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<![CDATA[
CCASE:
FRAMLAU CORPORATION
DDATE:
19710419
TTEXT:
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[1] UNITED STATES OF AMERICA
UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
In the Matter of
FRAMLAU CORPORATION WAGE APPEALS BOARD
Clifton Heights, Pennsylvania
Navy Contract N-642472-67-C-0095 CASE NO. 70-05
Avoca, Pennsylvania, Enforcement
File No. E-70-66, U.S. GAO Ref. DATED: April 19, 1971
B-168755
Joseph W. Montgomery,
Framlau Corporation,
Clifton Heights, Pennsylvania,
PETITIONERS
APPEARANCES:
Joseph W. Montgomery,
Richard A. Montgomery,
Suzanne S. Cotterall
for Framlau Corporation
Mr. D.D. Danielson
for the Building and Construction Trades
Department, AFL-CIO
Mr. T.V. Clark and
Mr. Louis C. Cook
for the Naval Facilities Engineering Command,
Department of the Navy
Mr. George E. Rivers
for the Solicitor's Office,
Department of Labor
BEFORE: Oscar S. Smith, Chairman,
Wage Appeals Board; Stuart Rothman
and Clarence D. Barker, Members. [1]
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[2] DECISION AND ORDER
On June 29, 1967, a construction contract in the initial
amount of $670,000 was awarded by the Department of the Navy to the
Framlau Corporation for the construction of a modern training
center (the Wilkes-Barre/Scranton Naval Reserve Training Center),
at Avoca, Pennsylvania.
Included in the contract specifications were the contract
clauses required by 29 CFR 5.5 and the Department of Labor Wage
Decision AG-9,726. Among other things, 29 CFR 5.5 provides as
follows:
"The contractor will submit weekly a copy of all payrolls to
the [Agency] . . . . The copy shall be accompanied by a statement
signed by the employer or his agent indicating that the payrolls
are [*] correct and complete [*], that the wage rates contained
therein are not less than those determined by the Secretary of
Labor and that the classifications set forth for each laborer or
mechanic [*] conform with the work he performed [*] . . . ."
[*] Emphasis supplied [*].
On the basis of a labor standards compliance investigation
made of the subject firm and contract, the Department of the Navy
found that 13 employees of the Petitioner had been underpaid
3,045.04 in violation of the labor standards requirements of the
Davis-Bacon Act, the Contract Work Hours and Safety Standards Act,
and of the contract requirements relating thereto, and that
liquidated dames totaling $100 were due for the overtime
irregularities involved. Since restitution in the amount of $95.10
had been made by the contractor to one employee, the total
restitution figure was reduced to $2,949.94. On the contractor's
refusal to pay the remaining sums of restitution and liquidated
damages found due, [2]
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[3] the Navy transmitted the entire record in this case to the
Department of Labor pursuant to 29 CFR Part 5, recommending debarment.
The Navy also withheld from amounts otherwise due the contractor
sufficient funds to cover the $2,949.94 restitution and $100
liquidated damages found due.
By registered letter of October 17, 1969, the Deputy
Administrator, Wage and Hour and Public Contracts Divisions (WHPC),
U.S. Department of Labor, furnished the contractor a summary of the
investigative findings against a background of the labor standards
laws and regulations and contract requirements involved and offered
the contractor the opportunity to present evidence in rebuttal at
an informal proceeding before the Regional Director, Wage and Hour
and Public Contracts Divisions, U.S. Department of Labor, at
Philadelphia, the Office nearest the contractor.
On December 10, 1969, and again, on May 25, 1970, the Hearing
Officer issued a formal decision on this case, concurring in the
findings of the Navy and recommending debarment. At the same time,
the contractor was advised he had the right to file objections with
the Solicitor of Labor, pursuant to 29 CFR 5.6. The contractor
filed such an appeal. Thereafter, on August 11, 1970, the
Solicitor issued his decision and, on the basis of the record as
constituted, affirmed the Hearing Officer's findings. By cover
letter of August 25, 1970, transmitting the Solicitor's Decision of
August 11, 1970, the Associate Solicitor also pointed out to the
subject contractor that, under 29 CFR 5.6, he could appeal this
Decision to the Wage Appeals Board following the procedures set
forth in 29 CFR 7.9, a copy of which was enclosed.
No further appeal having been received by the Department of
Labor, on October 13, 1970, the entire record in this matter was
forwarded to the [3]
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[4] Comptroller General of the United States pursuant to 29 CFR 5.6(b),
concurring in the debarment recommendation of the contracting agency
under Section 3(a) of the Davis-Bacon Act, as amended.
On November 20, 1970, following receipt of Notice from the
Comptroller General of pending debarment action by his Office,
Petitioners pointed out to the Comptroller General that they had
not yet had their hearing in Washington, apparently referring to
the Associate Solicitor of Labor's August 25, 1970 letter referring
to an appeal to the Wage Appeals Board. After informal discussion
of the matter between representative of the Comptroller General's
Office and the Wage Appeals Board, and to assure full due process
to all parties here involved, the General Accounting Office
forwarded the record in this case to the Wage Appeals Board on
December 10, 1970, "since it now appears that the contractor
desires to pursue its appeal rights to the Wage Appeals Board in
accordance with the procedures set forth in 29 CFR 7.9." The
General Accounting Office further asked that it be advised of
further developments and of the ultimate disposition of the appeal.
Thereafter, the Petitioners filed their appeal with the Board
and, on February 18, 1971, the Wage Appeals Board heard this case.
On review of the entire record as now constituted, including
the oral and written presentations made by and on behalf of the
Petitioners, it is our conclusion that the Petitioners underpaid
the 13 employees here involved and should be required to reimburse
them in the amounts previously found due by the Navy, the Hearing
Officer, and the Solicitor of Labor. In this connection, it is
noted that the bulk of the restitution was found due 2 employees
who had been classified as laborers and who were [4]
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[5] found in fact to have performed work requiring payment at the
electrician's or plumber's contract rat. As was well stated in the
Solicitor's Decision "the duties actually performed by a worker determines
his rate of pay, not the fact that he does not possess the tools of a
trade, or a license, or formal training, or is working in a market
short of trained skilled mechanics. Moreover, while it is
permissible under the contract labor requirements to work an
employee in more than one classification, to do so imposes added
responsibility on the contractor to make certain that such an
employee is properly paid for the various types of work he
performed and for the hours he performed it.
While the violations here are not to be condoned, the Board,
again after full consideration of the record of enforcement
proceedings, and hearings in connection therewith before this
matter reached the Wage Appeals Board, further concludes that the
record before it is not of a nature as to sustain debarment action
with respect to the subject firm and its responsible officials.
The Executive Secretary of the Board is hereby directed to
return the file in this case to the Office of the Comptroller
General, together with a copy of this decision.
SO ORDERED
Oscar S. Smith, Chairman
Clarence D. Barker, Member
Stuart Rothman, Member [5]
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