CCASE:
B&B CONTRACTORS, INC.
DDATE:
19880801
TTEXT:
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[1] [89-04 ATTACHMENT]
U.S. Department of Labor Office of Administrative Law Judges
211 Main Street, Suite 600
San Francisco, California 94105
DATE: AUG 01 1988
IN THE MATTER OF
Disputes concerning the payment of
prevailing wage rates and overtime
by:
B&B CONTRACTORS, INC.
Prime Contractor
With respect to laborers and mechanics
employed by the contractor under
Bureau of Land Management Contract
No. YA-552-CT2-23 (Riparian Fencing,
Rich County, Utah)
Appearances: Ann B. Noble, Esq.
For the U.S. Department of Labor
James A. Barrett, Jr.
Pro Se
Before: JAMES J. BUTLER
Administrative Law Judge
DECISION AND ORDER
This case arose under the provisions of the Davis-Bacon Act
(40 U.S.C. [sec] 276(a) et seq.) and the regulations promulgated
thereunder at 29 C.F.R. Part 5.
James Barrett, doing business as B&B Contractors, Inc., held
contract number YA-552-CT2-23 with the Bureau of Land Management
for the installation of riparian fencing in Utah near the Wyoming
border in 1982 and 1983. The primary issue is the amount of back
wages due seven employees who worked on the project.
The inquiry at hand was made most difficult by the habit of
Barrett to first record the hours worked on the back of snuff cans,
which were discarded after the payroll records were turned in to
the contracting agency. Further, the information provided by these
payroll records was incorrect in that one employee's (Velvick) Pay
was actually only $5.00 Per hour rather than the $11.00 specified
on the payroll record furnished and her hours were incorrectly
reported to match sums received. [1]
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[2] Barrett also deducted $132.00 per week from employees
Gonzales, Yarbrough and Kyro, for room and board. The "room" was
a wall tent set up in some remote location near the job site.
The compliance officer testified that the employees who
responded to her requests for information all indicated that they
had not been paid for all hours work. Respondent produced an
unsworn statement from employee Kyro, that the hours on the payroll
records he saw were correct and that he had been paid for the hours
reflected on the payroll record he saw. No employees involved here
testified at the hearing. Indeed, none could be timely located.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Respondent was a contractor within the meaning of the
Davis-Bacon Act, during all relevant times. The contract was for
an amount in excess of $2,500.00 and was for the purposes of
construction or reconstruction. He employed persons to assist him
in performing the work required by the contract he sought and
accepted.
2. Respondent violated the Davis-Bacon Act by failing to
keep accurate and adequate records in that he did not properly
record the correct number of hours worked by employees. His
records lacked the requisite information on some employees,
including addresses, social security numbers, and, in one case, the
correct spelling of an employee's name. He also failed to pay his
employees the requisite predetermined wage as required by the
contract.
3. The evidence regarding the hours worked by the employees
as presented by the compliance officer, although hearsay, is
clearly admissible in administrative hearings. Matter of
Encarnacioan S. Rodriguez, CCH-Labor Law Report, Administrative
Rulings, [par] 31,392, Case No. 80-FLCRA-395P (1981). There is no
evidence as to which payroll records Kyro saw and neither he nor
Hagen said that they had been paid all their wages. In light of
any contrary evidence, therefore, I find that the compliance
officer thoroughly weighed the facts presented to her and made
logical choices, giving respondent as much of the benefit of the
doubt as possible, in determining the back wages due. Although
respondent insinuated that employees exaggerated their hours of
work, he never actually stated that the hours claimed by the
employees were incorrect. Since he failed to report other items
correctly and since all the employees the compliance officer was
able to contact stated that they had not been paid for all hours
worked, it is logical to conclude that respondent failed to report
the hours worked by employees as accurately as he should have. In
[2]
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[3] the absence of the original records, I am constrained to
make this determination. The violations are provable by a "just
and reasonable inference," Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680 (1946), and must be accepted unless rebutted by
respondent. He has failed to rebut the inference.
4. Consequently, I find that respondent owes the following
wages to the employees listed below:
Dan Cairo [Kyro] $ 30.85
David Chandler 325.73
Mike Gonzales 619.62
Ron Haviland 104.06
Robert Thompson 46.00
Shelli Velvick 396.41
Roger Yarbrough 672.24
Thus, it is hereby ordered that respondent pay the employees
listed in paragraph 4, above. Such payment shall first be
satisfied by release of the funds withheld by the contracting
agency to the Department of Labor for disbursement to these
employees. Should the liability be unsatisfied by the withheld
funds, respondent is directed to pay to the Department of Labor the
balance thereof, which shall be distributed to the employees as
their interests may appear.
Debarment is not sought and no recommendation is made in that
respect.
JAMES J. BUTLER
Administrative Law Judge
JJB:brt [3]
