TAP ELECTRICAL CONTRACTING SERVICE, INC., 81-DB-5 and -6 (ALJ June 13 1983)
CCASE:
TAP ELECTRICAL CONTRACTING
DDATE:
19830613
TTEXT:
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[1] [84-01.WAB ATTACHMENT]
U.S. DEPARTMENT OF LABOR
Office of Administrative Law Judges
Suite 700 - 1111 20th Street, N.W.
Washington, D.C. 20036
In the Matter of:
TAP ELECTRICAL CONTRACTING Docket: 81DB 5
SERVICE, INC. 81DB 6
Prime Contractor
and
CALCEDO CONSTRUCTION CORPORATION
Prime Contractor
and
EXPERT ELECTRIC, INC.
Subcontractor
EUGENE DREXLER, Esq.
625 Park Avenue
New York, New York 10021
On behalf of Tap Electrical Contracting Serv., Inc.
JOSEPH C. TOMEI, the respondent (pro se)
On behalf of Calcedo Construction Corp.
N. GEORGE TURCHIN, Esq.
780 Madison Avenue
New York, New York 10021
On behalf of Expert Electric, Inc.
MANUEL DEL VALLE, Esq.
WILLIAM GONZELEZ, Esq.
U.S. Department of Labor-Office of the Solicitor
1515 Broadway, Rm. 3555
New York, New York 10036
On behalf of the Department of Labor
Before: ARTHUR C. WHITE
Administrative Law Judge
DECISION AND ORDER
Preliminary Statement
This case arises under the Public Work Employment Act of 1976,
as amended, 42 U.S.C. [secs] 6701 et seq., the Davis-Bacon Act, as
amended, 40 U.S.C. [secs] 276a et seq., and the Contract Work Hours
Safety Standards Act, 40 U.S.C. [secs] 327 et seq. The applicable
regulations are found at 29 C.F.R. Part 5. [1]
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[2] On June 17, 1981, the Wage and Hour Division of the United
States Department of Labor initiated these cases by filing orders
of reference naming as respondents: Tap Electrical Co., Inc.,
prime contractor and its subcontractor, Expert Electric, Inc. as
well as Calcedo Con[s]truction Corp., prime contractor and its
subcontractor, Expert Electric, Inc., as parties to a dispute
concerning the payment of prevailing wage rates, overtime and
proper classifications arising under labor standards provisions
applicable to the pertinent contracts.
Pursuant to 29 CFR [sec] 5.11(b), pre-hearing orders were
issued on August 28, 1981, directing the exchange of certain
information and documents. On May 5, 1982, Notice of Hearing was
forwarded to all parties designating June 14, 1982 as the beginning
date for the hearing. Thereafter, a formal hearing was held /FN1/
in New York, New York on June 14, 15, 16 and 17, as well as August
5 and 6, 1982. Each party was given the opportunity to be heard,
to present relevant evidence, and to examine and cross examine the
witnesses. The parties were also given the opportunity to submit
briefs and proposed findings of fact, conclusions of law and
order. Post-hearing submissions having been received from the
parties and the time for reply briefs having expired, the record
is officially closed on May 5, 1983. My decision with findings,
conclusions and order now follows:
I
FINDINGS OF FACTS
1. TAP Electrical Contracting Service, Inc., is a general
contractor which at times relevant to this proceeding had its place
of business originally located at Bayport, New York and presently
has a mailing address of P. O. Box 926, Holbrook, New York 11741.
(Exhibits C-4, C-5).
2. Calcedo Construction Corp., is a general contractor which
at times relevant to this proceeding had its place of business at
60 East 42nd Street, New York, New York 10017. (Exhibit C-7).
3. Expert Electric, Inc. is the subcontractor for both
general contractors which at times relevant to this proceeding
had its place of business at 18-71 41st Street, Astoria, New
York 11105. (Exhibits C-10, C-11). [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Each of the transcripts of this proceeding has been given
a roman numeral, so that the transcript of June 14, 1982 is tr. I,
the transcript of June 15, 1982 is tr. II, the transcript of June
16, 1982 is tr. III, the transcript of June 17, 1982 is tr. IV, the
transcript of August 5, 1982 is tr. V, and the transcript of August
6, 1982 is tr. VI. The number which follows the transcript
designation is the page number, for example, tr. I-17 refers to
page 17 of the transcript for June 14, 1982. Exhibits will be
designated C for complainant and R for respondents. [2]
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[3] 4. Anthony P. Cardillo is and at all times hereinafter
mentioned was president of TAP Electrical Contracting Service, Inc.
(hereinafter, "TAP"). (Exhibit C-4; tr.I-18-19).
5. Joseph Tomei is and at all times hereinafter mentioned
was president of Calcedo Construction Corp. (hereinafter,
"Calcedo"). (Exhibit C-7, tr.I-45).
6. Frank Micelotta is and at all times hereinafter mentioned
was president Expert Electric, Inc. (hereinafter, "Expert"). (tr.
I-69).
7. The United States Department of Commerce, Economic
Development Administration, awarded a contract to the State of
New York, Executive Department, Office of General Services.
(tr.I-39; Exhibit C-5).
