TEDCO CONSTRUCTION CORP., 1987-DBA-46 (ALJ Sept. 12, 1990)
[1] [91-04.ALJ]
U.S. Department of Labor Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
In the Matter of Disputes concerning
the payment of prevailing wage rates
and overtime by
TEDCO CONSTRUCTION CORPORATION, Date Issued:
Prime Contractor and Lower-Tier September 12, 1990
Subcontractor;
PLACEWAY CONSTRUCTION CORPORATION, Case No.: 87-DBA-046
Prime Contractor;
MAROPAKIS CONTRACTING, INC.,
Subcontractor;
UNITED COOLING & CONTRACTING COMPANY
Lower-Tier Subcontractor
and
Proposed Debarment for labor
standards violations by:
TEDCO CONSTRUCTION CORPORATION,
ATHANASIOS KOUKOULIS, President
THEODORE CONTOURDOUDAS, Owner
UNITED COOLING & CONTRACTING COMPANY
a/k/a R. SAFI CONTRACTING ASSOCIATED
a/k/a MID-EAST CONSTRUCTION COMPANY
and RAYMOND SAFI, President
With respect to laborers and mechanics
employed by Tedco Construction Corporation and
United Cooling & Contracting Company under
Department of Transportation Third Coast Guard
District, Contract No. DTCG 26-83-C-00003,
Brick Village-Phase I, Governor's Island, New
York, and employed by [] Tedco Construction
Corporation under Department of the Navy Contract
No. N62472-81-C-0461, Steam and Condensate System,
Naval Education and Training Center, Newport,
Rhode Island [1]
[2] DECISION AND ORDER
This proceeding arises under Reorganization Plan No. 14 of
1950, 64 Stat. 1267; 40 U.S.C. 327, et seq., the Davis-Bacon Act,
as amended; 40 U.S.C. 276a, et seq., the Contract Work Hours and
Safety Standards Act; and 29 CFR [secs] 5.12 and 5.11, and other
applicable regulations as incorporated in Parts 5 and 6 of 29
CFR. /FN1/
On March 31, 1987, the Administrator of the Wage and Hour
Division, Employment Standards Administration, issued an Order of
Reference in which the Administrator found cause to believe that
the Tedco Construction Corporation ("Tedco") and its principals,
and United Cooling & Contracting Company ("United") and its
president had disregarded their obligations to their employees
within the meaning of the Davis-Bacon Act and should be debarred.
A hearing having been requested by respondents, this matter
was referred pursuant to the Act, the regulations, and the
Secretary of Labor's delegation of authority. The Administrator
directed that an Administrative Law Judge conduct a hearing to
determine all disputed matters arising under the Order of
Reference, that the decision of that presiding judge embody his
findings and conclusions, and that such findings also determine
the amounts of any wages due and whether or not debarment is
appropriate in this case. See 29 CFR [secs] 5.11(b), 5.12(b).
Accordingly, on January 29, 1990, a hearing was convened at
New York, N.Y., pursuant to my Notice of Hearing of September 12,
1989. Service on all parties was duly executed under 29 CFR 6.3.
See Tr., p. 6. Although the Administrator and all agencies of
the United States appeared by the Office of the Solicitor of the
U.S. Department of Labor, neither counsel nor any principal or
other person appeared at that time and place in behalf of Tedco;
Athanasios Koukoulis, its president; Theodore Contourdoudas, its
owner; United, Raymond Safi, as its president and principal,
R. Safi Contracting Associated, Mid-East Construction Company; the
Placeway Construction Corporation; or Maropakis Contracting, Inc.
In the event that a party appears at the hearing and no
party appears for the opposing side and in the further event that
the non-appearing party fails to show good cause for such failure
to appear, 29 CFR 6.7(b) provides that the presiding Judge is [2]
/FN1/ "The Act" refers to both the Davis-Bacon Act and the Contract
Work Hours and Safety Standards Act. "The regulations" refers to
the applicable regulations in 29 CFR, Parts 5 and 6. [2]
[3] authorized to dismiss the case or to find the facts as alleged
in the complaint. The regulation further provides the authority to
enter against the non-appearing party a default judgment that
includes such findings, conclusions and order as are appropriate.
