HARLOW RESTORATION CORP., WAB No. 81-14 (WAB May 11, 1983)
CCASE:
HARLOW RESTORATION
DDATE:
19830511
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
HARLOW RESTORATION CORP. WAB Case No. 81-14
Boston, Massachusetts Dated: May 11, 1983
DECISION OF THE WAGE APPEALS BOARD
DECISION BY: Stuart Rothman, Member, Thomas X. Dunn, Member
Gresham C. Smith, Alternate Member /FN1/
This case is before the Wage Appeals Board on the petition of
Harlow Restoration Corp. (hereinafter Harlow) seeking review of the
decision of the Assistant Administrator, Wage and Hour Division,
dated July 29, 1981, holding Harlow liable for $23,721,11 in back
wages for overtime violations of the Contract Work Hours and Safety
Standards Act, (CWHSSA) 40 U.S.C. [sec] 327 et seq.
Petitioner was awarded two contracts by the General Services
Administration (GSA) for masonry repairs to the U.S. Customs House
and the McCormack Post Office in Boston, Massachusetts. Both
contracts were subject to the labor standards provisions of the
Davis-Bacon Act and the overtime provisions of CWHSSA.
During the entire construction at the Customs House and through
a substantial part of the construction work at the Post Office,
petitioner, apparently with the acquiescence of its masonry
employees and with the knowledge of GSA, worked /FN1/
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Board Chairman Alvin Bramow withdrew from consideration of
this appeal and did not participate in the decision of the case.[1]
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[2] its crews for four 10-hour days per week, while paying only
straight time wages for any hours worked in excess of 8 hours
per day. When GSA advised petitioner that its method of payment
might be contrary to the CWHSSA requirements, petitioner ceased the
practice and indicated that proper restitution would be made.
GSA brought the question to the Department of Labor and was
advised that Harlow had an overtime wage liability for any hours
worked in excess of 8 hours per day. The Wage and Hour
investigation of the projects disclosed that the employees
worked either 9 or 10-hour days for 4 days per week on the projects
and that the certified payrolls submitted to GSA showed that the
employees were working S 8-hour days on the construction until the
violations were brought to petitioner's attention. The Assistant
Administrator of the Wage and Hour Division issued a ruling on July
29, 1981 that Harlow was liable under the two contracts for
$23,721.11 in back wages under CWHSSA. Petitioner appealed this
ruling to the Board on September 25, 1981.
In its petition Harlow does not deny that its employees worked
4 10-hour days at straight time on the two contracts in question.
It presents several arguments, however, which it contends should
mitigate its liability under CWHSSA. It is argued that Harlow's
main concern in working its crews for 4 10-hour days was their
safety since they operated from swing [2]
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[3] stages which were subject to high wind off of Boston's harbor.
Harlow points out that their decision to work this arrangement of
hours was agreed to be the business manager of the Bricklayers'
local union. Furthermore, Harlow points to the fact that GSA was
fully aware of the arrangement and that they did not object to the
fact that the employees were not paid overtime, since the employees
had agreed to it. Also, GSA did not notify Harlow that the compensa-
tion for the rearranged working hours was contrary to CWHSSA provisions
until one of the contracts was completed, and the other was approximately
half completed and it was too late for Harlow to reduce its
liability or rectify its mistake. Petitioner argues that GSA is as
responsible for its liability as petitioner.
Harlow finally requests the Board to declare that Harlow did
not commit the overtime violations alleged, or, alternatively,
Harlow calls the Board's attention to 29 CFR Part 5, [sec] 5.14
which permits the Secretary of Labor to grant variations,
tolerances or exemptions to provisions of CWHSSA when he finds
circumstances warrant such relief.
The Wage and Hour Division relies on the fact that petitioner
is obligated under CWHSSA to pay overtime wage rates for all hours
worked in excess of eight hours per day. Furthermore, it is
pointed out that CWHSSA also specifies that a contractor may
neither require nor permit any laborer or mechanic to exceed the
eight hour standard per day or forty hour standard [3]
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[4] per workweek at the straight time rate of pay.