8. The State of New York, Executive Department, Office of
General Services awarded a portion of its Economic Development
Administration contract to TAP, contract No. D122219 for electrical
work on a fire reporting and alarm system at 270 Broadway, New
York, New York (hereinafter, "270 Broadway"). This contract was
let on September 28, 1977, was signed by TAP on May 5, 1978 with a
completion date of October 9, 1979. (Exhibit C-5).
9. The TAP contract was for approximately $225,000 and set
forth the "Labor Standards Provisions Applicable to Contracts in
Excess of $2,000", (Standard Form 19-A), specifically the
provisions of the Davis-Bacon Act, 40 U.S.C. Section 276a et seq.
(hereinafter the "DBA"). (tr. V-110; Exhibit C-5). The provisions
pertaining to apprentices and trainees was paraph[r]ased in
paragraph 48 of contract No. D122219.
10. The TAP contract further incorporated the provisions of
Wage Determination Decision No. 76-3256, which specified that
electricians employed under the contract had to be paid a basic
hourly rate of not less than $12.25 plug $1.74 in fringe benefits,
which amounted to a total minimum hourly rate of $13.99 together
with an annuity of $7.00 per day. (tr. IV-510; Exhibit C-3).
11. The United States Department of Labor, Employment and
Training Administration awarded a contract project No.
99-9-2251-43-136 on or about June 1979 to Calcedo for the
renovation of two existing buildings, including architectural,
plumbing, heating, ventilating, air conditioning, electrical, and
kitchen, at a site known as the Bronx Job Corps Center located at
1771 Andrews Avenue, Bronx, New York (hereinafter, "1771 Andrews
Avenue" or "Job Corps"). (Exhibit C-7). [3]
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[4] 12. The Calcedo contract was for approximately $3,580,000
and set forth the "Labor Standards Provisions Applicable to
Contracts in Excess of $2,000", under the DBA. (Exhibit C-7,
C-7A).
13. The Calcedo contract further incorporated the provisions
of Wage Determination Decision No. 79-3011, which specified that
electricians employed under the contract must be paid a basic
hourly rate of not less than $12.85 plus $2.12 in fringe benefits,
which amounted to a total minimum hourly rate of $14.97 together
with an annuity of $8.00 per day. (tr. VI-237; Exhibit C-3).
14. The contract of TAP was subject to and contained the
stipulations required by the DBA and the Contract Work Hours and
Safety Standards Act, as amended, 40 U.S.C. Sections 327-333,
(hereinafter the "CWHSSA"). (Exhibit C-5).
15. The contract of Calcedo was subject to and contained the
stipulations required by the DBA and CWHSSA. (Exhibit C-7B).
16. The contracts, in the incorporated "Labor Standards
Provisions Applicable to Contracts in Excess of $2,000" provided
in relevant part:
SUBCONTRACTS
The contractor agrees to insert the clauses hereof
entitled "Davis-Bacon Act" ... "Apprentices and
Trainees", "Payrolls and Basic Records", "Withholding
of Funds", "Subcontracts" and "Contract Termination -
Debarment" in all subcontracts. The term "Contractor"
as used in such clauses in any subcontract shall be
deemed to refer to the subcontractor except in the
phrase "Government Prime Contractor".
(Exhibits C-5, C-7, C-7B, tr.I-26).
17. TAP entered into a subcontract with Expert, under which
Expert was to perform the electrical work described in the
specifications relating to the prime contract. (tr. I-32-33,
Exhibit C-4). This work was to install a fire reporting and an
alarm system at 270 Broadway. (tr. I-33, 69). This contract was
in the amount of approximately $225,000. (tr. V-110). [4]
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[5] 18. By letter dated October 30, 1978, Anthony P. Cardillo,
president of TAP, informed the State of New York, Executive
Department, Office of General Services that Mr. Frank Micelotta,
President of Expert, was to be his job superintendent and was to
have the power to make any field decision. (Exhibit C-4).
19. Mr. Frank Micelotta has been an electrical contractor
for the last 28 years. He has worked on Davis-Bacon projects for
more than fifteen years and Expert has worked on such projects
for about ten years. Expert has worked on at least ten DBA
projects and Mr. Frank Micelotta is familiar with the requirements
of the Davis-Bacon labor standards. (tr. V-60-62). He is also
familiar with Wage Determination Decision and provided the
appropriate wage rates to his bookkeeper, Ms. Dorothy Manish.
(tr. IV-550, 575-576, tr. V-31, 29).
20. Calcedo entered into a subcontract with Expert, under
which Expert was to perform the electrical work described in the
specifications relating to the prime contract. (Exhibit C-15).
The contract specifically incorporated the "Labor Standard
Provisions (GSA Standard Form 19-A)" required by the DBA and
CWHSSA. This contract was in the amount of approximately
$400,000. (tr. V-110, 111). The work to be done was to renovate
two existing buildings, including electrical work, at the Job
Corps or 1771 Andrews Avenue work site. (Exhibit C-15).
21. Mr. Frank Micelotta, as his normal practice, had Raymond
Rinaldi, Expert's foreman at the 270 Broadway job, and Fernando
Villafane, Expert's foreman at the 1771 Andrews Avenue job, post
the applicable wage Determination Decisions, namely, No. 76-3256
at 270 Broadway and No. 79-3011 at 1771 Andrews Avenue.
(tr. V-51-52; Exhibits C-27, C-29). Mr. Micelotta during the
course of his visits to both work sites saw Wage Determination
Decisions Nos. 76-3256 and 79-3011 posted. (tr. V-52-53).
