USDOL v. SCHNABEL ASSOCIATES, INC., 1988-DBA-32 (ALJ May 24, 1989)
CCASE:
U.S. DOL V. SCHNABEL ASSOCIATES
DDATE:
19890524
TTEXT:
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[1] [89-18.WAB ATTACHMENT]
U.S. Department of Labor Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
DATE: May 24, 1989
CASE NO. 88-DBA-32
IN THE MATTER OF
U. S. DEPARTMENT OF LABOR,
Complainant
vs.
SCHNABEL ASSOCIATES, INC.
and RON GINNS, INC.
Respondents
Appearances: Alfred J. Fisher, Jr., Esq.
for Complainant,
Henry J. Costa, Jr., Esq.
for Respondent Schnabel Associates, Inc.
William M. Connor, Esq.
for Respondent Ron Ginns, Inc.
Before: HONORABLE RALPH A. ROMANO
Administrative Law Judge
DECISION AND ORDER
This is a proceeding arising under 29 CFR 5.11(b) involving a
wage restitution dispute concerning the payment of prevailing wage
rates and proper classification under the Davis Bacon Act as
amended, 40 U.S.C. 276 et. seq.
Trial of this matter was held on February 28, and March 1,
1989 in Philadelphia, Pennsylvania. (FOOTNOTE 1)
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(FOOTNOTE 1) Respondent, Schnabel Associates, Inc., appeared by counsel,
Henry J. Costa, Jr., who withdrew from active participation herein,
and transferred its defense of this matter (including a possible
deficiency judgment against it, to counsel for Respondent, Ron
Ginns, Inc. (Transcript, 19-23). [1]
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[2] Proposed findings and briefs, along with post-hearing
documentary evidence, have been filed.
STIPULATIONS
The government and Respondent, Schnabel Associates Inc.
(hereinafter "Prime"), entered a written stipulation of facts and
law (G-1) (FOOTNOTE 2). Respondent, Ron Ginns, Inc. (hereinafter "Sub"),
joined in paragraphs 1 thru 5 (Tr. 9) and paragraph 8 (Tr. 237,
238) of that stipulation (the subject of paragraph 8 is G-11).
In pertinent part, these stipulations contain the agreement of
all parties:
1) That jurisdiction herein is conferred.
2) That, on September 29, 1981, Prime entered into a
general construction contract to renovate and
rehabilitate apartments at Kearsley Home in Philadelphia,
Pennsylvania funded by a grant from the U. S. Department
of Housing and Urban Development (hereinafter "HUD").
3) That, in March, 1982, Prime and Sub entered into an
agreement (Ex. No. 1 annexed to the stipulation at G-l)
whereby Prime subcontracted to Sub the performance of
electrical construction work to be performed under the
aforementioned general construction contract.
4) That (G-11) Wage Decision No. PA80-3055, including
modifications 1 through 10, was attached to the
aforementioned general construction contract.
ISSUES
1) Whether the government has established ratio and
prevailing wage violations by Respondents under 29 CFR
5.5.
2) Whether Respondents may be relieved of liability for
a wage restitution claim by reason of the timing of the
government's violation notification to them, and/or by
reason of the government's failure to apprise them of the
proper ratio reduction procedure. [2]
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(FOOTNOTE 2) References are, "G" for Complainant - Government exhibits,
"S" for Respondent Ron Ginns, Inc. exhibits, "ALJ" for
Administrative Law Judge exhibits, and "Tr" for transcript of
trial. [2]
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[3] THE GOVERNMENT'S CASE
The great bulk (i.e., $27,362.34) (FOOTNOTE 3) of the government's
total wage restitution claim for $33,584.54 (FOOTNOTE 4) consists in its
allegation that Respondent Sub (FOOTNOTE 5) violated the 1 to 4
(apprentice electrician to journeyman electrician) ratio of
employees engaged in its subcontract work for the period February,
1982 through March, 1983, which ratio requirement is contained at
29 CFR 5.5(a)(4)(i) (See G17-18; Tr. 272-276).
The balance claimed ($6,222.20) represents alleged
underpayments of prevailing wages to three (3) of sub's employees
(DeSanto, Hassan, and Linder) for the period July, 1982 through
March, 1983, which prevailing wage requirement is found at 29 CFR
5.5(a)(1)(4) (See G-5, 7, 8, 9; Tr. 276-283).
