LANCE LOVE, INC., WAB Case No. 88-32 (Mar. 28, 1991)
CCASE:
LANCE LOVE, INC.
DDATE:
19910328
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
LANCE LOVE, INC., WAB Case No. 88-32
Prime Contractor
and
LANCE LOVE, President
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: March 28, 1991
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of Lance Love, Inc. and Mr. Lance Love (hereinafter, "Love" or
"Petitioner"), seeking partial reversal of the erudite Decision and
Order of Administrative Law Judge ("ALJ") Rudolf L. Jansen dated
May 11, 1988. That Decision and Order found Love in violation of
the Davis-Bacon Act, 40 U.S.C. 276a et seq. and the Contract Work
Hours and Safety Standards Act ("CWHSSA"), 40 U.S.C. 327 [1]
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[2] et seq. The petition questions ALJ Jansen's Decision and Order only
with respect to back wages owed five employees and does not contest
Love's debarment or other findings and conclusions. The Board
regards as abandoned all remaining wage violation and debarment
issues. For the reasons contained herein, the Wage Appeals Board
affirms the attached Decision and Order in its entirety.
I. BACKGROUND
Lance Love, Inc. of Indianapolis, Indiana, was engaged in the
sale and installation of floor coverings. On June 4, 1982, Love
entered into a contract to replace and/or install floor covering at
Fort Benjamin Harrison. The contract contained the standard
Davis-Bacon, CWHSSA, and Copeland Act provisions. For reasons not
apparent from the record, Love bid and received the contract for
$47,179.00 despite a government estimate of nearly twice that
amount. Furthermore, the contract was open-ended, and delivery
orders against it eventually totalled in excess of $250,000. On
April 21, 1982, the government sent a "possible mistake-in-bid"
notice to Love which called their attention to the contract's wage
rate requirements. Love's contract sales manager responded by
stating that their bid was firm and had contemplated the prevailing
wage requirements.
A subsequent Wage and Hour investigation found that employees
had been paid a piece-rate for their efforts, that fifteen
employees had been underpaid by some $31,000, and that Love had
falsified payrolls. Love challenges ALJ Jansen's Decision and
Order only with respect to five employees: two are alleged to be
a subcontracting partnership; two are contested because of ex-post
calculations regarding relationships between the required wage rate
and hypothetical projections based on the piece-rate actually
employed; and the fifth is contested because he testified that he
felt he was paid the required rate. None of these contentions has
any merit.
II. DISCUSSION
Petitioner contends that Albert Weir and Harry K. Phillips
were not "laborers" or "mechanics" within the meaning of the
Davis-Bacon Act. Love contends that these two were an entity, not
employees. It is, however, undisputed the two worked on the
project by removing old floorings and installing new ones.
Section 1(a) of the Davis-Bacon Act applies a functional
rather than a formalistic test to determine coverage: if someone
works on a project covered by the Act and performs tasks
contemplated by the Act, that person is covered by the Act,
regardless of any label or lack thereof. See N.B.A. Enterprises,
Ltd., WAB Case No. 88-16 (February 22, 1991). A review of the
record and [2]
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[3] applicable law leads to the inescapable conclusion that Messrs.
Weir and Phillips were functional employees, and that ALJ Jansen
correctly determined back wages with regard to them.
Love further contends that ALJ Jansen erred with regard to
back wage computations for Ron Adams and Larry Johnson, and offers
an extrapolation based upon a piece rate. Furthermore, Love
concedes that it falsified its payroll. Our review of the record
finds ALJ Jansen's application of the principles enunciated in
Anderson v. Mt. Clemens Pottery Company, 328 U.S. 680 (1946)
correct, fully consistent with Board precedent as discussed in
Apollo Mechanical, WAB Case No. 90-42 (March 11, 1991), and based
upon his personal evaluation of the credibility of the witnesses
before him. In short, there is no legal or factual reason to
disturb ALJ Jansen's Decision and Order in this respect.
Petitioner argues that Gary Greever should not receive a back
wage award because he testified that he believed he was paid the
required prevailing wage. The Board is pleased to enhance Mr.
Greever's contentment, as an employee cannot make an agreement in
derogation of his statutory rights to the correct compensation.
See Harlow Restoration Corp., WAB Case No. 81-14 (May 11, 1983).
For the foregoing reasons, ALJ Jansen's Decision and Order
is affirmed in its entirety.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
_____________________________
Gerald F. Krizan, Esq.
Executive Secretary [3]