22. During the course of the performance of the aforesaid
contracts and subcontracts, Expert submitted weekly payroll
records to the contractors, which records contained the names and
work classifications of employees working on the two work sites.
(Exhibits C-10, C-11).
23. Expert submitted its payroll records on Form WH-347, where
it indicated it was a subcontractor, its address, the payroll
number, the week ending date, the project and location, the project
or contract number and in nine columns of information provided the
following : 1) name, address, and social security [5]
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[6] 24. The payroll records prepared by Expert for the 270
Broadway site began week ending November 18, 1978 and ended week
ending August 23, 1980. (Exhibit C-11).
25. The payroll records prepared by Expert for the 1771
Andrews Avenue site began week ending November 18, 1978 and ended
week ending January 10, 1981. (Exhibit C-10).
26. Expert employed the following persons during the course
of its work at the 270 Broadway site:
1. Raymond Colon;
2. John Galiouris;
3. Robert Kamean;
4. Arthur LaTorre;
5. Raymond LoVerso;
6. Charles Maillard;
7. Americo Mutoli;
8. Raymond Rinaldi;
9. Daniel Sgroi;
10. Joseph Stasio;
11. Rosendo Torres;
12. Fernando Villafane;
13. Joseph Von Nesson. (Exhibit C-38, C-11).
27. Expert employed the following persons during the course
of its work at the 1771 Andrews Avenue site.
1. Robert Cavazzini;
2. Daniel Centeno;
3. Raymond Colon;
4. Leonard Como;
5. Romeneo Edwards;
6. John Fernandez;
7. John Galiouris;
8. Earnie Grant;
9. Robert Kamean;
10. Raymond LoVerso;
11. Charles Maillard;
12. Alexander Maurikos;
13. Anthony Morris;
14. Raymond Rinaldi;
15. Adam Rodriguez;
16. Daniel Sgroi;
17. Steve Siderakis;
18. Bob Valdez;
19. Fernando Villafane;
20. Joseph Von Nesson; (Exhibit C-32, C-10). [6]
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[7] 28. The following were the work classifications of Expert's
employees at the 270 Broadway site as these appear on the certified
payroll records:
1. Raymond.Colon - Brush painter/journeyman (Exhibit
C-36, C-11)
2. John Galiouris - journeyman (Exhibit C-11);
3. Robert Ramean - journeyman (Exhibit C-11);
4. Arthur LaTorre - laborer (Exhibit C-11);
5. Raymond LoVerso - journeyman (Exhibit C-11);
6. Charles Maillard - trainee (Exhibit C-36, C-11);
7. Americo Mutoli - laborer (Exhibit C-11);
8. Raymond Rinaldi - electrician (certified payroll
records No. I-34); journeyman (certified payroll
record Nos. 35, 54-56); foreman journeyman
(certified payroll record No. 57); (Exhibit C-11);
9. Daniel Sgroi - journeyman (Exhibit C)
10. Joseph Stasio - laborer (Exhibit C-11);
11. Rosendo Torres - journeyman (Exhibit C-11);
12. Fernando Villafane - electrician (Exhibit C-11);
13. Joseph Von Nesson - brush painter (Exhibit C-36,
C-11).
29. At the 270 Broadway site, there were seven employees
classified as journeyman, that is, journeyman electricians, two
employees classified as laborers, two employees classified as
electricians (at other times listed as journeymen), two employees
classified as brush painters, and one employee classified as
foreman journeyman. (Exhibit C-11).
30. The following were the work classifications of Expert's
employees at the 1771 Andrews Avenue site as these appear on the
certified payroll records:
1. Robert Cavazzini - journeyman (Exhibit C-10);
2. Daniel Centeno - trainee (Exhibit C-10);
3. Raymond Colon - journeyman (Exhibit C-37, C-10);
4. Leonard Como - journeyman (Exhibit C-10);
5. Romeneo Edwards - journeyman (Exhibit C-10);
6. John Fernandez - journeyman (Exhibit C-10):
7. John Galiouris - journeyman (Exhibit C-10);
8. Earnie Grant - journeyman (Exhibit C-10);
9. Robert Ramean - journeyman (Exhibit C-10);
10. Raymond LoVerso - journeyman (Exhibit C-10); [7]
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[8] 11. Charles Maillard - trainee (Exhibit C-37, C-10);
12. Alexander Maurikos - journeyman (Exhibit C-10);
13. Anthony Morris - journeyman (Exhibit C-10);
14. Raymond Rinaldi - journeyman (certified payroll
records Nos. 8-17, 44, 48, 51); foreman journeyman
(certified payroll record Nos. 18, 50); foreman
(certified payroll record No. 43); (Exhibit C-10);
15. Adam Rodriguez - trainee (Exhibit C-37, C-10);
16. Daniel Sgrio - journeyman (Exhibit C-10);
17. Steve Siderakis - journeyman (Exhibit C-10);
18. Bob Valdez - journeyman (Exhibit C-10);
19. Fernando Villafane - journeyman (certified payroll
records Nos. 2-17, 41, 45-54, 56-57, 74); foreman
(certified payroll records Nos. 40, 42-45, 62-65),
electric foreman (certified payroll records Nos.
