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<![CDATA[
CCASE:
ASSOCIATED PROJ. HEATING & COOLING
DDATE:
19771014
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
ASSOCIATED PROJECT BUILDERS, LTD WAB Case No. 77-09
and E.H. HEATING AND COOLING CO.
DHUD Project Tex-3-14 Dated: October 14, 1977
El Paso, Texas
Appearances: Ralph Wm. Scoggins, Esquire for Associated Project
Builders, Ltd. and E.H. Heating and Cooling Company
George E. Rivers, Esquire, Ronald S. Robins, Esquire
for the Wage and Hour Division, U.S. Department of
Labor
Decision by: Alfred L. Ganna, Chairman, William T. Evans, Member,
Thomas Phelan, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
Associated Project Builders, Ltd., and E.H. Heating and Cooling
Company which seeks review of the December 27, 1976, decision of
the Assistant Administrator, Employment Standards Administration,
denying petitioners' request to the Department [1]
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[2] of Housing and Urban Development for a hearing under Section
5.11(b) of Title 29 of the Code of Federal Regulations.
This petition arose from the fact that Associated Project
Builders, Ltd., a prime contractor, entered into a contract with
the Housing Authority of the city of El Paso, Texas, for the
construction of a turnkey housing project, HUD project No.
Tex-3-14. E.H. Heating and Cooling Company was a subcontractor
of Associated Project Builders on this project. Construction
was started on or about November 24, 1972.
In 1973 and 1974, investigations of possible Davis-Bacon
Act prevailing wage violations disclosed that three employees
of Associated Project Builders, Ltd., and four employees of
E.H. Heating and Cooling Co., failed to receive the prevailing wage
rates for the classification of work which they performed. As a
result Wage and Hour Division determined that Associated Project
Builders, Ltd., owed back wage, in the amount of $1,845.50, and
E.H. Heating and Cooling Co. owed $6,995.38, for a total of
$8,840.88. After several conferences between representatives of
the Wage and Hour Division and of the petitioners, no agreement was
reached between the parties concerning back wages or restitution
Subsequently, the prime contractor requested a fact-finding hearing
before an administrative law judge pursuant to 29 CFR 5.11(b). [2]
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[3] On December 27, 1976, the Assistant Administrator for the
Wage and Hour Division denied petitioners' request for a hearing
pursuant to 29 CFR 5.11(b) for failing to meet the criteria of the
applicable regulation, that is that the dispute concerning the
payment of prevailing wage rates or proper classifications must
involve significant sums of money, a large group of employees or a
novel or unusual circumstance. In view thereof, the Assistant
Administrator issued a ruling pursuant to 29 CFR 5.12 upholding
the findings that violations of the labor standards occurred on
the project, but offered the petitioners additional time to submit
refuting evidence. The Assistant Administrator advises that no
further evidence was submitted to him.
The Board considered this matter on the basis of the Petition
for Review of the petitioners and the statement for the Assistant
Administrator filed by the Solicitor of Labor. It was determined
that a hearing by the Board would not be necessary to decide the
appeal. The sole issue to be decided is whether it was an abuse of
discretion for the Assistant Administrator to deny the requested
[sec] 5.11(b) hearing.
The Board has recognized that the authority delegated to the
Assistant Administrator to grant hearings pursuant to [sec] 5.11(b)
is discretionary. See Espana Gardens, WAB Case No. 76-15 (May 4,
1977). There is no indication in the record that the Assistant [3]
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[4] Administrator's actions in denying the hearing were either
arbitrary or capricious. It seems to the Board that the criteria
contained in the Regulations for holding a [sec] 5.11(b) hearing
that the dispute must concern payment of prevailing wage rates or
proper classifications which involve significant sums of money,
large groups of employees or novel or unusual circumstances
have not been met.
The Board notes that the petitioners have included copies of
payrolls, and statements signed by the employees for its
consideration. The petitioners are reminded that the Wage Appeals
Board is essentially an appellate agency and does not hear matters
de novo except in exceptional circumstances, which have not been
demonstrated here. Furthermore, it appears that the payrolls and
statements submitted by petitioner are for periods other than the
ones for which underpayments were alleged.
The Board upholds the decision of the Assistant Administrator
and dismisses the petition.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [4]
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