CCASE:
SAINER CONSTRUCTORS, INC
DDATE:
19850418
TTEXT:
~1
[1] [85-13.WAB ATTACHMENT]
U.S. Department of Labor Office of Administrative Law Judges
1111 20th Street. N W.
Washington, D.C. 20036
SAINER CONSTRUCTORS, INC.
Prime contractor
and Case No. 84-DBA-4
DOYLE ELECTRIC COMPANY
Subcontractor
(on EDA Project Countryside
High School, Clearwater, Florida)
Respondents
DECISION AND ORDER
This matter arises pursuant to 29 CFR 5.11(b) on a dispute
concerning the payment of prevailing wage rates and proper
classification under the Davis-Bacon Act as amended 40 U.S.C.
276a et[] seq. A formal hearing was held on December 3, 1984 in
Sarasota, Florida. The parties were afforded a full opportunity
to present their cases, and, the record was closed on December
31, 1984.
The Complainant, Wage and Hour Division, ESA, Department of
Labor alleges that Respondent Doyle Electric Company,
subcontractor, violated the Act in employing electrician
apprentices in excess of the applicable permissible ratio of
apprentices to journeyman, and consequently, is liable for the
underpayment to employees of $16,461.90 in back wages.
The Respondent contends that the statute of limitations bars
this action, and if not, then the proper method to compute any
back wages results in an underpayment of $7,127.52 rather than
the amount alleged by complainant.
Denial of Motion for Summary Judgment
Doyle Electric Company, the respondent herein was awarded a
contract for electrical work from October 1, 1978 to September
30, 1980 at the Countryside High School. The alleged
underpayments occurred between the period October 1, 1978 to
April 6, 1980. This admin[I]strative action against respondent was
commenced September 23, 1983. Respondent argues that although
the Davis-Bacon Act did not contain any limitations period, a
subsequent statute of Limitations, in the Portal-to-Portal Act,
29 U.S.C. 255, provided that any action must be commenced within
2 years or 3 years for a willful violation. Accordingly, any [1]
~2
[2] legal action on this matter would have to commence prior to
April 6, 1983. Respondent filed a Motion for Summary Judgment on
grounds that there are no genuine issues of fact since the
statute bars enforcement and thus respondent should be entitled
to judgment. After careful consideration, I must deny the
respondent's motion. In J. Slotnik Co. et al[.], WAB 80-5 (1983),
the Wage Appeals Board decided to follow the guidance of the
Supreme Court in Unexcelled Chemical Corporation v. U.S. 345
U.S. 59 (1953) and by the Court in Ready-Mix Concrete Co. v.
U.S. 130 F. Supp 390 (1955), holding that the statutory
limitation provisions of the Portal-to-Portal Act are not
applicable to the administrative processes under the Davis Bacon
and related acts. On January 25, 1985, the Board affirmed its
previous holdings that administrative proceedings before an
administrative law judge or Board are not barred by the statute
of limitations contained in the Portal-to-Portal Act - see Matter
of Thomas J. Clements, Inc. et al., Wage Appeals Board, U.S. DOL,
WAB 84-12 (January 25, 1985).
Evaluation of the Evidence
The parties have agreed that apprentice electricians were
employed by Doyle Electric Company in excess of the permissible
ratio applicable to this government contract. The narrow issue
is which apprentices should be considered in excess of the ratio
and therefore to be paid at the journeyman rate. The relevant
regulation at 29 CFR 5.5(a)(4) states that "the allowable ratio
of apprentices to journeyman in any craft classification shall
not be greater than the ratio permitted to the contractor ....
Any employee listed on a payroll at an apprentice wage rate who
is not a trainee ... or is not registered or otherwise employed
as stated above shall be paid the wage rate determined by the
Secretary of Labor for the classification of the work he actually
performed[.]" The complainant contends that the employees first
hired on the project are considered the allowable apprentices and
that when the ratio of apprentices is exceeded, the later hires
resulted in a violation and must be paid at the journeyman rate.
Complainant refers to a Field Operation Handbook for the
Employment Standards Administration (15 b 12-2) indicating that
the last employed shall be considered improperly employed and
back wages are due said employees. Complainant, in its Response
to Pre-Hearing Order sets out the names of 9 employees alleged to
have been underpaid under this formula, amounting to $16,641.91.