55, 58-60, 68); foreman journeyman (certified
payroll records Nos. 46-54, 74, 76); foreman
electrician (certified payroll records No. 61);
electrician journeyman foreman (certified payroll
records Nos. 66-67); foreman electrician
journeyman (certified payroll records Nos. 69-70);
(Exhibit C-10);
20. Joseph Von Nesson - 4th year helper (certified
payroll records Nos. 15-18); journeyman (certified
payroll records Nos. 43, 50-53, 56-57);
electrician journeyman (certified payroll records
Nos. 58, 66-67); electrician (certified payroll
records No. 72); (Exhibit C-37, C-10).
31. At the 1771 Andrews Avenue site, there were seventeen
employees classified at one time or another as journeymen,
signifying journeyman electricians; there were three employees
classified as trainees, there were two employees classified as
foreman journeyman and either of these two employees were
varyingly classified as foreman, electrician foreman, foreman
journeyman, foreman electrician, electrician journeyman foreman,
foreman electrician journeyman and electrician. One employee who
was classified as journeyman was also classified as a 4th year
helper, an electrician journeyman and an electrician. (Exhibit
C-37, C-10).
32. All payrolls were signed and certified by Frank
Micelotta, president of Expert. (Exhibits C-10, C-11). [8]
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[9] 33. Frank Micelotta certified on the~e payrolls, inter alia,
as follows:
I, Frank Micelotta, President, do hereby state:
(1) That I pay or supervise the payment of the
persons employed by Expert Electric, Inc. on
the Bronx Job Corps. (or 270 Broadway, whichever
was appropriate); that during the payroll period
commencing on the [*] day of [****]
19[**] , and ending the [**] day of [***]
[***] , 19[**] , all persons employed
on said project have been paid the full weekly wages
earned, that no rebates have been or will be made
either directly or indirectly to or on behalf of
said Expert Electric, Inc. from the full weekly wages
earned by any person and that no deductions have
been made either directly or indirectly from the
full wages earned by any person, other than permissible
deductions as defined in the Regulations, Part 3
(29 CFR Subtitle A), issued by the Secretary of Labor
under the Copeland Act, as amended ..., and described
below: Fringe benefits are bona fide within the
meaning of the Davis[-]Bacon Act (Pub. Law 88-349), Cash
Contributions are made to Local 363 I[nternational]
B[rotherhood of] T[eamsters] as follows [and the
specific amounts are indicated for 270 Broadway and
1771 Andrews Avenue].
(2) That any payrolls otherwise under this contract
required to be submitted for the above period are
correct and complete; that the wage rates for laborers
or mechanics contained therein are not less than the
applicable wage rates contained in any wage determination
incorporated into the contract; that the classifications set
forth therein for each laborer or mechanic conform with the
work he performed.
(3) That any apprentices employed in the above period
are duly registered in a bona fide apprenticeship
program registered with a State apprenticeship agency
recognized by the Bureau of Apprenticeship and Training,
United States Department of Labor, or if no such
recognized agency exists in a State, are registered with
the Bureau of Apprenticeship and Training, United
States Department of Labor. [9]
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[10] (4) That:
(a) WHERE FRINGE BENEFITS ARE PAID TO APPROVED
PLANS, FUNDS OR PROGRAMS
In addition to the basic hourly wage rates
paid to each laborer or mechanic listed in
the above referenced payroll, payments of
fringe benefits as listed in the contract
have been or will be made to appropriate
programs for the benefit of employees,
except as noted in Section 4(c) [which is
the Exceptions section where the craft
which has an exception is indicated and an
explanation provided; no such exceptions
were taken in this case].
* * *
The Willful Falsification of Any of the Above Statements
may Subject the Contractor or Subcontractor to Civil or
Criminal prosecution. See Section 1001 of Title 18 and
Section 231 of Title 31 of the United States Code.
Such certifications were signed and submitted by Frank Micelotta
with respect to the 270 Broadway and 1771 Andrews Avenue sites.
(Exhibits C-10, C-11, tr. V-7-7-72-77).
34. The employees identified in Nos. 28 and 30 above, with
the exception of Raymond Rinaldi, who was paid all amounts due
and was Expert's foreman (tr. V-35), were paid less by Expert
than the basic hourly amounts plus annuity due under Wage
Determinations Nos. 76-3256 for the 270 Broadway site and 79-3011
for the 1771 Andrews Avenue site. (Exhibits C-10, C-11, C-34,
C-35, and C-3).
35. The Expert employees who testified had varying degrees
of experience and competence as electricians. (tr. I-35-185;
II-196-362; III-373-379).
36. The usual assigned tasks included bending and running
pipe, pulling wire, running conduits, and installing light
fixtures. (tr. I-135-185; II-196-362; III-373-379).
37. Adam Rodriguez, who worked on the 1771 Andrews Avenue
site, described work duties which included bending of tubing
which was inserted into the walls and into the ceilings; and
installation of fixtures, sockets, wiring and all the things that
were required for electrical work. Mr. Rodriguez had put in
outlets, helped put in light fixtures, fl[uo]rescent light
fixtures, electrical sockets, helped pull wire and helped putting
in the wire inside the panels themselves. He would also get
supplies for a mechanic, help him with any tools, splice wires
and put in outlets. (tr. I-137). [10]
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[11] 38. Charles Maillard, who worked at the 270 Broadway and
1771 Andrews Avenue sites, reported that at the 270 Broadway site
the work consisted of pipe work for fire alarms and an enunciator
panel speaker system. This involves setting up tools for the
threading machine, which included the pipe threader, hack-saws,
hammers, drills, extension cords. He was involved in threading
pipe, mounting boxes, that is, FS boxes for the wires going
through to the speakers. These boxes were mounted on the walls
and ceilings. He also ran pipe, drilled holes through the
floors, worked hand in hand with the other electricians, cleaned
up at the end of the day and packed up. He also ran for coffee.