Sub does not contest the existence and its awareness of the
aforenoted 1 to 4 ratio requirement. Both its principal officers
(Ron Ginns, President and John Adams, Vice President) admit this
aspect of the government's case (Tr. 357, 367, 396). Sub's
violation of this ratio requirement is manifest upon its certified
payroll, covering the applicable period, submitted to the
government (G-17; Tr. 262-271). This aspect of the government's
case is entirely uncontroverted. Indeed, responsibility for
compliance with the ratio requirement is admitted, albeit somewhat
reluctantly, by these of Sub's principals (Tr. 383, 449). Finally,
no challenge to the government's computation (G-18) (FOOTNOTE 6) of
resulting underpayments attributable to the ratio violations (FOOTNOTE 7)
is lodged by Sub. [3]
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(FOOTNOTE 3) This amount also includes a $245.84 overtime claim for
employee (Glenn Burns) under 29 CFR 5.5(b)(1).
(FOOTNOTE 4) The government has twice amended upwards this total amount
claimed (ALJ 11; Tr. 4, 5, 23-28).
(FOOTNOTE 5) The balance due to Prime on its general contract ($30,130.90)
has been withheld by HUD. Prime agrees that if Sub is found liable
for the wage underpayments, these withheld funds should be applied
to satisfy the underpaid employees (ALJ 1 3,7), thus implicitly
acknowledging its vicarious liability under 29 CFR 5.5(b)(4).
Proof of the events constituting the government-asserted violations
in this case, accordingly deals only with the behavior of Sub.
(FOOTNOTE 6) The seminal $17.70 per hour journeyman electrician
prevailing wage rate figure is nowhere contested by Sub, and, in
fact, acknowledged by Ron Ginns (Tr. 364, 380).
(FOOTNOTE 7) Nor to the DeSanto and Linder wage extensions, or to the
overtime claim (see ftn. 3, supra) except, of course, to the
extent, if any, its' defense to the ratio violation (see THE
DEFENSES, infra) prevails. [3]
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[4] Sub concedes that Hassan was underpaid as alleged (See Def.
Post-Hearing Br., pg[s]. 19, 25).
The government established, as to employee DeSanto, that: (a)
he was not registered in an apprentice program with the U. S.
Department of Labor or recognized State apprentice agency (Tr. 165,
281, 426), (b) his work functions for Sub from July, 1982 to March,
1983 were electrical in nature (Tr. 152-172), (c) he worked for
Sub, in part, at the Kearsley home site at an hourly wage of $10.74
(Tr. 153, 156, 283), (d) he appeared on one of Sub's certified
payroll reports submitted in connection with the subcontract noted
at par. 3 STIPULATIONS, supra, (hereinafter "the government
contract") (G-17; Tr. 282) and (e), he was not paid the journeyman
electrician prevailing wage rate of $17.70 while working for Sub at
the Kearsley home site (G-8, 9; Tr. 156). The government's wage
restitution claim for employee DeSanto asserts that he performed
electrical work for 496.50 hours on the government contract at
$10.74 per hour, and, since he was not registered as an apprentice,
should have been paid at the prevailing journeyman electrician rate
of $17.70 per hour, resulting in a wage underpayment of $3,455.64
(See Schedule "A" annexed to government's Proposed Findings of
Fact).
Relative to employee Linder, the government established that:
(a) he was not registered in an apprentice program with the U. S.