Pursuant to my order to show cause, to the extent that it may
be material to their right to a hearing under the Act and
regulations I find that the following respondents waived their
respective rights to present evidence and argument by failing to
attend the hearing the January 29, 1990, hearing in New York,
N.Y.: Tedco, Athanasios Koukoulis, Theodore Contourdoudas, United,
Raymond Safi, R. Safi Contracting Associated (Safi), Mid-East
Construction Company, and Maropakis Contracting, Inc. See Tr., pp.
6, 7, 39. The decision and order that follows will be based on the
testimony and the exhibits admitted into the record without
objection at that time and place.
Exhibits. The following exhibits were offered by the
Administrator and were admitted into the record without objection.
These exhibits include Exh. GXA through GXO, which encompassed the
applicable wage rate orders and the contracts among the parties.
The exhibits also set out certified payroll records, summaries of
unpaid wages, and the worksheets developed during the investigation
of the violations asserted. The workpapers consist of wage
transcriptions, computation sheets, and summaries correlating the
hours worked and the wages paid to the employees affected by the
construction contracts. Finally, the exhibits include proposed
consent findings and remedial orders as to Placeway in GXP, and
Tedco and Theodore Contourdoudas in GXQ.
Testimony. The Administrator then presented the following
witnesses, who corroborated and connected the evidence embodied
in the exhibits to the Administrator's complaint: Henry Szabliski,
Edgar Roberts, Samuel Cox, and Irving Miljoner.
Findings of Fact. Based on the Administrator's Proposed
Findings of Fact, the exhibits, and the testimony in the
transcript, the following facts are found:
Part A. THE BRICK VILLAGE PHASE I PROJECT
1. Placeway Construction Corporation ("Placeway"), was
Awarded a contract by the Department of Transportation for the
construction of a project known as Brick Village, Phase I, for
the Coast Guard on Governor~s Island in New York, New York. The
contract was No. DTCG 26-83-C-00003 (Exh. GX Pl-7 and GX El-3).[3]
[4] 2. Placeway's performance on the contract was subject to
Reorganization Plan No. 14 of 1950 (64 Stat. 1267), the Davis-Bacon
Act, as amended, 40 U.S.C 276[a] et seq., the Contract Work
Hours Safety Standards Act, 40 U.S.C. 327 et seq., and the
applicable regulations issued thereunder at 29 CFR Part 5,
including [secs] 5.11(b) and 5.12(b). (Exh. GX Pl-7).
3. Placeway engaged Maropakis Contracting, Inc., as a
subcontractor on the project, which in turn engaged as a
subcontractor the joint venture of Tedco Construction Corporation
(Tedco) and United Cooling and Contracting Company (United).
(Exh. GX P 1-7, GX G 1-4 and GX H 1-7).
4. The wage rate decision applicable to performance on the
project was NY 81-3024 with modifications 1 through 5. (Exh. GX E
1-3, GX G 1-4, GX H 1-7 and GX I 1-9).
5. Athanasios Koukoulis, president of Tedco, exercised
control and supervision over Tedco's performance on Contract DTCG
26-83-C-00003 and was involved in the company's employment
practices and management policies pertaining to performance of
said contract. (Exh. GX H 1-7 and Tr. 27-28).
6. Raymond Safi, president of United, exercised control and
supervision over United's performance on Contract DTCG 26-83-C-
00003 and was involved in the company's employment practices and
management policies pertaining to performance of said contract.
(Exh. GX H 1-7 and Tr. 19-21, 27-35, 29-30, 32).
7. Wage rate decision NY 81-3024 with modifications 1-5
specified that unskilled laborers were to be paid pursuant to
modification No. 4 a basic hourly rate of $11.50 per hour and
fringe ben[e]fit payments of $3.95 per hour, a total of $15.45 per
hour. Pursuant to modification No. 3, the wage rate decision also
provided, that plumbers were to receive a basic hourly rate of
$14.06 per hour and Fringe Benefit Payments of $7.09 per hour, a
total of $21.15 per hour. (Exh. GX I 1-7)
8. United and Tedco each employed plumbers and unskilled
laborers on the project. (Exhs. GX D 1-5, GX J 1-63; Tr. 15, 21,
29-30).