(tr. I-163-164). He testified that everybody was doing the same
kind of work. (tr. I-165).
39. Charles Maillard testified that he was involved in the
initial stages of the 1771 Andrews Avenue job site which he
characterized as a "renovation job," which involved the use of
tubing, wiring, setting up panels, temporary lighting, setting up
equipment, running pipe in the ceilings, chopping walls, and
making holes in the walls. (tr. I-165).
40. Alexander Maurikos, who testified that he had been doing
electrical work for twenty years, stated that his work at the
1771 Andrews Avenue renovation job consisted of working on pipe,
pulling wires, recessing panels, wiring, switching panels,
putting in receptacles, that is sockets. (tr. II-197-198, 200).
41. Fernando Villafane testified that he worked at the 270
Broadway site and testified that Charles Maillard would normally
make holes for the electricians in the direction that they were
running conduits through the corridors and through the walls. He
testified that Maillard would thread the pipe and bring material
from the lower floors to whatever locations the electricians were
working. (tr. II-230-231).
42. Fernando Villafane, who was one of the foremen on the
1771 Andrews Avenue site, testified that he observed Adam
Rodriguez on the site and that Rodriguez worked as a helper. He
testified that Rodriguez would help the mechanics clean after
they finished, gather material, bring material to them and put
equipment away at the end of the day. (tr. II-231).
43. Raymond Colon testified that he worked for Expert at the
270 Broadway site from December 2, 1979 through September 1980.
(tr. II-261). He testified that at the 270 Broadway site a fire
alarm system was being installed in a state office building. His
work included bending pipe, pulling wire through pipe, and
towards the end of the job, the workers were installing smoke
detectors, bells, and speakers. (tr. II-263). At the 1771
Andrews Avenue site, Raymond Colon testified that he was involved
in installing fixtures for the renovation job that was going on.
(tr. II-267). He also testified that he spent a small amount of
his time painting pipe, while the majority of his time was spent
on electrical work. (tr. II-273). He also testified that the
270 Broadway site consisted of some 31 floors. (tr. II-278). [11]
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[12] 44. Steve Siderakis testified that he had been an
electrician for 15 years and that he worked at the 1771 Andrews
Avenue site. (tr. II-282 ) . He noted that the Job Corps Center
under renovation required electrical work for every floor, namely,
a basement, first and second floor in the main building and some
four floors in an adjacent building. (tr. II-285). He testified
that the foreman assigned the job to be done by each employee on
a daily basis and fifteen minutes before quitting time employees
would pick up their tools and clean up. (tr. II-286 ) . Expert
stipulated and I so find that his duties were the same as that of
the other electrical employees, that is, journeyman electricians
(tr. II-287, 304).
45. Arthur LaTorre testified that he had worked for Expert
as a laborer at the 270 Broadway site. (tr. 373-374). He
testified that his work consisted of bringing materials to the
workmen and that he did no electrical work. (tr. III- 375-376).
46. Other employees of Expert Electric, Inc., verified that
the employees of both job sites were performing work normally
associated with the duties of an electrician or an electrician's
helper.
47. Some employees of Expert at the 270 Broadway and 1771
Andrews Avenue site might have been properly characterized as
"helpers", but there was no clear distinction between employees
as to who performed what work. The supervisor assigned work on a
"what needed to be done basis" (tr. II- 220), with those considered
less experienced allowed to take on tasks that were feasible for
them to do. (tr. IV-619, II-227, 224-225).
48. Of the 13 employees employed by Expert at the 270
Broadway site as set out in No. 28 above, Expert has stipulated
and I so find that the journeymen did all of the requisite
electrical work and thus were journeymen electricians, which is a
total of eight employees. Two of the employees at the 270
Broadway site were laborers, and, neither the eight electricians
or the two laborers were paid the appropriate rate. (Exhibit
C-34 and 35). The remaining employees were misclassified as
brush painters and/or trainees as none of these employees were
registered in an approved apprentice or trainee program with the
United States Department of Labor, except for a brief period of
time further described below. [12]
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[13] 49. Of the 20 employees employed by Expert at the 1771
Andrews Avenue site, Expert has stipulated and I so find that 13
were journeymen electricians who performed all aspects of the
job. Three of the employees were misclassified as trainees as
none of these employees were registered in an approved apprentice
or trainee program with the United States Department of Labor.
None of these employees was paid the appropriate rate. (Exhibit
C-34 and 35).
50. Expert's employees performed electrician tasks as well
as other assignments in the aid of their more experienced and
competent electrician co-workers. Expert maintained no records
which distinguished between those employees it deemed qualified
electricians and those it deemed helpers; there were no records
which separated the electrician and non-electrician work performed
by those it considered helpers. None of the employees were
registered in an approved apprentice or trainee program, except
for a brief period of time further indicated below.