Department of Labor or recognized State apprentice agency (Tr. 407;
S-11) (FOOTNOTE 8), (b) his work functions for Sub in December, 1982 were,
in part, electrical in nature (Tr. 104-106, 218-219, 280-281), and,
in part, of the laborer type (Tr. 111), (c) he worked for Sub, in
part, at the Kearsley home site at an hourly wage of $3.50 (Tr.
107, 108), and (d), he was not paid the journeyman electrician
prevailing wage rate of $17.70 nor the prevailing laborer wage rate
of $13.05, while working for Sub at the Kearsley home site in
December, 1982 (G-5; Tr. 107, 108). The government's wage
restitution claim for employee Linder alleges that he performed
electrical work for 40 hours in December, 1982 on the government
contract at $3.50 an hour, and, since he was not registered as an
apprentice, should have been paid the prevailing journeyman
electrician rate of $17.70 per hour, resulting in a wage
underpayment of $568.00 (See Schedule "A" annexed to government's
Proposed Findings of Fact); and, that he performed laborer work for
an additional 40 hours in December, 1982 on the government contract
at $3.50 an hour, and should have been paid at the prevailing
laborer rate of $13.05 per hour (FOOTNOTE 9), resulting in an additional
wage underpayment of $382.00 (See Schedule "A" annexed to
government's Proposed Findings of Fact). [4]
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(FOOTNOTE 8) There is, moreover, no evidence that he was so registered.
(FOOTNOTE 9) This prevailing wage rate allegation, is nowhere
controverted. [4]
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[5] THE DEFENSES
Sub maintains that it should be relieved of the ratio
violation claim because, since the government failed to notify it
of such violation until after the job was completed, the government
should be estopped from pursuance thereof. Moreover, Sub asserts
that the government's failure to "timely" advise it as to the
option of, and proper procedure for, obtaining a ratio reduction,
renders a government recovery inequitable (See Sub's Post-Hearing
Brief, pg. 1-19).
Evidence was introduced by Sub suggestive of the fact that
government notification of ratio violation was first made after the
completion of the job, in April or May of 1983, or even as late as
August of 1983 (Tr. 357, 402; S-10). Furthermore, Adams testified
at length relative to apparently conflicting and/or incorrect
government information about how to obtain a ratio reduction (Tr.
410; S-3 to 5; S-13 to S-21). Also, some evidence was elicited
indicative (FOOTNOTE 10) of Sub's possible status as qualified for a ratio
reduction (Tr. 397-401; S-16, 17).
As to the DeSanto wage claim, Sub argues that this employee's
work was devoted exclusively to the servicing of a (non-government
funded) contract between Sub and Kearsley Home (hereinafter "the
private contract"), and thus not subject to prevailing journeyman
electrician wage requirements by reason of non-registry as
apprentice (Sub's Post-Hearing Brief, pg. 19 et. seq.). (FOOTNOTE 11)
Adams testified (Tr. 426, 427) that DeSanto ". . . mostly
worked on other jobs . . .," and to his knowledge did not do any
work on the government contract. He no longer had any work cards
or other documents to support his memory, however, but such records
were kept back then, and later destroyed (Tr. 438). [5]
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(FOOTNOTE 10) No hard evidence, however, of the legal qualifications for
ratio reduction was ever introduced. The last best [*] guess [*]
in this record is that application therefor must be made prior to
construction performance, and that such applications are rarely
granted (Tr. 79, 85). [*Emphasis in original*]
(FOOTNOTE 11) Curiously, Sub never explains, nor even attempts to explain,
why DeSanto is listed on Certified Payroll #59 (G-17), submitted by
it to the government as required with respect to work done under
the [*] government contract [*]. [*Emphasis in original*] [5]
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[6] Jack Smith, Sub's job foreman, testified that DeSanto worked
intermittently on different jobs, but he disclaimed specific
knowledge as to what work fell under the government contract and to
what extent, if any, DeSanto worked on that contract (Tr. 314,
318). Finally, Sub introduced several invoices purporting to
represent private contract work. These invoices were identified as
such by both Ginns (Tr. 350, 351) and Adams (Tr. 389). This first
set of such invoices (S-8) (FOOTNOTE 12) includes the period February,
1982 through May, 1983, and are all addressed to the Kearsley Home
c/o Mrs. Matuskowitz, who was identified as the director at the
Kearsley Home. The second set of invoices (S-22 - post-hearing),
(FOOTNOTE 13) which has not been identified as involving private contract
work except by representation of counsel in his cover letter of
transmittal, run from October, 1982 through March, 1983, and are
all addressed to Prime.