9. Unskilled laborers and plumbers employed by United and
Tedco were not paid the prevailing wages required by NY 81-3024
with modifications Nos. 1-5. (Exh. GX A 1-32, GX B 1-85, GX J 1-
3, GX P 1-7; Tr. 16-20, 24-27). [4]
[5] 10. United and Tedco misclassified employees that performed
plumbers' work as unskilled laborers and failed to pay these
employees at the plumbers' rate. (Tr. 16, 19, 21-23, 26, 30-32,
34-39).
11. United submitted falsely certified payrolls signed by
Raymond Safi to the Coast Guard. (Exh. GX J 1-63; GX D 1-5, GX O-
1; Tr. 17-18).
12. United and Tedco failed to pay plumbers and unskilled
laborers time and one-half their regular hourly rate for hours
worked over 40 per week. (Exh. GX D 1-5, GX J 1-63; Tr. 17, 19-
20, 23-34, 26-27, 31-33).
13. Tedco, Athanasios Koukoulis, United, and Raymond Safi
failed to pay plumbers and unskilled laborers on the Brick Village
- Phase I project the required prevailing wage and overtime
compensation in an amount totalling $81,837.61. The amounts
due each employee are listed in [pars] 15 and 16, infra. (Exh. GX
P 1-7).
14. Pursuant to 29 CFR 5.11, a hearing was held in this
matter on January 25, 1990, concerning the proposed debarment for
labor standards violations by Athanasios Koukoulis, United, and
Raymond Safi. Prior to that hearing an agreement was reached
between the Department of Labor and Placeway on the disputes
concerning the payment of prevailing wage rates and overtime,
wherein Placeway agreed to the release by the U.S. Coast Guard of
$81,837.61 of the money withheld by the Coast Guard on Contract
DTCG-83-C-00003 for distribution to the employees listed in
Exh. A in satisfaction of those claims. (Exh. GX P 1-7). In
addition, in a separate agreement Tedco and Theodore Contourdoudas
agreed to be debarred. (Exh. GX Q 1-9).
15. Tedco Construction Corp., owes the following sums to
its employees:
BENTEVEGNA, PETER $ 351.90
CABALERRO, HENRY 2752.50
CHANCELLOR, J. 9.77
CHECKAMIAN, PHILIP 2709.86
COX, SAMUEL 7377.01
DRAPER, RAFAEL 6348.70
FARFARAS, JAMES 1508.52
FLOD, D. 19.55
GEORGITSIS, D. 13.68
GONZALES, JAMES 2967.52
HERZBURG, GEORGE 1944.59 [5]
[6] KAMPANOS, J. 13.68
KARAMOUZOS, S. 33.23
KARPETIS, A. 120.80
KAMNAS, GEORGE 991.61
KAVALIERATOS, G. 71.35
KENNEDY, TREVOR 7909.40
KOULLIAS, NICK 1936.91
LEVY, WILLIAM 1246.55
MAKRILES, L. 117.81
MARINO, SAL 729.30
MELVIN, JEROME 11636.49
MURPHY, J. 11.73
NUNLEY, C. 43.98
O'DONNELL, J. 15.64
PENA, M. 16.61
REZAK, MOUSTAFA 19.55
ROBERTS, EDGAR 4370.36
SAFI, A. 103.61
SCIANNAMEA, EDWARD 3288.02
VASILIKUS, J. 252.49
ZAFIROPOULOS, TED 3772.33
TOTAL $62,860.13
16. United Cooling & Contracting Co., owes the following
sums to its employees:
BANNISTER, RAYMOND $ 58.65
BARNES, EDWARD 58.90
BENTEVENGNA, PETER 1065.90
COX, SAMUEL 3483.07
GORDON, DEAN 647.95
DELMONT, FRITZ 281.52
DE MAIO, FRANK 10.75
DENNIS, GEORGE 470.09
DI MADRIA, J. 13.68
HAZZARD, ERIC 285.43
HUGHES, MICHAEL 50.49
JONES, KENNETH 123.42
KENNEDY, TREVOR 2526.83
LYRAS, PERRY 82.36
MAJEWSKI, FRANK 431.97
MAKRILES, LOUIS 527,34
MARINO, SALVATORE 794.24
NUNLEY, CHARLES 118.27
O'DONNELL, JAMES 45.94
PAPIN, MICHAEL 157.08
NUNLEY, LEONARD 326.48 [6]
[7] ROBERTS, EDGAR 2633.68
ROSCIANOS, THOMAS 395.93
SAFI, ANTOINE 400.77
SASSIN, SIMON 589.43
SCHINAS, PETER 187.93
TRZESINSKI, ROBERT 2876.40
VAHAVIDLAS, JOHN 88.95
VEGA, HECTOR 50.49
WHYTE, RUPERT 123.42
WIND, MIKE 30.85
WRIGHT, JAMES 39.27
TOTAL $18,997.48
Part B. THE RHODE ISLAND PROJECT
17. Tedco was awarded contract Number N6247-81-C-0461 by
the United States Navy for installation of a Steam and Condensate
System at the Naval Education and Training Center, Newport, Rhode
Island. (Exhibit GX Q 1-9).
