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Tags: administrative action, bither, bowsher, california corporation, case summary, central district of california, comptroller general, contract act, declaratory relief, honorable charles, labor employment law, motion for summary judgment, o hara, procedural posture, states district court, trucking business, trucking company, united states department, united states department of labor, united states district,Pages: 6
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KEVIN BITHER and BARRY BITHER, as individuals, and dba as K.B. BITHER
TRUCKING, INC., a California corporation, formerly known as K.B. BITHER
TRUCKING COMPANY, Plaintiffs, v. THE HONORABLE LYNN MARTIN, in
her capacity as SECRETARY, UNITED STATES DEPARTMENT OF LABOR, and
HONORABLE CHARLES A. BOWSHER, in his capacity as THE UNITED
STATES COMPTROLLER GENERAL, Defendants.
No. CV 91-3455 CBM (Tx)
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF
CALIFORNIA
1992 U.S. Dist. LEXIS 14358; 122 Lab. Cas. (CCH) P35,667; 30 Wage & Hour
Cas. (BNA) 1615
March 16, 1992, Decided
March 17, 1992, Filed
CASE SUMMARY:
OUTCOME: The court granted defendants' motion for
summary judgment.
PROCEDURAL POSTURE: Plaintiffs, a trucking
business and its owners, filed suit against defendants, LexisNexis(R) Headnotes
Secretary of Labor and United States Comptroller Gen-
eral, seeking injunctive and declaratory relief from a
final administrative action by the United States Depart-
ment of Labor under the McNamara-O'Hara Service Administrative Law > Judicial Review > Standards of
Contract Act, 41 U.S.C.S. 351 et. seq. Review > General Overview
Labor & Employment Law > Wage & Hour Laws >
OVERVIEW: The Secretary found that plaintiffs vio- Coverage & Definitions > Minimum Wage
lated the Act by failing to pay their employees the mini- [HN1] Pursuant to 5 U.S.C.S. § 706(2)(A), the court
mum wage mandated by certain government contracts. may set aside the decision of the Secretary of Labor only
As a result, the Secretary ordered that plaintiffs be de- if it is arbitrary, capricious, an abuse of discretion, or
barred under § 5(a) of the Act, 41 U.S.C.S. § 354(a). otherwise not in accordance with law. While the ordinary
Plaintiffs sought to enjoin the Secretary and the Comp- burden of proof necessary to support an agency decision
troller General from enforcing the disbarment. The court under § 706(2)(A) of the Administrative Procedure Act
applied the preponderance of the evidence standard to is that of "substantial evidence," the McNamara-O'Hara
determine whether the Secretary's decision was proper. Service Contract Act (SCA) establishes a different bur-
The court determined that the Secretary correctly con- den. Section 5 of the Walsh-Healey Act, 41 U.S.C.S. §
cluded that there were no unusual circumstances to pre- 39, incorporated by § 4(a) of the SCA, 41 U.S.C.S. §
vent debarment in this case under the test set forth in 29 353(a), provides that the Secretary's factual findings shall
C.F.R. § 4.188(b). The court concluded that plaintiffs' be conclusive upon all agencies of the United States and
violation of the Act was willful, deliberate, and culpable. if supported by the preponderance of the evidence, shall
This finding was warranted given testimony that plain- be conclusive in any court of the United States. Ques-
tiffs knew they were violating the Act, but found it too tions of fact are governed by a "preponderance of the
difficult to adapt their payroll system to meet the various evidence" standard, whereas questions of law are subject
minimum wage requirements under the contracts. The to an "arbitrary and capricious" standard.
court granted defendants' motion for summary judgment
because it found that the Secretary's decision sustaining
plaintiffs' debarment had a rational basis and was sup- Administrative Law > Judicial Review > Standards of
ported by a preponderance of the evidence. Review > General Overview
Page 2
1992 U.S. Dist. LEXIS 14358, *; 122 Lab. Cas. (CCH) P35,667;
30 Wage & Hour Cas. (BNA) 1615
Labor & Employment Law > Wage & Hour Laws > monies due, and sufficient assurances of future compli-
Coverage & Definitions > Minimum Wage ance. 29 C.F.R. § 4.188(b)(3)(ii). Part III provides for
[HN2] The Secretary of Labor's regulations adopt the the consideration of additional factors, including:
preponderance standard. 29 C.F.R. § 4.189 states: The whether the contractor was previously investigated for
Secretary is authorized pursuant to the provisions of § violations; whether record keeping violations impeded
4(a) of the McNamara O'Hara Service Contract Act to the investigation; whether liability depended upon reso-
hold hearings and make decisions based upon findings of lution of a bona fide legal issue of doubtful certainty; the
fact as are deemed to be necessary to enforce the provi- contractor's efforts to ensure compliance; the nature, ex-
sions of the Act. Pursuant to § 4(a) of the Act, the Secre- tent, and seriousness of any past or present violations,
tary's findings of fact after notice and hearing are conclu- including the impact of violations on unpaid employees;
sive upon all agencies of the United States and, if sup- and whether sums due were promptly paid. 29 C.F.R. §
ported by the preponderance of the evidence, conclusive 4.188(b)(3)(ii).
