CCASE:
BRIGHTON PAINTING COMPANY
DDATE:
19890505
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
BRIGHTON PAINTING COMPANY & WAB Case No. 87-09
Ronnie Eveans, Owner and Dated: September 20, 1989
Janet Eveans, Secretary-Treasurer
APPEARANCES: Sally Blackmun, Esquire, for Brighton Painting
Company and Ronnie Eveans, Owner, and Janet Eveans,
Secretary-Treasurer
Wendy Bader, Esquire, for the Administrator, Wage
and Hour Division, U.S. Department of Labor
BEFORE: Jackson M. Andrews, 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
Brighton Painting Company, Ronnie Eveans, Owner, and Janet Eveans,
Secretary-Treasurer, (hereinafter Brighton or Petitioners) seeking
review of the Decision and Order of the Administrative Law Judge
(hereinafter ALJ) dated January 28, 1987, finding Brighton liable
for some $30,000.00 in back wages and ordering the debarment of the
Petitioners.
Brighton Painting Company was the prime contractor on three
painting contracts with agencies of the U. S. government. The
contracts were to provide interior and exterior protective coating
maintenance at Sheppard Air Force Base, Texas, for refinishing
hardwood floors and [1]
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[2] painting the interiors of military family housing at Dyess Air Force
Base, Texas, and for interior painting of family housing at the Naval
Air Station, Corpus Christi, Texas. An investigation by the Department
of Labor indicated that the Petitioners had paid painters at hourly wage
rates lower than the prevailing wage rates, and on a piece rate basis
which yielded hourly wage rates less than the prevailing wage rates on
the contracts in violation of the Davis-Bacon Act, and that Petitioners
failed to pay overtime compensation at the rate of one and one/half
times the prevailing wage rates for hours painters worked in excess of
an eight hours per day and 40 hours per week, in violation of the
Contract Work Hours and Safety Standards Act (hereinafter CWHSSA) 40
U.S.C. 327 et seq. The Wage and Hour Division of the Department of
Labor assessed $20,914.86 in back wages for the prevailing wage
violations and $10,513.85 for the overtime violations.
Wage and Hour also found that Petitioners had kept inaccurate
records of the hours worked and falsified their certified payrolls
to conceal the violations and to simulate compliance with the
Davis-Bacon requirements. As a result of these violations, Wage and
Hour determined that the Petitioners had disregarded their
obligations to employees within the meaning of Section 3(a) of the
Davis-Bacon Act and had committed "aggravated and willful
violations" of CWHSSA within the meaning of the regulations at 29
CFR 5.12(a)(1), and therefore should be debarred.
A hearing before an ALJ for determination of disputed [2]
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[3] matters relating to the failure of the [] Petitioners to pay
prevailing wage rates and proper overtime compensation was directed
by Wage and Hour's Assistant Administrator pursuant to 29 CFR
5.11(b), and also to determine whether the Petitioners' violations
constituted a disregard of obligations to employees, or were
aggravated or willful, thereby warranting debarment pursuant to 29
CFR 5.12.
By Decision and Order of January 28, 1987, the ALJ found that
the painters were due $29,481.96 for the prevailing wage and
overtime violations. The ALJ also found sufficient evidence to
debar the Petitioners for three years. On February 26, 1987
Petitioners filed a Petition for Review seeking review of the ALJ's
Decision and Order with the Wage Appeals Board.
On the basis of the Petition for Review filed by Petitioners,
and a Statement for the Administrator and the record of the appeal
before the Wage and Hour Division and the Administrative Law Judge
filed by the Solicitor of Labor, the Board decided to hold a
hearing. An oral hearing was held on July 19, 1989 at which all
parties were present or were represented by counsel.
- - -
It appears to the Board that based upon the ALJ's analysis of
the entire record of the case and the applicable statutes,
regulations and case law, as well as the ALJ's observations of the
appearance and demeanor of the witnesses who testified at the
hearing, the ALJ found a pattern of [3]
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[4] failure by the Petitioners to pay employees on the three contracts
in question the prevailing wage rates required by the Davis-Bacon Act,
and overtime compensation at the rate of one and one/half times the
regular rate of pay as required by CWHSSA, 40 U.S.C. 327 et seq.
The ALJ also held that the falsification of payroll records to
conceal violations and simulate compliance was willful and
aggravated, and that the Petitioners should be debarred. The Judge
found no mitigating circumstances or justifiable excuse for the
Petitioners' violations. To the extent that the Petition herein
challenges the Judge's credibility findings, the Board cannot
conclude that on a preponderance of all the relevant evidence there
is a basis for reversing the findings.
After a full review of the record and oral argument by counsel
for the Petitioner and by counsel for the Administrator, the Board
dismisses the petition herein. The decision of the ALJ is
adequately supported by the evidence in the record of this case, is
made a part hereof and attached, and is hereby affirmed.
In adopting the Judge's recommended order, the Board notes his
conclusion with respect to Anderson v. Mt. Clemens Pottery Co. 328
U.S. 680 (1946) that the burden had shifted to the Petitioner, and
that Mt. Clemens Pottery Co. requires the employer to produce
evidence of the amount of work performed or evidence to rebut the
reasonableness of the [4]
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[5] inferred extent of the violations. This the Petitioner did not do.
The order of the ALJ is modified in those instances in which
the Administrator has requested a reduction in the amount of back
wages or of overtime compensation due for specific employees, such
as set forth by the Administrator in her Statement as follows:
In a few instances, the judge's findings were not
supported by the evidence. With regard to Richard Walker,
the evidence did not support the finding that he worked
overtime hours on the Sheppard Air Force Base contract.
See infra p. 47. In addition, the evidence does not
support the finding that Joseph Melbourne, who worked on
the Corpus Christi Naval Air Station contract, is owed
back wages. See infra 70 to 71. Thus, this board should
vacate and reverse the back wages award of $80.40 to Mr.
Walker for overtime hours on the Sh[e]ppard contract and
the entire back wage award of 3,052.42 [sic] to Mr.
Melbourne on the Corpus Christi contract. Further, the
evidence does not support the finding that George and
Robert Callejas worked an average of 11 hours a day on
the Corpus Christi project. Rather, using nine hours a
day as the estimated number of hours worked is in
accordance with the evidence presented. See infra pp. 63
to 64. Thus, this Board should vacate the back wage
awards to George and Robert Callejas on the Corpus
Christi project and enter new back wage awards for these
employees in the amounts of $858.05 and $175.00
respectively.
The Decision and Order of the ALJ finding the Petitioners
disregarded their obligations to their employees pursuant to the
Davis-Bacon Act, and committed willful and aggravated violations of
Davis-Bacon Related Acts, is [5]
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[6] affirmed as modified. The Petitioners' names shall be placed on the
ineligible list, pursuant to 29 CFR Sec. 5.12(a)(1), for a period not to
exceed three years.
BY ORDER OF THE BOARD
Craig Bulger, Esquire
Executive Secretary,
Wage Appeals Board [6]