18. Performed by Tedco and Contourdoudas, that contract
was subject to the provisions of the Davis-Bacon Act[,] 40 U.S.C.
[secs] 276, et seq., the Contract Work Hours Safety Standards Act
("CWHSSA"), 40 U.S.C. 327, and the applicable regulations of 29
CFR Part 5. (Id.)
19. Federal Wage Decision RI-81-3042 with modifications
Nos. 1 through 8 was attached to and incorporated in the Rhode
Island Contract and governed the payment of prevailing wages and
overtime by Tedco. The contract was subject to and contained the
representations issued thereunder (29 CFR 5.5) and was performed
in the United States through the use of asbestos workers and
steamfitters. (Id.)
20. Theodore Contourdoudas has been the owner of Tedco and
was responsible for said corporation's payroll practices. (Id.)
21. During the period of performance on the Rhode Island
contract the respondents, Tedco and Theodore Contourdoudas,
failed to pay one asbestos worker, John Chancellor, and one
steamfitter, John Vialva, employed in the performance of the
contract, the minimum monetary wages and fringe benefits required
by the contract, by the applicable Acts, and by the regulations
promulgated by the Secretary of Labor (29 CFR, Part 5), for all
hours of work and all fringe benefits, or cash payments in lieu
of fringe benefits, under the contract. In addition, respondents
failed to pay John Vialva time and one-half his regular rate for
[7][8] the hours he worked in excess of 8 per day and 40 per week.
(Id.) Tedco underpaid these employees in an amount totaling
$5,295.44, (Id), as specified in [par] 22, infra.
22. The United Cooling & Contracting Co., owes the following
sums to its employees:
JOHN CHANCELLOR $3693.60
JOHN VIALVA 2248.64
TOTAL $5295.44
THE ADMINISTRATOR'S PROPOSED CONCLUSIONS OF LAW
1. As prime contractor on the Brick Village - Phase I
project, Placeway is responsible for all contract clauses in 29
CFR 5.5, including the requirement that all laborers and
mechanics be paid in accordance with the applicable prevailing
wage and overtime standards. 29 CFR 5.5(a)(6). As the prime
contractor, it is responsible for the payment of the back wages
when subcontractors performing on the contract have failed to do
so. Exhibit GX P 1-7; Tap Electrical Contracting, Inc. & Calcedo
Construction Corp & Expert Electric, Inc., WAB Case No. 84-1
(March 4, 1985).
2. As joint venture subcontractors on the Brick Village
Phase I project Tedco and United violated the prevailing wage
provisions of the Davis-Bacon Act and the overtime provisions
of C[WH]S[S]A, in that they underpaid their employees in an amount
totalling $81,837.61.
3. Placeway has agreed to the release of $81,837.61 of the
funds withheld from it by the U. S. Coast Guard on the Brick
Village project Phase I for distribution to employees of Tedco
and United in satisfaction of its violations.
4. Respondents Koukoulis, United, and Raymond Safi, failed
to appear at the hearing held on January 25, 1990, pursuant to 29
CFR 5.11, at which time evidence and argument were received
concerning their debarment for violations of the prevailing wage
rate provisions of the Davis-Bacon Act and C[WH]SSA.