As to the Linder wage claim, Sub asserts that he too was
engaged, at times during his employ, in non-government contract
work (although not exclusively so as in the DeSanto case).
Moreover, Sub urges that Lindner was not doing electrical work, and
thus not entitled to prevailing journeyman electrician wage by
reason of non-registry as apprentice (Sub's Post-Hearing Brief, pg.
19 et. seq.).
Adams testified that Linder worked mostly in Sub's "shop"
in (Tr. 407) in "West Chester" /FN14/, although "occasionally" at
the Kearsley Home site (S-11).
Smith and Glenn Burns (another employee of Sub) testified that
Linder was a "gopher" (Tr. 213, 316), and Adams testified that he
was not hired as an apprentice electrician (but as a "helper" and
delivery person, who also "clean[ed]" the shop) since his
background was in carpentry (Tr. 407; S-11). Also, on
cross-examination, Linder testified that he spent "50 percent of
[his] time . . . cleaning up" (Tr. 116). [6]
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(FOOTNOTE 12) G-13 consists of the first three of these invoices.
(FOOTNOTE 13) This exhibit was submitted post-hearing, upon leave granted
at trial (Tr. 453), and admitted into the record by order entered
April 17, 1989.
(FOOTNOTE 14) Off the Kearsley Home site, which was located in
Philadelphia, Pennsylvania. (STIPULATIONS, par. 2, supra). [6]
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[7] FINDINGS AND CONCLUSIONS
I. RATIO VIOLATION
Cleared of its rhetorical smoke, Sub's defense is disingenuous
at best, and at its worst, patently absurd. Sub freely and
knowingly assumed the ratio obligation upon its signing of the
subcontract (G-1 attachment). From the beginning of its execution
of that subcontract, through to its completion, it regularly
submitted, pursuant to law, payroll reports, certified by its
principals as true and correct, containing data which, on its face,
established the violation of that obligation. Those principals
(Ron Ginns, President and John Adams, Vice President) who signed
off on these payroll reports did not concern themselves with
whether or not the ratio obligation was fulfilled (Tr. 371, 408),
(FOOTNOTE 15) and, in fact, fulfillment of that obligation was ". . . the
furthest thing from [Adams'] mind" (Tr. 402) (FOOTNOTE 16). As noted
previously, ultimate responsibility for failure to comply with the
ratio requirements, is admitted by Sub's principals, but only
tenuously and reluctantly so (Tr. 383, 449) (FOOTNOTE 17). Absent
"real quick" receipt of something akin to a tax delinquency
notification, Ginns felt all to be in order upon Sub's filing of
the payroll reports with the government (Tr. 379, 382). That
something akin to a tax [7]
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(FOOTNOTE 15) Neither Ginn nor Adams checked the payroll reports for ratio
compliance before signing them (Tr. 369-371; 449).
(FOOTNOTE 16) Other matters, of greater importance, were being attended to
(Tr. 402).
(FOOTNOTE 17) Somewhat duplicitously, in answer to his counsel's question
about his first awareness of the "ratio problem", Ginns reported
Sub's considerable, yet unsuccessful, effort to secure more
journeymen. Upon closer reading of his answer, it is apparent that
this effort was made in order to get the job timely completed,
rather than to move toward compliance with the ratio. (Tr. 358,
360). Taking Ginn at his word, i.e. presuming he was connecting
the effort to secure more journeyman with ratio compliance, we are
left with his ". . . simple business decision" to ignore the ratio
requirement in favor of completing the job, an even more damaging
admission. Adams seems to maneuver himself into the same box (Tr.
