KENNETH E. BROWN CONSTRUCTION CO., INC., WAB No. 84-17 (WAB Mar. 12, 1985)
CCASE:
KENNETH E. BROWN
DDATE:
19850312
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
KENNETH E. BROWN WAB Case No. 84-17
CONSTRUCTION CO., INC.
San Angelo Housing Project Dated: March 12, 1985
Contract No. TX-470-1
BEFORE: Alvin Bramow, Chairman, Thomas X. Dunn, Member
and Stuart Rothman, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition
of Kenneth E. Brown Construction Co., Inc., seeking review of
the assessment against it of liquidated damages in the amount of
$1,870.00 for violations of the Contract Work Hours and Safety
Standards Act (CWHSSA)(40 U.S.C. [sec] 327 et seq.)
The assessment of liquidated damages in this appeal was
based on a finding that petitioner, who was the prime contractor
on a $2.25 million contract with the San Angelo Housing Authority
to construct housing at San Angelo, Texas, did not pay overtime
wage rates to six employees working on the covered project
for hours worked in excess of eight hours a day for periods
between July and October, 1981. Petitioner, upon notification of
the violations, agreed to future compliance and paid the back
wages due. An additional $1,870 was computed to be due in
liquidated damages pursuant to the statutory provision of CWHSSA at
40 U.S.C. 328. Although the Department of Housing and Urban [1]
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[2] Development recommended that the liquidated damages be waived,
the Wage and Hour Administrator ruled that the petitioner did
not meet the statutory standards for waiver set out at 40 U.S.C.
330 and refused to waive the liquidated damages.
On August 27, 1984, petitioner appealed the Administrator's
ruling and the assessment of liquidated damages to the Wage
Appeals Board. In its petition to the Board, petitioner is urging
the Board to repeal the assessment of liquidated damages because
petitioner has already paid the back wages found due and claims
that all the employees involved were employees of several
subcontractors who were also engaged on the project, and that it
would be virtually impossible for petitioner "to check every
hour of every employee worked by a sub-contractor on any project
involving Department of Housing and Urban Development funds."
The Board considered this appeal on the basis of the
Petition for Review filed by the petitioner, and the record
of the case before the Wage and Hour Division and the Statement
for the Administrator filed by the Solicitor of Labor. No request
for an oral hearing was received by this Board.
* * *
The petitioner requests the Board to consider, as part of
its argument, that it did not violate the Davis-Bacon provisions
of the U.S. Housing Act of 1937, 42 U.S.C. 1437j, and the Contract
Work Hours and Safety Standards Act, 40 U.S.C. 327 et seq., as [2]
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[3] these employees were in fact "subcontractors" and not laborers
and mechanics. This Board is unable to take into consideration
this argument as the question of violations of these Acts is not
properly before it. The decision of the Administrator of the
Wage and Hour Division from which this appeal has been taken
did not involve that issue.
The only issue before this Board is whether the assessment
of liquidated damages should be waived.
The Contract Work Hours and Safety Standards Act under which
the liquidated damages were assessed provides in pertinent part:
. . ., if it is found . . . that the contractor or
subcontractor violated the provisions of this
Act [*] inadvertently notwithstanding the exercise
of due care on his part and that of his agents [*],
recommendations may be made to the Secretary
that an appropriate adjustment in liquidated
damages be made, or that the contractor or
subcontractor be relieved of liability for such
liquidated damages. The Secretary shall review
all pertinent facts in the matter and may conduct
such investigations as he deems necessary,
so as to affirm or reject the recommendation.
40 U.S.C. at [sec] 330(c). [*] (Emphasis added) [*]
The record shows that the Wage and Hour Division had
previously investigated this firm in 1980 and it found the firm in
violation of the overtime provisions of the Act. Further,
the record indicates that the firm was advised of these violations
and was instructed on how to comply with the Act. [3]
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[4] There is no rationale in the record to support the
recommendation of the Agency, U.S. Department of Housing and Urban
Development, not to assess liquidated damages.
In view of these facts and the failure of the petitioner
to present any convincing arguments that the violations were
"inadvertent" and that it exercised "due care", the Board cannot
conclude that the Administrator erred when he found that the
firm did not violate inadvertently the provisions of the Contract
Work Hours and Safety Standards Act notwithstanding the exercise
of due care.
Therefore, the Administrator's decision not to waive the
liquidated damages is affirmed and the petition herein is
dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [4]
