USDOL v. Cody Zeigler, Inc., 1997-DBA-17 (ALJ Sept. 28, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Date Issued: September 28, 2000

Case No: 1997-DBA-17

In the Matter of

ADMINISTRATOR, WAGE AND HOUR DIVISION
UNITED STATES DEPARTMENT OF LABOR
    Plaintiff

    v.

CODY ZEIGLER, INC., FRANCIS D.
ZEIGLER, President, ROBERT D.
ZEIGLER, Vice President, JAMES A.
SWARTZMILLER, Vice President,
STANLEY C. CALDWELL, Vice President
    Respondents

APPEARANCES:

Sandra B. Kramer, Esq.
U.S. Department of Labor
Office of the Solicitor
Cleveland, Ohio
    For the Secretary

Roger L. Sabo, Esq.
Schottenstein, Zox and Dunn
Columbus, Ohio
    For the Respondent

BEFORE: RUDOLF L. JANSEN
    Administrative Law Judge

   A Decision and Order disposing of all issues was entered in this case on April 7, 2000. The parties had agreed at the hearing that calculations of the actual monetary figures would be an extremely complex and technical matter, and that therefore, it was requested that a recomputation of the proposed deficiency figures be permitted following the entry of my initial Decision disposing of each issue. That request was granted and the parties were permitted a period of time within which to attempt to arrive at stipulated deficiency figures. However, the parties were unable to agree upon a total deficiency amount and thus it was directed that both parties submit their own computations and I would enter a final Decision in which deficiency figures were computed.

   By letter dated August 1, 2000, the Plaintiff submitted its computation of back wage amounts (Exhibit A) as they relate to both the Tuttle Crossing and Westerville Post Office projects. That computation is incorporated herein by this reference. Plaintiff computed total back wages of $64,520.75 and produced an itemized listing as those amounts were apportioned to individual employees. On August 4, 2000, Respondents submitted their own back wage computation. Respondents suggest that they are entitled to additional credits for payments made to eight employees totaling ,210.51. Thus, Respondents argue that only $63,310.24 is the proper amount of back wages owed.

   Following receipt of the individual computations of the parties, I issued an Order on August 15, 2000 which directed in part that the Respondents submit a statement of:

Factual Findings concerning the individual entries, made in sufficient detail and noting their location in the record, so as to allow me to make findings and rule on this item;

The same Order warned Respondents that:

    Failure of the response to provide all of the information requested, . . . will result in the acceptance of the Plaintiff's computation with respect to all or any of the contested items.

   On August 25, 2000, Respondents submitted a Statement of Amounts in Dispute. The responsive statement explained the method by which the Respondent had arrived at its figures, but rather than noting the location in the record of the information relied upon, reference was made to figures and calculations attached to a document noted as "Exhibit B." Exhibit B was apparently prepared by Respondents in response to my August 15, 2000 Order. The exhibit was not introduced as evidence at the time of the hearing nor was a request made to make the computation and underlying data a part of the record.

   In its factual findings, Respondents suggest that "The basis for the disputed amounts in this matter stem solely from the recalculation of certain employees' health and welfare fringe benefits to include amounts actually paid for certain months for these employees, but not credited by the secretary." The responsive statement of Respondents does not provide any source within the record which would verify that the amounts contested were actually paid to the employees. Thus, the Respondents have failed to comply with the requirement in my August 15, 2000 Order that it note the location in the record of the information relied upon in arriving at its calculations.

   In its responsive statement, Plaintiff objects that Respondents are requesting credit for payments that have never been verified or made a part of the evidentiary record in this case. Plaintiff argues that credit cannot be given for these payments for the reasons indicated.

   It is clear that the Respondents have not complied with the directive contained within my August 15, 2000 Order requiring specific factual findings noting the location of each item in the record. Concerning the contested items, I find that the Plaintiff has met its burden of establishing a prima facie case for disallowing the credits and that Respondents have failed to carry their ultimate burden of establishing entitlement. The governing regulations provide that my Decision ". . . shall be based upon a consideration of the whole record . . .." 29 C.F.R. § 6.19. Credit cannot be given for payments which are unsupported by the hearing record. Respondent has also failed to comply with my directive that it note the location in the record of the evidence which would support its proposed findings. Thus, the computation of the Plaintiff is accepted as being proper.

   Accordingly, IT IS ORDERED that Respondents pay to the Plaintiff $64,520.75 to be distributed by Plaintiff to the employees and in the amounts listed in Exhibit "A" which is attached to the Plaintiff's August 1, 2000 submission concerning back wage payments.

       Rudolf L. Jansen
       Administrative Law Judge