51. Expert's employees worked an average of 35 hours per week
at the 1771 Andrews Avenue site, while employees at the 270
Broadway site worked from 35 to 40 hours per week. There were
occasions at both sites when employees worked overtime hours in a
day, that is, more than eight hours, for which they were to be paid
time and a half as required under CWHSSA. (Exhibits C-10 and 11).
52. As noted earlier, Expert's employees worked at the 270
Broadway site from week ending November 18, 1978 through and
including week ending August 23, 1980, while Expert's employees
at the 1771 Andrews Avenue site worked from week ending November
1978 through and including January 10, 1981. Notwithstanding
Expert's certification that all fringe benefits due were paid to
the union, the International Brotherhood of Teamsters, Local 363,
a detailed examination of complainant's Exhibits C-10 and 11, as
shown in complainant's Exhibits C-34 and 35, demonstrates
that fringe benefits due were paid late and that deficiencies in
such amounts still exist as calculated by the Department of Labor
in Exhibits C-34 and 35.
53. Robert Ramean testified that although he was a member of
Local 363 of the International Brotherhood of Teamsters
(hereinafter, "IBT"), the statements which he received from Local
363 disclosed that no fringe benefits had been paid on his behalf
while he was employed by Expert on the 1771 Andrews Avenue site.
(tr. II-318-322, Exhibit C-20). [13]
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[14] 54. The following employees were not members of Local 363 of
the IBT while they worked at the worksites identified above: Adam
Rodriguez (tr. I-140); John Galiouris (tr. II-302); Daniel Sgroi
(tr. II-310); Daniel Centeno (tr. II-343); and Arthur LaTorre
(tr. III-375). This notwithstanding, Expert made payments of
fringe benefits for these employees to Local 363 of the IBT.
(Exhibits C-8 and 9).
55. As of April 5, 1979, Frank J. Neher, Director, Regional
Bureau of Apprenticeship and Training, Region II, United States
Department of Labor, certified the trainee program approval of
the City of New York - Office of the Mayor, c/o New York City
Department of Employment, which was the name of the trainee
program sponsor. (Exhibit C-31A).
56. The trainee program approval meant that the City of New
York had an approved training program to register trainees for
their contracts, however, despite this approval the trainees
themselves were still required to be individually registered with
the Bureau of Apprenticeship and Training, U.S. Department of
Labor. (Tr. V-125-126).
57. As of August, 1980, the trainee program sponsor, namely,
the City of New York - Office of the Mayor continued, but was c/o
New York City Bureau of Labor Services. (Exhibit C-31G, H and
I).
58. As of August 12, 1980, Daniel Centeno was individually
registered with and was so approved by the Bureau of
Apprenticeship and Training, U.S. Department of Labor, with a
first year rate of $4.65 and a starting date of July 14, 1980.
(Exhibit C-31G).
59. As of August 12, 1980, Adam Rodriguez was individually
registered with and was so approved by the Bureau of
Apprenticeship and Training, U.S. Department of Labor, with a
first year rate of $4.65 and a starting date of July 14, 1980.
(Exhibit C-31G).
60. As of May 27, 1981, Daniel Centeno and Adam Rodriguez
were terminated prior to the completion of their trainee program.
(Exhibit C-31H).
61. Daniel Centeno worked for Expert at the 1771 Andrews
Avenue site from week ending May 3, 1980 through and including
week ending October 4, 1980. For the period week ending August 16,
1980 through and including October 4, 1980, when Daniel Centeno
was registered with the Bureau of Apprenticeship and Training,
U.S. Department of Labor, he had an approved trainee rate of
$4.65 per hour and $2.12 in fringe benefits plus annuity payments
per hour. He was thus due $6.77 per hour. However, he was
actually paid by Expert, $3.97 per hour, that is $2.80 less than
the minimum requirement. (Exhibit C-34-Centeno). [14]
~15
[15] 62. Adam Rodriguez worked for Expert at the 1771 Andrews
Avenue site from week ending May 3, 1980 through and including
week ending September 6, 1980. For the period week ending July
26, 1980 through and including September 6, 1980, when Adam
Rodriguez was registered with the Bureau of Apprenticeship and
Training, U.S. Department of Labor, he had an approved trainee
rate of $4.65 per hour and $2.12 in fringe benefits plus annuity
payments per hour. He was thus due $6.77 per hour. However, he
was actually paid by Expert, $3.46 per hour, that is $3.31 less
than the minimum requirement. (Exhibit C-34-Rodriguez).
63. Expert belatedly made efforts to meet the requirements
of the regulations that its trainees had to be individually
registered with the Bureau of Apprenticeship and Training, U.S.
Department of Labor, (hereinafter, "BAT").
64. Expert failed to secure the individual registration with
BAT of Charles Maillard, Raymond Colon, Joseph Von Nesson, and
prior to the official approved starting date of July 14, 1980, of
Daniel Centeno and Adam Rodriguez, whom it characterized
alternatively as trainees, 4th year helper, brush painters and
journeymen. (Exhibits C-36, 37, 10 and 11).
65. For the week ending May 3, 1980 through and including week
ending June 28, 1980, Daniel Centeno was an unregistered trainee
working at the 1771 Andrews Avenue site and entitled to the rate of
$12.85 per hour and $2.12 in fringe benefits plus annuity, rather
than the $3.97 per hour rate he was paid. Expert thus failed to
pay Daniel Centeno the minimum rate required under the Wage
Determination Decision 79-3011. (Exhibit C-34-Centeno, C-3).