[5]. The petitioner has established that Koukoulis, United,
and Safi jointly and severally violated the Davis-Bacon Act and
C[WH]SSA in that they:
a) failed to comply with the prevailing wage requirements
of Wage Determination No. NY 81-3024 with modifications Nos. 1 [8]
[9] through 5, as set forth in the Brick Village Phase I contract;
b) failed to maintain true and accurate certified payroll
records;
c) failed to classify employees properly;
d) failed to pay time and one-half of employees' lawful
hourly rate for hours worked in excess of 40 per week; and, in
addition; []
e) Raymond Safi and United submitted false certified payroll
records in an effort to conceal their failure to comply with the
Davis-Bacon Act and C[WH]SSA.
[6]. Under 29 CFR 5.12(a)(2), debarment is provided as the
appropriate sanction for violations by contractors, subcontractors,
and their responsible officers who are found to have disregarded
their obligations to employees in cases arising under contracts
covered by the Davis-Bacon Act.
[7]. Because respondents Safi, United, and Koukoulis were
found to have disregarded their obligations to employees under the
Davis-Bacon Act in their performance on the Brick Village
Phase I - Project, debarment is appropriate in this case. Martell
Construction Co., Inc., WAB Case No. 86-26, (July 10, 1987); Ace
Contracting Company, Inc., WAB Case No. 76-23 (May 30, 1980); Vicon
Corp., WAB Case No. 65-3 (December 13, 1965).
[8]. As prime contractor on the Rhode Island contract Tedco
is responsible for the performance of the lawful requirements of
all contract clauses in 29 CFR 5.5, including the provision that
all laborers and mechanics be paid in accordance with the
applicable prevailing wage and overtime standards. 29 CFR
5.5(a)(6).
[9]. Tedco violated the prevailing wage provisions of the
Davis-Bacon Act and the overtime provisions of C[WH]SSA by
underpaying two employees a total of $5,295.44 as specified in
[par] 22, supra.
[10]. As the owner and principal of Tedco and during
performance of the Rhode Island contract, Contourdoudas was
responsible for the corporation's payroll practices, including
the untruthful certification of the hours and pay rates of each
of the affected employees. [9]
[10] [11]. In committing these violations Contourdoudas and Tedco
disregarded their obligations to their employees and their duty
to comply with the labor standards provisions of the Davis-Bacon
Act and C[WH]SSA. For these reasons their debarment is warranted
by the facts found in this case.
For these reasons, the following order will issue.
ORDER
1. It is ordered and recommended that Respondents Tedco
Construction Corporation, Theodore Contourdoudas, A[]thanasios
Koukoulis, United, and Raymond Safi be debarred from fu[r]ther
contracts subject to the Act for a three year period from the
date of publication by the Comptroller General of the list
containing the names of respondents in accordance with 29 CFR
5.12(a)(1).
2. The U.S. Coast Guard (or the General Accounting Office)
shall release to the Comptroller General $81,837.61 of the money
withheld by the Coast Guard on Contract No. DTCG-26-83-C-00003
for distribution to the employees listed in [pars] 15 and 16,
supra. The U.S. Navy (or the General Accounting Office) shall
release to the Comptroller General $5,295.44 of the money withheld
by the Navy on Contract No. N 6472-81-C-046 for distribution to the
employees listed in [par] 22, supra. Upon release of such funds,
the Wage and Hour Division shall distribute the back wages, less
appropriate deductions for social security and withholding taxes,
to the employees listed or to their legal representatives.
FREDERICK D. NEUSNER
Administrative Law Judge
Dated at Washington, D.C., this 12th day of September 1990.
NOTICE OF RIGHT TO APPEAL. Pursuant to the applicable
regulations, which appear in [sec] 6.29 of Title 29, CFR, any
interested person may appeal within forty days after receipt of
this decision by filing exceptions thereto. The original
statement of such exceptions must be filed with the Wage Appeals
Board, Frances Perkins Building, 200 Constitution Ave., N.W.,
Washington, D.C., 202[10]. A copy of the exceptions must be sent
to the Chief Administrative Law Judge, U.S. Department of Labor,
1111 Twentieth St., N.W., Washington, D.C. 20036. [10]
