred to below:
132 F.R. 14802, Oct. 25, 1967.