396, et. seq.). [7]
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[8] delinquency notification did arrive, but [*] only after the job
was completed [*][*Emphasis in original*]. (FOOTNOTE 18) And here lies
the heart of Sub's defense! That is, that the government is, for
such reason, estopped from pursuing herein its remedy statutorily
provided upon occurrence of such violation. Generally, traditional
notions of estoppel (FOOTNOTE 19) are invoked to prevent a party from
claiming a right where that party's own action (or inaction) has
worked a detriment to the estoppel-invoking party who had the right
to rely upon such action (or inaction) Graham v. Asbury, 540 P. 2d
656. Sub then, to prevail on estoppel grounds, must show that it
relied, as of right, to its detriment upon the temporary absence
(or inaction) (FOOTNOTE 20) of government notification of violation. Sub
cannot rationally argue that its detriment consisted in delaying
its quest for more journeyman electricians since, irrespective of
time of notification, at no time was it ever successful in this
regard (Tr. 359, 401). A right to rely upon the alleged delay in
notification is not established. [*] No [*] element of estoppel is
shown. [*Emphasis in original*].
The flagrant inconsistency in Sub's position is best
illustrated by reference to the many of its letters to government
officials (S-5; S-19 to 21) complaining of the "monumental
government delay," "classic 'run around'," and "bureaucratic
dilemma," faced by it as a "small business." While central to
Sub's frustrations is the idiom "Government get off my back," Sub's
defense in this case demands, to the contrary, that "Government get
on my back, (investigate and notify me of any violation), and do it
quickly or else lo[]se the right to recover the wage
underpayments." [8]
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(FOOTNOTE 18) Assuming the record established that the government['s]
first notification of violation came after the completion of the
job, the question how long after is legally irrelevant, as no
statute of limitations is invoked.
(FOOTNOTE 19) We are provided no decisional law in Sub's brief except for
Colonial Realty, Inc., WAB Case No. 87-37, (2/22/89), in which the
issue of untimely audit by a State agency was raised, but not
reached, and otherwise has nothing whatever to do with the issues
in the case at hand.
(FOOTNOTE 20) Sub does not propose what would constitute "timely"
notification, but insists only that the subject notification was
"untimely." Query whether notification a day, week, month, after
the particular payroll report was filed, would have been "timely."
The violative certified payrolls covered weeks ended 2/24/82
through 3/22/83 (G-17) and Sub alleges that the first notification
came no earlier than August, 1983, with job completion in May, 1983
(Br. pg 5). [8]
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[9] As with its estoppel defense, Sub cites no decisional law
authority in support of its position that the government's
"untimely" (FOOTNOTE 21) advice to it of the option of ratio reduction,
and its alleged "incorrect and misleading" advice to it relative to
the procedure for obtaining such reduction, renders a government
recovery herein "inequitable."
At any rate, in the first place, I find no evidence whatever
in this record that any government official provided "false and
misleading["] (FOOTNOTE 22) information to Sub. Further, the facts in
this case do not establish in any way that Mr. D'Amore (of the
U. S. Department of Labor, Bureau of Apprenticeship and Training)
"deceive[d]" (FOOTNOTE 23) anybody. Secondly, it is very doubtful that
even "incorrect" advice was ever provided Sub by D'Amore, and
counsel's blatant and repeated misstatements of the evidence, if
nothing else, confirm this doubt! D'Amore never testified that he
advised Adams that Mr. Ryan (of HUD) had the power to grant a ratio
reduction - as stated by counsel at pg. 15 of his brief (see Tr.
