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<![CDATA[
CCASE:
NORTHERN COLORADO CONSTRUCTORS
DDATE:
19871214
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
NORTHERN COLORADO CONSTRUCTORS, LTD. WAB Case No. 86-31
A & B ROOFING, INC.
Colorado Springs, CO Dated: December 14, 1987
APPEARANCES: Richard G. McManus, Jr., Esquire, for Northern
Colorado Constructors, Ltd.
Robert J. Miller, Esquire, for the Administrator,
Wage and Hour Division, U.S. Department of Labor
BEFORE: Thomas X. Dunn, Acting Chairman, Stuart Rothman,
Member, and Gresham C. Smith, Alternate Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
Northern Colorado Constructors, Ltd., seeking review of the
Decision and Order of the Administrative Law Judge, (hereinafter
ALJ) dated October 3, 1986 in the above-captioned matter. See
attachment.
The ALJ found that the petitioner as prime contractor was
responsible for reimbursement of wage underpayments to roofer
employees and a truck driver employee of one of its subcontractors,
A & B Roofing, Inc., on a contract to reroof the Aero-Science
Laboratory at the Air Force Academy in Colorado Springs, Colorado,
in the amount of $18,873.48. Petitioners have appealed the ALJ's
decision and order to the Board claiming that the government failed
to meet its burden of proof to establish the hours the
subcontractor's employees worked on the project and that the prime
contractor should not be liable for the wages [1]
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[2] that the subcontractor failed to pay in violation of the Davis-Bacon
Act. Specifically, petitioner argues that A & B's certified payrolls
were patently falsified as to the hourly wages paid its employees and
that the three witnesses which the government presented to testify at
the ALJ hearing as to the hourly wages paid contradicted the certified
payrolls and each other. The payrolls should not be relied upon by Wage
and Hour to establish the number of hours that A & B's employees worked
and the calculations of underpayments of wages should have been set
aside by the ALJ.
The Board considered this appeal on the basis of the entire
record before the ALJ, the Petition for Review and a Supplemental
Statement filed by petitioner, and a Statement on Behalf of the
Administrator filed by the Solicitor of Labor. On October 9, 1987
an oral hearing was held at which all interested persons were
present and participated.
There is no dispute as to the facts in this case. A & B
Roofing paid its roofer employees and a truck driver employee $8.00
per hour for all hours worked and did not pay daily or weekly
overtime. The applicable wage determination required payment of
$14.35 per hour to roofers and $11.50 per hour to truck drivers.
The only issues that remained for the ALJ to decide was whether the
Wage and Hour Division had met its burden of prima facie proof
under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) and
whether the prime contractor could be liable for the wages that the
subcontractor failed to pay in violation of the Davis-Bacon Act.
The supreme Court in Mt. Clemens Pottery Co., supra, set forth
the standard for the burden of proof which the government must
meet, stating as follows:
(A)n employee has carried out his burden if he proves
that he has in fact performed work for which he was
improperly compensated and if he produces sufficient
evidence to show the amount and extent of that work as
a matter of just and reasonable inference. The burden then
shifts to the employer to come forward with evidence [2]
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[3] of the precise amount of work performed or with
evidence to negative the reasonableness of the inference
to be drawn from the employee's evidence. If the employer
fails to produce such evidence, the court may then award
damages to the employee, even though the result be only
approximate.
The Wage and Hour Division in numerous instances has followed
these procedures in order to reconstruct payrolls and arrive at
back wages due the underpaid employees. The Wage Appeals Board has
approved the procedure in several cases before it. See In the
Matter of Structural Services, WAB Case No. 82-13 (June 22, 1983),
and In the Matter of Wilfred G. Gooden Construction Corp., WAB Case
No. 86-3 (October 1, 1986). In this case petitioner claims that the
burden of proof did not shift to the employer because the Wage and
Hour Division did not produce sufficient evidence to show as a
matter of just and reasonable inference the amount and extent of
work. The Board does not agree with petitioner's position. In
Wilfred G. Gooden, supra, the Board stated:
The Board has no problem with the Wage and Hour Division's
procedures of reconstructing wage payrolls from whatever
best evidence is available in instances where payrolls,
[*either through inadvertence or deliberately*], are not made
available to the Wage and Hour investigator. Without it
the Wage and Hour Division must reconstruct the figures.
[*Emphasis added*].
Wage and Hour relied on the hours listed on the certified payrolls
as the best evidence that was available to establish the employee's
underpayments. It is obvious that the roof replacement project was
completed by A & B's employees and that to do so would require a
certain number of hours of work. It does not appear reasonable to
the Board to assume that the number of hours contained on the
payrolls was erroneous. Mt. Clemens Pottery Co., supra, now
requires the employer (or in this case the prime contractor) to
come forward with its best evidence which would tend to refute the
employee's claim. In this case, petitioner has offered no records
or other evidence to contradict the hours listed on the certified
payrolls and to dispute the calculation of back wages due as
determined by the Wage and Hour Compliance Officer. [3]
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[4] In Structural Services, supra, the Board stated:
Wage and Hour defends the necessity of these procedures and
cites Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680
(1946), to show that the proper standard was applied by the
ALJ in accepting these payrolls in evidence. When it is
necessary to reconstruct payrolls, Mt. Clemens Pottery Co.,
supra, requires the employer to produce evidence to rebut the
reasonableness of the inferred extent of the violations, or
the employees may be awarded back wages even though the result
may only be approximate.
In view of this, the Board does not agree with the petitioner
that the back wages calculated by the Wage and Hour Division are
unreliable.
With reference to petitioner's argument that the ALJ erred in
holding the prime contractor liable for wages that a subcontractor
failed to pay in violation of the Davis-Bacon Act, Section 1 of the
Act in pertinent part states:
(A)nd the further stipulation 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 received by such laborers and mechanics
and not refunded to the contractor, subcontractors, or
their agents.
Petitioner objects to having to pay A & B's underpaid
employees and further, argues that if it must pay them, the sums to
be paid should be limited by the amount being withheld by the
contracting agency ($10,700), and that petitioner should not have
to pay the balance, which amounts to $8,173.48 from its own funds.
The Board finds that the Davis-Bacon Act itself creates a
contractual obligation on the part of the prime contractor to pay
the sums which its subcontractor owes to the subcontractor's
employees. The petitioner must look to the subcontractor for its
recourse.
In view of the foregoing, the Board affirms the decision and
order of the ALJ and hereby dismisses the Petition for Review.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [4]
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