in any court of the United States, without a trial novo.
JUDGES: [*1] MARSHALL
Labor & Employment Law > Wage & Hour Laws > OPINIONBY: CONSUELO B. MARSHALL
Coverage & Definitions > Minimum Wage
Public Contracts Law > Dispute Resolution > Debar- OPINION:
ment
FINDINGS OF FACT AND CONCLUSIONS OF
[HN3] Section 5(a) of the McNamara-O'Hara Service
LAW
Contract Act provides that unless the Secretary of Labor
recommends otherwise because of unusual circum- This is an action for injunctive and declaratory relief
stances, a service contractor who violates the Act shall from a final administrative action by the Department of
be debarred for three years. 41 U.S.C.S. § 354(a). Under Labor ("the DOL") under the McNamara-O'Hara Service
the clear language of the Act, no relief from debarment is Contract Act, as amended, 41 U.S.C. 351 et. seq. (here-
possible unless unusual circumstances are specifically inafter "SCA" or "the Act") and the regulations promul-
found. Section 5(a) of the Act is a particularly unforgiv- gated thereunder, 29 C.F.R. Parts 4, 6.
ing revision of a demanding statute. A contractor seeking
an "unusual circumstances" exception for debarment 2. In a complaint filed on October 17, 1986, the
must, therefore, "run a narrow gauntlet." Although the Administrator of the Wage and Hour Division ("Admin-
istrator") alleged minimum wage and record keeping
Act does not define "unusual circumstances," the regula-
tions at 29 C.F.R. § 4.188(b) establish by a three-part violations against plaintiffs Kevin and Barry Bither and
test the operative principles and procedures for determin- their business, Bither Trucking Company ("Bither"). The
ing when relief from debarment is appropriate. The bur- complaint also sought debarment under section 5(a) of
den of establishing unusual circumstances rests with the the SCA (4 U.S.C. § 354(a)). C.A.R. 2. The complaint
was amended on December 30, 1988 to allege additional
violator. 29 C.F.R. § 4. 188(b)(1).
violations disclosed during a post-complaint investiga-
tion. C.A.R. 170.
Labor & Employment Law > Wage & Hour Laws > 3. On May 10, 1989, a one-day hearing was held be-
Coverage & Definitions > Minimum Wage fore Administrative Law Judge ("ALJ") Thomas Schnei-
Public Contracts Law > Dispute Resolution > Debar- der. C.A.R. 232 et. seq. The hearing concerned 11 con-
ment tracts to perform mail hauling for the United Sates Postal
[HN4] Under Part I of the test to determine if unusual Service ("USPS"). Prior to the hearing, Bither [*2] had
circumstances exist to preclude debarment under the agreed to pay a total of approximately $ 21,000 to em-
McNamara-O'Hara Service Contract Act, the contractor ployees in settlement of the Administrator's backwage
must first show that no aggravated circumstances exist, claims. Most of the facts in this case were not in dispute;
that the violations were not willful, deliberate, or of an as stipulated by the parties, the only issue to be resolved
aggravated nature, or the result of culpable conduct such at the hearing was whether Bither should be debarred.
as culpable neglect to ascertain whether practices where C.A.R. 216, 237. Based on that proceeding, paragraphs
in violation of the Act, or culpable failure to comply with 4 through 8 are in the administrative record.
record keeping requirements; nor may the contractor
have a similar violation or have repeatedly or seriously 4. Of the 11 contracts at issue, all but one began be-
violated the Act. 29 C.F.R. § 4.188(b)(3)(i). Under Part tween June 1984 and April 1985 and, including renew-
II, the contractor must demonstrate a good compliance als, seven continued at the time of the hearing. The con-
history, cooperation in the investigation, repayment of tracts set wage rates which varied depending on the lo-
calities covered by the contracts and whether an em-
Page 3
1992 U.S. Dist. LEXIS 14358, *; 122 Lab. Cas. (CCH) P35,667;
30 Wage & Hour Cas. (BNA) 1615
ployee drove a "bobtail" truck or a "tractor/trailer" rig its drivers when they were hired. C.A.R. 261, [*5] 266.
