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<![CDATA[
CCASE:
PUCKETT, TAUL & UNDERWOOD
DDATE:
19850723
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
PUCKETT, TAUL & UNDERWOOD, INC. WAB Case No. 85-07
Selma Wastewater Treatment Plant
Selma, Alabama, EPA #C010446-02 Dated: July 23, 1985
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
Puckett, Taul and Underwood, Inc., (hereinafter PT&U) seeking
review of the assessment of $660 in liquidated damages by the
Environmental Protection Agency (hereinafter EPA) for violations
of the Contract Work Hours and Safety Standards Act (CWHSSA) during
the performance of a construction contract for EPA.
In March, 1984 EPA awarded PT&U the contract for the
construction of the Selma (Alabama) Wastewater Treatment Plant.
During an investigation of the project in September and October,
1984 by the Wage and Hour Division, it was discovered that PT&U had
hired three men as night security guards on the project and had
not paid them in accordance with the applicable wage determination.
One employee worked 84 hours per week at $4.00 per hour although
the certified payrolls showed that he worked 40 hours per week
at $8.40 per hour. Two other guards worked weekends and were paid
$4.00 per hour for up to 30 hours of work, however the payrolls [1]
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[2] showed them to be receiving $6.00 per hour for 20 hours each
week.
PT&U has not contested the Department of Labor's findings of
back wages due and has made restitution of $1,053.50 to the three
employees. Pursuant to 40 U.S.C. [sec] 328(b)(2), EPA has also
determined that $660 in liquidated damages is due the government
for the violations. EPA recommended to the Wage and Hour Division
that the liquidated damages be waived as is permitted under CWHSSA.
However, the Assistant Administrator declined to waive the
liquidated damages because the Wage and Hour investigators had
found that certified payrolls were falsified to reflect no overtime
worked, that the job superintendent had devised the scheme for
paying the men, and that the certified payrolls were signed by the
secretary-treasurer of the firm. In view of these findings the
Assistant Administrator could not conclude that the violations were
inadvertent, not[]withstanding the exercise of due care by the
contractor, which is the standard contained in 40 U.S.C. [sec]
330(c) as the basis for waiver of liquidated damages.
It is the petitioner's position that a waiver should be
granted because it was unaware that a night security guard
stationed outside the project fence, not hired pursuant to the
EPA contract, was covered by the labor standards provisions of
its contract, and that this was petitioner's first offense.
The Wage Appeals Board considered this appeal on the basis of [2]
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[3] the petition for review filed by PT&U, and the Statement for
the Wage and Hour Division and the record of the case before Wage
and Hour filed with the Board by the Solicitor of Labor. No
request for an oral hearing was received by the Board.
* * *
The issue before this Board is whether a waiver or adjustment
should be granted of the liquidated damages which were assessed as
a result of violations by the petitioner of the provisions of the
Contract Work Hours and Safety Standards Act, 40 U.S.C. 327 et seq.
This Act under which the liquidated dam[a]ges 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.) [*]
There is no question that the petitioner violated the overtime
provisions of the aforementioned statute. The record shows that
petitioner failed to pay its night security guards employed in the
performance of the contract the required overtime for hours worked
in excess of forty hours per week and eight hours per day. The
Act, at 40 U.S.C. [sec] 329(a) provides that ". . . the provisions
of the Act shall apply to all laborers and mechanics, [*] including
watchmen and guards [*], employed by any contractor or
subcontractor [3]
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[4] in the performance of any part of the work contemplated by any such
contract, . . ." [*] (emphasis added). [*] The absence of any knowledge
that the security guards were covered by the provisions of CWHSSA and
that this is a first time offense coupled with no other infractions,
would certainly lead one to believe that the petitioner violated the
provisions of the Act "inadvertently notwithstanding the exercise or due
care".
This is not the case here. The record is clear that the
petitioner also concealed the fact that it worked its guards more
than forty hours per week and eight hours per day. This
concealment, no matter whether caused by the petitioner or his
agents, in itself shows that the violations were not "inadvertent"
and that petitioner did not exercise "due care". The Board has
stated that where there is a submission of falsified payrolls the
assessment of liquidated damages should not be waived. See Major
Associates, Inc., WAB Case No. 84-14 (May 20, 1985) and Harry
Johnson Plumbing Co., Inc. , WAB Case No. 84-19 (June 6, 1985).
In Major Associates and Harry Johnson Plumbing the Board held
that liquidated damages can be reduced where the factual situation
shows the violations in a case do not warrant the full assessment
regardless of instances where the payrolls were falsified. /FN1/
To determine whether the full assessment of liquidated damages is
mandated, it is necessary to examine the facts [4]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Counsel for the Wage and Hour Division at footnote 8 in its
Statement indicates that a request for reconsideration may be [FN1
CONTINUED ON PAGE 5] [4]
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[5] and the amount of overtime back wages due employees and the
liquidated damages assessed on a case by case basis. In such cases
the Board is exercising equitable relief which it considers to be
a fair adjustment commensurate with the violations.
Here, we have a case where the liquidated damages were
assessed at $660.00 which in the Board's view is fair under the
criteria set forth above and, therefore, no adjustment is
warranted. [5][6]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ [(Cont.) FROM PAGE 4] forthcoming regarding the Board's
holding in the Major Associates decision. The premise of the
reconsideration is that damages cannot be reduced unless the
violations are inadvertent.
The Board notes that the Wage and Hour Division has given
the Agency Heads carte blanche authority to waive or adjust
liquidated damages where the sum is $500 or less whenever it
is found that the contractor or subcontractor violated
inadvertently not[]withstanding the exercise of due care. See 29
CFR [SEC] 5.8(d). In Major Associates, Harry Johnson Plumbing and
the case in question, the Agency Head has recommended a waiver of
the liquidated damages. Certainly, if the sums were $500.00
or less, it only follows that the agencies would have waived
the assessments in all three cases. It also follows from
these facts that the agencies are either waiving or adjusting
liquidated damages in cases involving falsification of
payrolls. Under these circumstances, the position of the Wage
and Hour Division is not meaningful unless it exercises its
authority in all such cases. [END FN 1] [5]
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[6] In view of the foregoing, the Board affirms the decision
of the Wage and Hour Division to assess liquidated damages against
the petitioner in the amount of $660.00.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [6]
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