76). Contrary to counsel's statement (at pg 17 of his brief),
there was no testimony, at pg. 415-416 (Tr.), that D'Amore
"continued to tell John Adams that the HUD office had the
responsibility and power to grant such a [ratio reduction]
request." Contrary to counsel's statement (at pg. 17 of his brief)
there was no testimony, at pg. 420-421, that "D'Amore told him
[Adams] that the HUD office had the authority to grant the ratio
reduction request.["] In point of fact, this record more
demonstrates that the government officials in this case (D'Amore
and McGee) fulfilled their official duties in an entirely
appropriate manner, and, indeed, sympathetically with Sub's dilemma
(See Tr. 307, 421, S-3). Lastly, reduced to its basic form, Sub's
defense in this regard, amounts to nothing more than a totally
illogical and legally unsupportable plea that: although it broke it
(the ratio obligation), the government didn't tell it how to fix it
(by ratio reduction), and therefore, it didn't really break it!
(FOOTNOTE 24) [9]
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(FOOTNOTE 21) As queried at ftn. 20 supra, in this regard Sub also fails
to propose what would constitute "timely" advice. Moreover, since
D'Amore testified (Tr. 79, 89) that, in his experience, ratio
reductions were never granted after the completion of the job
(proposed as having occurred in May, 1983), and that he first
learned of a possible ratio violation in the "later part of [1983]"
(Tr. 71), effective "timely" advice was not possible in this case.
(FOOTNOTE 22) Sub's Brief, pg. 18
(FOOTNOTE 23) Sub's Brief, pg. 16
(FOOTNOTE 24) While never raised by the government, a question does arise
as to why Sub should not itself carry the burden of acquisition of
knowledge, through its own resource, of its ratio reduction rights,
if any, rather than the proposed placement of the burden upon the
government to convey to it such knowledge. [9]
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[10] I find that the government has established as against
Respondents the ratio violation as herein asserted under 29 CFR 5.5
which, pursuant to the applicable regulation at 29 CFR 5.5(a)(4),
requires the recalculation of wages of apprentice electricians in
excess of the permiss[i]ble ratio, at the prevailing wage rate of
$17.70 per hour for journeyman electricians, all as is set forth in
the amounts noted at Schedule "A" of the government's Proposed
Findings of Fact.
II. DESANTO WAGE CLAIM
While less than overwhelming, the government's Proof relative
to its claim that DeSanto worked (FOOTNOTE 25) for 496.50 (FOOTNOTE 26) hours
on the government contract, r[]ises at least to a prima facie level.
For one thing, DeSanto was listed on a government contract payroll
report (see Ftn. 11/, supra - Tr. 281). He testified, without
contradiction, that he worked "off and on" at the Kearsley Home
site, and that he remembered the hours he worked there on the basis
of his pay stubs which reflect a $10.74 per hour wage for work at
that site (Tr. 153; G 8-9). Hassan and Burns remember working
alongside him at that site (Tr. 140-142, 203-204).
On the other hand, the proof offered by Sub on this issue is
both exceptionally thin and, more importantly, demonstrably
misrepresentative of actual fact. To establish its contention that
DeSanto worked [*] exclusively [*] on the private contract, Sub
offers the testimony of Ginns, Adams and Smith - each of whom
merely confirm that Sub billed private contract work. [*Emphasis
in original*] Neither Ginns nor Smith claim specific knowledge of
DeSanto private contract work. Smith, in fact specifically
disclaims any such knowledge. That private contract work was
billed by Sub is not sufficient to establish that DeSanto worked on
that private contract at all, no less exclusively! [*Emphasis in
original*] While Adams does claim specific knowledge that DeSanto
"mostly" did this type of work, he is unable to produce any
documentation (e.g. work card designation to such assignment)
bolstering his recollection in this respect, and admitted that
". . . we had, at different times during the period of the job, we
had so many men working, it was hard to keep track of how many
hours they were there . . ." (Tr. 396), and that he ". . . [didn't]
remember what I was doing, I don't remember what they [employees
other than DeSanto] were doing" (Tr. 444). [10]
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(FOOTNOTE 25) There is an abundance of virtually uncontroverted proof that
he was doing experienced electrical work (Tr. 165-172).