(C.A.R. 28). It was possible for a driver to have more Under cross examination, Barry Bithers acknowledged
than one route, with more than one wage rate applicable that the brothers knew that their payment of a single rate
to his weekly mail hauls (C.A.R. 289-90). The required was a violation of wage determination requirements.
hourly wage rates of the ten 1984-85 contracts, including C.A.R. 274. He testified that his energies went toward
fringe benefits, ranged between $ 10.45 and $ 11.65. getting the mail delivered on time. C.A.R. 265. Mr. Bith-
C.A.R. 411. However, Bither, knowing it was wrong, ers staid that the firm's payroll solution was temporary,
only paid its employees a flat rate of $ 9.00 per hour dur- based on exigency. C.A.R. 266-267. Barry Bithers also
ing the period covered by the first investigation. C.A.R. acknowledged that it took a long time until the firm se-
261, 327, 354:11-15. No payment above [*3] the flat cured the services of a payroll company. C.A.R. 284.
rate was made for fringe benefits. C.A.R. 276:23-24. This "temporary" solution of underpaying many of their
employees lasted over a year until 1986 when the Bithers
5. Bither's violation also resulted from its failure to
finally hired Automatic Data Processing ("ADP") to
increase its employees' wage rates at the proper time, as
handle the payroll. C.A.R. 284, 287.
required by the contracts. C.A.R. 130. Bither's practice
was to delay paying its employees the increased amounts 8. Company president Kevin Bither's testimony pro-
until the USPS granted the company's request for an ad- vided additional details with regard to the second group
justment in its compensation, usually a month or two of violations. C.A.R. 364-365. Mr. Bither acknowledged
after the pay increases were due. C.A.R. 364-365. that the company had failed to raise the pay of its em-
ployees when new wage rates went into effect, as dis-
6. Barry Bither, company vice-president, testified
closed by the second investigation, but he stated that the
about the company's history as a mail hauler, describing
increased rates were now being paid on time. C.A.R.
a two-man firm, two trucks, and the eventual hiring of
365-366. He also acknowledged that Bither did not im-
one employee. C.A.R. 249-250. He testified that Bither
plement the new pay practice immediately after the in-
held two mail-haul contracts at the time it was contacted
vestigation, [*6] but took some period of time before it
by the USPS soliciting additional "emergency" bids in
changed its practices. C.A.R. 373.
May 1984. C.A.R. 247-250; 252. According to Mr.
Bither's testimony, bids had to be prepared within about 9. After an administrative hearing, the Administra-
10 days, and the brothers were surprised to be awarded tive Law Judge (ALJ) issued a decision on July 31, 1989
eight of the contracts on which Bither had bid. C.A.R. recommending against debarment.
254. Bither testified that when he asked the USPS
10. The Secretary of Labor reversed the decision of
whether the firm could accept fewer than the eight con-
the ALJ finding that the facts presented did not demon-
tracts it was awarded in June 1984, he was told that his
strate unusual circumstances which would provide a ba-
company had to accept all the contracts or [*4] none,
sis for relief from debarment. C.A.R. 630. The Secretary
and that this would include the two contracts it was cur-
first found that the ALJ had failed to apply the test set
rently performing. C.A.R. 255. n1 Mr. Bither testified
forth in the regulations at 29 C.F.R. 4.188(b)(3). C.A.R.
that he and his brother thought the multiple-contract
623. Second, the Secretary found the finding that the
award was a good business opportunity. C.A.R. 255.
Bithers were not wilfully violating the terms of the Ser-
vice Contract Act was not supported by a preponderance
of the evidence. C.A.R. 625. The Bithers had testified
n1 The USPS witness testified that it is not
that they knew they were paying employees less than the
USPS policy to require forfeiture of existing con-
required rates. C.A.R. 261, 274. They also failed to pay
tracts if a contractor cannot accept new contract
their employees required fringe benefits. C.A.R. 276.
awards. C.A.R. 320.
