CCASE:
CORLEY MECHANICAL CONTRACTOR
DDATE:
19790406
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the matter of
Lee Roy Corley d/b/a WAB Case No. 78-26
CORLEY MECHANICAL CONTRACTOR
Ft. Leonard Wood, Mo. Dated: April 6, 1979
Decision by: Alfred L. Ganna, Chairman, Thomas M. Phelan,
Member, William T. Evans, Member
DECISION OF THE WAGE APPEALS BOARD
This case came before the Wage Appeals Board on the Petition
of Lee Roy Corley d/b/a Corley Mechanical Contractor to review a
decision of the Administrator, Wage and Hour Division, affirming a
decision of the Administrative Law Judge (ALJ) issued March 21,
1978. The Petitioner cites various errors in the Decision of the
Administrator and is requesting the Board to review the record of
the case before the ALJ.
The case arose from the fact that Corley Mechanical Contractor
was the prime contractor on a $351,775 Army contract at Fort
Leonard Wood, Pulaski County, Missouri, to replace and modify
heating systems in 120 buildings in specified areas of the
installation. Following a Wage and Hour investigation it was
determined that six employees [1]
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[2] of Petitioner whom Wage and Hour considered to be performing
pipefitters' work had been misclassified on the certified payrolls
as laborers or plumbers' helpers instead of pipefitters and
therefore these employees were required to be paid the pre-
determined rate for pipefitters in accordance with the applicable
wage determination. It was also determined that one employee who
was classified as a foreman and paid a weekly salary was performing
pipefitters' work and should have been paid the pipefitters' wage rate.
Petitioner requested a Section 5.11(b) hearing pursuant to
Regulations, 29 CFR, Part 5, which was held in December 1977 at
Fort Leonard Wood with both parties represented by counsel,
presenting evidence and witnesses on the issues. On March 21,
1978, the ALJ issued his decision on the record and concluded
that the work in question called for the skilled specialties of
pipefitters and that it was a well established area practice to
utilize pipefitters, not unskilled laborers, to perform pipefitting
work in similar contracts in the vicinity of Ft. Leonard Wood.
The ALJ stated he found no reason to controvert the knowledge and
testimony of three witnesses for Wage and [2]
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[3] Hour since Petitioner did not make a convincing showing that the
work in question was not pipefitters' work. Stating that it was the
work being performed and not the skill of the employee that determines
the classification, the ALJ found that the work performed by the
laborers or plumbers' helpers was pipefitters' work in the vicinity
of Fort Leonard Wood and that the employee who was paid as a
foreman had performed pipefitters' work and should have been paid
accordingly. In view of these conclusions, the ALJ determined
Petitioner had violated the Davis-Bacon Act with regard to seven
employees and ordered payment of back wages in the amount of
$32,082.28.
In April 1978, Petitioner requested a review of the ALJ's
decision by the Administrator, Wage and Hour Division. The
Administrator responded to each point of error claimed by
Petitioner and affirmed the decision of the ALJ, finding no clearly
erroneous findings or conclusions in the ALJ's decision.
On October 18, 1978, pursuant to 29 CFR [sec] 5.11(b),
Petitioner filed a Petition for Review of the Administrator's
Decision with the Wage Appeals Board.
The Petition for Review to the Board lists eight errors in the
Administrator's Decision as the basis for [3]
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[4] appeal. Generally, Petitioner claims that the Solicitor of Labor
instead of the Administrator of Wage and Hour should be reviewing the
ALJ's decision, that the ALJ improperly credited conclusionary testimony
of the compliance officer that the employees were performing
pipefitters' work, that the ALJ's finding that union practices
prevailed with respect to classification of the work was erroneous,
that the acceptance of opinion testimony of the steamfitters'
representative and the compliance officer concerning area practice
was in error. He further questioned the ALJ's determination of the
area practice within Ft. Leonard Wood as the appropriate
geographical area, he claimed denial of due process and questioned
the finding of lack of good faith and finally, the conclusion that
the foreman was actually performing pipefitters' work.
The Solicitor of Labor in a Statement for the Assistant
Administrator, Wage and Hour Division, discussed and met each of
the assignments of error put forth by the Petitioner to the Board.
It is Wage and Hour's position that three witnesses testified that
the type of work required by the contract, item by item, would be
pipefitters' work under the prevailing area [4]
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[5] practice. Wage and Hour finds that the ALJ was reasonable in
rejecting Petitioner's unsupported testimony that the six employees
performed primarily clean-up work and carrying materials considering
the scope and description of the contract. Wage and Hour claims that
the ALJ was correct and cites numerous authorities for admitting
conclusionary and opinion evidence in an administrative hearing to
establish for the record the area practice prevailing in the area
of Ft. Leonard Wood. Finally, Wage and Hour disputes Petitioner's
claim of lack of due process and supports the ALJ in his
determination that Petitioner did not act in good faith within the
meaning of Section 10 of the Portal to Portal Act.
The Wage Appeals Board considered this case in executive
session on the basis of the Petition for Review and related
documents incorporated by reference in the petition and filed by
Petitioner, and the Statement for the Assistant Administrator, Wage
and Hour Division, and the entire record of the case including the
transcript and exhibits of the ALJ hearing filed by the Solicitor
of Labor on behalf of the Administrator, Wage and Hour Division [5]
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[6] In its study of this appeal the Board has carefully
reviewed the record of the case and particularly the transcript of
the ALJ hearing and the exhibits filed therein. The issues clearly
must be resolved on the question of area practice in the vicinity
of Fort Leonard Wood for performing the type of work required by
the Post Engineers' contract with Petitioner. Although Petitioner
presented testimony at the hearing as to his methods of performing
the contract, Wage and Hour presented ample and substantial
evidence that the work in question is generally performed and
considered by the industry to be pipefitters' work and would be
performed by pipefitters, plus one or two other skilled trades.
The record read as a whole does not support Petitioner's
contention that the work required by the contract should be
considered laborers' work. At the ALJ hearing the Petitioner
endeavored to show that Post Engineers' projects are frequently
performed open shop, whereas Corps of Engineers' projects are
usually performed union at Ft. Leonard Wood. But Petitioner did
not present any evidence to show that Post Engineers' jobs would
outweigh Corps of Engineers' jobs with reference to the number [6]
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[7] of men employed or the practices followed. It is apparent that
the ALJ questioned Petitioner's unsupported testimony that a
project which called for such a large volume of pipefitters' skills
could be staffed and performed by, at the most, two pipefitters and
require four laborers for carrying supplies and cleaning up.
Finally, the record is clear that the foreman was a working foreman
who was entitled to at least the pipefitters' wage rate for his
hours worked instead of a lesser salary.
In view of these considerations, the Decision of the
Administrator, Wage and Hour Division is hereby affirmed and the
Petition for Review is dismissed. [7]
[8] BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