The respondent's position is that although a violation occurs
when the number of apprentices exceed the ratio, all apprentices
are in the same position and that a fair and equitable way to
proceed would be to take the highest paid apprentices and pay
them at the journeyman rate to bring the ratio into conformance.
To do otherwise, the more inexperienced less-senior apprentices
would get paid journeymen rates, instead of paying the higher
rate to the more experienced and senior apprentices. Respondent
submitted a list of 7 employees who under this formula would be
considered due backwages, amounting to $7,127.52. [2]
~3
[3] I have carefully considered this record and the arguments
made by the parties. At first blush, the respondent[']s position
appears to have some merit, that is, to pay the journeyman rate
to those apprentices (in excess of the ratio) who are higher paid
or have more seniority rather than the last hired who are
receiving lower wages. This argument would prevail if the
interests of the employee apprentices vis-a-vis each other would
be adversely affected by increasing the pay of the last hired
apprentices to the journeyman rate. However, there are no
competing equities between the employees in this situation. All
employees were properly paid in accordance with their level as
journeyman or apprentice. To increase the pay rate of a recently
hired lower-paid apprentice to journeyman rate, over a more
senior higher paid apprentice, because of a statute or regulation
does no violence to employment rules nor does it have any adverse
effect on individual employees. The purpose of the Davis[-]Bacon
Act as implemented by 29 CFR 5.5(a)(4) was to insure that wages
paid workers employed on Federal Construction projects are not
depressed below the prevailing wage in the area and said purpose
is defeated when contractors are allowed to hire excess
apprentices and pay them wages below that prevailing for that
work classification. The practice of underbidding on a contract
is discouraged. The regulation mandates that the excess
apprentices will be paid the journeyman rate irrespective of his
or her experience level or status. In Repp & Mundt, Inc. and
G[e]dde Plumbing and Heating Co., Inc., Wage Appeals Board, WAB
80-11, January 17, 1984, the Board said that the regulatory
requirements concerning the employment of apprentices must be
strictly construed in order to assure the protection afforded by
the Act. Also, Tollefson Plumbing and Heating Co., WAB 78-17
September 14, 1979. The Board in Repp and Mundt et al, supra,
noted that when a successful bidder for a government contract
does not comply with the apprentice-journeyman, ratios, it would
appear that the award had been secured on either a
misrepresentation or a misunderstanding that the work would be
performed in accordance with the approved ratios. In Matter of
CRC Development Corp and Don Harris Plumbing Co., WAB 77-1, 77-13
October 31, 1977, the Board recognized that the ratio requirement
has been in effect since the 1950's and to allow a contractor to
utilize apprentices, thereby displacing journeyman entitled to
work on the job, would defeat the purposes of the statutes
enacted to protect the common interests of laborers and mechanics
employed on government projects.
The Respondents were awarded the government contract herein,
incorporating the statute, regulations and other legal
requirements. The respondent does not contest having exceeded
the ratio of apprentices to journeyman. The respondents have not
proven any mitigating circumstances or any sound basis to warrant
adopting their formula over that applied by the complainant. The
formula applied by complainant was in existence prior [to] the
~4
respondent[']s entering into the government contract. The payment
of back-wages to those hired after the ratio was met is
consistent with the purposes of the Davis-Bacon Act. I conclude
that the excess apprentices are those hired, after the proper
ratio is met. Therefore, those more recently hired regardless of
their level of pay, are the excess apprentices and entitled to
the journeyman rate of pay. The Respondent's position is
rejected. I find that backwages are due to the following 9
employees or former employees:
NAMES AMOUNT DUE
Michael Allen Davis $4825.03
Jerry Dean Earp 1360.38
David Gibson 675.88
Ronald Martin, Jr. 995.04
William McClaskey 2484.72
Zachary Rainey 2761.88
James Santella 1263.18
Michael T. Scrogham 1709.60
Wilfred Stalker 386.20
Total $16,461.91
ORDER
It is hereby ordered that the Respondent pay backwages in
the total amount of $16,461.91 to the Administrator, Wage and Hour
DivIsion of the U.S. Department of Labor, Washington, D.C. within
30 days. Said backwages shall be promptly disbursed by the
Department of Labor to the above named individuals.
Reno E. Bonfanti
Administrative Law Judge
Dated: APR 18 1985
Washington, D.C. [4]