Wage and Hour also asserts that no mitigating circumstances
can relieve Harlow of its obligation to pay overtime for all hours
worked over eight hours per day. The fact that Harlow submitted
certified payrolls to GSA which showed that its employees were
working 5 8-hour days instead of 4 10-hour days indicates to Wage
and Hour that petitioner was aware what its contractu[]al
obligations were under the Act. The Assistant Administrator relies
on U.S. ex rel. Johnson v. Morley Construction Co., 17 F.Supp. 378,
391 [----], to the effect that the employee cannot waive or bargain
away the payment of wages and rights secured to him by law. In
this case the court held that the right of employees on public
works to receive required wages was enforceable even in the face of
employees' waivers purporting to release the contractor from
statutory wage liab[]ility.
It is Wage and Hour's position that Harlow's request for a
variation, tolerance or exemption from the 8-hour day provision
of the Act is not properly before the Board because petitioner
did not assert this defense below, and since an appeal to the
Board can lie only from a final agency action, the Board lacks
jurisdiction over the question at this time.
The Wage Appeals Board considered this appeal on the basis
of the Petition for Review and two subsequent responses filed by
Harlow, the Statement on behalf of the Assistant Administrator [4]
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[5] and a response, and the record of the case in the Wage and Hour
Division filed by the Solicitor of Labor. No request for oral
argument was made.
* * *
Upon a review of the arguments presented to it in this appeal
the Board cannot accept petitioner's position that it would be
safer for its laborers and mechanics to work 4 10-hour days than 5
8-hour days. Petitioner has not sustained its position in this
regard.
Furthermore, in view of the language in CWHSSA, [sec]
102(b)(1):
No contractor or subcontractor contracting for any
part of the contract work which may require or involve
the employment of laborers or mechanics shall require
or [*] permit [*] any laborer or mechanic, in any
workweek in which he is employed on such work, to work
in excess of eight hours in any calendar day . . .
except in accordance with the provisions of this Act.
[40 U.S.C. [sec] 329(b)(1), [*] Emphasis added. [*]][,]
it appears to the Board that the prohibition of requiring or
permitting employees to work in excess of 8 hours per day at a
straight time rate of pay is obligatory and since petitioner did
not pay time and one/half for the excess hours per day, that
neither the fact that a union official agreed to the arrangement on
behalf of petitioner's employees or that the contracting officer of
GSA may have been aware of petitioner's practices and permitted
them to proceed until one project was completed and the other
project was half completed can excuse petitioner for the breach of
this statutory [5]
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[6] provision. It is Harlow Restoration Corporation, after all, who
made the contract with the contracting agency, and the provision is
very clear that Harlow was engaging in prohibited conduct and violating
its employees' rights.
Although the Board does not believe it would make any
difference if petitioner had permitted this employment arrangement
through ignorance of its obligations under CWHSSA, the fact that
the certified payrolls submitted to GSA were falsified to show that
the employees were working 5 8-hour days, when they were not,
indicates that petitioner knew what its obligations were under the
Act.
For the foregoing reasons the Board does not agree that any of
these circumstances mitigates or lessens petitioner's obligation to
pay its employees time and one/half for any hours worked in excess
of 8 hours per day. In addition, the Board cannot respond to
petitioner's request that a variation, tolerance or exemption be
granted pursuant to [sec] 105 of CWHSSA since this request was not
made previously to the Administrator and has not been the subject
of a final agency action. The Board cannot have jurisdiction over
the matter at this time.
Therefore, the decision of the Assistant Administrator is
hereby affirmed. Petitioner's employees are entitled to time and
one/half for all hours worked in excess of eight
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hours per day on both the U.S. Customs House and the McCormack Post
Office projects in Boston, Massachusetts. The petition of Harlow
Restoration Corporation is hereby denied.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