These knowing underpayments were found by the Secre-
tary to be deliberate and wilful violations of the Act.
7. Mr. Bither described the preparations made over a C.A.R. 625.
two-week period in light of the company's increased re-
11. The Secretary further found that the Bithers' as-
sponsibilities, including the arrangement it devised to
serted justification for the knowing underpayments did
address the multiple wage rates applicable to the con-
not demonstrate "unusual circumstances." [*7] Choos-
tracts. C.A.R. 259-261. Mr. Bither stated that the broth-
ing a rate that they knew was less than the amount re-
ers looked at the lowest pay scale and at the highest and
quired to be paid to many of their employees in order to
"shot somewhere in the middle" to pay one rate. Mr.
obviate the need to deal with the complexity of the wage
Bither thought paying one rate would make it fair for all
schedules was not a legitimate justification for underpay-
employees even though the $ 9.00 rate chosen was below
ing employees. Under that rationale, the Bithers could
the minimum required for many of the employees.
have lawfully obviated the need to deal with the com-
C.A.R. 261. The Bithers explained this arrangement to
Page 4
1992 U.S. Dist. LEXIS 14358, *; 122 Lab. Cas. (CCH) P35,667;
30 Wage & Hour Cas. (BNA) 1615
plexity of the wage schedules by paying their employees it is "arbitrary, capricious, an abuse of discretion, or oth-
the highest rate. C.A.R. 626. erwise not in accordance with law." While the ordinary
burden of proof necessary to support an agency decision
12. The Secretary found that the ALJ erred by find-
under Section 706(2)(A) of the Administrative Procedure
ing that there were no repeat violations. The two inves-
Act is that of "substantial evidence," the SCA established
tigations covered different periods of time. There was no
a different burden. Section 5 of the Walsh-Healey Act,
evidence in the record to establish that the second viola-
41 U.S.C. § 39, incorporated by Section 4(a) of the
tions occurred due to mistakes that were made in an at-
SCA, 41 U.S.C. § 353(a), provides that the Secretary's
tempt to correct the first violations. C.A.R. 628. Accord-
factual findings "shall be conclusive upon all agencies of
ingly, the Secretary found the Bithers' violations of the
the United States and if supported by the preponderance
Act to be "willful, culpable and repeated, each of which
of the evidence, shall be conclusive in any court of the
preclude a finding of 'unusual circumstances.'" C.A.R.
United States . . ." [emphasis added]. n3 See Federal
628.
Food Service, Inc. v. Donovan, 658 F.2d 830, 833 (D.C.
13. The Secretary distinguished the inadvertent con- Cir. 1981); [*10] Midwest Maintenance & Construction
duct of contractors found in other cases from the "con- Co. v. Vela, 621 F.2d 1046, 1048 (10th Cir. 1980); Vigi-
scious management decision" of the Bithers who "know- lantes, Inc. v. Administrator, 769 F. Supp. 57, 60-61
ingly established a policy of underpaying employees." (D.P.R. 1991). Questions of fact are governed by a "pre-
C.A.R. 629. ponderance of the evidence" standard, whereas questions
of law are subject to an "arbitrary and capricious" stan-
14. The Secretary concluded that the plaintiffs [*8] dard. A to Z Maintenance Corp. v. Dole, 710 F. Supp.
failed to demonstrate "unusual circumstances" in this 853 (D.D.C. 1989).
case which would warrant graining them relief from the
debarment provisions of section 5(a) of the Act (41
U.S.C. 354(a)). C.A.R. 630. Accordingly, the Secretary
n3 [HN2] The Secretary of Labor's regula-
directed that the Comptroller General n2 be notified to
tions adopt the preponderance standard as well.
place the names of the plaintiffs on the list of those ineli-
Section 4.189 of 29 C.F.R. states:
gible to enter into contracts with the Government.
The Secretary is authorized pursuant to the provi-
sions of section 4(a) of the Act to hold hearings
n2 The Comptroller General of the United and make decisions based upon findings of fact
States performs only the ministerial duty of plac- as are deemed to be necessary to enforce the pro-
ing on the ineligible bidders list the names of per-
visions of the Act. Pursuant to section 4(a) of the
sons or firms whom the Secretary has found vio- Act, the Secretary's findings of fact after notice
lated the Act. 41 U.S.C. 354(a). and hearing are conclusive upon all agencies of
the United States and, if supported by the pre-
15. Plaintiffs were notified in May, 1991 that they ponderance of the evidence, conclusive in any
would be placed on the debarment list. C.A.R. 631-634. court of the United States, without a trial novo.