66. For the week ending May 3, 1980 through and including
July 12, 1980, Adam Rodriguez was an unregistered trainee working
at the 1771 Andrews Avenue site and entitled to the rate of
$12.85 per hour and $2.12 in fringe benefits plus annuity, rather
than the $3.46 per hour rate he was paid. Expert thus failed to
pay Adam Rodriguez the minimum rate required under the Wage
Determination Decision 76-3256. (Exhibit C-34-Rodriguez, C-3).
67. For the week ending November 18, 1979 through and
including week ending June 2, 1979, Charles Maillard was required
at the 270 Broadway site to be paid $13.99 per hour plus annuity,
while he was actually paid $5.23 per hour. For the week ending
December 22, 1979 through and including January 26, 1980, Charles
Maillard worked at the 270 Broadway site and was required to be
paid $13.99 per hour plus annuity, while he was paid $6.53 per
hour. (Exhibit C-33-Charles Maillard). Expert thus failed to
pay Charles Maillard the minimum rate required under the Wage
Determination Decision 76-3256. (Exhibit C-33-Charles Maillard;
C-3). [15]
~16
[16] 68. For the week ending September 15, 1979 and week ending
October 6, 1979 through and including week ending October 20,
1979, Charles Maillard worked at the 1771 Andrews Avenue site and
was entitled to be paid $14.97 per hour plus annuity, while he
was paid $5.90 per hour. Expert thus failed to pay Charles
Maillard the minimum rate required under the Wage Determination
Decision 76-3011. (Exhibit C-34-Maillard; C-3).
69. For the week ending December 8, 1979 through and
including March 31, 1980, April 5, 1980 through and including June
27, 1980, and week ending July 4, 1980 through and including July
18, 1980, Raymond Colon worked at 270 Broadway and was entitled to
be paid ~13.99 per hour plus annuity, but was actually paid $8.00,
$8.73 and $8.99 respectively for these periods. Expert thus
failed to pay Raymond Colon the minimum rate required under the
Wage Determination Decision 76-3256. (Exhibit C-35-Colon; C-3).
70. For the workweeks ending May 24, 1980, July 12, 1980 and
January 10, 1980, Raymond Colon worked at the 1771 Andrews Avenue
site and was entitled to be paid $14.97 per hour plus annuity,
but was actually paid $14.20 per hour. Expert thus failed to pay
Raymond Colon the minimum rate required under the Wage
Determination Decision 79-3011. (Exhibit C-34-Colon; C-3).
71. For the workweeks ending December 8, 1979 through and
including June 27, 1980, when Joseph Von Nesson worked at 270
Broadway, he was entitled to receive $13.99 per hour plus
annuity, but was actually paid $7.09 per hour. Expert thus
failed to pay Joseph Von Nesson the minimum rate required under
the Wage Determination Decision 76-3256. (Exhibit C-35-Von
Nesson; C-3).
72. For the week ending November 10 through 24, 1979,
December 1, 1979, May 24 through May 31, 1980, July 12 through
26, 1980, August 2 through 30, 1980, September 6, 1980 and
November 1, 1980, Joseph Von Nesson worked at the 1771 Andrews
Avenue site and was entitled to be paid $14.97 per hour plus
annuity, but was actually paid $6.43 per hour. Expert thus
failed to pay Joseph Von Nesson the minimum rate required under
the Wage Determination Decision 79-3011.
73. Expert failed to properly register as trainees Charles
Maillard, Raymond Colon, Joseph Von Nesson, and prior to July 14,
1980, Daniel Centeno and Adam Rodriguez. When it did properly
register Daniel Centeno and Adam Rodriguez, it failed to pay the
required minimum trainee rate plus fringe benefits. By so doing,
Expert failed to comply with the minimum wage specifications
required under the Davis-Bacon Act at the 270 Broadway and 1771
Andrews Avenue sites. [16]
~17
[17] 74. It is found that the compliance officers of the Wage and
Hour Division have given proper credit for all fringe benefits
actually paid by Expert to its employees while it is noted that
some payments came after the work involved in this action had
been completed.
Collateral Issue not Adjudicated
The only matters in dispute which were referred to the
undersigned to adjudicate pertained to the prevailing wage rate
applicable to the classification of work performed and other
monetary benefits due such workers. Therefore, I make no
determination pertaining to the allegations of falsification of
record as charged by the complainant. Even so, as set forth below,
I recognize that the record keeping of Expert Electric, Inc. was
not in accordance with the requirements of the applicable law and
regulations.
Trainee Status
It has been with great reluctance that I have found that the
workers listed as trainees were entitled to the journeyman's pay
rate. However I find that the applicable guidelines leave me no
other alternative. In this regard [sec] 5.15 was added to Title 29
Code of Federal Regulations on July 21, 1975. As was pointed out
in the Federal Register, Vol. 39, No. 131, p. 24924, July 8, 1974,
the regulations were designed to promulgate revision of policy
pertaining to employment and training of apprentices and trainees
on Federal and federally assisted construction. The regulatory
changes were finally promulgated on July 21, 1975 (Federal
Register, Vol. 40, No. 140, p. 30480). While 5.15(a) provided that
no contractor would be required to obtain approval of a training
program which prior to August 20, 1975 was approved by the
Department of Labor for purposes of the Davis-Bacon and related
acts, the regulation also required that a copy of the program and
evidence of its prior approval had to be submitted to the Bureau of
Apprenticeship and Training for certification of such prior
approval or recognition.
