|
<![CDATA[
CCASE:
ALL PHASE ELECTRIC COMPANY
DDATE:
19860618
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
ALL PHASE ELECTRIC COMPANY WAB Case No. 85-18
Contract No. DTFR-53-81-C-00233
Railroad Station Renovation Dated: June 18, 1986
Trenton, New Jersey
APPEARANCES: Jonas Singer, Esquire, for All Phase Electric Company
Douglas J. Davidson, Esquire for the Wage and Hour
Division, U.S. Department of Labor
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
subcontractor All Phase Electric Company, (hereinafter All Phase)
seeking review of a ruling issued by the Director of the Division
of Contract Standards Operations, Wage and Hour Division, dated
July 12, 1985. This ruling held that employees of a subcontractor
performing work required by the prime contract subject to the
Davis-Bacon labor standards provisions are entitled to the required
prevailing wage rates regardless of whether or not the prime
contractor informed the subcontractor of the applicability of the
Davis-Bacon requirements, and that any claim by the subcontractor
against a prime contractor for damages due to its not [1]
~2
[2] being informed of the Davis-Bacon requirements are not an
appropriate subject for a Department of Labor proceeding.
The facts concerning this appeal are not complicated. In
July, 1981, an agency of the U.S. Department of Transportation
awarded a prime contract of almost $1 million to the Kem-Her
Construction Co., Inc., to renovate the Trenton, New Jersey,
railroad station. Kem-Her subcontracted the electrical portion
of the prime contract to All Phase.
An investigation by the Wage and Hour Division revealed that
due to various labor standards violations by All Phase on the
project back wages and overtime payments of about $18,875 were due
some of All Phase's employees.
At a conference which All Phase's owner attended, it was
claimed that Kem-Her had not advised All Phase that the contract
was subject to the Davis-Bacon labor standards provisions. The
prime contractor and the contracting officer disputed the
subcontractor[']s claim that it was unaware of the Davis-Bacon
requirement, but the prime contractor agreed to make full
restitution for all violations committed by All Phase.
As a result of documentation provided by Kem-Her the back
wages and overtime payments due All Phase's employees [were]
reduced to about $13,683. Although counsel for Kem-Her authorized
the release of this amount to the Department of Labor for
disbursement to employees, All Phase objected to the turnover of
the withheld funds and requested a hearing. [2]
~3
[3] In its July 12, 1986 ruling, Wage and Hour refused All Phase's
request that an administrative hearing be held because it was ruled
that there were no relevant facts at issue, that is, All Phase was
not contesting the amount of the back wages and overtime
compensation which had been determined to be due by the Wage and
Hour Division. Wage and Hour also ruled that the dispute between
Kem-Her and All Phase as to which firm was liable to pay the
underpayments was a matter to be decided in another forum and that
such a claim was not a proper subject of a Department of Labor
administrative proceeding.
On August 12, 1985, All Phase appealed Wage and Hour's ruling
to the Wage Appeals Board. The Board considered this appeal on
the basis of a Petition for Review filed by petitioner, and a
Statement for the Assistant Administrator and the record of the
case before the Wage and Hour Division filed by the Solicitor of
Labor. On May 28, 1986 an oral hearing was held by the Board at
which all interested persons were present and participated.
* * *
The issue for the Board to decide is whether the Government is
properly withholding monies from Kem-Her Construction Co., Inc.,
the prime contractor, to pay the underpaid employees of the
petitioner.
There is no question that the record supports the fact that
the project, the railroad station renovation, is subject to the
Davis-Bacon labor standards. In fact, at the hearing [3]
~4
[4] counsel for petitioner agreed that this project was covered by
such labor standards and that the petitioner's employees were
entitled to be paid accordingly. Furthermore, counsel conceded
that petitioner's employees were underpaid.
The Davis-Bacon Act, as amended, 40 U.S.C. 276a, et seq.,
provides in pertinent part that:
. . . there may be withheld from the [*] contractor [*]
so much of accrued payments as may be considered
necessary by the contracting officer to pay to
laborers and mechanics employed by the [*] contractor
or any subcontractor [*] on the work the difference
between the rates of wages required by the contract
to be paid laborers and mechanics on the work and
the rates of wages received by such laborers and
mechanics. . . . [*] (Emphasis added.) [*]
The Contract Work Hours and Safety Standards Act, 40 U.S.C. 327,
et seq., contains a similar withholding provision at Section
102(b)(2).
In view of the above, the monies are rightfully being withheld
from the prime contractor to satisfy the back wages due employees
of the petitioner.
The petitioner further requests this Board to rule that the
monies due the underpaid employees should be paid by the prime
contractor directly and not from funds retained from petitioner.
This matter does not appear to be a proper subject for the Board
to decide.
The petitioner also raises a number of other contentions of
error by the Wage and Hour Division. Due to the disposition of the
basic issue as herein described, it is unnecessary for [4]
~5
[5] the Board to examine these other alleged errors.
Therefore, the decision of the Director, Division of Contract
Standards Operations, is affirmed and the petition herein is
dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [5]
]]>
|