(Emphasis added).
16. Plaintiffs filed this action on June 26, 1991 for
injunctive and declaratory relief. Plaintiffs' complaint [*11]
requested a preliminary injunction prohibiting the defen-
dants from placing their name on the debarment list. See 2. The SCA is a minimum wage statute which guar-
Complaint at p. 15. antees certain wages and fringe benefits for employees of
government service contractors. The Act requires the
17. Plaintiffs [*9] were placed on the debarment list Secretary to predetermine wages and fringe benefits by
in September 1991. See Plaintiffs' Request for Judicial job category and geographic area ("wage determina-
Notice, Ex. A. tions"). Contracts subject to the Act must incorporate the
18. To the extent that any of the following conclu- appropriate wage determinations. Saavedra v. Donovan,
sions of law are deemed to be uncontroverted facts, they 700 F.2d 496 (9th Cir. 1983), cert. denied, 464 U.S. 982
are incorporated in this statement of uncontroverted (1983).
facts. 3. A reading of section 5(a) and a review of the per-
II. CONCLUSIONS OF LAW tinent legislative history demonstrate that Congress man-
dated strict application of the debarment provision of the
1. [HN1] Pursuant to 5 U.S.C. § 706(2)(A), this SCA. After it was originally enacted by Congress, Con-
Court may set aside the decision of the Secretary only if gress grew displeased with what appeared to be lax en-
Page 5
1992 U.S. Dist. LEXIS 14358, *; 122 Lab. Cas. (CCH) P35,667;
30 Wage & Hour Cas. (BNA) 1615
forcement of the debarment provision and held extensive ply with record keeping requirements; nor may the con-
hearings to investigate the matter. Proposed Amend- tractor have a similar violation or have repeatedly or
ments to the Service Contract Act: Hearings on H.R. seriously violated the Act. 29 C.F.R. § 4.188(b)(3)(i).
6244 and 6245 Before the Spec. Sub Comm. on Labor of Only if these criteria are satisfied does debarment analy-
the House Comm. on Education and Labor, 92nd Cong., sis properly proceed to Part II of the test, which calls for
1st Sess. (1971). On the basis of evidence presented at certain pre-requisites to be met.
those hearings, the Special Subcommittee concluded
8. Under Part II the contractor must demonstrate a
that: "Although we intended this debarment provision
good compliance history, cooperation in the investiga-
[*12] to be virtually automatic, with discretion in the
tion, repayment of monies due, and sufficient assurances
Secretary of Labor to grant relief in unusual cases, we
of future compliance. 29 C.F.R. § 4.188(b)(3)(ii).
discovered during the course of the hearings that debar-
ment has become the exception rather than the rule." 9. Finally, if the conditions in Parts I and II are met,
Special Comm. on Labor of the House Comm. on Educa- Part III provides for the consideration of additional fac-
tion and Labor, "The Plight of the Service Worker Under tors to determine whether unusual circumstances can be
Government Contracts", 92nd Cong., 1st Sess. 12 found. These factors include: whether the contractor was
(Comm. Print 1971). Accordingly, the statute was previously investigated for SCA violations; whether re-
amended. cord keeping violations impeded the investigation;
whether liability depended upon resolution of a bona fide
4. [HN3] Section 5(a) of the SCA, as amended, now
legal issue of doubtful certainty; the contractor's efforts
provides that "unless the Secretary recommends other-
to ensure compliance; the nature, extent, and seriousness
wise because of unusual circumstances," a service con-
of any past or present violations, including [*15] the
tractor who violates the Act shall be debarred for three
impact of violations on unpaid employees; and whether
years. 41 U.S.C. § 354(a). Under the clear language of
sums due were promptly paid. 29 C.F.R. §
the Act, no relief from debarment is possible unless un-
4.188(b)(3)(ii).
usual circumstances are specifically found. As one Court
has stated, section 5(a) is a particularly unforgiving revi- 10. When the three-part test is applied to this matter,
sion of a demanding statute. A to Z Maintenance Corp., it is clear that Bither did not carry its burden of "estab-
710 F. Supp. at 855. A contractor seeking an "unusual lishing the existence of unusual circumstances to warrant
circumstances" exception for debarment must, therefore, relief from the debarment sanction." 29 C.F.R. §
"run a narrow gauntlet." Id. at 856. 4.188(b)(1). The record here, rather than demonstrating
that this case is the exceptional one for which relief from
5. Although the SCA does not define "unusual [*13]
debarment is appropriate, reflects just the opposite.