It was also required by 5.15(b) of the regulations that for
ever[y] contract executed after August 20, 1975 that every trainee
in the prior approved programs had to be individually registered
in the program in accordance with the BAT procedures and paid the
rate specified in the program at the rate for his level of
progress. It is also stated that: [17]
~18
[18] Any such employee listed on the payroll at a trainee
rate who is not registered and participating in a
program certified by BAT pursuant to this section,
or approved and certified by BAT pursuant to [sec]
5.5(a)(4)(ii), must be paid the wage rate determined by
the Secretary of Labor for the classification of work
he actually performed.
It is obvious from R.8 that had the administrative procedure
been followed that all of the registered trainees would have
properly been payable at a rate below that for the journeyman
electricians.
I am also convinced that due to turmoil in the labor
situation at the job sites due to demands by certain groups of
workers and their lack of skill and apparent lack of motivation
to perform their job, the subcontractor did not obtain a reasonable
return for the requirement that he pay each worker the prevailing
journeyman wage rate. Without regard to this, my conclusions must
be in keeping with the applicable law, regulations and precedent
decisions.
II
CONCLUSIONS OF LAW
1. The law applying the Davis-Bacon Act is quite clear and
unambiguous. A contractor or subcontractor is not free to
subdivide the work falling within the electrician trade into lower
paying work classifications unless subordinate classifications
have been set forth in the applicable wage determination. In re
Ti[d]al Atlantic Constr. Corp., BNA 23 WH Cases 1125 (1978).
2. Similarly, it has been held that a laborer or mechanic
employed on a job covered by the Davis-Bacon Act is entitled to
receive not less than the minimum wage rate determined for the
kind of work he actually performed regardless of the degree of
skill and experience possessed. In re F.S.G. Contracting Corp.,
BNA 22 WH Cases 1311 (1976); Fra[m]lau Corporation, WAB (Wage
Appeals Board) case No. 70-5 (April 19, 1971).
3. A contractor cannot establish his own classification of
"helper" or "brush painter" based on his subjective evaluation of
an employee's skill and performance. In re J.B.L. Construction
Corp., BNA 23 WH cases 1064 (1978). [18]
~19
[19] 4. In a case anal[o]gous to this, where pipefitters and
laborers performed similar work, it was held that the higher
paying pipefitter wage was properly applicable to all workers who
performed such pipefitter tasks. In re Carley, BNA 23 WH Cases
1071 (1978).
5. Accordingly, as the record in this case establishes that
all Expert's employees performed some substantial elements of
electrician work, and as the trainees were not properly
registered in accordance with the regulations (U.S. v. Millsap,
208 F. Supp. 511 (D.C. Wyo. 1962), 44 USC [sec] 1507, 29 CFR [sec]
5.15(b)), it is concluded that all employees, including the
employees listed as "brush painter", were entitled to be paid the
wages and fringe benefits due under the electrician classifications
of the applicable wage determination decisions (40 USC [sec] 276a).
7. On the basis of the data contained in the certified
payroll records and from the testimony of the employees, it is
found that a total of $16,839.92 is due 17 employees of the 1771
Andrews Avenue site as set out in Attachment B and a total of
[$] 29,069.84 is due 11 employees at the 270 Broadway site as set
out in Attachment A under the Davis-Bacon Act.
8. Fund payments were properly suspended under the contract
pending proper compensation of all employees (29 CFR [sec] 9.
9. The prime contractors, Calcedo Construction Corp., and
TAP Electrical Contracting Service, Inc., together with the
subcontractor, Expert Electric, Inc., were aware of the
aforementioned Davis-Bacon provisions and the comparable C[WH]SSA
requirements. Under these circumstances, the prime contractors
are not relieved of their obligations under the Act even if they
were not fully informed of the violations until after they
occurred. See In re J.B.L. Construction Co., supra.; U.S. v.
Millsap, supra.
10. The Government as required withheld from outstanding
amounts due to each of the parties involved herein sufficient
sums to pay Expert's employees the amounts found due and owing
in No. 7 above (29 CFR [sec] 5(a)). [19]
~20
[20] 11. Expert did not comply with the recordkeeping requirements
of the regulations and stipulations of the contract in that the
certified payrolls failed to accurately state the work
classification of certain of its employees, in that payrolls
reflected that such employees worked as brush painters, 4th year
helper and trainees, when actually a number of these employees
were journeymen and the others performed electrical work, and
a number of these employees were not properly registered
with the Bureau of Apprenticeship and Training, U.S. Department
of Labor, as required by the Davis-Bacon Act and the implementing
regulations (29 CFR).
ORDER
As a result of the foregoing findings of fact and conclusions
of law, it is ORDERED, that the aforenamed employees set out in
Attachment A and B be paid back wages totalling $45,909.26 and
the individual amounts specified after each employee's name be
paid.
ARTHUR C. WHITE
Administrative Law Judge
Dated: JUN 13 1983
Washington, D.C.
ACW/koj [20]
