Northeast Energy Services, Inc. (NORESCO), 2000-DBA-3 (ALJ Jan. 31, 2002)
U.S. Department of
Labor
Office of Administrative Law Judges 2 Executive Campus, Suite 450 2370 Route 70 West Cherry Hill, NJ 08002
(856) 486-3800
Issue date: 31Jan2002
CASE NO. 2000-DBA-00003
In the Matter of
Disputes concerning the payment of
prevailing wage rates and overtime pay by:
NORTHEAST ENERGY SERVICES, INC. (NORESCO),
Contractor; TAJ BUILDING CONSTRUCTION CORP.,
Subcontractor; and, BRILLIANT ELECTRIC CORP.,
Sub-contractor;
AND
Proposed Debarment for Labor Standards
Violations By:
TAJ BUILDING CONSTRUCTION CORP.;
And URVASHI SHARMA, its President; and
GOPAL K. SAWHNEY, its Project Manager.
With respect to Laborers and Mechanics
employed by Robert Reyes d/b/a CityView
Alterations, Brilliant Electric Corp., and
John Miceli d/b/a/ Shalimar Fabrics on
Contract Number: DACA87-97-D-0051, Task Order
Number 0006, for renovation of the U. S. Army
Reserve Center in Uniondale, New York.
PARTIAL FINDINGS AND ORDER
This matter having come before the court at hearing and all parties having had the opportunity to be heard, to call witnesses, to cross examine witnesses, to brief their positions and make their arguments known, and all of the foregoing having been duly considered by this court, this court now makes the following partial findings and enters the following Orders:
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1. At all relevant times, respondent NORTHEAST ENERGY SERVICES, INC. (NORESCO) was the prime contractor with the U.S.Army on contract Number DACA87-97-D-0051, Task Order Number 0006, for renovation of the U.S. Army Reserve Center in Uniondale, New York. The contract contained the Davis Bacon Act clauses and the Wage Determination further described below.
2. NORESCO sub-contracted with TAJ BUILDING CONSTRUCTION CORP. (Taj), subcontractor, to perform the work on the above referenced contract. The written subcontract between NORESCO and Taj contained the Davis Bacon Act clauses and the Wage Determination. Taj's president is URVASHI SHARMA, and her father is GOPAL K. SAWHNEY, Taj's on-site Project Manager.
3. The contracts indicated in paragraphs 1 and 2 above were subject to the Davis Bacon Act as amended (40 U.S.C. § 276a et seq.) and U.S. Department of Labor Regulations (29 C.F.R. Part 5) and were performed in the United States through the use of mechanics and laborers.
4. The contract indicated in ¶ 1 above was with the U.S. Army and NORESCO for an amount in excess of $834,780.
5. The sub-contract indicated in ¶ 2 above was with NORESCO and Taj for an amount in excess of $370,000.
6. Federal Wage Determination Number NY970013, Mod # 10, dated 9-5-97 was attached to and incorporated in the aforementioned contracts and governed the payment of prevailing wages and overtime by respondents to the mechanics and laborers who worked at the job site.
7. Respondents NORESCO and Taj were aware at the time they entered into the contracts that the mechanics and laborers who worked on the job site were required to be paid the prevailing wage rates and fringe benefits as specified in the Wage Determination NY970013, Mod # 10, dated 9-5-97.
8. Respondents NORESCO and Taj were aware that the mechanics and laborers employed at the job site were required to be paid the following prevailing wage for the following work, per hour:
Job Classification
Base HourlyRate
FringeBenefits
Total Prevailing Wage
Carpenter
$28.90
$18.47
$47.37
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9. Respondent Taj brought in John Miceli d/b/a Shalimar Fabrics (Shalimar) to perform some of the work, i.e., carpet installation using six carpenters.
10. The subcontract between Taj and Shalimar was not in writing and did not contain the Wage Determination. Nor did Taj discuss with Shalimar payment of prevailing wages.
11. All respondents admitted at the hearing that six mechanics and laborers employed by Shalimar as carpenters are owed a total of $4,650.96 currently withheld in backwages. In recognition of the aforesaid violations, respondents agreed that $4,650.96 in pay is due to the employees listed in Joint Exhibit 1, attached. Backwages shall be distributed in accordance with Joint Exhibit 1 which provides the names and addresses of employees and the amounts due them. Respondents NORESCO and Taj agreed that the amounts listed in Joint Exhibit 1 should be released from the funds withheld by the U.S. Army from NORESCO for distribution by the Wage and Hour Division to the Shalimar employees named in Joint Exhibit 1.
12. The U.S. Army is currently withholding funds from respondent NORESCO's contract pursuant to 29 C.F.R. § 5.59(a) (2).
13. The Wage and Hour Division shall distribute the back wages, less the appropriate deductions for social security and withholding taxes, to the Shalimar workers, or their legal representatives, in the amounts set forth in Joint Exhibit 1 attached hereto and incorporated herein. Any such amounts which remain undistributed for one year because of the parties' inability to locate the employee or representative shall be deposited with the Treasurer of the United States.