circumstances," the regulations at 29 C.F.R. § 4.188(b)
Bither's conduct was willful, deliberate, and culpable.
establish by a three-part test the operative principles and
procedures for determining when relief from debarment 11. Bither has completely failed under the record in
is appropriate. This test, which clarifies and codifies the this case to fulfill a contractor's obligation, in seeking to
criteria of Washington Moving and Storage, SCA-168 avoid debarment for admitted violations of the SCA, to
(Decision of the Secretary, March 12, 1974), has been establish that its actions were neither willful nor culpa-
approved by the Deputy Secretary, e.g., Habitech, Inc., ble. Bither's claims that the Department of Labor prof-
92-SCA-106 (Decision of the Secretary, September 18, fered no evidence that Bither's actions were willful is
1987), and has recently been applied by the courts. Vigi- incongruous in light of clear testimony that Bither's SCA
lantes, Inc., 769 F. Supp. at 62; A to Z Maintenance violations were knowing, and resulted from a payment
Corp., 710 F. Supp. at 855-856; Kirchdorfer v. McLaug- practice of its own choosing. C.A.R. 274, 284, 290.
lin, No. C-0771-L(B) (W.D. Ky, Mar. 1, 1989). Moreover, despite Bither's repeated claims that it over
paid some employees, the $ 9.00 per hour paid by Bither,
6. The burden of establishing unusual circumstances
once fringe benefits [*16] are factored in, was lower
rests with the violator. 29 C.F.R. 4. 188(b)(1); Vigilan-
than every rate in the applicable wage determinations.
tes, Inc., 769 F. Supp. at 60; Ventilation and Cleaning
C.A.R. 411.
Engineers, Inc., SCA-176 (Decision of the Secretary,
October 2, 1974). 12. Part one of the test requires a contractor to prove
that its actions in violating the SCA were not willful,
7. [HN4] Under Part I of the test, the contractor must
deliberate or of an aggravated nature, or the result of
first show that no "aggravated circumstances exist, that
culpable conduct. As the Secretary found, the Bither's
the violations were not willful, deliberate, or of an ag-
testimony established that they knew they were under-
gravated nature, or the result of culpable [*14] conduct
paying employees. C.A.R. 274, 284 290. The record
such as culpable neglect to ascertain whether practices
shows that Bither knowingly violated the Act's require-
where in violation of the Act, or culpable failure to com-
ment to pay the wage determination amounts.
Page 6
1992 U.S. Dist. LEXIS 14358, *; 122 Lab. Cas. (CCH) P35,667;
30 Wage & Hour Cas. (BNA) 1615
13. Bither's explanation that the violations were and, second, to spare itself financial hardship. Since
caused by exigency (the unexpected award of eight con- Bither failed to meet the requirements of Part I of the
tracts) provides no excuse for the company's ignoring the three-part test, its willful and culpable conduct prohibits
SCA requirements. See 29 C.F.R. § 4.188(b). ("A con- relief from debarment. Accordingly, there is no need to
tractor has an affirmative obligation to ensure that its pay address Part II or Part III of the test.
practices are in compliance with the Act, and cannot it-
16. The record in this case establishes that the Secre-
self resolve questions which arise, but rather must seek
tary's decision sustaining the plaintiffs' debarment had a
advice from the Department of Labor.").
rational basis and was supported by a preponderance of
14. Even though Kevin Bither's testimony showed the evidence. Accordingly, defendants are entitled to
the company was not clear about proper procedures in summary judgment as a matter of law.
this regard (C.A.R. 373-380; 396), the record is clear that
17. To the extend that any of the foregoing uncon-
Bither at no time sought advice from the Department of
troverted facts are deemed to be conclusions of law, they
Labor regarding implementation [*17] of wage determi-
are incorporated with these conclusions of law.
nation increases prior to adjustment from the USPS, but
instead chose to pursue conduct that Bither simply as-
DATED: Mar 16 1992
sumed was acceptable.
CONSUELO B. MARSHALL
15. Bither's violation of the minimum wage re-
quirements of the Act resulted from conscious manage- UNITED STATES DISTRICT JUDGE
ment policies: first, to simplify its payroll preparation