(FOOTNOTE 26) This figure is reached by totalling all hours worked at the
$10.74 per hour (Kearsley Home site) wage appearing at G-8 and G-9
pay stubs, less the 16 hours attributable to DeSanto's ratio excess
involvement at Schedule "A" of the government's Proposed Findings
of Fact. [10]
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[11] More importantly, Sub offers documentation (which, as
noted, at most may prove only that private work was done, not that
DeSanto did such work) in the form of invoices (S-22
post-hearing) (FOOTNOTE 27) purporting to represent private contract work
but which are directly traceable to government contract change
orders. Each of the amounts noted on these invoices ($3,265;
(FOOTNOTE 28) $2,250; $7,892; $6,958; and $4,120) appears on "change
order" documentation relating to the government contract (See S-7).
Indeed, some of the invoices facially note the relationship "per
change." None of these invoices are addressed to Miss Matuskowitz,
who is the director of the Kearsley Home, as with the S-8 invoices.
This documentary submission is no less than a gross distortion of
the facts, and accordingly warrants a negative inference on the
credibility, authenticity, reliability and probativeness of Sub's
contention entirely.
I find that DeSanto did the work of an experienced electrician
on the government contract for the hours noted upon Schedule "A" of
the government's Proposed Findings of Fact; that he was not
registered as an apprentice, and, thus, entitled to journeyman
electrician hourly wage of $17.70 for those hours worked.
III. LINDER WAGE CLAIM
The government proof that Linder worked, during December,
1982, for a total of 80 (FOOTNOTE 29) hours on the government contract (40
of which hours, at electrical-type duties, and 40 of which hours,
as a laborer), consists of: (1) Linder's testimony relative to his
electrical and laborer duties and his pay stub (G-5) memory recall
of a $3.50 per hour wage scale while at the Kearsley Home site, (2)
Hassan, DeSanto and Burns testimony that they worked with Linder at
that site, (3) the testimony of John Nielson, who qualified as a
union expert on electrician trade duties, who confirmed that part
of Linder's work was of an electrical nature, and (4) the testimony
of McGee, the HUD investigator, who discussed the details of the
matter telephonically with Linder and determined the alleged wage
deficiency amounts. (FOOTNOTE 30) [11]
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(FOOTNOTE 27) As already noted, this evidence is otherwise of minimum
probative value as not having been properly identified, See pg. 6,
supra.
(FOOTNOTE 28) The change order at S-7 apparently transposes this figure to
$3,256.00.
(FOOTNOTE 29) This figure is reached by adding the total number of hours
at $3.50 per hour on Linder's December, 1982 pay stubs (G-5).
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[12] This determination rationally includes the hours worked only
in December, 1982, as Sub provided McGee with invoices allegedly
indicating Linder private work assignment subsequent to that month
(Tr. 279, 280). A prima facie case is made relative to this aspect
of the government's claim on the basis of the foregoing.
As noted hereinbefore, Sub insists that Linder worked only
part of the time at the Kearsley Home site (and, thus, only part of
the time on the government contract), and, at any rate, never
performed electrical duties but was merely a "gopher" type.
However, Sub produces no evidence to establish the extent, if any,
to which Linder worked off the government contract site (Kearsley
Home), except the vague, unsupported statement of Adams (without,
for instance, work card assignment substantiation) that Linder was
"mostly" in the West Chester "shop." Smith (foreman at the
Kearsley Home site) acknowledged that Linder was at the site. Sub
fails to negate the foregoing government evidence that Linder
worked, to some extent, (FOOTNOTE 31) on the government contract.
Moreover, the mere testimony of Adams, Smith and Burns relative to
the non-electrical or "gopher" type work which Linder performed
(half the time during December, 1982) - as measured against the
expert testimony of Nielson who, as a long-time union official, is
intimately familiar with the nature of duties customarily
associated with the electrician trade - is insufficient to show
that Linder did not perform some duties of an electrical nature
(FOOTNOTE 32) Finally, Linder's testimony that the other 50% of his time
was spent "cleaning up" (Tr. 116) provides a rational basis for the
government's determination that this portion of his work (i.e.,
40 hours) was in the nature laborer's duties. Sub, in no respect,
controverts by competent evidence, this part of the government's
determination.
I find that Linder performed duties on the government contract
in the nature of electrician work for 40 hours during December,
1982, and performed duties on the government contract in the nature
of a laborer for 40 hours during December, 1982; that he was not
registered as an apprentice electrician, nor paid at the prevailing
wage rates (FOOTNOTE 33) for electrician or laborer, and, thus, entitled
to journeyman electrician wages for 40 hours and laborer's
prevailing wages for 40 hours, all as is set forth at Schedule "A"
annexed to the government's Proposed Findings of Fact. [12]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
(FOOTNOTE 30) I.e., $382, arrived at by multiplying the laborer wage rate
of $13.05 per hour times 40 hours, less actual wages paid; and
$568, arrived at by multiplying the electrician's wage rate of
$17.70 per hour times 40 hours, less actual wages paid. (See
Schedule "A" annexed to government's Proposed Findings of
Fact).
(FOOTNOTE 31) The government's estimation that he did so throughout the
month of December, 1982 is, as already noted, rational.
(FOOTNOTE 32) Per Linder's testimony, for instance; the carrying of
electrical supplies, pulling of electrical conduit wire, and
installation of cover plates.
(FOOTNOTE 33) As noted upon the wage determination (G-11). [12]
~13
[13] On the basis of the entire record, I find that the
government has established that Respondents have violated the ratio
and prevailing wage rate provisions of the Davis-Bacon Act, 40
U.S.C. 276, et. seq, and the regulations issued thereunder at 29
CFR 5, et. seq., and, accordingly, are jointly and severally liable
for the wage deficiencies noted at ORDER, infra.
ORDER
It is hereby ORDERED, that Respondents shall, within forty
(40) days of the date hereof, pay to the United States Department
of Labor the sum of $3,453.64, and it is further
ORDERED, that upon receipt thereof, together with the fund of
$30,130.90 already withheld by the United States Department of
Housing and Urban Development, the United States Department of
Labor shall cause to be disbursed to the following named persons
(FOOTNOTE 34) the respective amounts as indicated below:
David Barnes 629.97
Steve Burns 487.49
Steve Burns 1590.13
Steve Burns 12.70
Mike Edwards 1870.24
Mike Edwards 1860.20
Mike Edwards 22.22
Richard Foy 469.92
Richard Foy 2788.55
Richard Foy 362.45
Richard Foy 11.11
Glen Burns 1468.20
Glen Burns 9925.55 [13]
~14
[14] Glen Burns 190.66
Glen Burns 245.84
Robert Leszcynski 1053.53
Kenneth Ashcroft 1783.70
Charles McCaffrey 2478.62
Thomas DeSanto 111.26
Thomas DeSanto 3455.64
Charles Hassan 1816.56
Charles Linder 382.00
Charles Linder 568.00
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
(FOOTNOTE 34) To the extent any such named person cannot be located for
payment distribution, the wage deficiency amount listed therefor
shall revert to the Treasury of the United States. Burk Builders,
Inc., v. Wirtz, 355 F. 2d., 451 (CA 5, 1966).
RALPH A. ROMANO
Administrative Law Judge
DATED: MAY 24 1989
PETITION FOR REVIEW: Within forty days after the date of this
Decision, any party aggrieved who desires review shall file a
petition for review of this Decision with supporting reasons. This
petition shall be transmitted in writing to the Wage Appeals Board
pursuant to 29 C.F.R. Part 7 with a copy to the Chief
Administrative Law Judge. The petition shall refer to the specific
findings of fact, conclusions of law, or order at issue. A
petition concerning the Decision on debarment shall also state the
aggravated or willful violations and/or disregard of obligations to
employees and subcontractors, or lack thereof, as appropriate (See
29 C.F.R. [sec] 6.34). [14]
